now it has been the central thesis of her case the outfits that these violations in essence were not a big deal but they didn't warrant any significant or substantial despite but they were a big deal in the eyes of the people who are the experts in the experience in ministering to prisons and that is the department of corrections specifically the three violations that issue we're providing government to inmates on several a prison guard but ultimately while i would be the first to admit intuitively these may not seem like he did deal these do raise serious concerns in the eyes of the department and those reasons were to kill a very clearly by the department in the proceedings in this case beyond just the specific security concerns issue namely that gun can be used to jam up a walk or to make an impression of a key or that is supporting an inmate from one part of the prison to another raises nearby response to that justice is is i think i have several responses to that but i think the principal response to that is i think that it's coming around between the parties that mrs wells could have been dismissed at any time during so the fundamental question presented before this form is whether or not the time of the probationary employment hole was extended by forty days she spat on administrative leave and by the sixteen days she s question of whether or not the period of probation was extended well the answer to that just to fill first i think there were that my understanding and the record is a bit ambiguous on this i confess that there are certain union requirements and certain procedural formalities that the department has contracted with the requires it to not just simply fire someone on the spot on a dime in the way that the commission and as well it seems suggest even when the room big that's absolutely correct as does the record in a a clear point in the record i can point you to where the wharton or the assistant work who would have been the individuals in charge of this said that was why they took as long as they did but i do think it's very clear is that the parliament did not engage in this out of some sort of manipulative attempt to extend the probationary period in the way that the commission in this whilst suggests if anything it's a guess but they were very thorough and wanted to be very careful in their investigation and their assessment of the situation if you look at the timeline here th placed on administrative leave on july second she didn't have a hearing before the department on july seventh then there was a recommendation that was made on july thirteenth that recommendation then went to the warden the warden deliberated on it until august fourth and then on august fourth the decision was made that is well should be terminated so this is not an example of a commission anything the rule being suggested by the commission is a rush to the unemployment what the commission's argument is is that the department should not engage in a thorough evaluation that the commission should not carefully assess what what the end what a specific specific wrongdoing addition was and instead should simply on impulse buyer an employee and authorize absence sick leave and thus will injury or a work related injury facially that seems to apply to every circumstance and what the commission has crafted here is a rule that sets administrative leave not specifically mentioned no because our position is that administrative leave is one of many different types of leaves of absence leave of absence has a broader meaning everyone in this case agrees with that because there's nothing in any of the personnel rules that says that if leave of absence has one singular meaning it is an umbrella that applies to any number of leagues and that term has a plain meaning that plain meaning is clear if you look at the oxford english dictionary it's clear if you look at  dictionary it's clear if you look at other official decisions it's clear if you look at the new york times from two weeks ago when a group of harvard students were put on an involuntary leave of absence for engaging in i believe it was hacking of the of return that is exactly what the plain meaning of leave of absence gives not only that the purpose for have a tolling provision is undisputed and it's rather obvious there's a general understanding that a public employer should have a period of six months to evaluate the competency of an individual to determine whether they are worthy of a longer term employment and point they obviously because ms welch was on forty days of administrative leave and sixteen days of suspension pending discharge the department lost at least part of that opportunity for those of their own actions well just as terrorists that's certainly true but i think the commission's argument comes down to one of the two one of the following is true either types of leave that are listed under section headline leave of absence do not qualify as a leave of absence when that type of leave of absence there's this description this said to go back and i'm sorry but i'd like to go back to that initial decision as to whether or not to discharge during the probationary period versus a was placing his well someone and was that decision based on precedent was there a course of practice within the department for doing that same thing and has it been acknowledged and at some level of some of the before the commission or of some of on court that either of those two will extend the probationary period or are we in new territory at justice harris from the authority side of the briefs what i can tell you is it seems that we're in new territory here that this decision was based upon the department's reading of the plain meaning of the regulation which should have at least some basis and it was based upon the practice that existed at the department for a number of years you don't play someone my suspension discharge while you're engaged in the investigative process you don't play someone on a suspension or some sort of disciplinary action when you're still trying to determine what it is that you think is appropriate once you've made your finding as to the proper create a rule that incentivizes doing away with proves makes little sense that's the fundamental problem that i think exists in the commission's decision you cannot create a rule that has this sort of perverse incentive and if you look at the commission's decision which is to be able jay's decision because the commission itself in passing if you look at the commission's decision they really offered only three reasons in their actual decision here for why it is that  of absence is by definition a fallen terry act well that seems inconsistent with the plain meaning of the term leave of absence and it's inconsistent with the purpose of the tolling provision as a whole not only that i think you can look at any number of types of leave that aren't following terry by the employee for instance if someone is told up for military service that person is not engaging in a voluntary leave but that person is absent from work it seems to me that the commission's decision can't possibly stand for the idea that someone in the national guard does not have their probationary period extended if one day into the term of their service they're called up for two years to go wrong and the third reason offered was this idea just a terrorist i think you've alluded to which is that he could be a tool of manipulation the idea that the department could indefinitely extend someone's probationary period for its own purposes that simply doesn't seem to be a real concern here and the reason is that we're talking about a paid leave of absence no one is going to pay someone to not come to work it simply doesn't make sense unless there is some reason for doing it and in this case it bill founded that concern really hits now the commission seems to have shifted gears at least somewhat on appeal the commission has advanced the idea in its brief that the the difference between administrative leave leave absence could be that the idea that that a leave of absence can't be employer mandate i think that runs contrary to the fact that you have a furlough listed in the leave of absence or sion  there create you create some plus it in three hundred eight because the very first type of leave of absence listed in part three of three is simply and three hundred he also mentioned simply so you have a redundancy in the weight to the titles of a section or the title of the statute we look at plain language and we interpret the plain language now even more important on either of these latter two rationales the employer mandated idea or the or this part three zero three idea neither of those form the basis of the commission's decision so at the very minimum the fact the commission has now decided on appeal as part of the legal argument specific case to offer a new interpretation that would seem to strip the commission of all deference that they would be entitled to under this court's precedent and interpreting ambiguous provisions of their own  regulations to be sure we believe that the regulation is an empty but the term leave of absence as a plain ordinary meaning and neither party has really needing fully rebutted that and instead is offering instead that leave of absence a specialized term of art albeit neither seems terribly inclined to provide a clear definition of what it means mr berger just on one point that you made and that being the title of the code section not having references made to administrative leave it's not just something that someone compiling the post sections put together it's actually part of a section ok well that's certainly true justice harris i suppose my response to that is first administrative leave us reference in the text of seven ninety five to be sure and it is sad it shall not be used in lieu of other leagues it places administrative leave on equal footing with every other type of leave that is provided for on the personnel is so suggest that the two are anything other than inextricably intertwined seems incorrect and i think the second aspect of back is that the commission points out in it that seven ninety five was created with a specific intent that was pretty it's created in two thousand and five i want to be clear that the tolling provision long predates the creation of seven ninety five which came along in two thousand and five in the exact comprehensive but i think the second aspect of that is when you look at the reason for creating seven ninety five which the commission emphasized forty five in the commission has approved a little bit too much because if you look at the commissions well it seems to me that the proper thing to do then would be to take a ministry of leave and treated as a disciplinary suspension in which case you would still hold the term of the probationary in point i don't think the commission can have it both ways now about depriving an employer of the opportunity to observe an employee at work and then it would if they were on a disciplinary suspension the reality is what the commission and his welsh have done is significance under the terms of the regulation it is all well and good to say these two things are distinct be ultimately have to tie up that argument and to do it you have to say why those distinctions matter and that's the short gathered just from reading these briefs and the arguments personnel code and its rules are you know this the fourth district in the case describing events that yeah and so the fact that there is this commission with expertise in looking at these rules and understanding what they mean and how they interplay with each other and how they apply across state agencies really matters it's in the commission you know the better position department this this is our this is the personnel code in the personnel code and its rules apply this is the problem it applies across state agencies and it's important so that lot of the executive agencies it comprehensively governs the executive agencies and thousands tens of thousands of them employees most of the employees so it's important to have clarity in the does but the commission that dealt or about how it's what every agency needs and what clarity it's a matter of fairness and consistency for both agenc and employees that rules these personnel called rules we apply consistently across agencies and to employees it shouldn't mean one thing for instance robinson correctional center and then another thing in another agency it's the same rule so whatever it's going to apply should apply fairly and consistently you know so i started  e i understand their point of view but the other problem that is problematic is well is that the rules these rules have to mean something and they have to mean something that's clear concise and that c the rule book that the commission is only arguing on the language you know what the rule means so and put the department did and whether or not you know what it did extend to i hate i hate almost hate to say it but it's a function of the act you know there's a probationary period the probationary period needs to be it's finite it needs to balance the employer this time period and the answer to that was i do not believe so to supplement all agreement provides here's the timeline and to the department has never provided any explanation as to finishing that timeline with that being that satisfactory unless there's been something for instance she's been put on a disciplinary suspension and there's some evidence that the agency whichever agency it is because this is a book  the agencies are going to have to me this determination that there's there's nothing that says that you think they met that period of time and that afterwards you come back and say oh by the way this was not satisfactory because such and such happened but that date has come and gone and there's nothing nothing has been done to say definitively this is not satisfactory and the problem with the like those two leaves is that in a place you can be vindicated administratively and suspend him pending decision on this charge are both investigatory tools that the employer has at its disposal it's too to make these decisions and be the problem with the department's approach here is that what's going on at robinson correctional center is kind of going to be driving how everybody all agencies are applying these rules  it's not being read out of the code because if an employee does not complete satisfaction very satisfactorily complete probationary period what is supposed to happen is the state agency disposed to either suspend them to extend a probationary period or they're supposed to fire them before the probationary period ends so because of that if you do complete it and those two things don't happen  person can violate three rules during the probationary period these suspended because of those violations and reach a conclusion that that is satisfactory rules by living conditions is compliance with probation i just don't follow that your honor it the store but case give some guidance on that because in that case which is an environmental protection agency employee it's it's right in and the record of that georgia store book has consistently performed it on acceptably low level or productivity has not been able to adjust his work attitude in proceed procedures to match the agency's policy particularly in the area of communications with facilities under surveillance he did that but he still success only completed his probationary period try that again so that protections that a certified employee does but they're entitled to that and there it's hot one of the things they're entitled to is to not have their probationary period extended unless the agency does it properly and what  is at issue here is the department of corrections did not follow what i think are not all that unclear rules and they per whatever reason the cited not to follow and oh by the way the testimony was that the hearing is this is what robinson decision and it will have no effect on how the state government operates other than to make it clear that the department of corrections and all the other agencies have to properly follow the personnel code on how we treat probationary employees i've represented a whole lot of state employees to include probationary employees it's not hard for a probationary period to be extended if there's a disciplinary issues basically the director of agency has two choices they can do suspension to extend the period or they can terminate the employee that's that's their options but if they don't do one of those two things and the employees certifies then the personnel code applies and the rules applied and i submit that based on this court's decision in juvenile justice and other opinions that commission decision was not arbitrary unreasonable or on related to the terms of the service i'm not minimizing what correctional officer or what she did but it this court doesn't really weigh the evidence that's not the standard review and the l j and as modified by the commission's decision is not arbitrary and reasonable were unrelated to the requirement service i can go into all the other things about you know what  minimal compared to how other employees were doing this in point but frankly that's that's not standard right a l j in the commission has articulated substantiated the reason why they determined what they did and that the part of the commission your honor i don't think they just change one word i think saying they heard fractions were minimal in the context of past practice of robinson correctional center isn't just changing one w doing which is what was done in the juvenile justice case it's played putting different emphasis on certain evidence as opposed to other evidence that yale j put more emphasis on it and that was their justification using the amount of time i think this is almost the exact converse of what the juvenile justice commission cases where the commission reduced the amount of time based on years of service and this is the converse of this where they're reducing it because they consider the infractions less severe but i think two cases are are very very similar and in the juvenile satisfactorily completed has an alternative aspect to what every single employee who has completed the probationary term time wise had their status as a certified employee question or only distinction between a probationary status and sort of fighting for justice harris i think your your point goes to this question of what fills up the space within the word satisfactorily and i will not pretend that i'm able to offer the court a comprehensive definition to the word or that not new definition is the right word but every single conceivable aspect what i can say is that i'm into it has to mean that you were not on the verge of being fired on the day  that you completed your probationary term you were not on the cost of losing your job because of violations that were serious enough to call into question your competence and your judgment by your employer so i think my it seems to me that this can't possibly be satisfactory completion i do want to also go back to just turn you asked several questions i think that again from the policy concern that i articulated during the first part of my argument this morning regarding what i call the rush to the unemployment line the the rush to fire an employee which is why the commission's decision i think undoubtedly inside of us the commission's response to that ultimately become the that the parliament never explain why they couldn't put her on some other sort of leak well i think the answer to that question actually pretty simple they were more forgiving then in the commission thinks they should have to go into the commission it seems that by posing what is frankly a lesser sanction paid leave from work in order to make an evaluation that the department should be punished right instead of simply firing her or we're putting her on circumstance for the department any other state so that will almost inevitably open up the employer to any number of wrongful termination suits or wrongful suspension was serious or wrongful discipline lawsuits if they're basically being asked to shoot first ask questions later determination about why billy and then you have the terminations regarding damages separately and the worm i think is entitled to sit there with blacked given all the other things the war does and determine whether or not t