'Untouchable’: NV state workers have few ways to hold managers accountable for misconduct

During a roughly one-month span last year, the director of the Nevada Department of Corrections (NDOC) received three reports about Deputy Director Kristina Shea.

In late September, a union representative sent a letter to Director James Dzurenda alleging Shea had retaliated against workers who questioned her and made employees fearful of losing their jobs by hiring contractors, among many other concerns.

Two weeks earlier, a group of agency employees resigned from a voluntary committee overseen by Shea — which focused on planning office events — because of “bullying, harassment and intimidation,” according to an email sent to Dzurenda.

And a few weeks before, a top official wrote a letter to leading agency and state officials raising concerns about a proposal from Shea to change the vetting process for correctional officers.

But workers said that Shea was not held accountable — which employees added is playing out across the state government.

In interviews with more than 30 current and former state employees and a review of state policies, The Nevada Independent found there are limited mechanisms in place to discipline higher-level state employees. The interviewed employees said they did not trust the state’s processes to address misconduct, in part, because they think any manager with the right connections can evade scrutiny.

The interviewees included 15 employees from the Division of Child and Family Services, who for years alleged bullying from a supervisor who still works for the agency. Some of the employees interviewed also said they faced retaliation for reporting misconduct. Retaliating against anyone who files a complaint is illegal under Nevada law .

“To know that their staff are feeling like this, and they're just allowing it because of one person. That's incredible. How do you sleep at night?” said a former NDOC employee, who was granted anonymity to speak freely about state workplace issues.

In a February interview, Shea denied the accusations and said she wished employees would use the agency’s formal processes for filing complaints.

“I actually have continued to offer to meet with them, to have mediations, and they turn me down every time,” Shea said. “As much as I want to be a positively energizing leader, which is what I study about virtuous behaviors and relational energy, sometimes it's difficult in this organization.”

Dzurenda declined through a spokesperson to be interviewed for this story but said in a statement that Shea had been a “highly effective and trusted leader” and “an agent of positive change from day one.”

“However, change is often difficult — especially when change requires increased staff engagement, higher standards for success, and a realignment of priorities,” the statement said. “Through her innovative approach and innate problem-solving abilities, Deputy Director Shea has helped our agency decrease staff vacancies, while leading unprecedented recruitment efforts. She’s an asset to my team, our department, and our state.”

Before this story was published, The Indy also provided additional findings to Shea, but she said the governor’s office threatened to fire her if she gave information to The Indy. A governor’s office spokesperson said "that allegation is unequivocally false."

In response to questions provided by The Indy , Joy Grimmer, who was appointed this month as the director of the Department of Administration, urged anyone who believed they had suffered retaliation to contact the Division of Human Resources Management or complete an online form.

“The state has a defined code of conduct for all employees,” Grimmer said. “No employee — regardless of their background or leadership role — is excluded from workplace accountability.”

Still, five Nevada employment lawyers said in interviews that state workers face unique challenges in getting their complaints addressed.

“You're not going to change the environment because you can't go after somebody who's politically protected,” said Mary Chapman, who has worked as a Nevada employment lawyer for more than 25 years. “They may be untouchable.”

The grievance process

State workers who have complaints about a supervisor are instructed to follow the grievance process. State law says the process is only available to classified employees, who are typically those in non-leadership roles, but an official said the state will allow any employee to file a grievance.

Supervisors are responsible for initially addressing and responding to grievances, while human resources officials oversee the process to ensure proper procedures are followed, said Michelle Garton, the deputy administrator for the Division of Human Resource Management. Each agency has human resources staffers who oversee the process, except for smaller agencies where employees’ grievances are managed by division officials.

The state prefers grievances to be addressed at the lowest level possible. Employees are instructed to file complaints with their direct supervisor (in some circumstances, the complaint can be filed with another higher-up). If employees do not receive a response within 10 days or are dissatisfied with the response, they can escalate the complaint up the chain.

Many interviewed employees said they think the grievance process is designed to protect managers. The highest level a complaint can reach is the state’s independent Employee-Management Committee , which can rule on whether a grievance is substantiated but cannot impose discipline. The committee’s members are appointed by the governor and are designated to either represent management or employees.

Otherwise, agency leaders are the final backstop on complaints, so some employees presumed that if a manager subject to a complaint has a good relationship with leadership, they are safe.

“Everyone protects everyone higher up,” a former state employee said. “They know the problems, they're aware of them, they’re complacent and they sit by and they let it happen.”

Agency leadership positions are typically considered unclassified employees, meaning these workers are not subject to the state’s progressive discipline policies and are considered “at-will” workers, meaning they can be hired or fired for any reason. They are, however, still required to follow agencies’ “Prohibitions and Penalties,” which typically apply to all agency workers and outline policies such as the state’s alcohol and drug rules.

The role of human resources officials is another area of concern. Employment lawyers said in general that human resources officials are in a difficult position because their job responsibilities sometimes include overseeing misconduct allegations against someone who outranks them.

“I can't come up with an HR person I've ever encountered that was actively harming employees,” said Nicole Harvey, a Nevada employment lawyer. “But I do think at the end of the day, the HR department always has the employer’s interests at heart because that HR person is subject to the same employment risk as everyone else.”

The corrections department

The lack of accountability after three reports were made about NDOC Deputy Director Shea has contributed to an erosion in trust in how the agency responds to workplace misconduct, current and former employees said.

In September, Dzurenda received the union letter about state employees’ concerns with Shea, particularly her hiring of contractors. The letter included allegations that contractors hired by Shea at exorbitant costs (as high as $87 hourly, records show, which includes a 25 percent fee to the contracting agency) were taking over the responsibilities of existing workers. Some of the contractors were brought on to handle various payroll and human resources tasks.

But Dzurenda would not meet with the employees and instead instructed them to file grievances so he “can review and investigate each claim” and “to ensure accuracy of what their concerns are so I do not misinterpret or perceive things out of the appropriate context,” according to an email sent to the union official.

A former NDOC employee said there is little incentive for workers to speak out through the agency’s internal processes. In addition, Shea oversees the department’s human resources team, which runs the grievance process, a dynamic that worried employees.

“They're young people who have families to support, or they're single parents,” the employee said. “And so they kind of just do what they can to survive.”

In an interview, Shea said she hired contractors because she started her role at the beginning of last year’s legislative session — making it harder to bring on full-time workers — and because of the difficulty in hiring full-time employees at NDOC. As of early July, there were about 680 vacancies in the department and a vacancy rate of about 23 percent, a significant improvement from last summer when the rate was about 33 percent. State officials credited Shea for this improvement.

In addition, a governor’s office spokesperson said Shea has helped usher in an influx of resources to the human resources team, with streamlined hiring processes and new positions. Before Shea had arrived, the spokesperson said the grievance process was so lackluster that employees would go months and years without receiving a response.

She has also partnered with a recruiting firm that she said has significantly helped bring on correctional officers, helped secure pandemic relief and developed partnerships with unions and criminal justice groups.

After the second complaint was raised against Shea — when the group of workers resigned from the voluntary committee that she oversaw — she planned to assign a mentor to the employee who submitted the resignation letter. Shea described this as an opportunity for growth, but the employee viewed it as retaliation. A mentor was never ultimately appointed.

And finally, Deputy Director David Tristan sent a letter criticizing a proposal from Shea to change the vetting procedures for hiring correctional officers.

The letter alleged that Shea proposed hiring correctional officers without them being fully vetted — which must include a criminal background check, psychological evaluation and a drug test, state regulations require — according to a copy obtained through a public records request. To Tristan, who has spent decades overseeing correctional facilities in Nevada and California, the plan was “reckless.”

“Without vetting [correctional officer] candidates, we are endangering the lives of staff, inmates, and the public,” said the letter addressed to Shea, Dzurenda and others including Jim Wells, the deputy chief of staff to Gov. Joe Lombardo.

In an interview, Shea denied trying to scale back vetting requirements for correctional officers. She said department leaders instead wanted to change the order of the vetting process to streamline it and make it quicker. She added that the proposal had the backing of the attorney general’s office. A spokesperson for the attorney general’s office said those conversations are protected under attorney-client privilege.

Ultimately the vetting process was unchanged, and Shea said she reached an agreement with other officials to modify the requirements for returning correctional officers by only vetting the time they were away from the department.

The governor’s office spokesperson said Shea has never been disciplined, which made employees skeptical of how the agency responds to workplace misconduct allegations.

“There's nothing internally left that I feel we can do here,” said another former NDOC employee who worked for the state for decades.

Other avenues

Various state divisions are aimed at stopping specific types of misconduct. The Department of Administration, for example, houses a unit that investigates sex or gender-based discrimination, and workers can report threats to their physical safety or health to the Occupational Safety and Health Administration. Employees can also report improper government action as a whistleblower and disclose if they were retaliated for disclosing government impropriety.

In addition, public and private sector employees who are the victims of workplace discrimination can file complaints with state and federal agencies. But those agencies have limited sanctioning authority and can only address complaints with allegations of discrimination based on a protected class, such as race, sex or gender identity.

The state agency — the Nevada Equal Rights Commission — is primarily responsible for settling cases and giving any worker in Nevada the right to sue, said Kara Jenkins, the agency’s director. In very rare circumstances, the agency can hold a public hearing to impose sanctions if a settlement is not reached.

The federal agency where employees can bring complaints — the Equal Employment Opportunity Commission (EEOC) — works similarly. It has no authority to sanction individual people, only organizations.

“The EEOC would only look at the entire company as a whole because they put that person in that position of power, therefore they're liable for what that person does,” said Nicole St. Germain, an education and outreach coordinator for the EEOC.

Employees can also file workplace lawsuits, but these also rarely result in employer sanctions and instead often include a cash settlement, employment lawyers said.

Settlement terms sometimes stipulate that the worker leave their job, such as one approved last August that gave $475,000 to a state employee who alleged discrimination and retaliation but required that he no longer work for the Department of Taxation or Cannabis Compliance Board.

“That sends a message to the folks who are still there as well: ‘You complain, and you're gonna get nothing unless you lose your job,’” said Jenny Foley, a Nevada employment lawyer.

Sometimes, complaints of workplace misconduct can lead to an internal administrative investigation, which is typically overseen by human resources officials. But there are no standard statewide rules on how to conduct internal investigations as long as they abide by the state’s laws and personnel policies . Investigations are expected to be “impartial” and “fact-finding,” according to the state HR website .

This summer, state officials began the process of implementing a statewide process for conducting internal investigations, according to Grimmer, the director of the Department of Administration.

State regulations allow the subject of the investigation to review any notes, recordings and findings.

“It’s kind of scary from the perspective of retaliation,” said a former investigator from the Division of Child and Family Services (DCFS).

Other agencies

In his first several years with the Nevada Department of Transportation, “Tyler” — who asked to be identified by a pseudonym to avoid future retaliation — was considered a good employee. He received positive feedback in annual performance reviews, and his supervisors encouraged him to “keep up the good work.”

But in early 2018, a supervisor notified Tyler that he had violated a low-level policy and could face potential discipline, according to grievance documents obtained by The Indy . Tyler felt it crossed a line, and filed a complaint.

Then the negative reviews poured in.

About one month after Tyler filed the complaint, his supervisors said they had “lost confidence” in him. Four months later, they said he showed a lack of interest and effort in his work. Over the next year and a half, he received several negative performance reviews and a written reprimand, documents show.

Eventually, Tyler demanded to show department leadership that the reviews were misleading about the quality of his work. His work met leadership’s expectations, and he was allowed to transfer to a different role, and the written reprimand was rescinded. He left state service a few years later.

“This wasn't easy for me. It was pretty mentally taxing,” Tyler said. “I was never made whole. To this day, I still don’t have anything in writing saying that my supervisors were wrong.”

A department spokesperson declined to comment on specific personnel matters and said it “follows standard grievance and progressive disciplinary procedures and whistleblower protections outlined within state law.”

Tyler isn’t the only state employee who said the process to voice complaints was broken.

Antionette Bryant worked for the Division of Child and Family Services for multiple years when she started experiencing “pure anxiety” before entering the office because of her manager, Ann Polakowski. One week, Bryant called out sick for two days and said she could not afford a doctor’s note, text messages show . Polakowski informed her later that she had to code her timesheet as “absent without leave,” according to a grievance Bryant filed.

Polakowski was the subject of other complaints of workplace misconduct, The Indy found earlier this year. When asked to respond to all of the complaints raised about her conduct, she did not do so and instead provided a description of her decades-long career working for the state.

Nevada regulations only require a doctor’s note after more than three missed work days, but if timesheet abuse is “suspected,” a doctor’s note may be required. The grievance appeal was unsuccessful, despite Bryant having nothing in her employment file that would impede future state employment, emails show .

She resigned soon afterwards.

“It just wasn't healthy for me anymore,” Bryant said.

In addition, a host of Nevada agencies —  including the Department of Administration and Department of Education — have policies that prohibit employees from “making statements, false or otherwise, intended to demean or disparage supervisor, fellow employees, or the public; or intended to disrupt the work environment.”

In one small state agency, which is not being disclosed to protect a source’s identity, an employee said the policy was used to target them. An employee was accused of criticizing a leader’s funding decision to other employees — remarks that their supervisor said violated that policy and was a disruption to the work environment.

“It is used to quash anything that they do not want anybody talking about, no matter how true it is, no matter how obvious it is,” an employee from that agency said. “It's used to intimidate and punish people for telling the truth and holding others accountable.”

Nicole Harvey, one of the employment lawyers, said the only way she expects the system to change is if employees leave en masse.

“If it gets to the point that people aren’t working or that bureaucracy is grinding to a halt just because it’s malfunctioning so badly, maybe then they’ll pay some attention to it,” Harvey said.

Updated on 7/21/24 at 11:40 a.m. to include a response from the governor's office about whether Shea was threatened to be fired for communicating with The Indy .