Minnesota prison officials are fighting a state arbitrator’s order to reinstate a warden ousted last year over sexual harassment and bullying allegations.

The Department of Corrections filed an appeal last week arguing the arbitrator in the case erred in finding that Stillwater prison warden Steve Hammer should be rehired with back pay. The petition to the Minnesota Court of Appeals lists an episode in which several employees accused Hammer of “sexualized ogling” of a female intern, who was also the daughter of Hammer’s administrative assistant.

The arbitrator faulted the mother for “apparently allowing her daughter to continue the internship,” but did not find reason for disciplining Hammer, according to the appeal.

The department fired Hammer, a 25-year employee, in October 2016 after an investigation found he used his official e-mail account to exchange sexually explicit messages, made inappropriate comments about the intern and verbally abused employees, according to disciplinary documents obtained by the Star Tribune last year.

In one 2014 exchange, Hammer wrote an e-mail saying, “Mine misses you.” When the woman asked what he meant, he replied, “Head Heart Body Penis Not Necessarily in that order Have you been photogenic lately?” He also asked a woman if she wanted to “Face time naked,” according to the investigative findings.

Hammer appealed the decision and both parties argued their cases over a two-day hearing in April. Hammer admitted to sending the e-mails, but his attorney, Gregg Corwin, contested that they did not warrant his termination, and the allegations as a whole were “stale and unsubstantiated,” according to the arbitration ruling.

On Oct. 10, arbitrator A. Ray McCoy ruled in Hammer’s favor, stating that the department “failed to meet [its]burden of just cause.”

Corrections officials declined to comment for this story. Hammer also did not want to comment, saying in an e-mail that the ruling “says it all.”

Hammer began working for Minnesota prisons in 1991 and had been disciplined twice for inappropriate relationships with staff before his firing, according to department records.

Among the 2016 findings was that Hammer received and did not report a nude photo on his work account.

In another e-mail exchange, Hammer wrote, “Friendship and naked pics is a good start,” according to investigative documents. When the recipient said that naked photos would overstep the bounds of friendship, he replied, “You miss me But got no love.”

Saved e-mails

Several employees said they witnessed Hammer staring at the intern and on one occasion asking a co-worker if he thought she looked good.

In another case, witnesses said he “snapped” during a meeting after an employee accused him of harassment, ripped up the complaint and threw it on the floor, according to the department’s investigation.

In March 2014, Hammer’s assistant, who had access to his e-mail accounts, began printing e-mails and saving them in a file at home. She did not provide the e-mails to human resources for two years, a delay Hammer’s attorney, Corwin, seized upon during the arbitration.

In the arbitration hearing, Corwin argued that the assistant failing to bring these to her supervisors right away “significantly undercuts the weight they should be given” in disciplining Hammer.

In regard to the intern whom Hammer allegedly ogled, Hammer denied any inappropriate behavior, but acknowledged looking at her and saying she was “cute.” If the complaint had been made earlier, Corwin said, investigators would have been able to use video to substantiate or disprove what happened. He also said witnesses to the meeting in which Hammer allegedly ripped up a complaint gave inconsistent testimony.

Corwin said Hammer was given high performance reviews and never ordered to change his behavior, according to the arbitration ruling.

The arbitrator, McCoy, largely agreed with Hammer and his lawyer’s analysis, finding fault with many of the employees who spoke out against Hammer. He wrote this “paints a picture of a toxic workplace, one in which employees kept secret files on co-workers they disliked, failed to comply with DOC policies to report their concerns in a timely manner and sought to cover their own backs at the expense of compliance with DOC policy.”

‘Banter’

He also found that the e-mails appeared to be sent to people who “welcomed the sexual banter and participated fully in it,” and therefore the behavior did not qualify as sexual harassment or discrimination.

McCoy dismissed several allegations that Hammer behaved inappropriately in the office, including the report of staring at the intern and an employee who said Hammer showed him a picture of a woman and said: “I would bet you would like those long legs wrapped around you.”

According to McCoy, these did not break the department’s sexual harassment policy because investigators introduced no evidence proving it created a hostile work environment or harmed any employee’s performance. He said Hammer’s assistant “did not say her daughter overheard comments by [Hammer] or that her daughter could not complete her internship.”

“The conclusions were built on a falsehood,” McCoy concluded of DOC’s investigation. “Like the fruit of that poisonous tree, what flows from the flawed beginning must be discarded.”

The department’s appeal stated that McCoy “failed to analyze whether the DOC had just cause to terminate Hammer because his conduct resulted in the DOC’s loss of ‘trust and confidence’ in his ability to perform the important functions of a high-ranking state official.”