Issue: Group III with termination (theft/unauthorized use of another person’s property); Hearing Date: February 20, 2001; Decision Date: March 20, 2001; Agency: Department of Corrections; AHO: Carl Wilson Schmidt, Esq.; Case No. 5106

DEPARTMENT OF EMPLOYMENT DISPUTE RESOLUTION

DIVISION OF HEARINGS

DECISION OF HEARING OFFICER

In the matter of Department of Corrections Case Number 5106

Hearing Date: February 20, 2001
Decision Issued: March 20, 2001

PROCEDURAL HISTORY

On September 28, 2000, Grievant was issued a Group III Written Notice of disciplinary action with termination for:

Violation of DOC Procedure 5-10, Standards of Conduct (Theft or unauthorized removal of state records, state property, or other person’s property). During an Internal Affairs Investigation, [Grievant] acknowledged that, in July 2000, another Corrections Officer gave him a telephone calling card number, which the officer said he found in a parking lot. [Grievant] used this number to make at least four long-distance telephone calls during September 2000.

On October 23, 2000, Grievant timely filed a grievance to challenge the disciplinary action. The outcome of the Third Resolution Step was not satisfactory to the Grievant and he requested a hearing. On December 20, 2000, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On February 20, 2001, a hearing was held at the Agency’s regional office. Upon the request by a party, the Hearing Officer found just cause to extend the 30 day time requirement for concluding the grievance. The Hearing Officer further granted a continuance of the hearing date because Grievant obtained counsel after the hearing date had been set and that date was not available to the Grievant’s counsel.

APPEARANCES

Grievant
Grievant’s Counsel
Legal Assistant Advocate
Warden
Special Agent

ISSUE

Whether Grievant should receive a Group III Written Notice of disciplinary action with termination.

BURDEN OF PROOF

The burden of proof is on the Agency to show by a preponderance of the evidence that its disciplinary action against the Grievant was warranted and appropriate under the circumstances. Grievance Procedure Manual ("GPM") § 5.8. A preponderance of the evidence is evidence which shows that what is sought to be proved is more probable than not. GPM § 9.

FINDINGS OF FACT

After reviewing the evidence presented and observing the demeanor of each witness, the Hearing Officer makes the following findings of fact:

Grievant was employed as a Corrections Officer with the Virginia Department of Corrections. Part of his duties included monitoring and supervising inmates. He had been employed by the Agency for approximately two years and received favorable evaluations. No prior disciplinary action had been taken against him.

Another Corrections Officer was responsible for admitting visitors into the Facility. The Officer required a visitor to leave his wallet with the Officer before entering the Facility. The Officer examined the contents of the wallet and obtained the telephone number and personal identification number for using a telephone calling credit card. The Officer gave that information to the Grievant but told the Grievant that he had found the information in a parking lot. Grievant knew the number was for a telephone calling card, but he did not know it was also a credit card. Grievant was not directly involved in the theft of the credit card information from the visitor.

In August 2000, Grievant made approximately five long-distance telephone calls using the credit card number. He made three calls to the Facility, one call to a department store, and one call to a mobile phone. (Agency Exhibit 12).

Grievant was prosecuted by the Commonwealth’s Attorney for two felony counts of credit card theft and fraud. As part of Grievant’s negotiations with the Commonwealth’s Attorney, the credit card fraud theft charge was dismissed and the credit card fraud was reduced to a misdemeanor charge. Grievant did not plead guilty to the charge but agreed to perform 100 hours of community services and pay restitution.

The Agency’s investigation included an interview with Grievant during which he admitted to most of the relevant facts. He had not been read his Miranda warnings before making a written statement. The Agency also asked Grievant to sign a Consent to Search form authorizing search of his person and his vehicle. The consent form contains preprinted language indicating that refusal to permit the search could result in disciplinary action in accordance with the Commonwealth’s Employee Standards of Conduct and possible barring from the Facility. (Agency Exhibit 8). The space indicating the applicability of the refusal to permit the search section was not checked.

On July 10, 1998, Grievant signed a Conditions of Employment form stating, in part:

All employees will be subject to search of their person and their belongings upon entry into the institution and exit from the institution. Vehicles are subject to search whenever on institutional property. Refusal to submit to search is grounds for disciplinary action (IOP 443).

(Agency Exhibit 14).

Grievant received a copy of DOC Procedure 5-10 when he was first employed in July 1998. (Agency Exhibit 15).

CONCLUSIONS OF LAW

Department of Corrections Procedure 5-10 specifies the Standards of Conduct upon which employees may be disciplined. (Agency Exhibit 13). Unacceptable behavior is divided into three types of offenses according to their severity. Group III offenses are the most serious and include behavior such that a first occurrence should normally warrant removal. DOC Procedure 5-10.17 states, in part, that Group III offenses include but are not limited to:

Theft or unauthorized removal of state records, state property or other persons’ property (to include employees, supervisors, inmates, and visitors, etc.)

The question arises as to what did the Grievant steal. Although Grievant was not responsible for stealing the telephone credit card itself, he stole the underlying service that could be obtained only by accessing the card. This grievance has some similarities with the facts underlying Sykes v. Commonwealth, 27 Va. App. 77, 497 S.E. 2d. 511 (1998). In Sykes, a University gave a student a "gas card" so that the student could periodically fill a University vehicle with gasoline. The student used the card on seven occasions to fill his own vehicle with gas. The Court concluded that the student did not steal the gas card, but he did steal the gasoline. By analogy, Grievant did not steal the telephone credit card, but he did steal the underlying services, namely long-distance telephone calls.

The Agency has met its burden of proof that the Grievant stole the property of a visitor. Grievant knew or should have known that the credit card information belonged to someone else and that by using the information, he would be forcing another person to pay for his long-distance phone calls. To the Grievant’s credit, his written statements express remorse regarding his actions.

The Hearing Officer may reduce an offense based on mitigating circumstances. These circumstances include the interest of fairness and objectivity and consideration of an employee’s long service with a history of otherwise satisfactory work performance. Grievant does not have a long service with the Agency. It is unfortunate, but not unfair to impose termination on the Grievant. Thus, no mitigating circumstances exist.

Grievant argues that his written explanation (and confession) of what happened should not be considered as evidence or otherwise used against him. This is because the written statement was obtained only after the Agency’s investigators detained him under circumstances that would lawfully require the investigators to inform the Grievant of his Miranda rights (e.g. right to remain silent and right to have counsel present) before questioning him. Because the investigator failed to inform Grievant of his rights, Grievant argues his written statement cannot be used to terminate him. Grievant cites Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616 (1967) in support of his position.

Although Grievant presented substantial evidence supporting his conclusion that he should have been read his rights before being questioned, it is not necessary for the Hearing Officer to address that portion of Grievant’s argument. Assuming, for the sake of argument, that Grievant should have been given Miranda warnings, his written statement need not be rejected from consideration in this employment action.

Garrity does not support Grievant’s position. In Garrity, several police officers were questioned regarding fixing traffic tickets. Each police officer was told (1) that anything he said might be used against him in any state criminal proceeding; (2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but (3) that if he refused to answer he would be subject to removal from office. The police officers were faced with the choice "between self-incrimination or job forfeiture." Id. at 496. The Court concluded:

We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.

Id. at 500. (Emphasis added). Although the Court concluded that statements made under the threat of job removal may not be used in criminal proceedings, it did not address or prohibit use of those statements in employment disputes. Thus, Grievant’s written statement may form the basis of disciplinary action against him.

DECISION

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group III Written Notice of disciplinary action with termination is upheld. GPM § 5.9(a).

APPEAL RIGHTS

As Sections 7.1 through 7.3 of the Grievance Procedure Manual set forth in more detail, this hearing decision is subject to administrative and judicial review. Once the administrative review phase has concluded, the hearing decision becomes final and is subject to judicial review.

Administrative Review – This decision is subject to four types of administrative review, depending upon the nature of the alleged defect of the decision:

  1. A request to reconsider a decision or reopen a hearing is made to the hearing officer. This request must state the basis for such request; generally, newly discovered evidence or evidence of incorrect legal conclusions is the basis for such a request.
  2. A challenge that the hearing decision is inconsistent with state or agency policy is made to the Director of the Department of Human Resources Management. This request must cite to a particular mandate in state or agency policy. The Director’s authority is limited to ordering the hearing officer to revise the decision to conform it to written policy.
  3. A challenge that the hearing decision does not comply with grievance procedure is made to the Director of EDR. This request must state the specific requirement of the grievance procedure with which the decision is not in compliance. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it complies with the grievance procedure.
  4. In grievances arising out of the Department of Mental Health, Mental Retardation and Substance Abuse Services which challenge allegations of patient abuse, a challenge that a hearing decision is inconsistent with law may be made to the Director of EDR. The party challenging the hearing decision must cite to the specific error of law in the hearing decision. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it is consistent with law.

A party may make more than one type of request for review. All requests for review must be made in writing, and received by the administrative reviewer, within 10 calendar days of the date of the original hearing decision. (Note: the 10-day period, in which the appeal must occur, begins with the date of issuance of the decision, not receipt of the decision. However, the date the decision is rendered does not count as one of the 10 days; the day following the issuance of the decision is the first of the 10 days). A copy of each appeal must be provided to the other party.

A hearing officer’s original decision becomes a final hearing decision, with no further possibility of an administrative review, when:

    1. The 10 calendar day period for filing requests for administrative review has expired and neither party has filed such a request; or,
    2. All timely requests for administrative review have been decided and, if ordered by EDR or HRM, the hearing officer has issued a revised decision.

Judicial Review of Final Hearing Decision

Within thirty days of a final decision, a party may appeal on the grounds that the determination is contradictory to law by filing a notice of appeal with the clerk of the circuit court in the jurisdiction in which the grievance arose. The agency shall request and receive prior approval of the Director before filing a notice of appeal.

Carl Wilson Schmidt, Esq.
Hearing Officer