In the matter of Division of Capital Police Case No. 5124

Hearing Date: February 23, 2001
Corrected Decision Issued: March 14, 2001

THIS IS A CORRECTED DECISION.
PREVIOUS COPIES OF THIS DECISION SHOULD BE DESTROYED.

The Division of Capitol Police is an agency of the Legislative Branch of Virginia State Government. As such, the Division of Capitol Police is not subject to the Virginia Personnel Act (VPA), the Standards of Conduct promulgated by the Department of Human Resource Management (DHRM), or the Performance Planning and Evaluation process promulgated by DHRM.

However, the Division of Capitol Police has, in effect, adopted both the DHRM Standards of Conduct and the DHRM Performance Planning and Evaluation process for use by its employees. Moreover, for purposes of this hearing, the Division of Capitol Police made a policy decision to utilize the services of the Department of Employment Dispute Resolution (EDR). Because the agency has opted to utilize the EDR grievance process, the hearing was conducted pursuant to the VPA and EDR policies and practice. Similarly, this decision reflects the principles that govern such grievance decisions and offers the same administrative appeal rights afforded to executive branch employees.

Because of conflicting schedules of the attorneys, the hearing could not be docketed until the 29^th day following appointment of the Hearing Officer. An attachment to the Written Notice contained eight enumerated charges against the grievant. However, the Written Notice itself was based on only seven of those eight charges. During the pre-hearing conference, counsel for both the grievant and the agency stipulated that charge number five was not a basis for the Written Notice and would not be discussed during the hearing.

Grievant
Attorney for Grievant
Representative for Agency
Attorney for Agency
11 Witnesses for Agency

Did the grievant violate safety rules where there is a threat of physical harm? Did the grievant violate a general order regarding the transport of a public inebriate? Did the grievant abuse his discretion? Did the grievant fail to properly manage paperwork requirements? If so, what was the appropriate level of disciplinary action for the conduct at issue?

The grievant filed a timely appeal from a Group III Written Notice issued on November 30, 2000 based on seven enumerated charges which had their genesis in events that occurred on October 8, 2000, November 4, 2000 and over a period of time during the last half of 2000 with respect to paperwork. In addition, the grievant was demoted from the rank of lieutenant to the rank of sergeant effective December 1, 2000. Following a denial of relief at each resolution step, the Group III Written Notice and demotion were upheld. Subsequently, the agency head qualified the grievance for a hearing.

The Division of Capitol Police (hereinafter referred to as "agency") has employed the grievant for 22 years. The grievant had been promoted to lieutenant in September 1999 and worked on the day shift. In September 2000, he was assigned to work on the night shift – a shift on which he had had very little experience. The grievant had been advised by a superior to obtain feedback and input from subordinates. In his dealings with subordinates the grievant followed this advice and sought ideas and input from the officers on his shift.

The previous night-shift supervisor had been on the night shift for 12 years. She was well liked and the officers were accustomed to her policies and practices. Her style of supervision was different from that of the grievant. When the grievant was assigned to the night shift in September 2000, the contrast in supervisory styles may have caused some officers to be disgruntled with the change in leadership. This factor was compounded by the grievant’s lack of experience in dealing with situations frequently encountered on night shift, but rarely encountered during day shifts.¹

Shortly after 5:00 a.m. on October 8, 2000, the grievant was conducting a patrol in his police vehicle. He noticed a vehicle stopped at the intersection of 12^th and Main Streets in the travel lane when the traffic light for that vehicle was green. The grievant stopped, approached the vehicle and noted that the driver was asleep with the vehicle running. The grievant notified communications and shortly thereafter a backup officer arrived. The standard practice of the Virginia Capitol Police is to send a backup officer to the scene of every traffic stop. The driver was given a series of field sobriety tests by both the grievant and the backup officer; he passed those tests. By that time, a third officer had been summoned to bring an "Alcosensor" breath analysis device. The grievant was unfamiliar with the Alcosensor and therefore the other officers administered the test. The driver blew 0.09 on the alcohol analysis.² Alcohol breath testing performed on an Alcosensor is considered a preliminary analysis of blood. Whenever such a breath sample analysis indicates that alcohol is present in a person’s blood, a police officer may arrest the person. However, such preliminary testing by an officer is not conclusive proof of intoxication. ³

The grievant then requested advice from the two subordinate officers, because they had more experience in dealing with inebriates. At some point, it was determined that the subject had in his possession a box cutter knife. The knife was initially placed on the hood of the subject’s vehicle but at some undetermined point was placed in the glovebox of the subject’s vehicle. Discussion ensued between the grievant and the other two officers as to whether the subject should be arrested. One of the officers characterized the subject’s behavior as aggressive because he crossed his arms while standing and answering questions. The subject also volunteered that he previously had some sort of problem with police officers in New York.

The grievant evaluated the fact that the subject had passed all field sobriety tests, and that the Alcosensor test result was only slightly above the legal limit. He believed that by the time the subject was arrested, transported and given a legal intoxalyser test, his blood alcohol level might be below the legal limit,⁴ thus making the arrest a fruitless exercise. He also took into account that the subject had been completely cooperative during the traffic stop. He decided neither to arrest the subject nor to transport him to a detoxification center.⁵

Instead, he requested the subject to move his vehicle out of the traffic lane and park it at the curb around the corner; the subject did so without incident. The grievant then transported the subject to the Fourth Street Diner – eight blocks from where the subject’s vehicle was then parked. The grievant did not handcuff the subject and allowed him to ride in the front seat of the police vehicle. Uncontroverted testimony established that standard procedure when transporting subjects is to place them in the rear seat of the vehicle. The grievant did not notify dispatch of this transport. One of the backup officers followed the grievant to the diner to assure that the transport took place without incident. The grievant released the subject at the diner, instructing him to get something to eat before returning to his vehicle.

One of the two officers told the grievant that he felt sufficient probable cause to arrest existed. However, neither of the backup officers voiced disagreement to the grievant about his decision not to arrest the subject. Neither officer attempted to arrest the subject. Instead, the two officers deferred to the grievant’s judgement because he was the senior officer among the three and, because the general practice in situations such as this is that the first officer on the scene makes the decision as to whether to arrest a subject.

Soon after midnight on Saturday, November 4, 2000, the grievant was on patrol when he noted three male individuals in a state-owned parking lot. This particular parking lot is close to an area that includes a number of nightclubs and it is not unusual to find inebriated people in the area. These three individuals appeared to have been drinking but were not causing any trouble at the time of initial contact. Two backup officers arrived; one was a trainee. The individuals were questioned and their names checked in the computer to determine whether they had any outstanding warrants. The three were told to move on and not remain on state property; they agreed to walk home because they averred that they lived within walking distance. When the two backup officers left the scene, they encountered several females who asked the officers to tell the same three males to leave them alone. The two officers directed the three males to leave the area and they did so.

At approximately 3:45 a.m., the grievant was again patrolling the same parking lot and found the same three individuals sitting in their car, which was parked on the state parking lot. The person behind the wheel appeared to have been sick, as there was vomit on the pavement next to his door. Shortly thereafter, the two officers referred to in the preceding paragraph again arrived on the scene as backup officers. Neither officer advised the grievant of the complaint they had received from the females. The subjects had been cooperative during both of the grievant’s encounters with them. The grievant determined not to arrest the subjects and instead allowed them to stay in their car on condition that they sleep it off. Neither of the other two officers suggested to the grievant that the three subjects should be placed under arrest. Neither officer attempted to arrest the subjects. Because the grievant had been first on the scene, and because he was the senior officer, they deferred to him.

The two other officers, including the trainee, believed that the three inebriated subjects should have been arrested because they still had possession of their car keys. They could have driven away after the police officers left the scene, creating the potential for an accident resulting from driving under the influence of alcohol. It was acknowledged by one of these two officers that many inebriated people are encountered in this area, particularly on Saturday nights, and that not all of them are arrested.

During the next two weeks, the other officers involved in these two incidents spoke with a sergeant about their concerns that arrests should have been made in both situations. The sergeant spoke with two captains (both of whom are Deputy Chiefs) about what he saw as a pattern that was troubling. Some officers expressed, in essence, a lack of confidence in the grievant because he did not know how to operate the Alcosensor and because they questioned his judgment in releasing subjects they believed should have been arrested. The Captains directed the sergeant to obtain written statements from those officers who had concerns. Those statements were obtained on November 21 and 22, 2000. The matter was reviewed by the captains, and ultimately by the Chief of Police. It was concluded that the infractions were sufficiently serious to warrant a Group III Written Notice and demotion to sergeant. The grievant’s actions were deemed serious enough to warrant this level of discipline because failure to arrest in these two situations was considered a violation of safety rules where there is a threat to life.

On November 30, 2000, the day on which the Written Notice was given to the grievant, the two captains discovered in the grievant’s desk leave activity reporting forms for various subordinates. It was determined that the grievant had not submitted these forms to the administrative office. The captains also found a request dated November 1, 2000 from one officer for approval of part time employment to begin during the following week. Procedure requires that such requests be forwarded to the Chief of Police for his approval. Also found was a letter of resignation from another officer dated October 19, 2000, to be effective January 1, 2001. The agency acknowledged during the hearing that this delayed paperwork, in and of itself, would not support the issuance of a Written Notice. The grievant had not previously been counseled for delaying the submission of leave forms and other paperwork.

As discussed above, the Virginia Personnel Act is not statutorily applicable in this case. However, because it forms the framework for decisions made by the Department of Employment Dispute Resolution, the following sections are cited for the general guidance they provide.

The General Assembly enacted the Virginia Personnel Act, Va. Code § 2.1-110 et seq., establishing the procedures and policies applicable to employment within the Commonwealth. This comprehensive legislation includes procedures for hiring, promoting, compensating, discharging and training state employees. It also provides for a grievance procedure. The Act balances the need for orderly administration of state employment and personnel practices with the preservation of the employee’s ability to protect his rights and to pursue legitimate grievances. These dual goals reflect a valid governmental interest in and responsibility to its employees and workplace. Murray v. Stokes, 237 Va. 653, 656 (1989).

Code § 2.1-116.05(A) sets forth the Commonwealth’s grievance procedure and provides, in pertinent part:

In disciplinary actions, the agency must show by a preponderance of evidence that the disciplinary action was warranted and appropriate under the circumstances.⁶ The following procedural due process is required before disciplinary action:

1. an oral or written notice of the offense,
2. an explanation of the agency’s evidence in support of the charge, and
3. a reasonable opportunity to respond.

To establish procedures on Standards of Conduct and Performance for employees of the Commonwealth of Virginia and pursuant to § 2.1-114.5 of the Code of Virginia, the Department of Personnel and Training promulgated Standards of Conduct Policy No. 1.60 effective September 16, 1993. The Standards of Conduct provide a set of rules governing the professional and personal conduct and acceptable standards for work performance of employees. The Standards serve to establish a fair and objective process for correcting or treating unacceptable conduct or work performance, to distinguish between less serious and more serious actions of misconduct and to provide appropriate corrective action. Section V.B.3 of the Standards of Conduct states that Group III offenses include acts and behavior of such a serious nature that a first occurrence normally should warrant removal. One example of a Group III offense cited in Section V.B.3 is:

g. Violating safety rules where there is a threat of physical harm.

The Division of Capitol Police Directives Manual includes General Order Number 25 on the subject of Use of Force. Section III.D states:

General Order Number 5, regarding Limits of Authority and Constitutional Safeguards, addresses Use of Discretion by Officers in Section VI and states:

1. Officers, by the nature of their job, are required to exercise discretion in the performance of their duties. The Division provides officers with written policy and procedures, directed patrol or post assignments, and training in order to aid them in making decisions which govern discretion in performing their duties.
2. Departmental directives which include General Orders, Special Orders, Memorandums (sic) and Informational Bulletins, and training generally give officers guidelines to consider in exercising their discretion. However, it is up to the individual officer to make appropriate decisions by using knowledge, training, skills, abilities and good judgment. Supervisors must closely observe the use of discretion by their employees and point out factual errors or alternatives that may have been more applicable or appropriate.

Section VII.D of General Order Number 5 addresses the Use of Warnings as an Alternative to Arrest and states:

1. The seriousness of the offense.
2. The likelihood that the violator will heed the warning.
3. The reputation of the violator, i.e. whether or not the offender has received previous warnings, etc.

The seven charges enumerated in the Written Notice all relate to one of three issues or situations. Two of the situations involve the incidents of October 8, 2000 and November 4, 2000; the third issue is the failure to submit leave forms and other paperwork on a timely basis.

Both the October 8 and November 4 incidents involved subjects who were inebriated. In both cases, the subjects were not arrested and both were permitted to retain keys to their vehicles. In the first case, the subject was released eight blocks away from his vehicle and, in the second case, the subjects were allowed to remain in their vehicle. The grievant exercised his discretion in each case by electing neither to arrest the subjects nor to transport them to a detoxification center.

The agency argues that the grievant abused his discretion because there was a possibility that the subjects could have driven before sufficiently sobering up and could have subsequently become involved in an accident. As the agency’s written policy acknowledges, the use of discretion is subjective, because it permits an individual to apply his own knowledge, training and judgment. However, the agency’s policy does not address what constitutes "abuse" of discretion. Nonetheless, the agency’s witnesses testified that, in their judgment, the subjects should have been arrested. This opinion was shared by the officers who witnessed the incidents, by the grievant’s immediate superiors and by the Chief of Police. Given this uniform assessment by a range of experienced officers and eyewitness observers, one must conclude that the grievant’s exercise of discretion exceeded what is expected by this organization. But, given the grievant’s relative lack of experience, knowledge and training in dealing with inebriates, and given the apparent acquiescence of other officers on the scene to his decisions, it is difficult to conclude that the grievant abused his discretion.

The agency also argues that the grievant violated General Order Number 25 because he did not transport the inebriates to a detoxification center or to jail. Section III of this Order addresses Post-Arrest Actions, and Section III.D provides that one alternative to arrest is transport to a detoxification center. In this case, the grievant decided that arrest of the subjects was unnecessary, therefore there was no need to consider the alternative of transport to a detoxification center. Section III.D states that the officer "may" elect to transport, thus clearly giving the officer the discretion to decide whether this is an appropriate option. The grievant exercised his discretion and decided against this option. While the grievant may be faulted for poor judgment, his decision not to exercise a discretionary option is not a willful violation of the General Order.

The agency contends that releasing the subjects involved a threat of physical harm, and is therefore a Group III offense. This contention is based on what could hypothetically occur if the subjects drove their vehicles before sobering up and, if they became involved in a traffic accident. If this were the intent of the Group III offense cited in the Standards of Conduct, it would read, "Violating safety rules where there is a potential threat of physical harm." Since the offense does not include the word "potential," an inference may be made that the offense was intended to cover situations where there is an actual threat of physical harm. Therefore, it is concluded that, although the grievant violated safety rules, there was not a threat of bodily harm.

More significantly, one cannot lose sight of the fact that the cited offense in this case is merely an example of what constitutes a Group III offense. When there is possible ambiguity in interpreting examples, it is always instructive to examine the basic definition for any Group III offense. A Group III offense must be of such a serious nature that a first offense warrants removal from employment. In this case, the grievant made poor judgments in the exercise of his discretion. Misjudgments, even very poor misjudgments, do not warrant removal from employment on the first offense. On occasion, physicians make misjudgments that may result in the death of a patient. However, if the physician exercised his best judgment based on his knowledge, training and skills, his license is not taken away the first time this happens. The conscientious physician will learn from the mistake and hopefully go on to become a more competent practitioner.

A police officer should not be held to any higher standard than a physician should for his first misjudgment. Rather, with guidance from his superiors, the grievant can learn from this experience. As General Order Number 5 observes, "Supervisors must closely observe the use of discretion by their employees and point out factual errors or alternatives that may have been more applicable or appropriate."

However, the preponderance of evidence establishes that the grievant made multiple misjudgments with regard to releasing inebriates, improper transport of a subject, and submission of paperwork. It is concluded that the grievant’s misjudgments in this case did amount to a violation of safety rules where there is not a threat of bodily harm. It is further concluded that the grievant’s misjudgments were sufficiently severe that a repetition should normally warrant removal from employment. Given these conclusions, the appropriate disciplinary action in this case is a Group II Written Notice.

The grievant points out that he received a significantly lower performance appraisal in October 2000 than he had received the prior year. He suggested that he should have grieved that appraisal in addition to the Written Notice. There is an established procedure to be followed when one disagrees with their performance appraisal.⁸ The grievant did not avail himself of that process and did not file a grievance regarding that appraisal. Accordingly, the accuracy of the October 2000 performance appraisal will neither be addressed nor given any weight in arriving at the decision in this case.

The agency proffered a recent Court of Appeals case for the purpose of demonstrating that a box cutter knife is considered to be a "weapon" as defined in § 18.2-308.2 of the Code of Virginia.⁹ However, the grievant did not dispute that such a knife is a weapon. In any case, regardless of the definitional issue, there is no doubt that such a knife is a dangerous instrument that would have to be taken aware from a suspect who is taken into custody.

The agency has acknowledged that the delayed paperwork submission, while clearly a failure on the grievant’s part, is not an offense that would warrant a Written Notice. Certainly, the grievant’s failure to timely submit such documents warrants counseling and written documentation of such counseling. Moreover, it would be entirely appropriate to give the grievant a detailed written list of what constitutes the timely submission of leave forms, outside employment requests and resignation letters and any other forms or paperwork for which he is responsible. Then, any future failure to comply with established written policy would be subject to disciplinary action.

The disciplinary action of the agency is modified.

The Group III Written Notice issued to the grievant on November 30, 2000 is VACATED. The grievant is reinstated to the rank of lieutenant with restoration of all pay lost as a result of the demotion. The Group III Written Notice shall be removed from the grievant’s personnel file and retained by the agency pursuant to the procedure outlined in Section VII.B.4.b of the Standards of Conduct policy.

The agency shall prepare a Group II Written Notice for violation of safety rules where there is not a threat of bodily harm with an issuance date of November 30, 2000. The grievant shall sign the Written Notice, which shall be retained in his personnel file for the period specified in Section VII.B.2.b of the Standards of Conduct.

It is recommended that counseling with the grievant be conducted regarding timely submission of all reports and paperwork, and that such counseling be documented in writing and retained in his supervisor’s file, pursuant to Section VI.C.2 of the Standards of Conduct.

As Sections 7.1 through 7.3 of the Grievance Procedure Manual set forth in more detail, this hearing decision is subject to administrative review. Once the administrative review phase has concluded, the hearing decision becomes final. Because the grievant is not covered by the VPA, this decision is not 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.

David J. Latham, Esq.
Hearing Officer