In the matter of Department of Correction’s Case No. 5137

Hearing Date: March 2, 2001
Decision Issued: March 15, 2001

On December 1, 2000, Grievant was issued a Group III Written Notice of disciplinary action with a 30 day suspension for:

On December 1, 2000, Grievant was issued a Group III Written Notice of disciplinary action and terminated for:

On December 29, 2000, Grievant timely filed a grievance to challenge the disciplinary actions. The outcome of the Third Resolution Step was not satisfactory to the Grievant and he requested a hearing. On February 7, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On March 2, 2001, a hearing was held at the Agency’s regional office. Upon motion of a party, the Hearing Officer found just cause to grant an extension of the 30 day time frame for issuing the decision because of the conflicting schedules of the parties.

Grievant
Warden
Legal Assistant Advocate
Senior Investigator
Assistant Superintendent
Lieutenant
Probation and Parole employee
Two Corporals

Whether Grievant should receive a Group III Written Notice of disciplinary action with 30 days suspension.

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

The burden of proof is on the Agency to show by a preponderance of the evidence that its disciplinary actions against the Grievant were 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.

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

Grievant worked as a Corrections Officer with the Virginia Department of Corrections. His problems arise from his violation of traffic laws and subsequent failure to pay fines. Like a series of falling dominos, Grievant’s traffic infractions and failure to address those infractions resulted in the two disciplinary actions taken against him.

On October 22, 1999, Grievant drove his vehicle 68 mph in a 55 mph zone. He could have paid the fine in advance of the trial date and avoided appearing in Court. He did not pay the fine and was convicted by the Emporia General District Court on December 7, 1999. On the following day, the Court mailed Grievant a notice advising him that if he did not pay the fines by December 13, 1999, his driver’s license would be suspended. Grievant did not receive the notice because it was mailed to an incorrect address. Because Grievant did not pay his fines, the Emporia General District Court suspended his license on December 13, 1999. (Agency Exhibit 2). The suspension was effective until March 20, 2000. (Agency Exhibit 14).

On October 30, 1999, Grievant was driving his vehicle and failed to obey a highway sign. He received a ticket. He could have paid the fine in advance of the trial date and avoided appearing in Court. He did not pay the fine and was convicted by the Fredericksburg General District Court on December 3, 1999. On December 6, 1999, the Court mailed Grievant a notice to his correct address advising him that his license would be suspended on December 13, 1999 if he failed to pay the fines. Because Grievant did not pay the fines, the Court suspended his license on December 13, 1999. (Agency Exhibit 3). The suspension was effective until March 20, 2000. (Agency Exhibit 14).

During the period of suspension, Grievant drove the Agency’s vehicles on at least a half dozen occasions to conduct Agency business including transporting inmates. (Agency Exhibit 9).

On March 18, 2000, Grievant was stopped by a State Trooper and issued a ticket for driving 82 mph in a 65 mph zone and a ticket for driving on a suspended license. He was convicted of both charges in General District Court on May 24, 2000 but appealed the convictions.

On August 15, 2000, Grievant pled guilty in the Stafford Circuit Court to reckless driving (driving 82 in a 65 miles per hour zone). He was fined $60 plus court costs. (Agency Exhibit 9A). He also pled guilty to driving on a suspended license and was fined $150 plus court costs and had his license suspended for one day. (Agency Exhibit 9B).

Grievant did not report his August 15, 2000 convictions to the Agency. The Agency learned of the convictions only after the Warden became suspicious about Grievant’s frequent absences to attend court and requested a copy of Grievant’s driving record.

The Agency periodically required Grievant to sign a document entitled "Conditions of Employment." This document states that "All employees operating State vehicles are to have a valid driver’s license, and should have the ability to operate standard transmission vehicles." (Agency Exhibit 7).

Grievant presented testimony from a correctional officer who had been charged with a Driving Under the Influence of Alcohol. The officer did not immediately report the charge to the Agency. The charge was later reduced to reckless driving and upon his conviction, the correctional officer immediately reported the conviction to the Agency. The Agency issued him a Group II Written Notice for failing to report the DUI charge. The correctional officer worked during the night shift and did not drive a State vehicle during his period of suspension following his conviction.

Grievant has an active Group II Written Notice dated February 16, 2000. (Agency Exhibit 23).

The Agency has established that its Group III with suspension is consistent with the DOC Standards of Conduct. The Group III with termination, however, should be modified. Although the second Group III is modified, the termination should be upheld based on the accumulation of disciplinary action.

Group III With Suspension

Virginia law creates a distinction between traffic infractions and felonies and misdemeanors. Traffic infractions are violations of public order and are not deemed to be criminal in nature. Va. Code § 18.2-8. A traffic infraction is a violation of motor vehicle law that is neither a felony nor a misdemeanor. Va. Code § 46.2-100.

Agency policies specify the responsibilities of employees who have been convicted of a criminal offense. DOC Procedures Manual § 5-45.6(C)¹ states, in part:

DOC Procedures Manual § 5-45.5 defines a Criminal Conviction as:

Grievant pled guilty to reckless driving pursuant to Va. Code § 46.2-862. "Every person convicted of reckless driving … shall be guilty of a Class 1 misdemeanor." Va. Code § 46.2-868. In addition, Grievant pled guilty to driving on a suspended license pursuant to Va. Code § 46.2-301. Violation of Va. Code § 46.2-301 is a Class 1 misdemeanor. Conviction of a Class 1 misdemeanor may result in confinement in jail for not more than twelve months and/or a fine of not more than $2,500. Va. Code § 18.2-11. Grievant was charged with and convicted of two misdemeanors and not traffic infractions. Thus, he was obligated to report his convictions to the Agency within one day.

Under DOC Procedures Manual² § 5-10.17(B)(25), a Group III Written Notice may be issued to an employee for "Failure to report a criminal conviction to the employee’s supervisor within one workday of the conviction." Grievant failed to report his convictions for misdemeanors, and, thus, the Agency could appropriately issue him a Group III Written Notice.

Discipline for a Group III offense "should normally take the form of a notice and removal or notice and up to 30 workdays maximum suspension without pay in lieu of removal." DOC Procedures Manual § 5-10.17(C)(1). The Agency considered mitigating circumstances and issued the Group III Written Notice with suspension. The Agency’s actions should be upheld.

Grievant contends he should have been issued a Group II Written Notice because another correctional officer received a Group II Written Notice when that officer failed to report a conviction for reckless driving. This argument is unpersuasive because the other correctional officer’s behavior differed from the Grievant’s behavior. The other correctional officer reported his conviction on the day of the conviction. He was disciplined for failing to report the charge; not for failing to report the conviction. Grievant was not disciplined for failing to report the charges, he was disciplined for failing to immediately report the convictions. In Grievant’s instance, his convictions were discovered by the Agency only after the Warden became suspicious and requested the Grievant’s driving record. By contrast, the other correctional officer voluntarily reported his conviction.

There is no dispute that Grievant operated State vehicles in the course of business while his driver’s license was suspended. The parties disagree regarding whether Grievant knew of the suspension while was operating State vehicles.

The Agency has not established that the Grievant knew he was driving on a suspended license. This conclusion is based on Grievant’s denial at the hearing and the fact that when he was stopped on March 18, 2000 and notified by the police officer that his license was suspended he quickly reported to his supervisor that he could no longer drive. Grievant also stopped driving and asked others to transport him to his intended destinations. He also asked other correctional officers to drive when he was involved in transporting inmates.

Although the Agency has not proven that Grievant knew his license was suspended, it has clearly established that the Grievant should have known he would have suffered some consequences for failure to pay his fines and that the consequences could have included a suspended license. It is difficult to believe that the payments for traffic tickets were somehow misplaced for two separate courts. Grievant should have known that by not paying his tickets, there would be some consequences to him including action restricting his driving privilege.

The consequences to the Agency of having an employee transport inmates while driving with a suspended license are numerous. If an employee without a valid driver’s license is transporting inmates and the employee is stopped by the police, the police will not likely allow the employee to continue to his destination. The Agency would have to send another employee to locate and drive the vehicle; all to be done while the inmates are watching. This undoubtedly would be embarrassing to the Agency because it houses inmates who have been convicted of crimes including driving without a valid driver’s license. In addition, if an employee without a valid driver’s license were involved in a motor vehicle accident, the agency’s defenses to civil liability could be adversely affected.

Given that Grievant should have known his license was suspended, disciplinary action is appropriate. The DOC Standards of Conduct do not specifically address an employee driving on a suspended license. Group II offenses are such that a second Group II offense would normally warrant removal. These offenses include, for example, failure to follow established written policy and violating safety rules where there is not a threat of bodily harm. (Agency Exhibit 12). Grievant failed to follow the Agency’s written policy requiring maintaining a valid driver’s license. His behavior is consistent with a Group II offense.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group III Written Notice of disciplinary action with 30 days suspension is upheld.

The Agency’s issuance to the Grievant of a Group III Written Notice with termination is reduced to a Group II Written Notice. GPM § 5.9(a).

Because Grievant now has two active Group II Written Notices and one active Group III Written Notice, his termination is upheld.

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.

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