In the matter of Virginia State University’s Case No. 5139

Hearing Date: March 8, 2001
Decision Issued: March 13, 2001

Due to the unavailability of parties and/or their representatives, the hearing could not be docketed until the 29^th day following appointment of the hearing officer.

The agency wished to present evidence from an interview conducted by a polygraph examiner immediately prior to, and in preparation for, a polygraph examination administered to the grievant in connection with the investigation of the incident at issue herein. The agency acknowledged that the statute¹ prohibits introduction of the analysis but contended that the prepatory interview does not come within the ambit of the statutory restriction. The Hearing Officer concluded that the language in the statute does preclude admission of the interview because the answers given in the interview were inextricably linked, at least by inference, with analysis of the examination. Moreover, the Hearing Officer concluded after receiving the testimony and evidence that the polygraph-related evidence sought to be admitted by the agency would be cumulative to other testimony and would not change the final decision in this case.

APPEARANCES

Grievant
Attorney for Grievant
One witness for Grievant
Representative for Agency
Legal Representative for Agency
Assistant to Legal Representative
Three witnesses for Agency

Did the grievant’s actions on or about October 14, 2000 warrant disciplinary action under the Standards of Conduct? 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 15, 2000 for brandishing a firearm in a threatening manner toward a citizen. In addition, the grievant was discharged from his employment effective November 16, 2000. At the second resolution step of the grievance process, the discipline was reduced to a Group II Written Notice for misuse of state property (state issued weapon) and, a demotion from sergeant to police officer. However, the agency did not obtain a written agreement from the grievant to end the grievance process as a quid pro quo for reduction of the discipline. The grievant returned to work on December 12, 2000 but decided to continue the grievance process in order to seek full relief from the discipline. Following a denial of any further relief at the third resolution step, the Group II Written Notice and demotion were upheld. The agency head subsequently qualified the grievance for a hearing.

Virginia State University (hereinafter referred to as agency) has employed the grievant as a police officer for eight years. He was promoted to sergeant in May 2000. His most recent annual performance evaluation for the year ending October 31, 2000 rated him as exceeding expectations.

The agency’s Department of Police and Public Safety has promulgated a policy regarding General Rules of Conduct.² The grievant received a copy of that policy on June 17, 1998. In Section IV.B, General Duties, the policy states, in pertinent part:

10. FALSE STATEMENTS – On any official matter whatsoever, employees may not knowingly make any false statement or [m]isrepresentations of the facts.

14. DEADLY FORCE – Officers may use deadly force:
(a) To defend themselves or other persons from what the officer perceives as an immediate threat of death or serious injury.
(b) To effect an arrest or prevent an escape when the officer reasonably believes the suspect or escapee has killed or seriously injured another person or poses an immediate threat to kill or otherwise seriously injure another person, and alternate means of arrest have either been tried or would involve a risk of death or serious injury to the officer or others.

Section IV.C.2 of the policy states that, as appropriate, disciplinary action may be taken for any of the following reasons:

Approximately one week prior to the incident³ that directly precipitated the disciplinary action in this case, a burglary was reported to have occurred at a small convenience store near the agency’s campus. Both agency police and local police responded to the incident. During the response the police found some young men in the store, put them on the floor and handcuffed them. One of those so detained was the grandson of the store’s owner and he apparently felt he had been treated too roughly. The uncontroverted evidence established that the grievant was not one of the officers involved in the response to this burglary.

Approximately one week later at about 9:30 p.m., the grievant was asked by a friend to drive him to the same convenience store. The grievant did drive the friend to the store and parked in the small parking area directly in front of the store. After his friend exited the vehicle, the storeowner’s grandson approached the driver’s side of the car, saw the grievant in the car and loudly said, "That’s one of the cops that pushed me on the ground for no reason." The grievant angrily responded, "Don’t give me any shit." The storeowner, who had been standing approximately 15 feet away in the doorway of his store, overheard this verbal exchange and, as he started toward the grievant, said, "Look man, you don’t have to curse and carry on at my grandson like that." As the storeowner walked towards the grievant, the grievant leaned out his window and yelled at the storeowner, "Fuck you, you child molester!"

The storeowner responded that he had telephone numbers at the agency and that he would call someone at the university to have the grievant removed from the store property. As he was making this statement, the storeowner reached into his own vehicle, which was parked next to the grievant’s car, and retrieved a book in which he kept phone numbers. The grievant then reached into his glovebox, retrieved his agency issued weapon and, as he tucked it in the waistband of his pants said, "I have your answer⁴ right here." The storeowner observed this, walked back into his store and the grievant backed out and drove away. During this encounter, the storeowner observed a partial six-pack of beer in the grievant’s car. The grievant acknowledged having the beer in his car but contended that he had consumed three beers with dinner and was not drinking while at the convenience store.

A few days later,⁵ the storeowner’s grandson was walking his dog when he was approached by the grievant. A discussion ensued in which the grievant indicated that dogs were not permitted on campus. The conversation was confrontational because the grievant believed the grandson had falsely accused him on October 14, 2000 and, because the grandson believed the grievant was the same officer who had roughed him up during the burglary call. The grandson later told his grandfather that the grievant threatened to shoot the dog. The following day, the storeowner contacted the agency’s police chief requesting to speak with him in person. The chief went to the store, spoke with the owner and subsequently directed a lieutenant to conduct a full investigation of the matter.

The lieutenant conducted an investigation and made contemporaneous handwritten notes as the investigation proceeded.⁶ The lieutenant’s testimony, which was supported by his notes, reflect that when initially interviewed on October 24, 2000, the grievant stated he did not have his gun while at the convenience store. The grievant said he does not carry his gun when he is drinking or off duty. When interviewed a second time on November 10, 2000, the grievant acknowledged that he did have his gun with him, had pulled it from the glove box and stuck it in his waistband. The grievant explained the inconsistency in the two interview statements as an unintentional miscommunication during the first interview.

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.⁷ The following procedural due process is required before disciplinary action:

Prior to . . . any disciplinary suspension, employees must be given
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 Training⁸ 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 defines Group III offenses to include acts and behavior of such a serious nature that a first occurrence normally should warrant removal. Examples cited include:

Section V.B.2 defines Group II offenses to include acts and behavior which are more severe in nature (than Group I offenses) and are such that an accumulation of two Group II offenses normally should warrant removal. One example is:

e. Unauthorized use or misuse of state property or records.

The evidence in this case leads to the conclusion that, more likely than not, the grievant was drinking beer during the evening prior to his arrival at the convenience store. His judgment was adversely affected to the extent that he responded to the storeowner’s grandson in a discourteous manner. When rebuffed by the storeowner, the grievant responded with highly discourteous, highly inflammatory language totally inappropriate for anyone, let alone someone who was known to be a police officer. Without any provocation from anyone, the grievant then displayed his state-issued weapon to the storeowner. While doing so, the grievant made a comment calculated solely to instill fear into the storeowner.

There is no evidence to show that anyone had threatened the grievant or that he could have reasonably perceived any threat to himself at the time he displayed his weapon. On the other hand, the grievant’s display of his weapon, coupled with his statement to the storeowner, was clearly an attempt to intimidate the storeowner. In the absence of any real or perceived threat to himself or the public, there is simply no excuse to justify the grievant’s actions. The agency has shown, by a preponderance of the evidence, that the grievant misused his state-issued weapon.

The evidence further reflects that the grievant initially told the investigator that he did not have his weapon with him on the night in question, but that he subsequently recanted this statement. It is more likely than not that the grievant initially denied having his weapon because he knew that he should not have displayed his weapon while he had been drinking. He probably later decided that he might be more successful in denying drinking, rather than deny having displayed his weapon. Accordingly, the agency has also shown, by a preponderance of the evidence, that the grievant knowingly made a false statement or misrepresentation in his first statement to the investigator. The burden of proof now shifts to the grievant to demonstrate any mitigating circumstances.

The grievant contends that, although he did pull his weapon from the glovebox, no one saw him do so. However, the grievant was unable to explain how the storeowner knew the grievant had pulled his weapon out, if no one had seen it happen. The grievant also argues that he pulled his weapon out because he had heard that the storeowner had a shotgun in his store, and the grievant thought that the storeowner was walking into the store to retrieve it. However, the evidence clearly establishes that the storeowner saw the grievant pull his weapon out before the storeowner walked into the store. Moreover, the grievant had no satisfactory explanation for his failure to simply break off the conversation and leave the premises immediately before displaying his weapon.

As part of his grievance, the grievant alleged retaliation by the agency investigator. Other than rumor and insinuation, the grievant presented no credible evidence to support this allegation. The grievant further alleged that the deputy chief was not fair and impartial in her handling of this incident. He based this allegation on a statement she made shortly after she arrived in the department to the effect that she did not think much of the grievant. The deputy chief candidly acknowledged that early assessment of the grievant but also said that, in the years since making that statement, the grievant had impressed her with his work ethic and that she considered him a good officer, other than this incident.

The grievant’s assertions of disparate treatment are similarly unsupported. The grievant’s supervisor rated him as exceeding expectations on his annual performance review. He further testified that he had a good relationship with the grievant and considered him a good officer. His supervisor was also the agency’s investigator in this case. A supervisor who has just given such a good rating would normally be very reluctant to see the same subordinate disciplined because it automatically raises questions about the accuracy of the supervisor’s rating. In all likelihood, the supervisor would have much preferred that the investigation show that the grievant was innocent of the charges. Regrettably, the facts forced an opposite conclusion.

The grievant had two witnesses who gave taped statements that they did not see any gun during this incident. One of the witnesses had lived with the grievant and is a convicted felon. Since the grievant has now acknowledged that he did pull his gun out, the grievant’s two witnesses either did not really witness the incident or, were lying about what they saw. In either case, the statements of these witnesses provide no support for the grievant.

The grievant contended that the storeowner is a convicted felon who should not be believed. However, the grievant produced no documented evidence to support this allegation. The storeowner acknowledged that he has had some brushes with the law but does not have any felony convictions. The grievant told the storeowner that he was a child molester, but the grievant acknowledged during the hearing that he had only "heard" someone say this.

Much was made of whether the grievant "brandished" his weapon when he pulled it out. The dictionary defines "brandish" as "1) to shake or wave (as a weapon) menacingly, 2) to exhibit in an ostentatious or aggressive manner."⁹ Based on both the grievant’s testimony and the storeowner’s testimony, the Hearing Officer would conclude that the grievant probably did not brandish his weapon. However, whether the grievant brandished his weapon is a red herring. The real issue is not whether the grievant may have violated § 18.2-282 of the Code of Virginia, but whether the grievant’s actions violated the Commonwealth of Virginia Standards of Conduct.

In summary, the grievant has failed to rebut the agency’s evidence, which establishes that he misused a state-issued weapon, and that he knowingly made a false statement or misrepresentation during an official investigation into his conduct. The appropriate level of discipline for misuse of state property is a Group II Written Notice and that action must be affirmed.

For reasons not disclosed during the hearing, the agency head reduced the discipline from a Group III to a Group II Written Notice. Section VII.D.2.a of the Standards of Conduct specifies that:

The agency may impose less discipline than is normal but it may not impose more discipline than stated above. The maximum amount of discipline for a Group II offense does not include demotion. Demotion can be used only when the employee has committed a second Group II offense.¹⁰ No evidence was offered to show that the grievant has a second active Group II offense. A Hearing Officer has no authority to exceed the level of discipline meted out by the agency. However, the Hearing Officer is obligated to reduce the level of discipline where warranted by the facts or, where the level of discipline administered by the agency exceeds that permitted under the Standards of Conduct. In this case, because demotion is not an available option for Group II discipline, the grievant must be reinstated to the rank of sergeant.

The grievant requested during the hearing that he be awarded overtime pay for special events that he has not worked since the date of his demotion. Code of Virginia § 2.1-116.06(B) makes clear that the grievance procedure is not a mechanism to shift management and personnel decisions away from management.

A hearing officer has no authority to interfere in or overrule agency management decisions. In this case, it is concluded that the assignment of police officers to work at special events is solely a management decision that must be left to the agency. Therefore, the grievant’s request for overtime pay for events not worked by him is hereby denied.

The disciplinary action of the agency is modified.

The Group II Written Notice issued to the grievant on December 17, 2000 for misuse of state property is hereby AFFIRMED. This Written Notice shall be retained in the grievant’s personnel file for the period specified in Section VII.B.2 of the Standards of Conduct.

The demotion of the grievant is RESCINDED. The grievant is reinstated to the rank of sergeant effective December 12, 2000. The agency shall take appropriate action to pay the grievant the amount by which his salary was reduced between December 12, 2000 and the date on which his salary is restored to the rate of pay in effect at the time of demotion.

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.

Section 7/2(d) of the Grievance Procedure Manual provides that 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.

David J. Latham, Esq.
Hearing Officer