In the matter of Virginia Department of Transportation Case No. 5154

Hearing Date: April 2, 2001
Decision Issued: April 3, 2001

Grievant
Attorney for Grievant
Three witnesses for Grievant
Assistant Resident Engineer
Legal Representative for Agency
Five witnesses for Agency

Did the grievant forge state documents and/or did he steal state property? If so, what is the appropriate level of disciplinary action for the conduct at issue?

The grievant filed an appeal from a Group III Written Notice issued on July 19, 2000 because he allegedly forged state documents by signing another employee’s name to requisitions and because he allegedly stole state property. The grievant was discharged from his employment effective July 19, 2000. The agency head qualified the grievance for a hearing.

The Virginia Department of Transportation (hereinafter referred to as "agency") has employed the grievant for 13 years. He has been a transportation maintenance supervisor for five years.

The agency has a contract that provides for the purchase of vehicle parts through one supplier. Standard procedure provides that only a supervisor may complete a non-workorder stock requisition form VDOT-330, which specifies the quantity and description of the item(s) being requested. The requesting supervisor signs the form to indicate approval of the purchase. The form is then given to the supplier which fills the order. When the requested parts are either picked up by a VDOT employee or delivered to VDOT by the supplier, the person receiving the parts must sign the requisition form to acknowledge receipt. While any VDOT employee may sign for receipt of parts, the receiver must be a different person from the approving supervisor. The grievant had been trained on and understood the procedure.

On May 22, 2000, the grievant filled out and approved a form 330 for the purchase of 6 lens lights. He then took the form to the parts supplier’s store. While there he asked the store manager to add a set of outside visors¹ for the driver and passenger windows of a vehicle. The words " ’93 Blazer" were written in the description block of the form 330. The grievant noticed this and asked the manager to delete " ’93 Blazer" because it would, in the grievant’s words, "raise eyebrows in audit" since VDOT does not have a 1993 Blazer assigned to the grievant’s location. The manager obliged and covered the term with correction fluid. At or about the same time, the grievant’s supervisor called the supplier’s office and requested that ten ¾" nuts be added to the requisition. Because the visors were not available at that time, the grievant returned to work.

That afternoon, the parts supply store manager brought the form 330 to the office of the agency’s District Facility and Equipment Manager. He expressed concern because he felt it was unusual that the grievant would order visors for a ’93 Blazer when the agency did not have such a vehicle in its inventory. The Facility Manager photocopied the form 330, retained the original² and gave the photocopy³ to the parts supply store manager. He directed the store manager to fill the parts order as usual. The following day, the Facility Manager and the parts supply store manager obtained the visors and, with a sharp instrument, marked the outside of the driver’s side visor with a small X at a point approximately 12-15 inches from the lower left end of the visor. The order was filled and on May 24, 2000, the grievant went to the parts store to pick up the parts. The store manager observed the grievant putting the visors in the cab of his truck but placing the other parts in the bed of the truck. The grievant did not sign the form 330 to indicate that he received the requisitioned parts.

The entire incident was reported to the Virginia State Police. The case was assigned to a sergeant during the first week of June 2000. Because of other assignments, the sergeant was unable to begin his investigation until the third week of June. After speaking with the parts store manager on June 22, 2000, the sergeant examined all VDOT vehicles assigned to the grievant’s location and searched a supply closet where spare parts are maintained. The marked visors could not be located. The sergeant spoke with the grievant on June 29, 2000. The grievant denied ordering visors, denied telling the store manager to "white out" the term " ’93 Blazer," and denied that he owned a 1993 Blazer.

On July 14, 2000, the sergeant interviewed the grievant and asked again whether the grievant or anyone in his family owned a 1993 Blazer. On this occasion, the grievant responded that his wife owned a 1993 Blazer. The grievant’s daughter had possession of, and was regularly using, the Blazer at that time. After receiving permission from the grievant, the sergeant and the parts store manager contacted the grievant’s daughter and inspected the Blazer. The vehicle did have visors on the doors and the store manager verified that they were the visors on which he had placed an identifying mark in June 2000. The sergeant confiscated the visors and retained them as evidence. The sergeant showed the visors to the Facility Manager who also verified that they were the same visors that had been marked on June 23, 2000.

On July 19, 2000 the grievant was given a Group III Written Notice and discharged from employment. The grievant was subsequently arrested on August 7, 2000 on a charge of petit larceny pursuant to § 18.2-96 of the Code of Virginia. According to court records, on November 6, 2000, the grievant pleaded guilty, was given a suspended sentence of 30 days, and agreed to make restitution to the Commonwealth in the amount of $50.00. ⁴

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.⁵ 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 lists those offenses that include acts and behavior of such a serious nature that a first occurrence normally should warrant removal (from employment). Such offenses are designated Group III offenses and include:

2. Falsifying any records, including, but not limited to, vouchers, reports, insurance claims, time records, leave records, or other official state documents.

4. Theft or unauthorized removal of state records, state property, or the property of other persons (including, but not limited to, employees, patients, supervisors, inmates, visitors and students).

The agency issued the Group III Written Notice for violation of both the above-cited offenses. The following opinion addresses each offense separately.

Signing another person’s name on a state requisition form constitutes both forgery and the falsification of an official state document. The agency alleges that the grievant signed a subordinate’s name on three requisition forms and on three corresponding charge tickets from the supply parts store.⁶ On each of the three requisitions, the grievant had signed as the approver. Pursuant to agency policy, a different employee must sign as the receiver of the parts. Each of the three requisitions (and the corresponding charge tickets) bears a signature on the receiver signature line, which is purported to be that of an employee who is a subordinate of the grievant. That employee testified credibly that five of the six signatures were not his and that he was unsure about the sixth.

The agency’s allegation is based, in part, on the testimony of the current parts supply store manager⁷ who stated that he had witnessed the grievant sign the subordinate employee’s name on several occasions during a two-year period. The grievant denies that he has ever signed anyone else’s name to any form.

In December 2000, the grievant obtained an independent handwriting analysis from a forensic document examiner of his choosing. The expert’s report was inconclusive, observing that it could not be determined whether the grievant had signed the subordinate employee’s name or whether the employee had signed his own name.⁸

The Hearing Officer obtained signature exemplars during the hearing from both the grievant and the employee whose name appears as receiver on the six documents. The Hearing Officer certainly does not presume to be a handwriting expert. However, even an untrained eye can reasonably conclude that more likely than not, the employee whose name appears as receiver did not sign any of the six documents.⁹ Moreover, one can also reasonably conclude from several features of the handwriting that it is unlikely that the grievant signed that employee’s name as receiver. It appears therefore, that a third person signed the subordinate employee’s name as receiver.¹⁰

The grievant has acknowledged that he picked up the requisition on June 24, 2000 – a requisition on which he had been the approver. As the approver, the grievant knew that he could not sign the form as receiver. It also appears that the grievant had picked up parts on more than one occasion when he was the approver. The grievant picked up the parts and did not sign the requisition. More likely than not, a store employee forged the subordinate employee’s name. There was probably an understanding that the second signature requirement was just a formality that could be sidestepped by having someone forge the name of a receiver on the form. Therefore, it is concluded that the grievant did not personally forge a signature on the requisition forms or charge tickets.

Appropriating state property and installing it on one’s personal vehicle without permission constitutes theft of state property. Uncontroverted testimony established that:

1. the parts supply store manager first approached the agency’s Facility Manager on June 22, 2000 with a concern about the grievant’s requisition of visors and,
2. the visors were scratched with an identifying mark by the parts supply store manager in the presence of the Facility Manager on June 23, 2000 and,
3. the grievant picked up those visors from the parts supply store on June 24, 2000 and,
4. the same visors were found installed on, and subsequently seized by a Virginia State Police officer from a vehicle belonging to the grievant’s spouse and,
5. the same visors were identified by the parts supply store manager and the agency’s Facility Manager to be the same visors they had marked on June 23, 2000.

Based solely on these facts, the agency has shown a chain of custody for the visors that extended from purchase by the grievant to seizure by the state police. Further, the grievant acknowledged that the evidence was sufficient to convict him of the criminal offense of petit larceny and he entered an Alford plea that resulted in a conviction. The standard of proof to convict the grievant of a criminal offense is substantially higher than the standard of proof required in a grievance hearing.

The grievant contends that he had purchased visors in March 2000 and installed them on the 1993 Blazer on Easter, April 23, 2000. His wife and daughter both corroborated this contention. While this evidence was not directly contradicted, it fails to explain how the marked visors came to be on the 1993 Blazer at the time of seizure. It also fails to explain why the marked visors were not found on any state vehicles and were not in the spare parts supply closet at VDOT.

Following the grievant’s conviction in November 2000, and his restitution to the agency, the State Police turned the visors over to the grievant. The grievant brought to the grievance hearing a set of visors that he contends were the ones turned over to him by the State Police. The driver’s side visor has several scratch or scuff marks in the area adjacent to where the car’s outside rearview mirror would be located, as well as in the area 12–15 inches above the lower end of the visor. The Facility Manager examined the driver’s side visor and was unable to locate the identifying mark on the visor; he does not believe the visor brought to the hearing was the same one seized by State Police. The State Police trooper also examined the same visor at the grievance hearing; he could not locate the X and was doubtful that the visor was the same one he had seized. The grievant’s spouse, who had examined the visor in Court in November 2000, also examined the visor during the grievance hearing and was adamant that it was not the same visor she had seen in court.

Thus, three people (including grievant’s own witness) who were most familiar with the marked visor concluded that the visor brought to the hearing is not the one turned over to grievant by the State Police. Even though grievant firmly averred that it was the same visor, the weight of evidence suggests otherwise. Grievant volunteered during the hearing that he had purchased four other sets of visors in recent months from different suppliers just to demonstrate how readily available they are. Because a clear chain of custody of the marked visor could not be established between November 2000 and the grievance hearing, the Hearing Officer must find that the issue of markings on the visor, as viewed during the hearing, should carry little evidentiary weight.

Grievant contends that he faxed the May 22, 2000 requisition to the parts store. If that were so, the grievant would have retained in his possession the original of the requisition form. However, the credible testimony of the Facility Manager is that the parts store manager brought the original requisition when he came to the VDOT office on the afternoon of May 22, 2000. The grievant has thus failed to explain how the parts store manager came into possession of the original requisition that day.

Grievant also argues that he did not pick up parts on May 24, 2000. He believes that they were delivered by the parts store to the VDOT facility. He suggests that the parts store manager may have been mistaken about who received the parts on that date. Such an assertion flies in the face of logic. In view of the fact that the store manager was acutely aware that he was giving out a marked part, logic dictates that he would have been highly alert to the details of the pickup on that date. However, even if grievant’s assertion is correct, the fact remains that the marked visors were later found installed on his spouse’s vehicle. No satisfactory explanation has been offered to show how the parts received by a VDOT employee were later found installed on grievant’s Blazer.

Finally, grievant contends that the statements of the parts store manager related by others during the hearing are hearsay evidence. It is a well-established principle that hearsay testimony is admissible in all administrative hearings providing it is otherwise reliable.¹¹ It is, of course, incumbent upon the hearing officer to assign less evidentiary weight to hearsay testimony in evaluating its probative value against sworn testimony. In a Ninth Circuit case, the court held:

In this case, the hearsay statements of the store manager were assigned less evidentiary weight. However, also taken into consideration was the fact that the verbal hearsay statements of the store manager were corroborated by the State Police sergeant’s investigation, by the store manager’s e-mail to the agency Facility Manager on May 22, 2000 and, by his handwritten note on May 24, 2000.

The term " ’93 Blazer" had been written on the May 22, 2000 requisition. Grievant maintains that he was seeking visors for a one ton VDOT truck. When the parts store person expressed concern about availability, the grievant said that the same visor that fits the one ton truck would fit several other vehicles, each of which he specifically named, including early 1990 Blazers. There is no explanation of why the parts store person chose to write down only 1993 Blazer from among the various possibilities mentioned by the grievant.

To some extent, the grievant’s credibility affected this decision. Although the grievant presents himself well and exhibited good demeanor during the hearing, he has demonstrated a troubling pattern of evasiveness during both the investigation of this matter and during the hearing itself. The grievant initially denied to the State Police that he owned a 1993 Blazer. In a subsequent interview, he admitted that he did have such a vehicle but that it was registered in his spouse’s name. During the hearing, the grievant was asked how many vehicles he owned and he responded that he had three. Later, under further questioning, the grievant acknowledged that he and his wife sell used cars from their residence and have a total of 10 additional vehicles registered in their joint names through the business.

It appears more likely than not that the grievant did not forge an employee’s name on state requisition forms. However, the grievant did receive parts ordered on requisitions for which he had been the approver. This was a clear violation of the policy that required a second employee sign for such parts. Even though the grievant may not have signed the receiver’s name, he was aware that he should not be receiving the parts that he had ordered.

It appears more likely than not that the grievant did appropriate for personal use the set of marked visors found affixed to a personal vehicle owned by the grievant’s spouse. The agency has borne the burden of proof, by a preponderance of the evidence, to demonstrate a chain of custody for the marked visors running from the parts supply store to the grievant, to a vehicle owned by the grievant’s spouse, and subsequent seizure by the State Police. The grievant has not presented sufficient mitigation to overcome his actions.

The disciplinary action of the agency is hereby affirmed.

The Group III Written Notice issued on July 19, 2000 for theft of state property and the removal from state employment are AFFIRMED.

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

¹ The visors in question are polarized, molded plastic forms that can be affixed by self-adhesive strips to the outside doorframe of a vehicle just above the window. The strips are curved outward permitting windows to be opened slightly for ventilation while keeping out rain or snow during inclement weather.
² Exhibit 9.
³ Exhibit 10.
⁴ Exhibit 6. Grievant utilized an Alford plea when he pleaded guilty.
⁵ § 5.8 Department of Employment Dispute Resolution Grievance Procedure Manual.
⁶ Exhibit 2, pages 3-8.
⁷ The current store manager was assistant manager during May and June 2000. The person who was store manager in May and June 2000 now resides out of state.
⁸ Exhibit 12.
⁹ Exhibit 14, and Exhibit 7, page 12.
¹⁰ Exhibit 11.
¹¹ Section IV.A.3, Goldberg's Deskbook on Evidence for Administrative Law Judges (1993).
¹² Calhoun v. Bailar, 626 F.2d 145, 148 (9th Cir. 1980). Cert denied 452 U.S. 906 (1981