In the matter of Department of State Police Case Number 5194

Hearing Date: May 15, 2001
Decision Issued: May 22, 2001

On March 12, 2001, Grievant was issued a Group I Written Notice of disciplinary action for:

On March 21, 2001, 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 April 23, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On May 15, 2001, a hearing was held at the Agency’s regional office.

Grievant
Grievant’s Counsel
Agency Party Designee
Agency Representative
Lieutenant
Sergeant
Nine Troopers

Whether Grievant should receive a Group I Written Notice of disciplinary action.

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.

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

Grievant is employed by the Department of State Police as a Trooper. He has worked for the Agency for approximately six years and has received no prior disciplinary action.

Troopers sometimes use the tactical channel on their vehicle radios to communicate with other Troopers. The tactical channel allows communication directly between radios located within a limited range without the radio signal first traveling to the State Police base station.

On November 3, 2000, Grievant was attending a funeral for a fallen Trooper in Baltimore, Maryland. He was traveling in a State Police vehicle and was in uniform. Approximately 15 Virginia Troopers attended the funeral. They traveled to Maryland using about 6 or 7 State Police vehicles.

Trooper RS was already at the funeral when Grievant arrived. Using the radio in a State Police vehicle, Grievant asked whether any other Virginia State Police were at the funeral location. Trooper RS is known to have a "smart mouth". He responded on his vehicle radio to Grievant by saying words to the effect of "You guys from Area [Grievant's area number] are always messing things up by being late." Grievant recognized Trooper RS's voice and quickly said "bite me" in response to Trooper RS's degrading comment. Trooper RS replied with words to the effect of "You are only a tough guy on the radio" to which Grievant responded with words to the effect of "I can come over there and say it to your face." The radio conversation then ended.

Before making statements over the Police radio, it is customary for a Trooper to announce his badge number and then speak. Neither Trooper RS nor Grievant announced their badge numbers before speaking. They communicated using the tactical channel.

"The primary purpose of the State Police radio system is to provide a means of disseminating police information to mobile units and to provide them with emergency two-way communications." General Order 65(1). "Obscene language, slang, jargon, and practical jokes are prohibited" when using the State Police Radio. General Order 65(6)(d). General Order 65 does not define these terms. Blacks Law Dictionary (6^th Ed.) defines "obscene" as, "Objectionable or offensive to accepted standards of decency." New Webster’s Dictionary and Thesaurus defines slang as "currently widely used and understood language, consisting of new meanings attributed to existing words or of wholly new words, generally accepted as lying outside standard polite usage."

The phrase "bite me" is both obscene language and slang. The phrase is offensive to accepted standards of decency because it is intended to serve as an insult by suggesting an individual should place his or her mouth on another’s bottom or genitals. The phrase is also slang because it is generally accepted as lying outside standard polite usage.

General Order 19 sets forth the Agency’s policy governing Standards of Conduct for its employees. The Standards of Conduct distinguish between less serious and more serious actions of misconduct. Unacceptable behavior is divided into three types of offenses according to their severity. Group I offenses are the least severe offenses and include cases of "Obscene or abusive language" or "Inadequate or unsatisfactory job performance." General Order 19(12)(b). The discipline for Group offenses may be reduced in the interest of fairness and objectivity or consideration of an employee’s long service and/or otherwise satisfactory work performance. General Order 19(9)(b).

The Agency has met its burden of proving Grievant engaged in behavior that would warrant disciplinary action. Grievant used obscene language or slang over the State Police radio tactical channel thereby warranting a Group I Written Notice. There were no facts presented warranting a reduction in the disciplinary action.

Grievant contends he did not say "bite me" but rather told Trooper RS to "shut up." The Agency presented credible testimony from three State Troopers who said they recognized Grievant’s voice and were certain they heard Grievant say "bite me". Each of these troopers had known Grievant for over three years. Grievant presented evidence of other Troopers who said they did not hear Grievant say the offensive words. Three of these witnesses, however, were in a police vehicle where the volume on the State radio had been turned down once Trooper RS began talking and the vehicle also was equipped with a radio from a Virginia locality and that radio’s volume was not lowered. A fourth Trooper simply could not recall Grievant’s statements but could not say for certain that Grievant did not say the offensive words. Based on the evidence presented, it is more likely than not that Grievant said "bite me."

Grievant contends that Trooper RS received only a written counseling instruction without a Group I Written Notice and, therefore, Grievant is unfairly being treated differently from Trooper RS. The Hearing Officer is not persuaded by this argument. Although Trooper RS’s comments were inappropriate, he did not use obscene language or slang. Trooper RS’s comments may cause a person hearing them to respond verbally. Grievant’s comments, however, may cause a person hearing them to respond verbally and possibly physically.

Grievant argues the Agency failed to follow its own investigative procedure thereby requiring reversal of the disciplinary action. General Order 18 sets forth the Agency’s policy regarding investigations of its employees for alleged improper conduct. Grievant is correct that the Agency did not comply with General Order 18(12)(b) which states, "The investigating supervisor shall interview all witnesses who may have information concerning the case." Only two of at least nine witnesses were interviewed by Grievant’s supervisor. The Agency’s violation of General Order 18, however, is harmless error because all of the relevant witnesses testified at the hearing and Grievant could have requested the appearance of any other witnesses at the hearing.

Grievant also argues the Agency failed to follow General Order 18¹ because it began its investigation and questioning of him before it presented him with a letter of allegation advising him of his procedural rights and documenting that he understood his rights. See General Order 18(11)(c). This argument lacks merit because the Agency only learned of Grievant’s statement pursuant to its investigation of Trooper RS. Grievant provided the person investigating Trooper RS with a written statement describing what Trooper RS said over the radio to Grievant and what Trooper RS said to a Trooper from another State. While investigating Trooper RS’s comments, the investigator learned of Grievant’s improper radio communication. After completing its investigation of Trooper RS, the Agency notified Grievant it would be investigating him and provided him with the proper notices before taking additional statements from him.

Even if the Hearing Officer assumes for the sake of argument that the Agency failed to give Grievant proper notification of the investigation, the outcome of this appeal would be unaffected. If the Hearing Officer excludes from consideration any written statements and testimony of Grievant, the Agency has nevertheless met its burden of proving the words spoken by Grievant during the radio conversation.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group I Written Notice of disciplinary action 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.

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.

Carl Wilson Schmidt, Esq.
Hearing Officer