In the matter of Department of State Police Case Number 5204

Hearing Date: June 7, 2001
Decision Issued: June 26, 2001

On February 27, 2001, Grievant was issued a Group III Written Notice of disciplinary action with three day suspension for:

On March 28, 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 May 8, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On June 7, 2001, a hearing was held at the Agency’s regional office. Upon the request by a party, the Hearing Officer found just cause to extend the 30 day time requirement for concluding the grievance due to the conflicting schedules of the parties.

Grievant
Grievant’s Counsel
Agency Party Designee
Legal Assistant Advocate
Woman
Police Officer
Patrolman
Sergeant
Grievant’s Wife

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

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:

The Virginia Department of State Police employs Grievant as a State Police Trooper II. Grievant is a sworn officer who is responsible for enforcing criminal laws, patrolling the highways, promoting highway safety through enforcement of the motor vehicle code, and assisting local law enforcement agencies within the Commonwealth. Grievant must exercise his judgment to determine whether the seriousness and circumstances surrounding an event require Grievant to issue a warning or summons to an individual or to make an arrest. (Agency Exhibit 1). Grievant has worked for the Agency for approximately three and a half years and his performance exceeded the Agency ‘s expectations during the previous performance cycle.

Grievant, his wife, three-year-old daughter, and 16-month-old son attended the Town Christmas parade in the evening of December 2, 2000. Grievant was not wearing his State Police uniform and was not using a State Police vehicle. In prior years, Grievant had worked in uniform during the parade. He knew where every police officer would be positioned along the parade route and he knew the best vantage points for viewing the parade. He drove his van to the parking lot next to the Town police station. The lot has six to eight parking spaces in a row with the first space being closest to the street and the last space farthest from the street. Each of the spaces is parallel to the road. Grievant backed his van into the first parking space and turned off the engine. Although his vehicle was parallel to the road, he could look through his front window and see the floats, etc. coming down the street towards him once the parade began. Grievant’s wife and daughter stepped out of the van and walked down the street looking for Grievant’s mother-in-law who was already at the parade and was standing somewhere among the crowd waiting for the parade. Grievant and his son remained in the van. Grievant planned on watching the parade from the street, but wanted to have the van available to him in the event his son became too cold. His son had been sick.

A Woman drove her sport utility vehicle into the parking lot and parked it directly in front of Grievant’s van and directly behind a Man and his Father in another vehicle parked in the entrance to the parking lot. The vehicle driven by the Man and his Father was parked perpendicular to the road so that the Man and the Father could see the parade directly in front of them. Because a row of bushes was between Grievant’s van the street, Grievant’s van was parked back from the street and the vehicle driven by the Man and his Father did not block Grievant’s view. When the Woman parked her vehicle behind the Man’s vehicle, however, she blocked Grievant’s view of the parade. Neither the Man nor the Woman were parked in marked parking spaces.

Grievant was blocked in. The Woman’s vehicle was parked one or two feet in front of Grievant’s van. If Grievant had driven forward, he would have hit the passenger side of the Woman’s vehicle. If he had driven backwards, his vehicle would have hit a brick wall that formed a side of the police station building.

Grievant was concerned that if the Woman and her family left their vehicle to watch the parade from the street sidewalk, and Grievant needed to leave the parade early, he would not be able to drive his van until the Woman returned. Because it was dark outside, Grievant was not sure if the Woman knew he and his son were inside the van. He quickly turned on and off his vehicle headlights two times in order to let the Woman know someone was inside the van. He also turn on the interior lights to his vehicle.

Sitting in the front passenger seat of the Woman’s vehicle was the Woman’s Mother. In the back seats were the Woman’s nine year old son and one year old daughter. The Grandmother saw Grievant turn on his lights. She gestured to Grievant as if to ask "Do you want us to move?" Grievant responded by holding his right arm with his palm flat and vertical and then moving his arm from right to left to indicate his request that they move their vehicle backwards. The Woman moved her vehicle back one or two feet but she continued to block Grievant’s view. The Grandmother then rolled down her window and asked Grievant "Do we have you blocked in?" to which Grievant answered "yes".

Grievant informed the Woman that she had not moved her vehicle back far enough, but the Woman did not agree. Grievant and the Woman got out of their vehicles and had a heated exchange behind the Woman’s vehicle. Only Grievant and the Woman know what was said and they have differing accounts regarding who was right, upset, out of control, etc. At some point the argument became so heated that Grievant identified himself as a State Trooper and displayed his badge. He threatened to arrest her if she did not calm down. The Man and his Father observed but could not hear the altercation between Grievant and the Woman. They did not testify at the hearing.

Once the dispute was at a stalemate, the Woman began walking towards the Police Station and encountered an Auxiliary Police Officer who was assisting with the parade. He realized the Woman was upset and needed assistance so he walked into the Police Station and asked the two police officers inside to come to the adjoining parking lot.

Once the Town police officers arrived, they met with Grievant, the Woman, the Man, and the Father in a group. Grievant was calm while the Woman told her side of the story. The Man and his Father interrupted with comments condemning Grievant. The meeting became disruptive and the two police officers interviewed Grievant and the Woman separately. The police officers did not observe any behavior by the Woman in their presence that would have justified them to arrest her. One officer, however, observed her yelling, screaming, and swinging her arms about.

One police officer testified that he had dealt with the Woman two or three years ago in a domestic conflict. He described her as "not a friend of law enforcement" but he did not testify she had a criminal record.

The altercation took no longer than eight to ten minutes.

After the parade, Grievant went to the Woman and said he apologized if she felt he had been rude to her.

General Order 19 sets forth the Agency’s Standards of Conduct governing State Troopers. Unacceptable behavior is organized into three groups according to severity with Group I being the least severe and Group III being the most severe offenses. Even though Grievant was not working as a State Trooper at the time of his confrontation with the Woman, he subjected himself to discipline under General Order 19 once he identified himself as a representative of the Virginia State Police. General Order 19(3)(c).

Grievant was appropriately annoyed when the Woman blocked him in and prevented him from seeing a clear path to the parade route. The Woman could have parked on the other side of the parking lot where she would not have blocked in anyone’s vehicle or obstructed anyone’s view. When the Woman’s mother informed her that she was blocking another vehicle with people in it, the Woman should have moved her vehicle to the other side of the parking lot without being asked to do so. Merely moving back a few feet did not mean she was no longer blocking Grievant’s vehicle. In short, the Woman was rude. When Grievant pointed out her rudeness, the Woman simply was not going to back down. No one was going to tell her what to do.

Grievant and the Woman had a heated discussion with only the two of them as witnesses to what was said. Grievant contends the woman became hysterical and so unruly that he had to inform her that he was a State Trooper and that he could arrest her if she did not calm down. He contends she was screaming and cursing including using the F-word. She testified she was upset but not out of control and did not use the F-word and that there was no basis for the Grievant to arrest her merely because did not like her. The Hearing Officer concludes that it is more likely than not that the Grievant’s account is closer to the truth for two reasons. First, when the parties were in a group speaking with the Town Police and later when the parties were separated, the Woman was visibly upset and gesturing wildly in an uncontrolled fashion. Second, the Woman testified she would not have used the F-word because her children were in the back seat and could have heard her; yet she admits saying "sh-t" and "d-mn" in front of them. Her selective approach to cursing seems contradictory. Third, the Woman testified that after she realized he was a State Trooper she did not "cuss him". A reasonable inference is that she cussed him before he identified himself as a Trooper.

Grievant argues he was obligated to and justified in identifying himself as a trooper and informing the Woman that he would arrest her if she did not calm down. He contends he acted appropriately under the circumstances. This argument lacks merit.

Once Grievant identified himself as a Trooper, his actions became those of the Department and he made himself subject to the expectations of a State Trooper. Even though Grievant was not in uniform, he was obligated to exercise professional judgment. Although Grievant may have had a legal basis to threaten to arrest the Woman, his professional judgment should have told him not to make such a threat. Grievant was not in a position to carry out his threat to arrest the Woman. Grievant should have asked himself whether he could have properly focused on arresting the Woman knowing that his 16 month old son was in the van watching or that his wife, daughter, and mother-in-law may arrive at any second to see him arresting the Woman. These possible distractions should have made Grievant realize he was not in a position to threaten or to carry out an arrest.

When Grievant first realized the Woman was upset with him, he should have walked away from her and done what any other citizen would have done under the circumstances – call the police. Grievant knew that several Town police officers were no farther than twenty yards from him. The Town police had no personal stake in the dispute between Grievant and the Woman and could have resolved the matter more appropriately. By remaining engaged in the dispute with the Woman, Grievant gave her the impression that he intended to use his authority as a State Trooper to win his personal dispute with her.

Grievant’s behavior warrants disciplinary action. General Order 19 states that Group II offenses "include acts and behavior which are more severe in nature and are such that an additional Group II offense should normally warrant removal." Group III offenses "include acts and behavior of such a serious nature that a first occurrence should normally warrant removal." Grievant’s behavior is not of such a serious nature that a first occurrence should warrant removal. It is serious enough, however, that receiving an additional Group II offense should warrant removal. Grievant’s behavior rises to the level of a Group II offense. In light of Grievant’s previous good work performance, no suspension is appropriate.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group III Written Notice of disciplinary action with suspension is reduced to a Group II. Grievant’s suspension is rescinded. GPM § 5.9(a)(2). The Agency is directed to provide the Grievant with back pay for the period of suspension, less any interim earnings that the employee received during the period of suspension and credit for annual and sick leave that the employee did not otherwise accrue. GPM § 5.9(a)(3).

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