In the matter of Virginia Department of State Police Case Number 5209

Hearing Date: June 29, 2001
Decision Issued: July 2, 2001

On March 19, 2001, Grievant was issued a Group II Written Notice of disciplinary action with one-day suspension for:

On April 18, 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 14, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On June 29, 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
Agency Representative
Sergeant
First Sergeant
CAD Administrator
Hopewell Sergeant
Detective
Master Trooper
Two Troopers

Whether Grievant should receive a Group II 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. He is a sworn police officer who is responsible for patrolling the highways of the Commonwealth and enforcing all criminal, traffic, and regulatory laws. Grievant has worked for the Agency for approximately 18 years. No evidence was presented of any prior disciplinary action being taken against Grievant.

The Agency presented statistical evidence showing that in certain instances Grievant’s response time was longer than the response time of a typical Trooper in his area of the State.

On November 22, 2000, the Agency’s dispatcher called Grievant on his State Police radio at 12:05 p.m. (early afternoon) and informed him that a man wanted by the police was attempting to purchase a firearm at Tony’s Surplus and Loan. The man was wanted for failure to appear in court on a charge of driving on a suspended license. The dispatcher informed Grievant of the name of the business and its physical street address and also said that she was notifying local police in the event they had a police vehicle and officer close to the store.

Grievant was at a rest area when he received the call from the dispatcher. Grievant asked about a previous disabled motorist call and said that the call was unfounded. He then marked off in the rest area. By marking off, he indicated he would be working in the rest area until he marked back on. Troopers are required to either stop at rest areas and get out of their vehicles or pass through rest areas at least once during their shift. Grievant testified that he made an error when he marked off at the rest area using the radio code saying he was getting out of his vehicle. In fact, Grievant drove through the rest area and did not get out of his vehicle. He attempted to contact the dispatcher but could not do so because of heavy radio traffic. At 12:11 p.m. he informed the dispatcher he had cleared the rest area although he had been in route to the gun shop for several minutes.

Grievant did not go to the address given to him by the dispatcher. He went to the business location he remembered from several years earlier. He arrived at the old address and found no one there. At 12:33 p.m., he called the local police office for directions on the radio. He got no response so he called a neighboring police office and asked that police office to call the local police office. In the meantime, Grievant drove around the block and then asked a woman passing by if the she knew the location of the new store. She gave him directions and he reached the new store location at 12:39 p.m., or 34 minutes after first receiving the call from the dispatcher.

Upon receiving a call from the State Police dispatcher, the local police sent a police officer to the new location of the gun shop. By the time Grievant arrived, the local police had the suspense apprehended.

Although Grievant patrolled the highways near the locality, he often drove into the locality for lunch breaks or for other reasons. The locality is approximately 11 square miles in size.

Another Trooper reported Grievant’s failure to timely respond and the Agency began an investigation. The Sergeant conducting the investigation retraced the path most direct route from the rest area to the gun shop using a State Police vehicle. He measured the distance at 21 miles and took 22 minutes driving at the speed limit. He also drove the longest possible response route. He measured this distance at 28 miles and took 29 minutes to travel at the speed limit.

On Friday, November 24, 2000, Grievant was issuing a ticket to a motorist when he received a radio call from the dispatcher informing him of a 911 hang-up call at a rest area. Grievant finished issuing the ticket and headed towards the rest area. He turned on his blue lights and siren and drove at a high rate of speed.

Grievant was driving a blue unmarked State Police vehicle on a sunny day. His vehicle has two large radar cones extending from the left side of his vehicle. Together the cones are a little larger than a half-gallon plastic milk container. His vehicle also has three antennas protruding from the roof and back. A typical driver may not recognize from a distance that Grievant’s vehicle is a police vehicle, but the driver should realize this once the driver is close to Grievant’s vehicle.

While Grievant was on the interstate highway driving towards the rest stop, he noticed in his rear view mirror a vehicle driving at a very high rate of speed. Grievant slowed down to the speed limit of 65 m.p.h. and the vehicle passed him on his left without slowing down at all. Grievant suspected the driver was either intoxicated or taking drugs because any reasonable driver would have noticed he or she was approaching a police vehicle and then slowed down. The driver passed Grievant at 80 m.p.h. Grievant stopped the vehicle and issued the driver a ticket for speeding and for having an incorrect license address. (Agency Exhibit 2). By stopping the driver, Grievant delayed his trip the rest area by approximately 20 minutes.

Grievant chose to stop the driver and issue him a ticket rather than proceeding directly to the rest area because of Grievant’s experience with 911 hang-up calls. The rest area has an attendant on duty 24 hours every day. During daylight hours, on Mondays through Fridays, there is a tourist center there as well. Based on his experience, Grievant knew that nearly all of the 911 hang-up calls at the rest area were unfounded. For example, someone could dial 911 at the payphone at the rest area and hang-up as a prank. When the rest area first opened, it was plagued with unfounded 911 hang-up calls.

Grievant took 56 minutes to respond to the rest area.

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. 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." An example of a Group II offense is:

See General Order 19(13)(b)(1).

Agency sworn officers are governed by General Order 17, General Rules of Conduct. The purpose of General Order 17 is to "prescribe some general standards of conduct for employees" because of the "unusually high standards of honesty, integrity, impartiality, and conduct" expected of State Troopers. Paragraph eight of this order states:

The Agency contends Grievant is slow to respond to dispatch calls. It combined two separate factual scenarios into one disciplinary action. To determine whether the disciplinary action must be upheld, the Hearing Officer must examine each factual scenario separately and then consider them together.

Troopers assigned to patrols must "familiarize themselves with traffic hazards, geography of their territory, and particularly the location of highway." See General Order 23(6). Grievant may not have known the new location of the gun store, but he should have known the address given to him by the dispatcher. The address was a numbered avenue with which Grievant should have been familiar given that he sometimes ate lunch within two blocks of the avenue. Grievant chose to rely on his memory of the location of the gun store rather than going to the address given to him. Grievant’s behavior constitutes inadequate or unsatisfactory job performance.

The Agency does not have a written policy governing 911 hang-up calls at rest areas. General Order 17, paragraph 31 states:

The standard by which to measure Grievant’s behavior is whether he exercised good judgment and sound discretion.

Several different examples were given regarding what Grievant should have done when responding to the 911 hang-up call. First, the Sergeant testified that if he was responding to a 911 hang-up call at a rest area, he would turn on his blue lights, siren, and drive above the speed limit directly to the rest area. If he encountered a driver like the one Grievant encountered, he would stop that vehicle and warn the driver. Then, he would proceed at a high rate of speed to the rest stop. The Sergeant considered 911 hang-up calls to be as much of an emergency as a 911 call where the caller remains on the line. Second, the Division Commander testified that he would not have turned on his blue lights and siren but would have driven directly to the rest area at the speed limit. If he had encountered the driver as did Grievant, the Division Commander would have stopped and warned the driver, but proceeded directly to the rest area. If he felt it was necessary to give the driver a ticket, he would have at least called the dispatcher to let the dispatcher know he would be delayed to the rest area so another Trooper could be dispatched.

When a Trooper "observes a violation of law, he will either (1) warn, (2) arrest, or (3) summons the violator to appear before the court having jurisdiction." See General Order 23(9). Grievant chose to summons rather than warn the driver. Agency witnesses would have merely warned the driver. Given the likelihood that the 911 hang-up call would be unfounded, Grievant’s issuing a ticket to the driver appears appropriate. The Agency has failed to prove that Grievant failed to exercise sound discretion with one exception. The Agency has established that Grievant should have informed the dispatcher that he would be delayed to the rest area. Insufficient evidence was presented for the Hearing Officer to conclude that Grievant’s failure to inform the dispatcher was behavior requiring disciplinary action. The Hearing Officer recommends that the Agency, in its sole discretion, counsel Grievant regarding keeping a dispatcher informed when he will be delayed to a 911 hang-up call.

The investigative report contained several comments directly attacking Grievant’s character. No evidence was presented to support those comments. It is clear to the Hearing Officer that Grievant is a honorable man who is dedicated to serving the citizens of Virginia and who recognizes that he is fortunate to be among those chosen to work for such a prestigious agency.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group II Written Notice of disciplinary action with suspension is reduced to a Group I Written Notice. Because the normal disciplinary action for a Group I offense is issuance of a Written Notice, 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