In the matter of Virginia Department of State Police Case Number 5210

Hearing Date: June 18, 2001
Decision Issued: June 29, 2001

On April 10, 2001, Grievant was issued two Group III Written Notices of disciplinary action with removal effective April 10, 2001 for:

1. Using public office for private gain in violation of General Order 19, paragraph 14.b(18) of the State Police Manual.
2. Engaging in conduct whether on or off the job that undermines the effectiveness and efficiency of the Department’s activities. This includes actions that might impair the Department’s reputation as well as the reputation or performance of its employees in violation of General Order 19, paragraph 14.b(20) of the State Police Manual.

On April 26, 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 17, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On June 18, 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
Sergeant
First Sergeant
Field Lieutenant
Body Shop Employee
Attorney
Sergeant
Wife

1. Whether Grievant should receive a Group III Written Notice of disciplinary action with removal for using public office for private gain.
2. Whether Grievant should receive a Group III Written Notice of disciplinary action with removal for engaging in conduct impairing the Agency’s reputation.

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 employed Grievant as a State Police Trooper II until his removal on April 10, 2001. His responsibilities included: (1) patrolling the highways of the Commonwealth, (2) enforcing all criminal, traffic, and regulatory laws, (3) investigating motor vehicle and aircraft crashes, (4) providing security and safety for persons and property, and (5) supporting and cooperating with other criminal justice agencies in the investigation of all matters of mutual interest. (Agency Exhibit 2). Grievant began working for the Agency in September 1995. Grievant received a Group I Written Notice on June 14, 1999 which was active at the time of the events giving rise to this grievance. (Agency Exhibit 31).

State Troopers are governed by a Code of Ethics. A portion of that Code states:

(Agency Exhibit 1).

Grievant received substantial training regarding ethics and professionalism as part of his training to become a State Trooper. For example, one Academy study outline states:

(Agency Exhibit 5).

Grievant and his Wife experienced difficulties during their marriage causing them to want to separate. Grievant met Ms. MA at the daycare where both of their children attended. They began a romantic relationship sometime in June 1998. Grievant regularly visited Ms. MA at her home and parked his State Police vehicle on her property. Grievant sometimes visited her during his meal breaks. In November 1998, Ms. MA moved into Grievant’s home shortly after his wife moved out.

Grievant’s supervisor learned from another Trooper that Ms. MA was living with Grievant while he remained married. He told Grievant that Grievant and Ms. MA could not live together without being married to one another. Ms. MA moved out of Grievant’s house and into another residence in March 1999. Grievant regularly visited Ms. MA at her home. He parked his State Police vehicle on her property.

Grievant’s relationship with Ms. MA lasted until July 1999. Grievant and his wife reconciled in July 1999 and they resumed living together.

On October 29, 1999, Grievant’s wife had flowers in her car that were given to her by the Grievant because it was their anniversary. While picking up Ms. MA’s children at daycare, the mother of Ms. MA observed the flowers and informed Ms. MA that Grievant had given his wife flowers for their anniversary.

On November 4, 1999, Ms. MA contacted the Agency and filed a complaint alleging:

(Agency Exhibit 8). The Agency began an investigation.

On March 14, 1999, a young college student was driving a 1996 Ford Mustang when she encountered snow on the road. Her vehicle went out of control and the front end hit a guardrail. The vehicle spun around and hit the guardrail again and then stopped. (Agency Exhibit 12). She abandoned the vehicle.

Grievant arrived at the accident after the student left. He inspected the vehicle and the damage to the guardrail. He drafted a motor vehicle accident report estimating the cost to repair the vehicle at $1,500.

While on duty, Grievant contacted the vehicle’s owner. She was the mother of the college student driver. Grievant informed the mother that he was interested in purchasing the vehicle but would have to call her back when he was not on duty. Grievant telephoned the mother in the next few days and told her he worked on cars and wanted to purchase the vehicle. He offered to purchase the Mustang for $150 less the cost of towing and storage. The mother said she would have to call him back after she spoke with her daughter because the car belonged to her daughter. The mother was the actual titleholder but the daughter was the one who drove the vehicle on a regular basis and, thus, the mother considered the daughter to be the "owner".

When Grievant spoke with the mother, he obtained the telephone number where he could contact the college student. He telephoned the college student while she was at a friend’s house. Grievant asked her if the vehicle had been in any prior accidents and if it was for sale. He told the college student he would have to call her about the vehicle when he was not on duty. She responded that she would have to speak with her mother and father about selling the vehicle. Grievant gave her his telephone number.

A few days later the college student called Grievant to ask for a higher price. He rejected her request. She later called him and said she would accept Grievant’s offer. Both the mother and the college student signed the back of the vehicle title. Grievant received the vehicle title and gave the college student $50 and told her the towing and storage fees were $100.

The Salvage Dealer had been running his business for 21 years. He knew Grievant was a State Trooper because he had "Just seen him around." (Grievant Exhibit 1, Tr. 41). He was at a body shop when he saw the 1966 Mustang in a field. He asked the body shop owner about purchasing the vehicle and was informed that Grievant was the owner. The Salvage Dealer subsequently contacted Grievant and offered to purchase the vehicle. Grievant initially said he did not want to sell the vehicle but after some time passed, Grievant called the Salvage Dealer and asked for a trade. Grievant wanted to trade the vehicle for small block engine for which the Salvage Dealer was asking $300. Grievant agreed and they traded property at the Salvage Dealer’s business. Grievant gave the Salvage Dealer the title on the day he received the engine.

The title was not properly completed. It had the mother’s and daughter’s names on the back but it did not show Grievant as the owner. (Agency Exhibit 15). Grievant had not gone to the Department of Motor Vehicles to pay the necessary fees to have the title put in his name. After Grievant and the Salvage Dealer finalized their deal, the Salvage Dealer noticed the title was not properly completed. He contacted Grievant and asked Grievant to correct the title. Grievant responded that he thought he could get the title straight and would contact the Salvage Dealer after doing so. Grievant never contacted the Salvage Dealer and never corrected the title. (Grievant Exhibit 1).

Approximately eight months after the accident, the Sergeant located the Mustang at the salvage yard. He was investigating allegations against Grievant. He observed that the vehicle was in excellent shape. It had four practically new tires and an inspection sticker of November 1999. He estimated the vehicle’s value to be much more than $75.00. He could not detect $1,500 of damage to the vehicle as listed in the accident report. (Agency Exhibit 9).

Near the end of Grievant’s shift on November 13, 1999, the State Police dispatcher informed Grievant of a complaint by a women who alleged juveniles were in a field behind her driving recklessly and trespassing. Grievant was also informed that a vehicle was overturned. Grievant met with the woman for ten or fifteen minutes and told her the matter was a civil matter and there was nothing he could do about it so he left the scene. He told her that since it was not illegal for a juvenile to drive a vehicle off road, there was nothing he could do. The woman was unsatisfied with Grievant’s response so she called the local sheriff’s office. A deputy sheriff went to the property and walked into the area where the vehicle was located. He saw that the vehicle was stuck on a tree stump. He ran a license check and found out that the vehicle was stolen. The deputy sheriff called the State Police dispatcher to have Grievant return to the scene, but he had already ended his shift. Grievant had requested to take leave on the last hour of his shift.

Grievant was prosecuted for criminal violation of the motor vehicle laws. While the criminal matter was pending, the Agency suspended its administrative investigation. Grievant was convicted in General District Court of violating Va. Code § 46.2-617 regarding the transfer of vehicle title. He filed an appeal thereby vacating the General District Court’s decision. The Circuit Court acquitted him of the charges.

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. General Order 19 limits corrective action to "employee conduct occurring only when employees are at work or when otherwise representing the Commonwealth in an official or work-related capacity, unless otherwise specifically provided for in this procedure." See General Order 19(3)(b)(3).

"Using public office for private gain" is a Group III offense under General Order 19. Although State Troopers do not hold public office in the customary sense of the phrase, the context of the phrase reveals that the Agency intends to prevent its sworn officers from using their positions for their personal benefit.

The Agency contends Grievant used his position as a Trooper to coerce and intimidate the owner of the 1996 Mustang to sell the vehicle to him at a price substantially below its value. The evidence presented supports only a portion of this allegation.

Grievant did not coerce and intimidate the seller of the 1996 Mustang. Grievant presented portions of a transcript of the criminal trial where the mother and student testified about the transaction. None of their testimony suggests Grievant coerced or intimidated them into selling the vehicle. All of the negotiating occurred over the telephone and the mother and daughter called Grievant back to continue the negotiations. Sufficient time passed for the mother to determine the value of the vehicle. The Hearing Officer can conclude that Grievant drove a hard bargain, but not that the mother or student believed they had to sell the vehicle to Grievant.

The evidence presented is insufficient for the Hearing Officer to conclude that Grievant purchased the vehicle for substantially less than its true value. Rust permeated the vehicle. It hit the guardrail twice and had to be towed from the accident. The Sergeant’s conclusion that the value of the 1966 Mustang was much greater than $75.00 is not a reliable indicator of the value of the vehicle when Grievant purchased it. The accident occurred in March 1999. Eight months later, the Sergeant observed the vehicle with four practically new tires and a November 1999 inspection sticker. The car may have been improved in order to pass inspection. The value of the vehicle in November 1999, does not indicate its value in March 1999.

Within a month of buying the vehicle, Grievant traded it to the Salvage Dealer for an engine that the Salvage Dealer valued at $300. In instances of barter, it is difficult to determine the market price of a transaction because of the absence of an exchange of money. Although the Salvage Dealer may have valued the engine at $300, the Grievant may have valued it at $150 or lower. The Hearing Officer cannot conclude that Grievant deceived the Mustang owner into selling a vehicle worth $300 for less than $150.

Grievant promised to pay the vehicle owner $150 less towing and storage charges. The evidence presented is insufficient for the Hearing Officer to conclude that Grievant failed to pay this sum. All parties agree Grievant gave the student $50 cash. The parties disagree as to whether the towing and storage fees amounted to $100. The individual who towed the vehicle is deceased. He was not interviewed before his death and his records were not produced. The Agency’s contention that Grievant did not pay $100 is no more than a suspicion based on Grievant’s vague recollection and his failure to have his own records documenting payment. The evidence does not support the Agency’s contention.

Although the Agency has not established the severity of the allegation against Grievant, the Agency has established that Grievant acted improperly. Grievant used "inside information" in order to procure a vehicle he wanted to own. This behavior is contrary to the ethical standards governing State Troopers. He exploited confidential information that he acquired as part of his police work. He placed himself in a position of potential conflict. Because Grievant knew he wanted to purchase the vehicle, he was in a position to overstate the cost of repair in order to gain a more favorable price when he later offered to purchase the vehicle. Grievant’s behavior reflects his inadequate or unsatisfactory job performance thereby justifying issuance of a Group I Written Notice.

General Order 19(14)(b)(20) defines Group III offenses to include:

A Group III offense is of such a serious nature that a first occurrence should normally warrant removal.

In most instances, the Hearing Officer gives greater weight to credible oral testimony of a witness than to the written hearsay statements of someone who does not appear before the Hearing Officer. In-person testimony allows the Hearing Officer to observe the demeanor of the witness and allows the opposing party to challenge the testimony. Written statements are admissible in grievance proceedings, but the Hearing Officer has less of an opportunity to examine the accuracy of the statements.

The Agency relied heavily on the written hearsay statements of Ms. MA to show that Grievant undermined the reputation of the Agency. Ms. MA was not called by the Agency as a witness. No explanation was offered for her absence. The written statements of Ms. MA were sometimes inconsistent without explanation. By contrast, Grievant testified credibly that many of her allegations were untrue and based on her objective of getting even with Grievant for his ending his relationship with her. To the extent Grievant and Ms. MA made contradictory statements, the conflict must be resolved in favor of Grievant.

The Agency issued a single Group III Written Notice based on five largely independent incidents. Nothing in General Order 19 or the Commonwealth’s policies and procedures prohibits this practice. To determine whether the Group III should be upheld, the Hearing Officer must consider each of the incidents and determine whether when considered together, they are sufficient to support the Group III Written Notice.

1. Adultery. Grievant admits to engaging in sexual relations with Ms. MA while he was married but physically separated from his wife. Adultery is a misdemeanor under Va. Code § 18.2-365. It is seldom prosecuted. Adultery remains a "fault" grounds of divorce under Va. Code 20-91(A)(1) if the adultery (including post-separation adultery) can be proven by clear and convincing evidence. Clear and convincing evidence is a standard of proof higher than the preponderance of evidence standard required in civil trials, but lower than the beyond a reasonable doubt standard required criminal trials. Agency witnesses testified, in essence, that if Grievant had kept his adultery private, no action would have been taken against him. Grievant made the adultery public by regularly parking his State Police vehicle on Ms. MA’s property and by moving her into his house.

Adultery is clearly against public policy and by engaging in adultery in a public manner, Grievant might have impaired the Department’s reputation. Grievant contends no evidence was presented of actual damage to the Department because of his adultery. Proof of actual damage, however, is not necessary. General Order 19 merely requires action which might reasonably impair the Department’s reputation.

2. Failure to Perform Duties. The Agency contends that while Grievant was on duty and in uniform, he went to Ms. MA’s home, concealed his patrol car, watched movies, eat meals, engaged in sex, failed to respond to radio calls, and failed to fulfill his assigned duties. Ms. MA’s statements provide most of the evidence supporting the Agency’s conclusion. Because Grievant adequately rebutted her accusations, the Hearing Officer concludes that the Agency has not met its burden of proof to show Grievant failed to perform his duties while working and in uniform.

3. Failure to Engage in Pursuit. The Agency contends that on October 31, 1999, Grievant failed to respond and assist with a pursuit. This allegation is based solely on the statements of Ms. MA. Grievant credibly denied the allegation and, consequently, the Agency did not meet its burden of proof to show Grievant failed to engage in a pursuit.

4. Failure to Assist and Investigate. The Agency contends Grievant failed to properly investigate a woman’s complaint to the Department about juveniles driving erratically behind her house. The evidence supports the Agency’s contention.

Grievant contends he acted appropriately when he went to the woman’s home but failed to locate and question the juveniles because (1) the woman was not the owner of the property where the juveniles were operating the vehicle and she did not have the right to grant him access to the property so he could investigate; and (2) there was no probable cause to independently enter the property without the owner’s permission. (Agency Exhibit 19).

Grievant’s contention is contrary to the evidence. Testimony revealed that State Troopers often enter property without the owner’s permission to investigate complaints, and, thus, it was not necessary for the woman to grant him permission. In addition, the dispatcher informed Grievant that the woman alleged the juveniles were trespassing and, thus, there was probable cause to believe a crime may be in process.

Grievant’s failure to properly investigate the complaint impaired the Department’s reputation. After Grievant left the woman’s house, she called the local sheriff’s office. A Deputy Sheriff arrived at the house and properly investigated the complaint. The Deputy Sheriff entered the property where the juveniles were driving and ultimately determined that the vehicle they were driving was stolen. The woman could reasonably conclude that the Department tolerates incompetent employees while the Sheriff’s office does not.

5. Failure to Comply with Vehicle Titling Laws. The Agency contends Grievant failed to properly secure title to the 1966 Mustang before he sold it to the Salvage Dealer. The evidence supports the Agency’s contention.

Virginia laws governing titling vehicles are complicated and sometimes obscure. The Hearing Officer cannot conclude that Grievant knowingly or intentionally violated a criminal law. This is especially true in light of the Circuit Court’s acquittal of Grievant. The fact remains, however, that Grievant failed to properly title the 1996 Mustang once he purchased it. Grievant contends he complied with titling laws. His argument lacks merit.

Grievant had a choice. He either could have re-titled the Mustang in his name or he could have obtained a non-repairable certificate pursuant to Va. Code § 46.2-1603. Grievant did neither. Instead he left the title open. Shortly after purchasing the vehicle from Grievant, the Salvage Dealer informed Grievant of the problem with the title and asked that Grievant correct the problem. Grievant failed to do so. He placed the consequences of his failure to properly title the vehicle onto the Salvage Dealer. The Salvage Dealer knew Grievant was a State Trooper and knew that Grievant had not complied with Virginia’s titling laws.

A Trooper who fails to follow vehicle titling laws and places that burden on another, may leave that individual with the impression that the Department employs Troopers who do not follow the law and do not honor their word.

Remaining Incidences Amount to a Group III. Grievant’s adultery, failure to assist and investigate, and failure to comply with titling laws amount to a Group III offense. Although each incident may not in itself constitute a Group III offense, when considered together they reflect a singular pattern of indifference that undermines the effectiveness of the Department and undermines its reputation. A Group III offense is of such a serious nature that removal is warranted. Grievant’s removal from employment must be upheld.¹

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group III Written Notice of disciplinary action for using public office for private gain is reduced to a Group I Written Notice. The Agency’s issuance of a Group III Written Notice of disciplinary action for impairing the Department’s reputation is upheld. Grievant’s termination 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