In the matter of Department of Motor Vehicles Case Number 5224

Hearing Date: July 6, 2001

Decision Issued: July 10, 2001

Grievant

Attorney for Grievant

Legal Representative for Agency

Agency party

Three witnesses for Agency

Observer from Office of Attorney General

Did grievant falsify state records by changing a customer address without legitimate business reason on March 7, 2001? If so, what is the appropriate level of disciplinary action for the conduct at issue?

The grievant filed a timely appeal from a Group III Written Notice and discharge from employment issued on March 27, 2001. The parties failed to resolve the grievance during the three-step resolution process. Subsequently, the agency head qualified the grievance for a hearing.

The Department of Motor Vehicles (DMV) (Hereinafter referred to as "agency") has employed the grievant for 15 years. She had been working as a front line public service generalist at the time of the incident herein. Grievant has one active disciplinary action – a Group I Written Notice for unsatisfactory attendance; she also has three additional inactive Group I Written Notices for the same offense. Grievant has met or exceeded expectations on her annual performance evaluations.

Grievant had signed periodic policy statements regarding falsification of state documents in 1985 and 1992.¹ She was aware of the policy that prohibits an employee from processing either transactions involving immediate family or transactions they personally bring into a DMV office.² Standard DMV policy is that address changes are never made unless specifically requested in writing by the person whose address is to be changed; grievant was aware of this policy. Grievant had also received a copy of the agency’s Information Security Policy, which states, in pertinent part:

In October 2000, local police officers came to grievant’s residence and initially informed her that a person with a criminal record had stolen her husband’s automobile.⁴ At that time, grievant and her husband were living in separate residences. When police advised grievant of the alleged car thief’s name, she did not recognize the name and had never met him. The police also told grievant that the alleged thief was a bad character and reported to be a child molester. They alerted her to stay away from him and to have a heightened sense of awareness because the alleged thief knew her address. Grievant was frightened because of the police warning. During the next few months grievant received several letters⁵ from a local hospital, from DMV, from the Department of Social Services (DSS) and others addressed to the alleged thief at her address. She marked the mail "addressee unknown" and returned it to the postal service.

In late February, she mentioned to her husband that she had been receiving mail for a person she did not know. When she mentioned the person’s name, grievant’s husband reminded her that was the name of the person who had stolen the husband’s automobile.

In early 2001, grievant had applied for a new position as a technician within DMV but at a different location from where she was working until March 9, 2001. She was the successful applicant for this position and was transferred to the new location effective March 12, 2001. On March 7, 2001 grievant was bringing to a conclusion various outstanding customer problems on which she had been working for some time. As she resolved these situations, it occurred to her that she could resolve at least part of the problem she was having with mail addressed to the alleged thief being delivered to her address. Grievant accessed the DMV records for the alleged thief and changed his address to that of the main DMV headquarters in Richmond. She hoped that so doing would cause the account to be "flagged" and that someone would investigate the matter and keep her address from being used by the alleged thief. When grievant made the address change, she had never spoken to the alleged thief and she had never received authorization from management to make such a change.

The grievant’s manager was not available on March 7, 2001. On March 8, 2001, grievant told her manager what she had done. Her manager advised her that what she had done was improper and that she should have requested someone else to perform the transaction.

The database maintained by DMV can be accessed for legitimate government business by other state agencies such as DSS.

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.⁶

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 Training⁷ 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. SOC Policy 1.60 further provides that Group III offenses include acts and behavior of such a serious nature that a first occurrence normally should warrant removal [from employment]. One example of a Group III offense is:

1. Falsifying any records, including, but not limited to vouchers, reports, insurance claims, time records, leave records, or other official state documents.⁸

The agency based its disciplinary action on the fact that grievant knowingly changed the address of a customer to one she knew to be false, and that falsification of any state record is a Group III offense. Black’s Law Dictionary provides the following definition of "falsify:"

In this case, the uncontroverted evidence establishes that grievant did falsify the state record for a customer by changing his address to a false address. The agency further notes that the grievant did not seek management permission before making the change of address. Accordingly, the agency has borne the burden of proof to demonstrate, by a preponderance of the evidence, that the grievant committed a Group III offense. The remaining issue is whether there are any mitigating circumstances that would warrant a reduction in the disciplinary action taken.

The Standards of Conduct provide that corrective action for commission of an offense can include "counseling and/or disciplinary action."⁹Thus it is possible for a supervisor to counsel an offender soon after an incident so as to avoid a recurrence of the offense, but defer imposition of discipline until such time as management has had a chance to thoroughly evaluate the case and determine the appropriate level of discipline.

Grievant contends that she made the change of address to protect herself and her children from the alleged thief of her husband’s automobile. She knew that using DMV’s Richmond address would result in the transaction being flagged for investigation. Her primary goal was not to adversely affect the alleged thief but rather to assure that the alleged thief’s address was not shown as her address. The grievant’s motivation is certainly understandable under the circumstances described. Absent any evidence to the contrary, the hearing officer assumes that protection of self and children was grievant’s sole motivation.

However, the discipline in this case was for violation of the agency’s rules by making a change to a wrong address involving personal business brought into the office and making the change without management authorization. Grievant argues that this was not "personal" business because she has not met and does not know the alleged thief. This argument is without merit. The business was personal because grievant brought it into the office solely on her own and because it involved her own address. Neither the alleged thief nor anyone else had requested that his address be changed.

Grievant’s credibility was strained during the hearing by her testimony that she had never previously been disciplined by the agency. In fact, grievant had received four Group I Written Notices, one of which is currently active. Grievant attempted to explain her testimony by stating that she did not consider the four prior Written Notices as "formal" discipline because they did not come from Richmond. Given grievant’s 15 years of state service, it is difficult to believe that she could have such an impression. However, in the absence of evidence to the contrary, the benefit of the doubt goes to the grievant in this situation.

Although not a formal part of the discipline in this case, the agency noted – and grievant did not dispute – that she had changed her husband’s address in the database on March 5, 2001. This was a violation of the prohibition against making any changes in the records of immediate family members. Because of this and the incident at issue herein, the agency contends that the grievant’s truthfulness is in question and that she cannot be employed because the agency cannot trust her.

The Standards of Conduct policy provides for the consideration of mitigating circumstances in the implementation of disciplinary actions and states, in pertinent part:

1. conditions that would compel a reduction in the disciplinary action to promote the interests of fairness and objectivity; or an employee’s long service or otherwise satisfactory work performance.¹⁰

The grievant has been in state service for a significant number of years. Although attendance has been a periodic problem, she has overall been evaluated as meeting or exceeding expectations. Given her long service and satisfactory performance, termination of employment appears to be an overly harsh discipline in this particular case for the following four reasons. First, grievant has not been shown to have any improper motivation for what she did. She did not derive any financial benefit from changing the address. She saw her action as helping to distance herself and her children from an alleged thief/child molester. Given the police warnings, grievant’s action was understandable (although not excusable).

Second, although grievant did not follow the agency policy for making such a change, neither did she attempt to conceal what she was doing. She made the change to the address in such a way that she knew would cause the transaction to be flagged and investigated. She also told her manager on the following day what she had done. Thus, she was not deliberately attempting to falsify a record. Rather she attempted to correct a problem but unfortunately went about it the wrong way.

Third, grievant knew that she was moving to a new and different position the following week and may have believed that she would not have access to the database. She felt under pressure to take some type of remedial action before leaving her existing position. Again, this does not excuse her action but it does serve to provide a measure of mitigation.

Fourth, although grievant’s testimony that she had never been previously disciplined was received somewhat skeptically, it was not shown that she lied about the incident at issue herein. Thus, there is no evidence to show that she was anything other than forthcoming about what she did and why she did it. In summary, it is concluded that grievant made a serious mistake and that a Group III Written Notice is the appropriate level of written disciplinary action for such an action. However, there are sufficient mitigating circumstances that termination of employment is not warranted in this case.

The decision of the agency is hereby modified.

The Group III Written Notice issued on March 27, 2001 for the falsification of an official state record is MODIFIED. In lieu of termination of employment, grievant is suspended without pay for 30 days. She is reinstated to the position held on March 27, 2001, with back pay less the 30-day suspension, as soon as possible after receipt of this decision. This Written Notice shall be retained in the grievant’s personnel file for the period specified in Section 5-10.19.A of the Standards of Conduct.

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

¹Exhibit B.
²Exhibit C.
³Exhibit A. Certification of receipt of Information Security Policy, signed July 8, 1994.
⁴Testimony from the arresting officer established that the alleged thief was never formally charged with stealing the husband's automobile. The alleged thief contended he had permission from grievant's husband to drive the vehicle. Grievant's husband never filed a stolen automobile report with the police.
⁵Exhibit J. Grievant's handwritten statement, signed March 8, 2001.
⁶§ 5.8 Department of Employment Dispute Resolution, Grievance Procedure Manual, effective July 1, 2000.
⁷Now known as the Department of Human Resource Management (DHRM).
⁸Exhibit D. Section V.B.3, Standards of Conduct.
⁹Exhibit D. Section VI.B, Ibid.
¹⁰Section VII.C.1, DHRM Standards of Conduct Policy No: 1.60, effective September 16, 1993.