In the matter of Department of State Police Case Number 5270

Hearing Date: September 6, 2001

Decision Issued: September 7, 2001

Grievant

Attorney for Grievant

Captain of Division

Representative for Agency

Four witnesses for Agency

Was the grievant’s conduct on January 16, 2001 such as to warrant disciplinary action under the Standards of Conduct? If so, what was the appropriate level of disciplinary action for the conduct at issue? Was the disciplinary action issued promptly?

The grievant filed a timely appeal from a Group I Written Notice issued on June 14, 2001 for inadequate or unsatisfactory job performance because he had damaged a truck by hitting it with a flashlight. Following failure to resolve the grievance at the third resolution step, the agency head qualified the grievance for a hearing.

The Department of State Police (hereinafter referred to as "agency") has employed the grievant as a Trooper for three years. His annual performance evaluations have rated him as exceeding expectations.

On January 16, 2001, grievant began his normal 7:00 a.m. to 3:00 p.m. shift when he left his residence at 6:52 a.m. and logged on (code 1041) through the Computer Aided Dispatcher (CAD) system. At sometime prior to 7:30 a.m., grievant entered the eastbound rest area of an interstate highway in the northern portion of his assigned patrol area. He noticed a tractor-trailer parked on the shoulder of the exit ramp from the rest area in an area prominently marked with "no parking" signs. Grievant stopped his cruiser behind the truck, activated his blue lights and approached the cab of the truck. He rapped on the window or door of the cab and yelled, "Get up, wake up" to arouse the driver. When there was no response, grievant used a hard object (probably the butt end of his flashlight) to bang on the sleeper unit just behind the cab. The driver then came into the cab. Grievant advised the driver that he was illegally parked and to move his truck. The driver agreed to do so, started his truck and left the rest area.

Grievant then drove to the junction of two state roads located at the southwest corner of his assigned area. At approximately 8:11 a.m. he issued two summonses to the driver of a vehicle he observed violating the speed limit. During the next 50 minutes, grievant issued five more summonses to three drivers for various offenses in the same general location.

Upon leaving the interstate rest area, the truck driver ¹drove, without stopping and without any incident, to his destination located about 1½ hours away. When he arrived and got out of his truck, he noticed three dents in the side of the sleeper unit. These dents were particularly noticeable because they were almost at eye level (shoulder height) and because he had purchased the truck brand new only two weeks earlier. The trucker then called the State Police dispatcher at about 9:00 a.m. to report the incident and damage to his vehicle.

The matter was assigned to a sergeant for investigation. The sergeant met with the truck driver at about 7:00 a.m. on January 18, 2001 at the same interstate rest area. After interviewing the driver, the sergeant took Polaroid photographs of the dents at about 7:30 a.m. The photographs show the dents and, also show that the rest area was quite dark at that time. The weather on both January 16 and January 18 was gray and overcast in the early morning. The truck driver provided a physical description of the trooper that fits the description of grievant. He also recalled the first and last letters of the trooper’s name tag. The letters provided by the trucker are, in fact, the first and last letters of grievant’s last name. The investigating sergeant showed to the trucker photographs (without any identifying information) of the six state troopers on duty in the area on January 16, 2001. The trucker picked out grievant’s photograph. All but one trooper on duty January 16^th denied being in the rest area during the time in question. That trooper made a quick pass through the rest area from 7:16 a.m. to 7:18 a.m. ²He did not notice any other police cruiser during his run through.

Written policy requires troopers to frequently check rest areas on interstate highways during their shift. ³Troopers are also supposed to report these rest area checks through the CAD system. However all troopers who testified during the hearing, including grievant, candidly admitted that they do not always document such rest area checks in the CAD system. Thus, in actual practice, while troopers may actually be making rest area checks, many of the checks go unreported in the CAD system.

The investigating sergeant completed his investigation on April 24, 2001. A first sergeant endorsed the report on May 5, 2001. A lieutenant further endorsed the report on June 14, 2001 and a captain issued the disciplinary action on the same date.

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. ⁴

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 Training ⁵promulgated 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. Section V.B.1 of the Commonwealth of Virginia’s Department of Personnel and Training Manual Standards of Conduct Policy No. 1.60 provides that Group I offenses are the least severe of three groups of offenses. One example of a Group I offense is inadequate or unsatisfactory job performance. ⁶The agency has promulgated its own version of this policy, which also specifies that inadequate or unsatisfactory job performance is a Group I offense. ⁷

The only two people with direct knowledge of this incident are grievant and the truck driver. Grievant has denied being in the rest area at the time the incident occurred and suggests that the truck driver misidentified him. The truck driver is firm in his identification of the grievant as being the trooper who damaged his truck. The grievant testified credibly, and there was nothing about his demeanor during the hearing to suggest deception. The truck driver testified by telephone and therefore his credibility could not be visually assessed. His testimony was generally credible although there was an inconsistency between his statements during the hearing and his statement to the investigator seven months ago.

During the hearing, the truck driver maintained that he had arrived in the rest area shortly before 7:00 a.m. and that he had been writing in his logbook when grievant approached his truck. However, in his statement two days after the incident, the truck driver said that he had arrived in the rest area at about 5:30 a.m. and that he had been sleeping when grievant approached the truck. This difference in statements is not directly relevant to the incident herein; however, the truck driver’s prior inconsistent statement does raise a question about his credibility. It is unknown whether the truck driver’s memory of an event that occurred seven months ago is hazy, or whether he had other reasons for not wanting to admit that he had been sleeping in the rest area. Notwithstanding this question, the balance of the truck driver’s testimony was consistent and is found credible for the following reasons.

First, the truck driver was able to provide a physical description that matched that of the grievant. Second, he was able to accurately recall the first and last letters of the grievant’s nametag. Third, and most significantly, the truck driver picked grievant’s picture from a photo lineup of the six officers on duty at the time of the incident. It is highly unlikely that the truck driver could have made such a consistent, positive identification without having had a face-to-face interaction with the grievant. The possibility that grievant and the truck driver may have had some prior interaction was thoroughly explored during the hearing. Both of the two men could not recall any prior interaction. The trucker testified that he had never received a summons or even a warning from a police officer in Virginia; grievant cannot recall ever having encountered the truck driver before. Therefore, the only reasonable conclusion is that the grievant was, in fact, in the rest area on January 16, 2001 and that he did speak with the truck driver.

Having concluded that the interaction did occur, the remaining question is whether grievant damaged the truck. Grievant maintains that it is his practice to use his hand to rap on the window of trucks when attempting to arouse drivers and that he does not use his flashlight. The truck driver did not see the grievant when he heard banging on the side of his truck. The only other evidence is circumstantial. The agency had issued to grievant a long five-cell flashlight that grievant kept in the trunk of his cruiser and did not use. Instead, grievant purchased a rechargeable flashlight with a more powerful beam. While slightly shorter than the agency’s standard-issue equipment, the handles and butt ends of the two flashlights are the same diameter. ⁸However, the butt end of grievant’s personal flashlight contains an extensive number of nicks, scratches and dents suggesting that it is regularly used in a rough manner. While not directly probative in this case, this does suggest that the flashlight could have been used as alleged.

Circumstantially, one must also give weight to the inference drawn from grievant’s denial that he was in the rest area. If grievant had only aroused the trucker, warned him and sent him on his way, such legitimate performance of his duties would give the grievant no cause to deny having the encounter. On the other hand, if grievant had done something inappropriate, he might well be motivated to deny the entire incident. Based on consideration of all the evidence in this case, it appears more likely than not, that grievant did attempt to arouse the truck driver by banging on the side of the truck with his flashlight.

One of the basic tenets of the Standards of Conduct is the requirement to promptly issue disciplinary action when an offense is committed. Supervisors should be aware of inadequate or unsatisfactory work performance or behavior on the part of employees and attempt to correct the performance or behavior immediately. ⁹ When issuing the employee a Written Notice Form for a Group I offense, management should issue notice as soon as practicable. ¹⁰One purpose in acting promptly is to bring the offense to the employee’s attention while it is still fresh in memory. A second purpose in disciplining promptly is to prevent a recurrence of the offense. Unless an extensive, detailed investigation is required, most disciplinary actions are issued within a few weeks after an offense.

Here, the agency was notified of the alleged offense on January 16, 2001. The agency began its investigation immediately and interviewed the complainant on January 18, 2001. It is not clear what occurred between that date and April 4, 2001 when the trucker called to request reimbursement for damages to his truck. The investigator submitted his report on April 24, 2001, however, the discipline was not issued until June 14, 2001. Thus, the time between notice to the agency and the issuance of discipline was five months. Such a significant delay raises a question of whether the delayed issuance of discipline complies with the General Order’s requirement for prompt issuance of disciplinary action.^10>

There are situations in which a delay between notice to the agency and issuance of discipline can be justified by extenuating circumstances. When, for example, an agency is defending collateral litigation, it is not unreasonable to delay imposition of discipline in order to avoid disclosing information in a grievance hearing that might jeopardize a successful defense of the collateral action. No such circumstance exists in this case. The agency had no explanation for the three-month delay in completing the investigation and no significant reasons for the seven-week delay following completion of the investigation.

The disciplinary action of the agency is affirmed.

The Group I Written Notice issued to the grievant on June 14, 2001 is AFFIRMED. The disciplinary action shall remain active pursuant to the guidelines in Section VII.B.2 of the Standards of Conduct and Section 15 of General Order No. 19.

It is recommended that the agency take appropriate steps to assure that future offenses by employees are investigated expeditiously and that disciplinary actions are issued promptly.

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