Issue: Compliance; Conduct of Hearing and Hearing Decision; Ruling Date May 17, 2001, Ruling #2001-009; Agency: Department of State Police; Outcome: Out of compliance (Hearing Officer) Ruling vacated as of June 4, 2001 pursuant to agreed dismissal order

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

COMPLIANCE RULING OF DIRECTOR

In the matter of Department of the State Police May 17, 2001

EDR Ruling #2001-009

VACATED JUNE 4, 2001 PURSUANT TO AGREED DISMISSAL ORDER

The Virginia State Police ("VSP") has challenged the hearing officer’s decision because it is allegedly "out of compliance with the [grievance procedure] rules" and because it "should be reconsidered and the record should be reopened."1 For the reasons set forth below, this Department agrees that the hearing should be reopened.2

FACTS

On December 12, 2000, a grievance hearing was held to address the issues raised in the grievant’s March 17, 2000 grievance. The hearing ended suddenly when the grievant’s attorney announced that his client was suing one of the VSP officers in attendance at the hearing. VSP did not have an opportunity to cross-examine the grievant, provide rebuttal evidence, or make closing arguments.

On December 29, 2000, the Hearing Officer issued her decision. On January 5, 2001, the VSP, through their representative, challenged the decision to both this Department and the Hearing Officer. VSP based its challenge on questions regarding: (1) the completeness of the evidentiary record; (2) the Hearing Officer’s purported misunderstanding of the issue presented in the grievance; (3) the issue of the right to counsel; and (4) the appropriateness of the Hearing Officer’s personal observations regarding evidence.

On January 11, 2001, the Hearing Officer agreed that VSP did not have an opportunity to cross-examine the grievant or provide rebuttal evidence, and, thus conceded the record was incomplete.3 Accordingly, she stated that she would reopen the hearing to allow for cross-examination, rebuttal evidence and possibly closing arguments. She indicated, however, that she was uncomfortable holding further grievance proceedings while the grievant’s federal lawsuit was pending.

DISCUSSION

By statute, this Department has been given the power to establish the grievance procedure, promulgate rules for conducting grievance hearings, and "[r]ender final decisions in all matters related to procedural compliance with the grievance procedure."4 If the hearing officer’s exercise of authority is not in compliance with the grievance procedure, this Department does not award a decision in favor of a party; "the sole remedy is that the action be correctly taken."5

  1. The Completeness of the Evidentiary Record

The grievance hearing is an administrative process that envisions a more liberal admission of evidence than a court proceeding.6 Accordingly, the technical rules of evidence do not apply.7 By statute, hearing officers have the duty to "[r]eceive probative evidence" and to "exclude irrelevant, immaterial, insubstantial, privileged, or repetitive proofs."8 As long as the hearing officer’s findings are based upon evidence in the record and the material issues of the case, this Department cannot substitute its judgment for that of the hearing officer with respect to those findings. However, where there is evidence that a party may not have been afforded a full opportunity to present relevant evidence or respond to evidence presented by the opposing party, then this Department may order the hearing officer to reopen the hearing.

In this case, the Hearing Officer concedes that the record is not complete and that she will reopen the hearing. She apparently bases her conclusion on VSP’s lack of opportunity to cross-examine the grievant and offer rebuttal evidence. While this Department agrees with the Hearing Officer’s conclusion that reopening the hearing is appropriate, this Department does not concur that the reopening should be postponed until the conclusion of the grievant’s federal action against the VSP officer. This Department knows of no legal authority, nor did the Hearing Officer cite to any authority that requires the staying of the grievance process during the pendency of a civil matter filed in federal court. While the Hearing Officer’s apparent concern for preserving the rights of all parties and witnesses is admirable, this Department believes that the hearing can and should proceed as soon as possible.

  1. The Hearing Officer’s Perception of the Issues Presented

    2. In its appeal to this Department, VSP states that the Hearing Officer apparently misperceived the nature of the issues presented. From the face of the grievant’s Form A, it is not readily discernable what issues were qualified by the agency head. The parties and the Hearing Officer should resolve this issue prior to the resumption of the hearing. Should the parties be unable to reach any consensus, then they may request a ruling from this Department.

  2. Right to Counsel

    3. VSP notes that the officer who was named in the grievant’s federal lawsuit had a right to counsel at the grievance hearing. This is certainly correct. While it appears that this individual should have been aware of the likelihood of being sued by the grievant,9 this Department does not conclude that the Hearing Officer erred by allowing the named party to the grievant’s lawsuit to retain counsel before proceeding further. Hearings must be conducted in a fair and equitable manner and, thus, a hearing officer often must use her judgment and discretion to determine what actions must be taken to ensure an impartial hearing.10 Additionally, by statute, hearing officers have the authority to "[t]ake other actions as necessary" to further the hearing process.11 Therefore, while reasonable minds may differ regarding whether the hearing should have been halted at that time, the hearing officer did not abuse her discretion or the scope of her authority by deciding to do so.

  3. The Hearing Officer’s Personal Observations

VSP objects to the Hearing Officer’s holding in Conclusions of Law No. 16 which states: "My personal opinion in this matter is that everybody has overreacted." The Hearing Officer promises to address this concern in a later decision to be issued once the rescheduled hearing is completed. The supplemental decision may eliminate the need for this Department to address this concern. Therefore, this Department will also defer ruling on the appropriateness of the conclusion as stated.

CONCLUSION

For the reasons discussed above, the Hearing Officer is instructed to reschedule as soon as reasonably possible the reconvening of the hearing to provide VSP an opportunity to cross-examine the grievant and provide rebuttal evidence. The Hearing Officer may also allow for the presentation of closing arguments.

Neil A.G. McPhie, Esquire
Director

William G. Anderson, Jr.
Employment Relations Consultant

1 See letter from the Office of the Attorney General to the Hearing Officer, dated January 5, 2001.
2 Please note that recent changes to the grievance statute have resulted in changes to the grievance procedure. Because this grievance was initiated before July 1, 2000, this ruling is issued in accordance with the rules contained in the old procedure manual (Grievance Procedure, effective July 1, 1995, as amended July 1, 1999).
3 See letter of reconsideration from the Hearing Officer to the Office of the Attorney General, dated January 11, 2001.
4 Va. Code § 2.1-116.03(3) and (5).
5 Grievance Procedure, page 13.
6 Rules for Conducting Grievance Hearings, page 4.
7 Id.
8 Va. Code § 2.1-116.07(C)(5).
9 On or about April 14, 2000, both the Attorney General's Office and the State Police were notified of the grievant's intention to file an action apparently concerning, at least in part, the actions that formed the basis of the grievance at issue here.
10 Rules for Conducting Grievance Hearings, page 4.
11 Va. Code § 2.1-116.07(C)(7).