Issue: Compliance/Hearing Decision; Ruling Date August 3, 2001; Ruling #2001-064 Agency: Department of Mental Health, Mental Retardation and Substance Abuse Services; Outcome: Hearing officer ordered to issue new decision per administrative review.

In the matter of the Department of Mental Health, Mental Retardation, and Substance Abuse Services
August 3, 2001
EDR Ruling #2001-064

The agency, through its representative, has appealed the hearing officer’s April 2, 2001 decision in Grievance No. 5142-S. The agency objects to the decision on three grounds: (i) the hearing officer exceeded the scope of his authority by finding agency policy to be unclear and by holding that the grievant may not be disciplined for violating an unclear policy; (ii) the hearing officer erred in finding that management failed to establish that the grievant knew or should have known of the definition of "sexual predation;" and (iii) the decision is inconsistent with law and policy. As discussed further below, the agency’s specific arguments are largely misplaced. Nevertheless, on related grounds, the hearing officer is directed to reconsider his decision in light of this ruling and a ruling forthcoming from the Department of Human Resource Management (DHRM).

The grievant is employed by a state mental health facility. He was issued a Group I Written Notice for failure to follow agency Policy RM-5A. He grieved the discipline, the hearing officer rescinded the Group Notice, and the agency appealed that decision to this Department and to the Department of Human Resource Management (DHRM).

Policy RM-5A states that its purpose is "[t]o "describe and publish a procedure for the management of suspected rape or cases of possible sexual predation." ¹ Policy RM-5A does not define "possible sexual predation" or "sexual predation," but Section IV (entitled "POLICY") expressly states that the intent of Policy RM-5A is "to establish guidelines" for managing "circumstances in which patients may take advantage of other patients in a sexual manner." Under Section IV, "[e]ffecting the procedures described" in Policy RM-5A" is "indicated when hospital employees or staff suspect or gain knowledge of sexual activity that may involve coercion either physical or verbal, violence, sexual activity involving a patient who does not possess the capacity to knowingly consent to the act or who is statutorily incapable of consent." Such cases are to "be reported immediately and be given a high attention priority." In light of the above cited language from Section IV, one reasonable interpretation of "sexual predation" in the context of Policy RM-5A could be akin to the following: activity in which one patient "takes advantage" of another patient "in a sexual manner," such as "sexual activity that may involve coercion either physical or verbal, violence or sexual activity involving a patient who does not possess the capacity to knowingly consent to the act or who is statutorily incapable of consent."²

Section VI of Policy RM-5A (entitled "PROCEDURE"), lists the specific actions that identified employees and staff "will" take "[w]hen a case of suspected rape or sexual predation is brought" to their attention. For example, under Section VI, when a case of "suspected rape or sexual predation" is brought to the attention of a Charge Nurse during the evening or weekend, he or she "will" notify the MOD and AOD; assign someone to provide emotional support to the patient and to collect his or her clothing for evidentiary purposes; contact the Campus Police and give them the clothing; and arrange to transport the patient to the local Medical Center’s emergency room. Under Section VI, when a case of suspected rape or sexual predation is brought to the attention of an AOD, he or she "will" provide "assistance as necessary" and "[r]eport through channels to their respective supervisors."

In this case, the underlying facts are largely undisputed: Client J stated to another facility employee that Client H "made him [Client J] do it, he made me beat him off." At the time of the statement, Client H was standing with his pants half way down, next to Client J. Although the grievant did not observe this incident, another employee reported the incident to him. When he received the report, the grievant was serving as Administrator on Duty (AOD), the most senior manager on duty at the facility. Based on the description of the incident and his personal knowledge of Clients H and J, the grievant concluded that while the reported action constituted "inappropriate sexual behavior," it was not rape nor was it "coerced." The grievant referred the matter to the Treatment Team but did not immediately inform his supervisor, because he "did not see the incident as coercion or rape." ³

Thus, the grievant’s position appears to be that if he had suspected or gained knowledge of possible coercion or rape, he would have immediately reported the incident to his supervisor, but in this case, he did not believe the incident involved those possibilities, so he did not immediately report it. The agency has asserted, however, that Policy RM-5A does not allow the grievant (or any other employee) any discretion to make a determination as to whether coercion or rape was possibly involved. Thus, the agency’s position appears to be that under Policy RM-5A, all incidents of sexual activity at the facility must be reported up the chain of command, or at least those where there is some reason to believe that the activity may not have been consensual (e.g., a statement such as "he made me do it").

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 The Department of Human Resource Management has the authority to determine whether the hearing decision is consistent with policy.⁶ Further, a circuit court has appellate jurisdiction to determine whether the hearing decision is consistent with law.⁷

In accordance with the above, whether the hearing decision is consistent with policy is a matter for DHRM, not this Department, to determine. The agency has requested an administrative determination by DHRM, which has notified the parties that its decision will be issued after this ruling.

Likewise, questions regarding the decision’s conformity with law are to be reviewed by the circuit court in the jurisdiction in which the grievance arose, not this Department. Only final hearing decisions are reviewed by the circuit court. The hearing officer’s decision becomes a final hearing decision once all timely requests for administrative review have been decided and, if ordered by this Department or DHRM, the hearing officer has issued a revised decision.⁸

The agency asserts that in considering the above issue and making his related finding, the hearing officer abused his authority under the grievance procedure, on the following grounds: the issue of the grievant’s knowledge of the meaning of "sexual predation" had not been qualified for hearing; the evidence did not support the hearing officer’s finding; and in any event, the parties did not disagree on the meaning of "sexual predation."

As an initial point, whenever an agency disciplines an employee for allegedly failing to follow the requirements of an internal policy or procedure, the agency bears the burden at hearing of proving the specific requirements of that policy or procedure, including the meaning of any disputed and relevant term and definition. Thus, in a grievance challenging a disciplinary action as in this case, the requirements of the relevant policy are not issues for which another qualification is necessary apart from the disciplinary action itself. Accordingly, as a matter of compliance with the grievance procedure, there was no need in this case to separately qualify, as an issue to be heard, the meaning of any relevant term or provision in Policy RM-5A. Indeed, Policy RM-5A was specifically cited by the agency as the basis for its discipline in the Group I Written Notice challenged by this grievance.

Secondly, the grievance procedure expressly authorizes a hearing officer to make findings of fact and to determine the material issues of the case based on the record evidence. This Department will not substitute its judgment for that of a hearing officer in determining factual issues.⁹

Notwithstanding the above, we are compelled to note that the portions of the grievance record that we have reviewed for this ruling (all but the hearing tapes) bear no indication that the grievant and the agency disagreed on the general meaning of "sexual predation." Indeed, it appears from the Grievance Form A and attachments that the grievant may have equated sexual "coercion" with sexual "predation" -- in other words, something other than consensual sexual activity. This would appear to be at least one reasonable understanding of the Policy’s term "sexual predation" for an experienced mental health professional like the grievant, perhaps even many lay persons. We further note that although Policy RM-5A does not define "sexual predation," it expressly references circumstances in which patients "may take advantage of" other patients "in a sexual manner," or sexual activity involving "coercion" or a lack of "consent."

Finally, it appears that the hearing decision’s strong focus on the meaning of "sexual predation" may have eclipsed a related, but distinct material issue presented in the Grievance Form A and attachments: whether the grievant knew or should have known that under the agency’s interpretation of Policy RM-5A, he had no discretion to determine whether the incident involving Clients H and J constituted possible rape or sexual predation, but rather was obligated to immediately report to his supervisor all incidents of sexual activity at the facility, or at least those where there is some reason to believe that the activity may not have been consensual (e.g., a statement such as "he made me do it"). The issue of discretion is not addressed in the hearing decision. Another issue not addressed in the hearing decision that may merit further consideration includes the impact on this case, if any, of Policy RM-5A’s language regarding incidents of sexual activity "involving a patient who does not possess the capacity to knowingly consent to the act or who is statutorily incapable of consent."¹⁰

Because the issue of discretion appears from the Form A to have been a central defense for the grievant, the hearing officer is ordered to issue a revised opinion addressing it no later than 10 days after receiving DHRM’s decision, in a manner consistent with DHRM’s policy determinations. Further, because the issue of capacity to consent is also intertwined with the duty (or discretion) to report, the hearing officer is directed to consider the capacity issue as well.

The agency asserts that that the hearing officer exceeded the scope of his authority by finding agency policy to be unclear and by holding that "[a]n employee may not be disciplined for violating a policy that is unclear regarding a material term unless the Agency can establish that the employee knew or should have known the meaning of the material term."

Where the plain language of an agency policy is capable of more than one interpretation (as may be the case here), the agency’s interpretation of its own policy is entitled to substantial deference, unless the agency’s interpretation is clearly erroneous or inconsistent with the express language of the policy. Thus, an agency’s policy (along with an agency’s interpretation of its policy) is generally enforceable, assuming an employee has received fair and adequate notice of the policy itself, and, where the written policy may be susceptible to more than one reasonable interpretation, fair notice of the agency’s interpretation of that policy.¹¹ For example, if the agency’s interpretation of policy is one of "no discretion whether to report," as in this case, a hearing decision must acknowledge that interpretation, [unless the plain language of the written policy forecloses that interpretation]. However, if the hearing officer finds that the grievant did not have fair and adequate notice of the agency’s interpretation (through either the plain language of the policy or by other means of actual notice such as training, written counseling, etc.), he can refuse to hold the grievant accountable for having violated that policy, and can mitigate the discipline due to the lack of fair and adequate notice.

Accordingly, the hearing officer did not violate any aspect of the grievance process by considering the clarity of Policy RM-5A. Although a hearing officer has no authority to order an agency to change the wording of a policy that he finds to be unclear, a hearing officer may consider a policy’s clarity as a mitigating factor in deciding whether to uphold or reverse a policy-based disciplinary action. If the hearing officer determines that the meaning of a policy is unclear on its face and that the grievant has not otherwise received adequate notice of the policy’s meaning, the disciplinary action may be reduced or reversed. ¹² That is apparently what occurred in this case.

Contrary to the agency’s assertions, the hearing officer did not challenge the "reasonableness" of Policy RM-5A as interpreted by the agency, or the reasonableness of disciplining employees who had adequate notice of the policy, as interpreted by the agency, yet who failed to comply with it. Rather, the hearing officer appears to have found that (i) Policy RM-5A, as drafted, is ambiguous as to under which circumstances a duty to report arises, and that (ii) the grievant received inadequate notice -- through the language of the Policy itself or otherwise -- that the agency’s intent was to require that he, as an AOD, immediately report certain incidents to his supervisor, even if in his judgment, the incident did not involve "possible rape or sexual predation."

The agency points out that "an employee may be presumed to have notice of written polices if those policies had been distributed or made available to the employee."¹³ But notice of the written policy is not an issue here. Rather, the issue is whether the agency, through its written policy or by any other means (e.g., training, counseling memorandum, etc.) provided the grievant with fair and adequate notice of the specific reporting duty that the agency intended to impose.¹⁴ Thus, the grievant’s statement that he "knew" the policy is neither dispositive nor particularly pertinent. While the grievant was apparently aware of the existence of Policy RM-5A, his stated understanding of that policy’s meaning (specifically, that he could exercise his judgment in deciding whether an incident was reportable "rape" or "sexual predation") is substantially different from the agency’s interpretation of that policy.

The hearing officer is directed to issue a reconsidered decision consistent with this ruling and with DHRM’s forthcoming ruling, within 10 calendar days of his receipt of DHRM’s ruling.

Neil A. G. McPhie, Esquire
Director

William G. Anderson, Jr.
Employment Relations Consultant