Issue: Compliance; Conduct of Hearing; Ruling Date: July 11, 2001; Ruling #2001-119; Agency: Department of Environmental Quality; Outcome: In compliance, Agency
COMMONWEALTH of VIRGINIA
Department of Employment Dispute Resolution
COMPLIANCE RULING OF DIRECTOR
In the matter
of Department of Environmental Quality
Ruling
Number 2001-119
July
11, 2001
ISSUE:
Does the hearing decision comply with the grievance procedure?
RULING:
Yes. This Department finds that the hearing officer neither abused his discretion in his conduct of the hearing nor exceeded his authority under the grievance procedure in deciding this case. This Department’s rulings on matters of compliance are final and nonappealable.1
EXPLANATION:
The grievant timely requested this Department to administratively review the hearing officer’s June 4, 2001 hearing decision in the above matter. He concurrently requested reconsideration from the hearing officer. The hearing officer granted the reconsideration request and issued a comprehensive response on June 21, 2001, concluding that there was no basis to amend or reverse the original decision. We now respond to the grievant’s request for administrative review.2
Hearing officers are authorized to make "findings of fact as to the material issues in the case" 3and to determine the grievance based "on the material issues and grounds in the record for those finds."4 In terminations due to performance, the hearing officer has the authority to determine whether the agency has established by a preponderance of the evidence that the termination was both warranted and appropriate under all the facts and circumstances.5
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 Hearing officers have the duty to "[r]eceive probative evidence," that is, evidence that "affects the probability that a fact is as a party claims it to be."8 Most evidence deemed probative is admitted and, when objections are made to admissibility, "exclusions from evidence should be based on materiality, relevance, or repetitiveness.9 Where the evidence conflicts or is subject to varying interpretations, hearing officers have the sole authority to weight that evidence, determine the witnesses’ credibility, and make findings of fact. 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.
The grievant’s challenges to the hearing officer’s decision, when examined, simply contest the weight and credibility that the hearing officer accorded to the testimony of the various witnesses at the hearing, the resulting inferences that he drew, the characterizations that he made, or the facts he chose to include in his decision. Such determinations were entirely within the hearing officer’s authority, and this Department cannot conclude that the hearing officer’s findings were without some basis in the record and the material issues in this case.
APPEAL RIGHTS:
Pursuant to Section 7.2(d) of the Grievance Procedure Manual, and for the reasons discussed in this ruling and in the hearing officer’s June 21, 2001 Response to Reconsideration, the June 4, 2001 hearing decision in this case is now a final hearing decision. The June 4, 2001 hearing decision may be appealed to the circuit court in the jurisdiction in which the grievance arose within 30 calendar days from the date of this ruling (by August 10, 2001).
Neil A.G. McPhie, Esquire
Director