Issue: Compliance/Conduct of Hearing; Ruling Date July 31, 2001; Ruling #2001-124; Agency: Department of Health; Outcome: In compliance hearing officer

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

COMPLIANCE RULING OF DIRECTOR

In the matter of the Department of Mental Health, Mental Retardation, and Substance Abuse Services
Ruling Number 2001-124
July 31, 2001

The Department of Mental Health, Mental Retardation, and Substance Abuse Services (agency) has requested a ruling on whether the hearing officer erred by not granting a hearing continuance in this matter. For the reasons set forth below, this Department concludes that the agency has not shown that it has been prejudiced by the hearing officer’s refusal to grant a continuance.

FACTS

On June 11, 2001, a hearing officer was appointed to hear case # 5229. On June 14th, a prehearing conference was held, and a hearing was tentatively scheduled for July 12, 2001.1 During the June 14th prehearing conference, the grievant indicated that she would be represented at hearing but was unaware whether her representative would be available on July 12th. When it turned out that the grievant’s representative was unavailable, the parties agreed to a new hearing date of July 26th, 2001.

Shortly thereafter, based on a clerical error by the EDR Division of Hearings, the agency representative incorrectly believed that she had scheduled two hearings for the same day, July 26th. Consequently, the agency representative asked the hearing officer to reschedule the hearing for case #5229. The hearing officer agreed and, at a July 13th pre-hearing conference, set August 2nd as the new hearing date over the objection of the agency. The agency representative objected to moving the hearing to August 2nd because a witness that the agency deemed "essential" was not available on that date.2 The hearing officer inquired as to whether the witness was an eyewitness and was informed that the witness was not. The hearing officer then informed the agency representative that he would allow the witness to testify by phone but he would not postpone the hearing further.

DISCUSSION

The agency has objected to the hearing officer’s refusal to further postpone the hearing. The grievance procedure requires that grievance hearings "must be held and a written decision issued within 30 calendar days of the hearing officer’s appointment."3 The 30 day timeframe can be extended only upon a showing of "just cause."4 The hearing officer is responsible for scheduling the time, date, and place of hearing and granting continuances.5

The EDR Director has the authority to review and render final decisions on issues of hearing officer compliance with the grievance procedure.6 However, the EDR Director will only disturb a hearing officer’s decision regarding a hearing continuance if (1) it appears that the hearing officer has abused his discretion; and (2) the objecting party can show undue prejudice by the refusal to grant the continuance.7 "Abuse of discretion" in the context of a denial of a motion for continuance is defined as "an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay."8

Assuming, without deciding, that the agency could establish that the hearing officer abused his discretion,9 the agency has not established that it has been prejudiced by the hearing officer’s refusal to again postpone the hearing. In order to show prejudice, the agency must provide specific examples of how it will be prejudiced by presenting testimony of its "essential" witness, the Facility Director, via telephone at the "first available date and time".10 The agency claims that the Facility Director will be called to present direct testimony in its case in chief and will likely be called as a rebuttal witness. This Department concludes that direct testimony via telephone would not appear to prejudice the agency. Furthermore, while the agency’s anticipation that it will call the Facility Director for rebuttal appears genuine, any such belief is nevertheless based on speculation. The agency simply cannot know what testimony will be offered by the grievant’s witnesses, thus, it cannot accurately predict whether rebuttal testimony will be required by the Facility Director or any witness. "Speculation and conclusory allegations of prejudice are insufficient to establish abuse of discretion by the [hearing officer] in denying a continuance."11 Accordingly, under present circumstances, this Department will not disturb the decision of the hearing officer in this matter. The agency may renew its objection regarding the hearing officer’s refusal to continue the hearing at such time that it can show specific prejudice.

This Department notes that the hearing officer is correct to attempt to expeditiously bring this matter to hearing. This is particularly true, given that the 30 day mandatory timeframe for holding the hearing and issuing an opinion has expired. However, without expressing any opinion as to how the hearing officer should ultimately rule on any further continuances, this Department suggests that the hearing officer consider the grievant’s lack of objection to an additional postponement and the role that EDR’s scheduling error may have played in causing the current conflict. Also, the hearing officer is encouraged to consider how having the Facility Director "testify by telephone at the first available date and time" will impact the overall efficiency of the hearing process.

Neil A.G. McPhie, Esquire
Director

William G. Anderson, Jr.
Employment Relations Consultant

1 This date was one day beyond the mandatory thirty days that the grievance procedure requires for scheduling and holding the grievance hearing. However, scheduling conflicts by the hearing officer and agency representative necessitated the slight delay.
2 This witness, a Facility Director, will be leaving the country on August 2nd.
3 The Grievance Procedure Manual, § 5.1, p. 13.
4 The Grievance Procedure Manual, §§ 5.1 and 5.4, p. 13. "Just cause" is defined as "a reason sufficiently compelling to excuse not taking a required action in the grievance process." The Grievance Procedure Manual, § 9, p. 24.
5 The Grievance Procedure Manual, § 5.2, p. 13.
6 Va. Code § 2.1-116.03 (5).
7 Cf. Venable v. Venable, 2 Va. App. 178 (1986). "The decision whether to grant a continuance is a matter within the sound discretion of the trial court. Abuse of discretion and prejudice to the complaining party are essential to reversal." Venable at 181, citing to Autry v. Bryan, 224 Va. 451, 454, 297 S.E.2d 690, 692. (1982). See also U.S. v. Bakker, 925 F.2d 728 (4th Cir. 1991) "to prove that the denial of the continuance constitutes reversible error, [the objecting party] must demonstrate that the court abused its 'broad' discretion and that he was prejudiced thereby." Bakker at 735 citing to U.S. v. LaRouche, 896 F.2d at 815, 823-25 (4th Cir. 1990) .
8 Bakker at 735, quoting Morris v. Slappy, 461 U.S. 1, 11-12 (1983). The test for whether a hearing officer has abused his discretion in denying a continuance is not mechanical; it depends mainly upon the reasons presented to the hearing officer at the time that request is denied. See LaRouche, at 823.
9 It is far from clear that the hearing officer has abused his discretion. The hearing officer has shown an insistence on expeditiousness. However, it is not evident that his insistence was unreasoning or arbitrary. This case has already been rescheduled on several occasions. The hearing officer has attempted to accommodate both parties at least once. He accommodated the agency by granting the original 30 day extension when its representative had a vacation scheduling conflict. (It should be noted, the 30 day extension also accommodated the hearing officer's full schedule). He accommodated the grievant by rescheduling the hearing when her representative was unavailable on July 12th. He attempted to accommodate the agency again when, because of an inadvertent EDR scheduling error, the agency representative was led to believe that she had scheduled two hearings for the same day. Furthermore, the hearing officer has expressly stated that he will allow the Facility Director to "testify by telephone at the first available date and time."
10 See LaRouche at 823-25 for discussion on "specific prejudice." (Emphasis added).
11 U.S. v. Lorick, 753 F.2d 1295, 1297 (4th Cir. 1985).