Issue: Qualification/Methods and Means/Assignment of Duties; Recruitment/Selection; All; Ruling Date November 19, 2001; Ruling #2001-134; Agency: Department of State Police; Outcome: Not qualified.

 

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

QUALIFICATION RULING OF DIRECTOR

In the matter of Department of State Police

Ruling Number 2001-134

November 19, 2001

The grievant has requested a ruling on whether his grievance initiated with the Department of State Police (State Police) on June 12, 2001 qualifies for a hearing. The grievant claims that management misapplied policy during the selection process. For the reasons discussed below, this grievance does not qualify for hearing.

FACTS

The grievant is employed as a State Trooper. On June 11, 1990, the grievant submitted a written request to management for transfer to the Division Four Motor Carrier Unit. In his request, the grievant asserted that he met the necessary qualifications and had his immediate supervisor endorse the transfer, however, he was not selected to transfer. Subsequently, each year, the grievant updated and renewed his transfer request. On AugustOn August 16, 1994, State Police revised the agency’s selection and transfer policies and established new criteria for evaluation guidelines. On September 14, 1994, and May 10, 1996, the grievant resubmitted his transfer request under the new criteria, with the appropriate supervisory endorsements, but was not selected for transfer. On May 28, 2001, after again not being selected for one of two vacancies in the motor Carrier Unit, the grievant asked for a written explanation regarding the continued denial of his transfer request. On June 12, 2001, the grievant filed his grievance asserting that management misapplied policy by failing to interview his immediate supervisor.

DISCUSSION

The grievance procedure recognizes management’s exclusive right to manage the operations of state government, including the hiring or promotion of employees within an agency.1 Inherent in this right is the authority to weigh the relative qualifications of job applicants and determine the "best-suited" person for a particular position based on the knowledge, skills and abilities required. Grievances relating solely to the contents of personnel policies and the hiring of employees within an agency "shall not proceed to a hearing."2 Accordingly, a grievance challenging the selection process does not qualify for a hearing unless there is evidence raising a sufficient question as to whether the selection process was tainted by discrimination, retaliation, discipline, or a misapplication of policy.3 In this case, the grievant has alleged that the agency misapplied policy during the selection process by failing to interview the appropriate personnel as required by policy, thereby affecting his transfer opportunity.

For an allegation of misapplication of policy to qualify for a hearing, there must be facts that raise a sufficient question as to whether management violated a mandatory policy provision, or whether the challenged action, in its totality, was so unfair as to amount to a disregard of the intent of the applicable policy. The Commonwealth’s hiring policy is designed to ascertain which candidate is "best-suited" for the position, not just to determine who might be qualified to perform the duties of the position.4 In this case, the applicable policy is Generalis General Order 16 of the State Police Manual established by State Police in furtherance of its statutory right to manage the operations of state government. 5Transfer consideration under General Order 16, paragraph 6(a) states that the employee’s "personnel file will be reviewed and interviews conducted with the immediate supervisor and division commander."6 Under this provision, it appears that management is required to conduct interviews with a candidate’s immediate supervisor and division commander.

In very rare circumstances, a grievance may not qualify for hearing even when an agency has failed to strictly follow the provisions of its policy. This is such a case. From the undisputed facts, it does not appears that policy was violated followedwhen management failed to interview the grievant’s immediate supervisor and division commander.7 However, during the selection process, management did consult with the grievant’s Division Field Lieutenant andthe previous Division Commander, who was appropriate knowledge offamiliar with each candidate’s background. Management explained that it contacted the previous Division Commander, as opposed to the current Commander, because the current Commander simply had not been in the position long enough to have useful information regarding the abilities of the grievant.8In addition, the agency consulted with the grievant’s Division Field Lieutenant, who was also familiar with each candidate’s background and suitability for the Motor Carrier position.

Further, management stated that the agency loosely interprets a candidate’s written endorsements, which are required from their immediate supervisors, as meeting the provision’s requirement regarding interviews. While management’s interpretation could be viewed as contradictory to the plain language of the policy, management’s interpretation is not necessarily unreasonable. The critical point is that while management did not interview the grievant’s immediate supervisor, it did nevertheless seek his input via the written endorsement. Likewise, while the current division commander was not interviewed, the agency did interview the former commander who was better situated to speak to the suitability of the grievant for work within the Motor Carrier Unit. Thus, while management management’s did failure to interview the requiredspecific persons set forth under General Order 16 may have violated the letter of the policy, it did not violate the spirit of the policy, which is to determine who is the "best-suited" candidate for a given position.10

This ruling does not stand for the premise that an agency can violate policy with impunity. To the contrary, only in exceptional circumstances will undisputed misapplications of policy not result in qualification. Here the deviation from policy was slight and appears reasonable given that it would make little sense to have a commander who was relatively unfamiliar with the grievant, offer an opinion as to the grievant’s suitability for a particular position. Thus, the facts, taken as a whole, do not warrant qualification of this grievance for hearing.

Finally, this Department reaffirms the importance of an agency’s actions being consistent with the express terms of its policy. In as much as the State Police has asserted that it considers an endorsement from the immediate supervisor to be tantamount to an interview, the agency might consider modifying its policy to reflect that position.11 Clarification of the policy could presumably prevent further disputes from arising.

APPEAL RIGHTS AND OTHER INFORMATION

For information regarding the actions the grievant may take as a result of this ruling, please refer to the enclosed sheet. If the grievant wishes to appeal this determination to the circuit court, he should notify the human resources office, in writing, within five workdays of receipt of this ruling. If the court should qualify this grievance, within five workdays of receipt of the court’s decision, the agency will request the appointment of a hearing officer unless the grievant notifies the agency that he does not wish to proceed.

Neil A. G. McPhie, Esq
.Director

1See Va. Code § 2.2-3004 (B).
2Va. Code § 2.2-3004 (C).
3Grievance Procedure Manual, § 4.1 (c), page 10.
4Department of Human Resource Management (DHRM) Policy No. 2.10, page 2 of 13.
5Department of State Police Manual (revised April 1, 2001).
6The policy also states that consideration will be given to an employee's: (1) special training, talents or job experience (2) the ability to work with minimal supervision, (3) past job performance levels, (4) interpersonal skills, (5) decision-making ability, and (6) work initiative.
7General Order 16 states that an employee's file "will be reviewed and interviews conducted with the immediate supervisor and division commander."
8It is worth noting that state policy recognizes that in certain circumstances an individual may not have been in a position long enough to have gained any insight into the performance and abilities of a subordinate. In such cases, alternative arrangements are provided. For instance, under DHRM Policy 1.40, a departing supervisor prepares an interim evaluation to be used as part of the overall performance evaluation process.
9See Shenandoah Publishing House, Inc. v. Winchester City Council et al, 37 Va. Cir 149 (1995) dismissing a Freedom of Information case in which a violation was "minor and unintended," and holding that "the letter, but not the spirit or substance" of the law was violated. 37 Va. Cir. at 154. See also Repp v. Anadarko Municipal Hospital, 43 F.3d 519 (10th Cir. 1994) which held that it "does not mean that any slight deviation by a hospital from its standard screening policy violates EMTALA [the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. §§ 1395dd]. Mere de minimis variations from the hospital's standard procedures do not amount to a violation of hospital policy. To hold otherwise would impose liabilities on hospitals for purely formalistic deviations when the policy had been effectively followed." 43 F.3d at 523.
10DHRM Policy No. 2.10 defines selection as the final act of determining the best-suited applicant for a specific position. Furthermore, Virginia Code § 2.2-2901 states, in part, that "in accordance with the provision of this chapter all appointments and promotions to and tenure in positions in the service of the Commonwealth shall be based upon merit and fitness, to be ascertained, as far as possible, by the competitive rating of qualifications by the respective appointing authorities." Here, there is no evidence that the agency made its decision based on anything other than merit and fitness.
11Likewise, the agency could modify its policy to expressly state that if an individual has not been in his or her position long enough to be able to provide useful input regarding the qualifications of a given individual, then an appropriate substitute is permitted to step in.