Issue: Compliance; Ruling Date: November 16, 2001; Ruling #2001-197; Agency: Department of Corrections; Outcome: In compliance hearing officer.

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

COMPLIANCE RULING OF DIRECTOR

 

In the matter of Department of Corrections

Ruling Number 2001-197

November 16, 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 October 9, 2001 hearing decision in the above matter. He claims that (1) the hearing officer incorrectly relied on blatantly false testimony from the agency, (2) he was unable to produce evidence at the hearing that would have supported his case,2 and (3) the hearing was unfair because he was outnumbered by the agency’s representatives and because the agency had an attorney present. We now respond to the grievant’s request for administrative review.

Hearing officers are authorized to make "findings of fact as to the material issues in the case"3 and to determine the grievance based "on the material issues and the grounds in the record for those findings."4 In terminations due to discipline, 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, "[t]he hearing officer may exclude evidence that is irrelevant, immaterial, insubstantial, privileged, or repetitive."9 Where the evidence conflicts or is subject to varying interpretations, hearing officers have the sole authority to weigh 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.

In this case, the grievant’s claim that the hearing officer relied on "blatantly false testimony," when examined, simply contests 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, and the characterizations that he made. 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.

Nor do the grievant’s additional claims demonstrate tht the hearing officer abused or exceeded his authority under the grievance procedure. Again, the hearing officer has considerable discretion in making determinations about the relevancy and admissibility of evidence, and this Department cannot substitute its judgement for that of the hearing officer. With respect to the grievant’s claims regarding witnesses and his lack of preparation, this Department has long held that it is the responsibility of each party to secure his or her own witnesses for hearing. Furthermore, a party may choose to be represented by an attorney at a grievance hearing, but is not required to under the grievance procedure.10 A hearing may not be re-conducted simply because a party determines later that he should have retained a lawyer.

APPEAL RIGHTS:

Pursuant to Section 7.2(d) of the Grievance Procedure Manual, and for the reasons discussed in this ruling, the October 9, 2001 hearing decision in this case is now a final hearing decision. Pursuant to Section 7.3(a) of the Grievance Procedure Manual and Section 2.2-3006(B) of the Code of Virginia, this final hearing decision may be appealed to the circuit court in the jurisdiction in which the grievance arose within 30 calendar days from November 16, 2001, the date of this ruling.

Neil A.G. McPhie, Esquire
Director

Leigh Brabrand
Employment Relations Consultant

1Va. Code § 2.2-3003(G).
2The grievant reported during this Department's investigation that the hearing officer did not allow him to produce his personal notes that concerned another Written Notice as evidence during the trial. The hearing officer determined that the notes were irrelevant to events surrounding this grievance. Furthermore, the grievant stated that the agency claimed that his witnesses were not at work on the day of the hearing, and thus could not testify. The grievant contends that the employees were, in fact, at work that day and should have testified.
3Va. Code § 2.2-3005(D)(ii).
4Grievance Procedure Manual § 5.9, page 15.
5Grievance Procedure Manual § 5.8(2), page 14.
6Rules for Conducting Grievance Hearings, page 7.
7Id.
8Edward W. Cleary, McCormick on Evidence § 16, page 52 (1984).
9Rules for Conducting Grievance Hearings, pages 7.
10Grievance Procedure Manual § 5.8, page 14.