MARK SMITH,

                                    Grievant,

v.                                                

                                                      

WEST VIRGINIA DIVISION OF VETERANS AFFAIRS

                                    Respondent.

DECISION

      Mark Smith (Grievant) was employed by the West Virginia Division of Veterans Affairs (DVA), as a Cook at the West Virginia Veterans Home (Veterans Home) in Barboursville until his dismissal on July 20, 2000. This grievance was filed directly at Level IV on July 28, 2000.
      A Level IV hearing was held on September 18, 2000, before the undersigned Administrative Law Judge, at the Grievance Board's Beckley office. DVA was represented by Assistant Attorney General Robert Williams, and Grievant represented himself. The parties were given until November 15, 2000, to submit proposed findings of fact and conclusions of law, DVA did so, and this grievance became mature for decision on that date.   (See footnote 1)  The following Findings of Fact pertinent to resolution of this matter have been determined based upon a preponderance of the credible evidence of record.

FINDINGS OF FACT
      1.      Grievant was employed by DVA as a Cook at the Veterans Home.
      2.      Officials at the Veterans Home became concerned that illegal drugs were being sold and used there. They contacted the Barboursville Police, who began an investigation in conjunction with the Cabell County Sheriff's Department and the Federal Drug Task Force.
      3.      The investigation concluded that Grievant had distributed drugs at the Veterans Home, and felony warrants were issued for his arrest.
      4.      During Grievant's arrest at the Veterans Home on June 8, 2000, a pat-down search revealed 4.26 grams of marijuana and a pipe in his pocket.
      5.      Grievant was dismissed on July 20, 2000 for gross misconduct.
DISCUSSION

      In disciplinary matters, the employer has the burden of proving the charges by a preponderance of the evidence. W. Va. Code § 29-6A-6; Evans v. Dep't of Health & Human Resources, Docket No. 97-HHR-280 (Nov. 12, 1997), Miller v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-501 (Sept. 30, 1997); Broughton v. W. Va. Div. of Highways, Docket No. 92-DOH-325 (Dec. 31, 1992). A preponderance of the evidence is defined as “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black's Law Dictionary (6th ed. 1991); Leichliter v. W. Va. Dep't of Health & Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, a party has not met its burden of proof. Id.      The administrative rules of the West Virginia Division of Personnel provide that an employee in the classified service may be dismissed for "cause." 143 CSR § 12.2, Administrative Rule, W. Va. Div. of Personnel (July 1, 1998). The phrase "good cause" has been determined by the West Virginia Supreme Court of Appeals to apply to dismissals of employees whose misconduct was of a "substantial nature, and not trivial or inconsequential, nor a mere technical violation of statute or official duty without wrongful intention." Syl. Pt. 2, Buskirk v. Civil Serv. Comm'n, 175 W. Va. 279, 332 S.E.2d 579 (1985); Guine v. Civil Serv. Comm'n, 149 W. Va. 461, 141 S.E.2d 364 (1985); Syl. Pt. 1, Oakes v. W. Va. Dep't of Finance and Admin., 164 W. Va. 384, 264 S.E.2d 151 (1980); See Hundley v. W. Va. Div. of Corrections/Mount Olive Correctional Complex, Docket No. 97- CORR-197A (May 12, 1999).
      DVA dismissed Grievant for gross misconduct, alleging that he violated the Drug- Free Workplace policy of the West Virginia Division of Personnel. Grievant argues that he should not have been dismissed, as he has not been convicted of a crime, and that the charges against him have been dismissed. Grievant seeks reinstatement, lost wages, and leave time.
      Gross misconduct is not defined by the Division of Personnel. However, the West Virginia Supreme Court of Appeals has defined gross misconduct as

UB Services v. Gatson
, 2000 W. Va. Lexis 36 (2000); Kirk v. Cole, 169 W. Va. 520, 524, 288 S.E.2d 547, 550 (1982). "Gross" is defined in Black's Law Dictionary 702 (6th ed. 1990) as "out of all measure; beyond allowance; flagrant; shameful . . . Such conduct as is not to be excused." W. Va. Code, 21A-6-3(2) provides for disqualification of unemployment compensation for gross misconduct and defines such conduct as:

      Other state and educational employers in West Virginia have formulated useful       definitions of gross misconduct. West Virginia University Policy HR-9 defines it as conduct "of substantial actual and/or potential consequence to operations or persons, typically involving flagrant or willful violation of policy, law, or standards of performance or conduct[,]” noting that gross misconduct may result in the imposition of any level of discipline, up to and including dismissal, at the supervisor's discretion. Douglas v. Bd. of Trustees/W. Va. Univ., Docket No. 99-BOT-522. The Bureau of Employment Programs defines gross misconduct as "misconduct . . . of a serious nature . . . [which] seriously affects the routine businessof the Bureau." Bureau of Employment Programs Personnel Policies and Procedures Manual, Administrative Directive 6400.20(D) (1991); Dooley v. Bureau of Employment Programs, Docket No. 93-BEP-128 August 30, 1993.
      The Drug-Free Workplace policy of the West Virginia Division of Personnel, DOP-P2 (1991), states that “[i]t is the policy of West Virginia State government to ensure that its workplaces are free of illegal drugs and controlled substances by prohibiting the use, possession, purchase, distribution, sale, or presence in the body system, without medical authorization, of illegal or controlled substances.” The policy further provides that “[e]mployees who are in violation. . . shall be subject to disciplinary action up to and including termination[.]”
      DVA established, by a preponderance of the evidence, that Grievant was in possession of an illegal drug at his state workplace, in violation of the Drug-Free Workplace policy. Sergeant Mike Clark of the Cabell County Sheriff's Department credibly testified that during Grievant's arrest at the Veterans Home, Sergeant Clark's pat-down search revealed 4.26 grams of marijuana and a pipe in his pocket. Sergeant Clark credibly testified that he had worked in the Sheriff's drug unit for four and one-half years; that he is now assigned to the Federal Drug Task Force; that he knows what marijuana is; and that the substance found in Grievant's pocket was marijuana.   (See footnote 2)  Sergeant Clark's testimony was corroboratedby the credible testimony of Veterans Home Director Charles L. Draper, who witnessed Grievant's arrest at the Veterans Home and the discovery of the marijuana in his pocket.       Grievant, who was cautioned by the undersigned on his constitutional right not to incriminate himself, was not sworn and did not testify, and so did not refute the credible testimony of Sergeant Clark and Director Draper. Grievant's argument that he should not have been dismissed, as he has not been convicted of a crime, and that the charges against him have been dismissed, is without merit. The credible evidence of record in this grievance establishes that the drug charge that arose from the discovery of the marijuana in his pocket was in fact dismissed, but without prejudice and at Sergeant Clark's request, so that the case could be submitted to a grand jury for indictment. In any event, the state's Drug-Free Workplace policy does not require a criminal conviction before the discipline of dismissal can be imposed: only the possession of an illegal substance at a state workplace.
      Therefore, the undersigned has no choice but to conclude that Grievant's misconduct in possessing marijuana at his state workplace constituted a violation of the Drug-Free Workplace policy; that his misconduct was of a serious nature which seriously affected the routine business of the Veterans Home; and that his misconduct showed an intentional and substantial disregard of his employer's interests or of his duties and obligations to his employer when evaluated and considered in the context of the circumstances, meriting his dismissal. UB Services, supra.
      Consistent with the foregoing discussion, the following Conclusions of Law are madein this matter.
CONCLUSIONS OF LAW

      1.       In disciplinary matters, the employer has the burden of proving the charges by a preponderance of the evidence. W. Va. Code § 29-6A-6; Evans v. Dep't of Health & Human Resources, Docket No. 97-HHR-280 (Nov. 12, 1997), Miller v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-501 (Sept. 30, 1997); Broughton v. W. Va. Div. of Highways, Docket No. 92-DOH-325 (Dec. 31, 1992.).
      2.      Dismissal of an employee in the classified service must be for good cause, which means misconduct of a "substantial nature, and not trivial or inconsequential, nor a mere technical violation of statute or official duty without wrongful intention." Syl. Pt. 2, Buskirk v. Civil Serv. Comm'n, 175 W. Va. 279, 332 S.E.2d 579 (1985); Guine v. Civil Serv. Comm'n, 149 W. Va. 461, 141 S.E.2d 364 (1985); Syl. Pt. 1, Oakes v. W. Va. Dep't of Finance and Admin., 164 W. Va. 384, 264 S.E.2d 151 (1980); Hundley v. W. Va. Div. of Corrections/Mount Olive Correctional Complex, Docket No. 97-CORR-197A (May 12, 1999).
      3.      A charge of gross misconduct requires that the severity of the employee's misconduct be evaluated and considered in the context of the circumstances of each case. Thurmond v. Steel, 159 W. Va. 630, 225 S.E.2d 210 (1976); Viers v. Div. of Highways, Docket No. 97-DOH-562 (March 25, 1998).
      4.      Grievant's gross misconduct in possessing marijuana at his state workplace, in violation of the state's Drug-Free Workplace policy, warranted his dismissal.
      Accordingly, this grievance is DENIED.
      Any party or the West Virginia Division of Personnel may appeal this decision to theCircuit Court of Kanawha County or to the circuit court of the county in which the grievance occurred. Any such appeal must be filed within thirty (30) days of receipt of this decision. W. Va. Code § 29-6A-7 (1998). Neither the West Virginia Education and State Employees Grievance Board nor any of its Administrative Law Judges is a party to such appeal, and should not be so named. However, the appealing party is required by W. Va. Code § 29A- 5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The appealing party must also provide the Board with the civil action number so that the record can be prepared and properly transmitted to the appropriate circuit court.

                                          
                                                ANDREW MAIER
                                          ADMINISTRATIVE LAW JUDGE

Dated November 22, 2000



Footnote: 1
      1      Consistent with this Grievance Board's policy, this dismissal grievance has been advanced upon the docket for an expedited decision.
Footnote: 2
            In concluding that the material found in Grievant's pocket was marijuana, the undersigned in no way relied upon DOH's Exhibit Seven, a Drug Analysis by the Forensic Laboratory of the West Virginia State Police, because that report bears the caveat that it is not to be used in connection with a civil proceeding, and because the undersigned takes administrative notice that marijuana tests performed by that laboratory during the relevant period of time have been called into question by theresignation and criminal conviction of chemist Todd Owen McDaniel.