LARRY R. WALTERS,
Grievant,
V.
DOCKET NO. 99-DMV-411
DEPARTMENT OF TRANSPORTATION/
DIVISION OF MOTOR VEHICLES,
Respondent.
D E C I S I O N
Grievant, Larry R. Walters, filed this grievance directly at Level Four on September
29, 1999, protesting his dismissal from the West Virginia Division of Motor Vehicles
(DMV) as a Hearing Examiner effective September 20, 1999. Grievant is requesting
reinstatement and to be made whole with back pay, reinstatement of vacation, sick time,
attorney fees, removal of all references to the dismissal from his personnel file, and
reinstatement of all benefits. A Level Four hearing was held on June 26 and 27, July 17,
and August 21, 2000. Post-hearing submissions were due on September 11, 2000, at
which time this case became mature for decision. DMV was represented by Jacquelyn I.
Custer, Assistant Attorney General, and Grievant was represented by Fred F. Holroyd,
Esq., Holroyd & Yost.
SUMMARY OF EVIDENCE
DMV's Exhibits
Ex. 1 -
Mission Statement of DMV.
Ex. 2 -
W. Va. Department of Transportation Employee Handbook.
Ex. 3 -
W. Va. Department of Highways Administrative Operating Procedures.
Ex. 4 -
W. Va. Code § 17C-5A-2. Hearing; revocation; review.
Ex. 5 -
Ex. 6 -
Title 91, Legislative Rule Department of Motor Vehicles, Series 1,
Administrative Due Process.
Ex. 7 -
Portion of Administrative Rules.
Ex. 8 -
W. Va. Legislative Rules Division of Motor Vehicles, 91 CSR 5.
Ex. 9 -
Flow chart of DUI arrest process.
Ex. 10 -
W. Va. Code § 17C-5-4. Implied consent to test; administration at direction
of law-enforcement officer; designation of type of test; definition of law-
enforcement officer.
Ex. 11 -
W. Va. Code § 17C-5-7. Refusal to submit to tests; revocation of license or
privilege; consent not withdrawn if person arrested is incapable of refusal;
hearing.
Ex. 12 -
W. Va. Code § 17C-5A-3. Safety and treatment program; reissuance of
license.
Ex. 13 -
July 6, 1998 memorandum from Adam Holley to All Hearing Examiners.
Ex. 14 -
Memorandum of Law, Fisher v. Cline, Kan. Cty. Cir. Ct. Civil Action No. 97-
AA-15.
Ex. 15 -
W. Va. Code § 17B-2-7. Examination of applicants.
Ex. 16 -
W. Va. Code § 17B-2-3. What persons shall not be licensed; exceptions.
Ex. 17 -
Routing Slip for Final Hearing Orders, with attached Final Order.
Ex. 18 -
Division of Motor Vehicles Manual: Hearing Examiner Procedures.
Ex. 19 -
Code of Judicial Conduct (1993).
Ex. 20 -
January 21, 1997 memorandum from Jim Humphreys to Larry Walters.
Ex. 21 -
September 8,1999 memorandum from Edward J. Janco to Jill Bissett.
Ex. 22 -
March 22, 1999 memorandum from Edward J. Janco to Larry R. Walters.
Ex. 23 -
April 8, 1999 memorandum from Edward J. Janco to Larry R. Walters.
Ex. 24 -
July 29,1999 memorandum from Edward J. Janco to All Hearing Examiners.
Ex. 25 -
Mission Statement of DMV, with handwritten notes from Larry Walters to
Edward Janco dated August 31, 1999.
Ex. 26 -
September 2, 1999 memorandum from Edward J. Janco to Jill Bissett.
Ex. 27 -
September 17, 1999 memorandum from Edward J. Janco to Jill Bissett.
Ex. 28 -
Amended Statement of Arresting Officer in the matter of Eileen Maroney.
Ex. 29 -
Withdrawal of request for administrative hearing in the matter of Eileen
Maroney, dated August 30, 1999.
Ex. 30 -
September 1, 1999 memorandum from Edward J. Janco to Jill Bissett.Ex. 31 -
August 30, 1999 calendar entries for Charleston DMV.
Ex. 32 -
Transcript of August 30, 1999 hearing in the matter of Eileen Maroney.
Ex. 33 -
Undated memorandum from Ed Janco to Jill Bissett.
Ex. 34 -
January 14, 1999 memorandum from Edward J. Janco to All Hearing
Examiners.
Ex. 35 -
January 7, 1999 memorandum from Edward J. Janco to All Hearing
Examiners.
Ex. 36 -
Amended Statement of Arresting Officer.
Ex. 37 -
Letter from Shannon M. Bland, Esq. to Larry Walters, with handwritten note
from Larry Walters to Edward Janco.
Ex. 38 -
September 8, 1999 letter from Shannon M. Bland, Esq. to Larry Walters.
Ex. 39 -
Final Order in the matter of Gavin Hogue, dated June 25, 1999.
Ex. 40 -
Handwritten outline: Duties and Responsibilities of DMV Administrative
Hearing Examiners.
Ex. 41 -
Outline of Topics for Canaan Valley Retreat for DMV Hearing Examiners.
Ex. 42 -
Legal Policies and Procedures.
Ex. 43 -
In re: Rick Reese, 201 W. Va. 177, 495 S.E.2d 548 (1997).
Ex. 44 -
September 22, 1999 memorandum from Edward J. Janco to Jill Bissett.
Ex. 45 -
September 17, 1999 letter from Paul L. Weber, Esq. to Joe E. Miller,
Commissioner re: Larry Walters.
Ex. 46 -
September 13, 1999 letter from Walter L. Wagner, Jr., Esq. to Joe Miller,
Commissioner re: Larry Walters.
Ex. 47 -
September 12, 1999 letter from W. Dale Greene, Esq. to Joseph Miller,
Commissioner.
Ex. 48 -
September 13, 1999 letter from Carter Zerbe, Esq., to Joe E. Miller,
Commissioner.
Ex. 49 -
September 13, 1999 letter from Michael K. Wallace, Esq. to Joe Miller,
Commissioner re: Larry Walters.
Ex. 50 -
September 10, 1999 letter from Christopher S. Butch, Esq. to Joe Miller,
Commissioner re: Larry Walters.
Ex. 51 -
September 13, 1999 letter from Edward Clark to Joe Miller, Commissioner.
Ex. 52 -
September 15, 1999 letter from Steven L. Miller, Esq. to Joseph Miller,
Commissioner re: Larry Walters.
Ex. 53 -
September 21, 1999 letter from Jeremiah F. McCormick to Joe Miller,
Commissioner.
Ex. 54 -
September 27, 1999 letter from Michael J. Del Guidice, Esq. to David H.
Bolyard, Director re: Larry Walters.
Ex. 55 -
October 22, 1999 letter from D. Randall Clarke, Esq. to Joe E. Miller,
Commissioner re: Larry Walters.
Ex. 56 -
September 14, 1999 letter from Lt. Matt Gravely to Joe Miller, Commissioner.
Ex. 57 -
Charleston Police Department General Investigation Supplement Report
dated September 9, 1999.Ex. 58 -
Statement of Patrolman T. S. Hedrick in the matter of Eileen Maroney, dated
September 2, 1999.
Ex. 59 -
September 20, 1999 letter from Joe E. Miller, Commissioner to Larry Walters,
with attachments.
Ex. 60 -
Memorandum from Larry Walters to Commissioner Miller and Jill Bissett.
Ex. 61 -
September 17, 1999 memorandum from Jill Bissett to Joe E. Miller,
Commissioner.
Ex. 62 -
September 20, 1999 memorandum from Jill Bissett to Joe E. Miller,
Commissioner.
Ex. 63 -
Handwritten compilation of Total Hearings Conducted January-September
1999.
Ex. 64 -
Handwritten Statement of Patrolman T. S. Hedrick.
Ex. 65 -
Part of transcript of Employment Security hearing.
Ex. 66 -
April 19, 1999 memorandum from Edward J. Janco to Larry Walters.
Grievant's Exhibits
Ex. 1 -
September 9, 1999 handwritten notes of Jill Bissett.
Ex. 2 -
Opinion and Final Order, Eagle v. W. Va. Dept. of Motor Vehicles, Kan. Cty.
Cir. Ct. Civil Action No. 99-AA-9 (Mar. 10, 2000)(in the matter of Eileen
Maroney).
Ex. 3 -
Final Order, In re: Eileen Maroney.
Ex. 4 -
Draft language for administrative hearings.
Ex. 5 -
W. Va. Div. of Personnel, Ethics in Government.
Ex. 6 -
Shell Final Order for revocation.
Ex. 7 -
Shell Final Order for implied consent revocation.
Ex. 8 -
Preamble to DUI and implied consent hearings.
Ex. 9 -
March 1 and 2, 2000 Charleston Gazette articles re: Craig Loy.
Ex. 10 -
W. Va. Board of Review Decision re: Larry Walters, dated March 1, 2000.
Ex. 11 -
Employee Evaluation for Larry Walters, March 30, 1998.
Ex. 12 -
Changes to W. Va. Alcohol Test and Lock Program and Application, effective
June 9, 1995.
Testimony
DMV presented the testimony of John R. Mitchell, Esq., Lt. John Tabaretti, Office
Brian Jones, Officer Terry Hedrick, Shannon Bland, Esq., Cpt. Matt Gravely, James O.
Humphrey, Linda Osbourne, Jill Bissett, Esq., Ed Janco, and Adam Holley, Esq.
Grievant testified in his own behalf, and presented evidence through cross-
examination of DMV's witnesses.
The Division of Motor Vehicles is a state agency which, among other things,
conducts hearings and issues orders concerning the revocation of drivers' licenses.
Grievant was a Hearing Examiner for the DMV with principal duties to conduct hearings,
take testimony, rule on admissibility of evidence, rule on the credibility of witnesses, and
issue proposed final orders for the review of the Chief Hearing Examiner and approval by
the Commissioner of the DMV.
A law enforcement officer who makes an arrest for an alcohol-related traffic offense
is required, by statute, to report such arrest to the DMV. The DMV provides law
enforcement agencies with forms, generally referred to as a statement of arresting officer,
upon which they can report such arrests. Different forms are used to report different
offenses.
Upon receipt and review of a statement of arresting officer, the DMV may issue an
initial order of revocation advising the driver that his or her privilege to drive is being
revoked for a specific period of time as a result of the reported arrest. The initial revocation
order also informs the driver that he or she has the right to request an administrative
hearing to challenge the revocation. If there is a timely request for a hearing, the
revocation order is automatically stayed pending its outcome.
Administrative hearings are also afforded licensed drivers whose licenses are
revoked as a result of medical conditions which render them unsafe to operate a motor
vehicle. In addition, applicants who are denied a learner's permit on the grounds of
medical conditions can request a hearing. In such medical hearings, the driver orunsuccessful applicant bears the burden to establish that the medical problem does not
impair the driver's or the applicant's ability to safely operate a motor vehicle.
The DMV employs approximately twelve hearing examiners to conduct these
evidentiary administrative hearings at various locations throughout the state. Hearings
stemming from alcohol-related traffic offenses constitute the bulk of the hearing examiners'
work loads. Hearing examiners are part of DMV's Legal Services Section under the
supervision of the general counsel, currently Jill Bissett. The supervisory chain for
discipline begins with the commissioner and flows through general counsel and a manager,
who has sometimes been known as the chief hearing examiner. Substantive assistance
is provided to the hearing examiners by general counsel, assistant general counsel, and
the Legal Services Section manager. Generally, the hearing examiners are not lawyers.
In conducting hearings on behalf of the commissioner, the hearing examiners are
required to remain fair and impartial. They are charged with gathering facts upon which
the commissioner can rely in making a fair and reasoned decision. Particularly in
proceedings arising out of charges of driving under the influence of alcohol or DUI, or of
refusing to take a designated secondary chemical test, the scope of the administrative
hearing is defined by statute.
W. Va. Code § 17C-5A-2. The commissioner is statutorily
required to make specific factual determinations. Upon the finding of certain facts, the
commissioner is required to uphold the initial revocation. The commissioner lacks
discretion to take any other action.
Based upon the evidence adduced at the administrative hearing, the examiner
drafts a proposed final order for submission to the DMV. The proposed final order issubjected to an internal review process, and the manager of the Legal Services Section
also reviews the order to determine whether it is internally consistent and comports with
the pertinent law. He also makes sure the proposed decision is in conformity with
applicable statutes, rules, case law, and DMV policy.
If the manager discovers problems in the final order, he may send it back to the
examiner with questions or directions to make corrections. The manager may also review
the tape recording of the hearing to resolve any questions he may have about the propriety
or accuracy of the proposed final order. Upon completion of the review and correction
process, the final orders are issued over the commissioner's signature.
There have been occasions when the hearing examiner who conducted the hearing
was unable to draft the proposed final order. Under those circumstances, the manager has
distributed the file in question, along with the tape of the hearing, to another examiner for
completion. It may be noted that, particularly in DUI-related hearings, it is not unusual for
the only witness to be the arresting officer. Quite frequently the driver does not testify. In
fact, drivers do not always appear in person. Thus, credibility issues arising from
conflicting testimony are not usually a problem for the hearing examiner who reviews a
tape rather than conducting the hearing in person.
The commissioner's final orders may be appealed to circuit court pursuant to the
West Virginia Administrative Procedures Act. Formerly, only the driver had a right to take
such appeal. However, in 1997, the Supreme Court of Appeals of West Virginia decided
that the arresting officer is a party to a license revocation hearing, within the meaning of
W. Va. Code § 17C-5A-1,
et seq, and within the meaning of the State AdministrativeProcedures Act,
W. Va. Code § 29A-1-1, who has standing to appeal an adverse
administrative action. Syl. pt. 1,
Carte v. Cline, 200 W. Va. 162, ___, 488 S.E.2d 437,
437-38 (1997).
Training sessions for the hearing examiners are conducted by the Legal Services
Section at least twice annually. In between training sessions, hearing examiners receive
memoranda from general counsel, assistant general counsel, or the manager apprizing
them of changes in policy or the pertinent law. All three make themselves available to
answer questions and assist the examiners with legal or evidentiary issues which might
arise during the course of the administrative hearings.
Grievant was employed as a hearing examiner for DMV in 1992. Grievant is not a
lawyer. In 1999, particularly late August and early September, a number of different
problems with Grievant's work came to light. Grievant refused to prepare final orders in
files assigned to him by his supervisor. When his supervisor asked him to reconsider and
do the assigned work, Grievant refused. At the same time, other questionable practices
regarding Grievant's hearings arose, and an investigation was commenced.
On September 9, 1999, Grievant met with Ms. Bissett and Mr. Janco, the Legal
Services Director, wherein Grievant was asked to explain his actions relating to several
specific incidents of misconduct, which were noted by Ms. Bissett as:
Robertson chewing gum - officer left
Steven May bioptic lens
Gavin Hogue sobriety check point
Mary Ward amended officers statement
Bev files - insubordination
G. Ex. 1. Grievant was given an opportunity to respond to their concerns about his work.
On September 20, 1999, Grievant again met with Ms. Bissett and Mr. Janco. At that
time, a letter from the commissioner was hand-delivered to Grievant wherein the
commissioner summarized the reasons for his decision to dismiss Grievant. The letter
states, in part:
You have continually refused to follow directives from Mr. Janco who
is your supervisor. In doing so, you have refused to follow the law. Also, Ms.
Bissett's memorandum reports that you have approached arresting officers
and persuaded them to amend their arresting officer's statements so that the
respective drivers would receive less severe license revocation periods. Her
memorandum also reports that you are at best careless in your work and at
work intentionally making findings and conclusions of law that are contrary
to the evidence of record.
In addition, it appears that after Ms. Bissett met with you regarding
these problems, you actively solicited a letter of recommendation from at
least one attorney who had cases pending before you at the time. In doing
so, you have abused your position with the Division and potentially corrupted
the hearing process.
Your misconduct is substantial and directly affects the rights and
interests of the public we serve. Each of your separate acts of misconduct
would justify your dismissal. It is apparent from your actions that you have
a total disregard for the integrity of the hearing process and the Division.
Your unprofessional conduct is also indicative of your inability or
unwillingness to effectively perform the functions of your position within the
bounds of propriety. Further, you refuse to adjust to the goals of the agency.
Therefore, it is my decision to dismiss you from your current position as
Hearing Examiner with the West Virginia Division of Motor Vehicles effective
September 20, 1999.
DMV Ex. 59.
Attached to the dismissal letter are memoranda from Ms. Bissett and Mr. Janco,
which identify specifically the acts of misconduct allegedly performed by Grievant. Theseattachments were hand-delivered to Grievant on September 20, 1999, along with the
dismissal letter.
THE PARTIES' ARGUMENTS
DMV contends Grievant engaged in acts of misconduct which are of a substantial
nature affecting the rights and interest of the public. Grievant contends he was denied due
process in that DMV did not follow proper procedures in dismissing him, that the specific
incidents identified by DMV to supports his dismissal either did not happen as presented
by DMV, or do not rise to a substantial nature, and that he has been retaliated against for
making a good faith report of wrongdoing, and so is protected as a Whistle-blower.
.
PRELIMINARY ISSUE
Grievant raised the Whistle-blower defense for the first time in his post-hearing
submissions. DMV moved to strike this defense as it was not afforded an opportunity to
address this issue at hearing or in its post-hearing brief. The requirements of due process,
including notice and an opportunity to be heard, apply to respondents as well as grievants.
W. Va. Code § 29-6A-6(a). This Grievance Board has determined it is unfair to allow a
party to raise new arguments in briefing, because the other party has not been given notice
of the argument and an opportunity to respond.
Walker v. W. Va. Dept. of Public Safety,
Docket No. 98-DPS-056 (Sept. 11, 1998);
Gregg v. Board of Trustees, Docket No. 94-
MBOT-863 (Dec. 18, 1996). To allow Grievant to advance this legal theory, at such a late
date in these proceedings, and without DMV having the opportunity to respond, would not
be proper and would be manifestly unfair.
McFarland v. Randolph County Bd. of Educ.,Docket No. 96-42-214 (Nov. 15, 1996). Therefore, Grievant's Whistle-blower defense will
not be considered by the undersigned, and will not be discussed further.
DISCUSSION
In disciplinary proceedings involving state employees,
W. Va. Code § 29-6A-6 places
the burden of proof on the employer, and the standard of proof is by a preponderance of
the evidence.
E.g.,
Davis v. Dept. of Motor Vehicles, Docket No. 89-DMV-569 (Jan. 20,
1990). State employees, such as Grievant, who are in the classified service
(See footnote 1)
can only be
dismissed for cause, meaning misconduct of a substantial nature directly affecting the
rights and interest of the public, rather than upon trivial or inconsequential matters, or mere
technical violations of statute or official duty without wrongful intention. Syl. Pt. 1,
Oakes
v. W. Va. Dept. of Finance and Admin., 164 W. Va. 384, 264 S.E.2d 151 (1980);
Guine v.
Civil Serv. Comm'n, 149 W. Va. 461, 141 S.E.2d 364 (1965);
W. Va. Code § 29-6A-6;
Logan v. Regional Jail Auth., Docket No. 94-RJA-225 (Nov. 29, 1994);
Davis v. W. Va.
Dept. of Motor Vehicles, Docket No. 89-DMV-569 (Jan. 22, 1990); Section 12.02,
Administrative Rule, W. Va. Div. of Personnel (Aug. 3, 1993).
The separate acts of misconduct listed in the dismissal letter are referred to as: 1)
the Beverly Gandee incident; 2) the Eileen Maroney incident; 3) the Gavin Hogue incident;
4) the Stephen May incident; 5) the Robert Robertson incident; and 6) the M.W. incident.
DMV Ex. 59; G Ex. 1.
These incidents will be discussed in turn. 1.
Hearing Examiner Beverly Gandee resigned in 1999. At the time of her departure,
there were sixty files in which she had held the administrative hearing, but for which she had
not submitted proposed final orders. Each hearing examiner is required to submit a weekly
report to the manager of the Legal Services Section. The report is supposed to include the
number of files the examiner has retained in his or her possession. Ms. Gandee did not
accurately report the number of files in her possession. Therefore, Mr. Janco was not
aware until Ms. Gandee's departure that she had sixty files in her possession for which
proposed final orders had not been submitted.
When Mr. Janco became aware of the existence of the sixty files, he assigned five
files to each of the remaining hearing examiners. Each examiner was asked to review the
tape recording of the hearing and prepare a proposed final order in each case assigned to
him or her. Mr. Janco assigned Grievant five of the Gandee files in late July 1999. At the
time, Grievant complained that he should not be doing somebody else's work. Tr.I 141.
Mr. Janco reminded Grievant of a prior occasion when Mr. Janco was still a hearing
examiner, and Grievant needed assistance getting caught up on his own final orders. To
help Grievant, Mr. Janco drafted proposed final orders for submission in cases where the
hearings had been conducted by Grievant. Mr. Janco noted Grievant had not objected to
receiving such assistance. Grievant alleged he did not have any involvement with respect
to whether Mr. Janco wrote proposed final orders on his behalf. However, Mr. Janco had
received the files in a Federal Express package on which the return address was Grievant's
home address. Grievant complained to Lynda Osborne, a DMV employee, about the fact that he had
been assigned additional cases when another hearing examiner left. Ms. Osborne testified
Grievant was very upset to have the additional work. Tr. I, 258. In addition, Grievant told
Ms. Osborne he wasn't going to do somebody else's job. Tr. I, 258. Ms. Osborne
responded by telling Grievant that he could not refuse to do it, and a direct refusal of an
order was insubordination and grounds for immediate dismissal. Tr. I, 258.
Despite the foregoing, Grievant did not attempt to draft proposed final orders for the
Gandee files assigned to him. He admitted he did not even bother to listen to the tape
recordings of the hearings to ascertain whether he would have any difficulties drafting a
proposed final order for any of the five cases. Tr.III 130. Rather, Grievant retained the files
for nearly a month and then returned them to the main office without discussing the matter
with his supervisor. An office assistant called Mr. Janco's attention to the fact that the files
had been returned by Grievant without proposed final orders. DMV Ex. 26.
When Grievant returned the files, he included a copy of the DMV's Mission
Statement on which he had addressed some handwritten notes to Mr. Janco. Grievant
wrote, in pertinent part, that it isn't fair, accurate or consistent for me to make a decision
on something I didn't see or hear. Upon receipt of the Mission Statement, Mr. Janco
telephoned Grievant to discuss his refusal to do the Gandee files. When Mr. Janco asked
Grievant if he would reconsider his decision, Grievant said no. DMV Ex. 26.
Ms. Bissett, Mr. Janco and David Bolyard met with Grievant on September 9, 1999,
to discuss a number of problems with Grievant's work, including his refusal to work on the
Gandee files. Mr. Bolyard is the Director of the Drivers Services Section of DMV, and is notin Grievant's supervisor chain, but was merely present as an impartial observer. Grievant
admitted that Mr. Janco directed him to work on the Gandee files, and that he refused. He
also admitted Mr. Janco had asked him to reconsider, and that he told Mr. Janco a second
time he would not do them. Grievant disagreed with Ms. Bissett regarding her definition of
insubordination, but agreed with her that when your supervisor directs you to do something,
you're supposed to do that. Tr.II, 63.
Ms. Bissett asked Grievant if he thought writing the orders was illegal, and Grievant
responded he did not think it was illegal. In fact, during that September 9, 1999 meeting,
Grievant offered to draft the proposed final orders for the Gandee files.
On a much earlier occasion, Grievant had refused to do a similar assignment. The
then-chief hearing examiner, James Humphreys, had instructed Grievant to draft proposed
final orders for a number of files in which hearings had been held by another examiner who
was suffering from a backlog in his work. Some of his files were distributed to other
examiners, including Grievant. Grievant did not draft proposed orders for the files he was
assigned, but rather, mailed them to another examiner, Larry Mullett, for him to complete.
This action was neither discussed with nor approved by Mr. Humphreys. DMV Ex. 20.
Grievant subsequently told his colleague and then-fellow hearing examiner, Mr. Janco, that
he had mailed the files to Mr. Mullett so he would not have to do them.
After the September 9, 1999 meeting, Grievant contacted two lawyers for legal
advice. Thereafter, Grievant proposed a new theory as to why he should not have to do the
Gandee files. Specifically, he claimed it would be improper because only the name of theexaminer who conducted the hearing would appear in the final order issued by the
commissioner.
Grievant never asked Ms. Bissett or Assistant General Counsel Adam Holley about
the propriety of having one examiner draft a proposed final order after listening to the tape
recording of a hearing conducted by a different hearing examiner. Nor did Grievant ever
prepare a proposed final order reflecting that he had drafted the order after listening to the
tape, although he had not conducted the hearing. Ms. Bissett testified that, had Grievant
sought permission to indicate in a final order that it had been drafted by a different examiner
from the one who conducted the hearing, permission would have been granted.
Grievant admitted at level four that he had made a mistake in refusing to work on the
Gandee files, but he still believes it would be improper, if not illegal, for him to draft
proposed orders on cases where he had not been the hearing examiner, unless that fact
is noted somewhere in the final order.
(See footnote 2)
2.
Eileen Maroney.
On April 13, 1999, Officer Terry Hedrick of the Charleston Police Department
arrested Eileen Maroney on a DUI charge. During processing after the arrest, Ms. Maroney
refused to take the designated secondary chemical test which, in the case of the Charleston
Police Department, is an Intoxilyzer test of the breath. Because, by statute, a driver is
deemed to have impliedly consented to take the Intoxilyzer test upon being arrested for aDUI offense, such cases are generally referred to as implied consent cases. Officer Hedrick
reported the arrest of Ms. Maroney and her refusal to take the Intoxilyzer test to the DMV
by submitting a Statement of Arresting Officer form for an implied consent case.
Ms. Maroney sought an administrative hearing to challenge the resultant revocation
of her license. The hearing was held on August 3, 1999, before Grievant. Evidence in
support of the revocation was presented by Officer Hedrick. Ms. Maroney did not appear
in person, but by her counsel, John Mitchell, Jr. Grievant testified he heard Mr. Mitchell ask
Officer Hedrick on August 3, 1999, if he would consider reducing the charge against Ms.
Maroney, but Officer Hedrick did not respond.
On August 10, 1999, Officer Hedrick was scheduled to appear before Grievant for
an administrative hearing on an unrelated matter. Officer Hedrick was late due to car
trouble. When he arrived at the hearing room, Grievant was on the telephone. Officer
Hedrick heard Grievant tell the person on the telephone, He's here now. Grievant
subsequently indicated that it was Ms. Maroney who had been on the telephone. Grievant
explained to Officer Hedrick that Ms. Maroney was willing to waive her appeal if Officer
Hedrick would fill out an amended form.
Grievant testified Ms. Maroney had called him hysterical and wanted him to ask
Officer Hedrick if he and Mr. Mitchell had worked out an agreement with regard to her
revocation. Grievant told her he would ask Officer Hedrick. When Officer Hedrick appeared
for the unrelated hearing, Grievant told him about Ms. Maroney's call, and testified that
Officer Hedrick asked him to hand him an amended statement of arresting form and he filled
it out. Officer Hedrick testified that Grievant told him of Ms. Maroney's call, and handed him
a blank Statement of Arresting Officer form and said, if [Officer Hedrick] would fill out this
form that [he] would win, that she would get a 30 day suspension and it would be over.
Tr.III pp. 22, 13-15. The effect of this transaction was that Officer Hedrick would reduce the
administrative charge against Ms. Maroney from an implied consent case to a regular DUI
case. In exchange, Ms. Maroney would withdraw her request for a hearing and thereby
extinguish her right to appeal. To implement this agreement, Officer Hedrick would have
to submit an amended Statement of Arresting Officer to the DMV. After providing Officer
Hedrick with the blank Statement of Arresting Officer form, Grievant assisted him in filling
it out by pointing out the sections on the form he should complete and which he should
leave blank.
After this transaction occurred, on August 15, 1999, Grievant, as a result of the
August 3 administrative hearing, submitted a proposed final order upholding the revocation
of Ms. Maroney's license based on her refusal to submit to the Intoxilyzer test. The
revocation was for one year.
Meanwhile, Ms. Maroney was still represented by Mr. Mitchell. Mr. Mitchell was on
a two-week vacation when Grievant conferred with Ms. Maroney on the telephone, and
proposed to Officer Hedrick that he complete an amended Statement of Arresting Officer
form. Thereafter, Mr. Mitchell appeared before Grievant on a different matter on August
30, 1999. At that time, Grievant gave him a copy of Officer Hedrick's amended statement.
Grievant also provided Mr. Mitchell with a form for withdrawing Ms. Maroney's earlier
request for a hearing. Grievant had filled out all of the withdrawal form except the signaturelines prior to handing them to Mr. Mitchell. Tr.III 38-40. On August 30, 1999, Mr. Mitchell
signed the form on behalf of Ms. Maroney. Tr.III 39. DMV Ex. 29.
There was no hearing relating to Ms. Maroney docketed before Grievant on August
30, 1999. DMV Ex. 31. Officer Hedrick was not present when Grievant and Mr. Mitchell
met on August 30, 1999, and discussed Ms. Maroney's case. Officer Hedrick was not
asked to be present on that date, nor was he advised there was going to be an unscheduled
hearing at that time. Despite the absence of Officer Hedrick, Grievant and Mr. Mitchell
made a tape recording of their August 30, 1999 meeting, which Grievant characterized as
a hearing. DMV Ex. 32. The tape recording reflects that Mr. Mitchell set forth his
understanding of the agreement regarding Ms. Maroney which had been struck in his
absence. DMV Ex. 32. At the end of the tape, Grievant purports to grant a motion,
although there does not appear to be any motion pending at the time. DMV Ex. 32.
Grievant submitted to the DMV Legal Services office the tape recording of the
unscheduled hearing along with the amended statement and the withdrawal form. Mr.
Janco was puzzled when he saw Officer Hedrick's amended statement, because Mr. Janco
had already reviewed Grievant's proposed final order upholding the implied consent
revocation. DMV Ex. 30. Therefore, Mr. Janco called the Charleston Police Department
and talked to Lt. John Tabaretti. Lt. Tabaretti is the Highway Safety Director for the
Charleston Police Department. His duties include, among others, training and supervisory
responsibilities for members of his Department with respect to alcohol-related offenses.
Mr. Janco told him the charge could not be reduced because the final order had already
been issued. Tr.I, 165. Mr. Janco then called Grievant about this matter, and Grievant said he told 'them'
. . . it might be too late. Tr.I,165. Mr. Janco also reported this matter to Ms. Bissett, and,
on September 1, 1999, again discussed the matter with Grievant. Grievant claimed Officer
Hedrick and Mr. Mitchell had reached an agreement for Officer Hedrick to reduce the case
from an implied consent to a DUI. He also claimed that both the amended statement from
Officer Hedrick and the withdrawal form had been given to him by Mr. Mitchell on August
30, 1999. Tr.I, 168-69.
Mr. Janco investigated the matter further, and learned there had been no hearing
scheduled in the Maroney case on August 30, 1999, and that Officer Hedrick was not
present with Grievant and Mr. Mitchell on that date.
When the matter was discussed during the September 9, 1999 meeting, Grievant
initially stuck with the story that Officer Hedrick and Mr. Mitchell worked out a deal, and that
Mr. Mitchell had provided Grievant with the forms on August 30, 1999. Tr.II, 76-77. When
Ms. Bissett confronted Grievant with the fact that Officer Hedrick had made a sworn
statement that Grievant had asked him to fill out the amended statement, Grievant initially
denied having anything to do with it. Tr.II, 77. He then retreated from that story and said
that when Officer Hedrick came in for a different hearing, he had asked him to reduce the
charge. Grievant claimed to have done this at the behest of Ms. Maroney. However,
Grievant was unable to explain why he was having conversations with Ms. Maroney, a
represented party, outside of the hearing and outside the presence of her counsel. When
asked why he agreed to get involved in arranging this deal, Grievant stated, I was justtrying to do Ms. Maroney a favor and I just asked the officer for her if he would agree to
that. Tr. II, 77-78.
Grievant then stated that Officer Hedrick had brought the amended statement to
Grievant, who then tacked it to his bulletin board. Tr.II, 79. He claimed that when Mr.
Mitchell arrived on August 30, 1999, Mr. Mitchell saw the amended statement and told
Grievant he wanted to fill out a withdrawal form. Tr.II, 79. According to Grievant, he
provided Mr. Mitchell with a blank withdrawal form, and Mr. Mitchell filled it out and handed
it back to him. Tr. II, 79. Grievant claimed he merely signed the form as a witness. All of
the other witnesses who testified about the withdrawal form indicated it had been filled out
by Grievant. With the exception of Mr. Mitchell's signatures on behalf of his client, all of the
handwriting on the withdrawal form is Grievant's. In addition, Mr. Mitchell testified he did
not ask Grievant to negotiate the deal on behalf of his client, and indicated he would never
do that. Tr. III, 47.
As a result of being contacted by Mr. Janco and Ms. Bissett, Lt. Tabaretti asked
Officer Hedrick to prepare a statement of the events relating to the Maroney case, which
Officer Hedrick prepared. Lt. Tabaretti hand-delivered a copy of that statement to Ms.
Bissett and Mr. Janco on the morning of September 9, 1999.
Ms. Bissett also spoke to Mr. Mitchell by telephone and obtained his version of the
pertinent events after the September 9 meeting with Grievant. Mr. Mitchell flatly
contradicted much of what Grievant had said to Ms. Bissett and Mr. Janco in that meeting.
According to Mr. Mitchell, he had not met with Officer Hedrick after the August 3, 1999Maroney hearing. Mr. Mitchell also said that Grievant handed him the amended statement
and the withdrawal form when Mr. Mitchell arrived on August 30,1999.
3.
This hearing involved a citizen, Stephen May, who used bioptic lenses due to his
limited vision. Bioptic lenses are special aids for drivers with certain vision problems. West
Virginia does not allow licensure of drivers who must rely upon bioptic lenses to satisfy the
visual acuity requirements. Mr. May had applied for a learner's permit and was turned down
by the State Police. He appealed and Grievant heard his case.
Following the hearing, Grievant submitted a proposed order in early 1999, in which
he recommended that Mr. May be permitted to obtain a learner's permit using bioptic
lenses. Mr. Janco returned the proposed final order to Grievant, and explained that bioptic
lenses could not be used in West Virginia. He asked Grievant to amend his proposed final
order to conform to the law. Mr. Janco also provided Grievant with examples of orders that
had been issued in other bioptic lens cases. DMV Ex. 22. Thereafter, Grievant submitted
a proposed final order which was virtually unchanged. Mr. Janco then provided Grievant
with additional examples of final orders dealing with bioptic lenses. However, Grievant
again sent Mr. Janco a final order that was virtually unchanged.
There is a seventy-day turnaround time for final orders in medical files. In order to
meet this deadline, Mr. Janco took the May file home with him and produced a proposed
final order which ultimately went out over the commissioner's signature. At the time of this
incident, Grievant was not disciplined for his failure to comply with Mr. Janco's directives to
amend the May final order. It was not until the September 9, 1999, meeting with Mr. Janco and Ms. Bissett that
Grievant was informed the Stephen May incident was a basis for discipline. At that time,
Grievant explained his refusal to submit a revised final order by indicating he was aware of
another bioptic case in the Circuit Court of Logan County involving Stephen May's twin
brother, in which the Circuit Court overturned the final order of the commissioner denying
the brother a learner's permit. Grievant felt the same thing would happen with Stephen
May. However, Grievant never informed Mr. Janco at the time he was refusing to amend
his final order that this was his rationale. If he had, Mr. Janco and Ms. Bissett could have
explained to him that Ms. Bissett had been in discussion with the prosecuting attorney in
Logan County about that case, and that DMV was seeking a rescission of the order
allowing the brother to have a learner's permit. Despite this explanation, Grievant testified
that he would not have changed his course of action in the Stephen May case, and was
standing by his decision.
Grievant testified at level four that Mr. Janco never told him to change the May
proposed final order, but only said he was sure [Grievant] would do the right thing.
Grievant testified Mr. Janco only told him once about his concerns regarding the May order,
and the next thing Grievant, knew a final order had gone out which had been prepared by
Mr. Janco.
4.
On May 29, 1998, and into the early morning hours of May 30, 1998, the Charleston
Police Department conducted a sobriety checkpoint which resulted in the arrest of, among
others, Gavin Hogue for DUI. An administrative hearing to challenge the legality of thesobriety checkpoint and the validity of the revocation that flowed from Mr. Hogue's arrest
was held before Grievant on May 5, 1999, and May 27, 1999. Once it has been challenged,
the law enforcement agency bears the burden of establishing that the sobriety checkpoint
comported with a laundry list of requirements. In this case, Lt. Tabaretti was responsible
for setting up and overseeing the checkpoint. Lt. Tabaretti was present for the first day of
hearing on May 5, but was not present for the hearing on May 27. Lt. Tabaretti had notice
of the May 27 hearing date. Grievant testified that the State had not finished laying its
foundation for setting up the guidelines of the sobriety checkpoint, and he subsequently
submitted a proposed final order in which he refused to uphold the revocation of Mr.
Hogue's license because of problems with the sobriety checkpoint. It was released over
the commissioner's signature.
Thereafter, Lt. Tabaretti asked if he and the arresting officer could review the tape
of the hearing because they believed certain of the findings were inconsistent with their
memories of the evidence they had presented. Specifically, Lt. Tabaretti believed he had
presented sufficient evidence regarding the guidelines for the sobriety checkpoint.
A meeting was held in early July, 1999, at the DMV's main offices. Present were Ms.
Bissett, Mr. Holley, Mr. Janco, Lt. Tabaretti, and the arresting officer, Corporal Eric Eagle.
Mr. Janco told Grievant about the meeting and directed him to attend. Grievant testified he
told Mr. Janco he did not think it was a good idea to set a precedent of sitting down with the
police to critique tapes of their hearings. The police were not listening to the tapes in an
effort to have DMV revise the final order in the Hogue case, but merely to determine if they
had a basis for appeal. The police subsequently did appeal the Hogue case to circuit court. Grievant also testified Mr. Janco did not direct him to attend the meeting, but only
asked him if he wanted to be there. Grievant testified Ms. Bissett telephoned him, very
angry, and told him to get to the meeting. Therefore, according to Grievant, he did not show
up until the meeting was almost over, nearly 1-1/2 hours later, and after those in attendance
had listened to the tapes.
Ms. Bissett noted there were two parts of the final order that misstated the evidence
to the detriment of the arresting officer's case. Grievant's Finding of Fact Number 3 stated
that the State did not establish that there were any sobriety checkpoint warning signs
placed on the side streets leading the checkpoint site. Tr. II, 58. However, the tape
recording revealed that Lt. Tabaretti had testified regarding checkpoint warning signs.
Grievant's Finding of Fact No. 4 stated that the State did not offer any evidence of
placement and utilization of safety equipment in [sic] individual assignments of the police
officers involved. Tr. II, 58. The tape recording revealed Lt. Tabaretti testified about the
placement of safety equipment, cones and signs. Tr. II, 59.
Ms. Bissett discussed the foregoing problems with Grievant during their meeting on
September 9, 1999. Grievant stated that he did the best he could and that he stood by his
final order as written. Tr. II, 61. Grievant testified that, in his opinion, the evidence which
was presented was not adequate to substantiate the State's case. Grievant testified that
the Hogue hearing was a very long hearing. Tr. III, 74. However, on cross-examination,
he acknowledged that tape recordings of the hearings were available to him while he was
drafting the proposed final orders. Tr. III, 129.
5.
Grievant conducted a hearing and submitted a proposed final order relating to driver,
Robert Robertson, in a DUI case. The proposed order upholding the revocation was issued
as a final order over the commissioner's signature. The driver, Mr. Robertson, appealed the
final order to the Circuit Court of Kanawha County. Upon mutual agreement of the parties,
the case was remanded to Grievant to address specific issues. Mr. Janco talked to
Grievant, and wrote him a memorandum on April 8,1999, telling him to address the
unresolved conflicting testimony of the witnesses, as well as to include in the Order the fact
that the driver had chewing gum in his mouth when stopped by the officer, and that the
arresting officer had left the hearing room after presenting his case-in-chief, but before the
hearing was over. DMV Ex. 23.
Grievant prepared and submitted a proposed order in which he adopted the arresting
officer's testimony over that of the driver. Mr. Janco returned the proposed order to
Grievant with instructions to explain why he was giving one witness's testimony greater
weight. Mr. Janco testified that Grievant complained that this was burdening him with
additional work, and ultimately Mr. Janco had to draft the proposed final order himself.
Grievant testified he prepared the final order as directed regarding the conflicting
testimony. He acknowledged Mr. Janco told him he had overlooked the other two items
which needed to be addressed. Grievant testified he offered to make the suggested
changes, and asked Mr. Janco to send the Order back to him, but Mr. Janco said he would
fix the final order himself. Grievant testified he asked Mr. Janco to send him a copy of the
Order after it was finalized so he would have it for future reference. Grievant acknowledgedthose items were things which the commissioner should have had before him in the
proposed final order. He testified he never heard anything more about the Robertson order
until the September 9, 1999 meeting with Mr. Janco and Ms. Bissett, and that he was never
reprimanded or disciplined as a result of the Robertson order.
6.
On May 2, 1999, Officer Brian Jones of the Charleston Police Department arrested
M.W. for driving under the influence of alcohol. M. W. refused the Intoxilyzer test so Officer
Jones submitted an implied consent statement to the DMV. An administrative hearing was
scheduled for August 18, 1999, before Grievant. Officer Jones and his witness appeared
timely for the hearing but M.W.'s counsel, Shannon Bland, was running late. While they
waited for Mr. Bland to arrive, Grievant asked Officer Jones if he would submit a statement
of arresting officer for a DUI rather than an implied consent case. This would reduce the
suspension [sic] from one year to ninety days and withdraw the hearing. Tr. II, 9. Officer
Jones said he would not make that offer, but that Grievant could do so if he wanted.
When Mr. Bland arrived, Grievant proposed that deal to him. Mr. Bland conditionally
agreed, pending obtaining approval of the deal from his client. To expedite matters in the
event M.W. did agree, Grievant provided Officer Jones with a blank Statement of Arresting
Officer form. Officer Jones filled out the form, marking amended at the top, and left it with
Grievant. In addition, Grievant called his docketing clerk and solicited a continuance ofM.W.'s administrative hearing. Officer Jones confirmed for the clerk, Dawnyetta Tuffin, that
he did not object to a continuance being granted.
Grievant testified that Officer Jones called his docketing clerk and asked her for the
continuance. Grievant asserted Officer Jones and his clerk, Dawnyetta, were good
friends. However, Officer Jones testified he did not know her, and that Grievant had called
her and asked for the continuance. Grievant also testified that it was Mr. Bland who asked
Officer Jones to consider reducing the charge in the M.W. case, and that while Officer
Jones was on the telephone, he filled out an amended statement of officer form.
Sometime thereafter, Mr. Janco observed the amended statement on the bulletin
board in Grievant's hearing room. Mr. Janco removed it from the board and advised Ms.
Bissett of its existence. Again, Lt. Tabaretti was contacted for an explanation. Officer
Jones, at Lt. Tabaretti's request, provided a written statement regarding the events that led
to the preparation of the amended statement relating to M.W. A copy of said statement was
provided to Ms. Bissett and Mr. Janco on the morning of September 9, 1999.
During the investigation of this matter, Grievant provided Mr. Janco with a letter from
Mr. Bland that had been faxed to Grievant on or about September 13, 1999. DMV Exs. 37,
38. Mr. Bland's letter set forth his understanding of the deal with respect to M.W. When
Grievant forwarded this letter to Mr. Janco, he attached a note which said that Grievant did
not know what to do with this request. DMV Ex. 37.
When Mr. Janco discussed Mr. Bland's letter with Grievant, Grievant gave the
impression that he wasn't exactly sure what the situation was. Tr. I, 195. This incident wasdiscussed with Grievant during the September 9 meeting. At that time, Grievant stated he
did not remember how the amended statement relating to M.W. came into his possession.
Grievant testified he did not attempt to persuade Officer Jones to amend his
statement of arresting officer, but merely presented options to him. Mr. Bland testified that
it was not an unusual practice at DMV for hearing examiners to present options to the
parties regarding reducing an implied consent case to a DUI case. Officer Jones testified
that he had appeared in front of other hearing examiners for DMV. However, no other
examiner had ever suggested to him that he reduce a charge.
CREDIBILITY OF WITNESSES
There is very little, if any, discrepancy in the witnesses' testimony regarding the
Gandee, May, and Robertson incidents. However, with regard to the Maroney, Hogue, and
M.W. incidents, Grievant's testimony conflicts with the testimony of the other witnesses,
requiring a determination as to which testimony is truthful. In assessing the credibility of
witnesses, some factors to be considered . . . are the witness's: 1) demeanor; 2)
opportunity or capacity to perceive and communicate; 3) reputation for honesty; (4) attitude
toward the action; and 5) admission of untruthfulness. Harold J. Asher and William C.
Jackson. Representing the Agency before the United States Merit Systems Protection
Board 152-153 (1984). Additionally, the ALJ should consider: 1) the presence or absence
of bias, interest, or motive; 2) the consistency of prior statements; (3) the existence or
nonexistence of any fact testified to by the witness; and 4) the plausibility of the witness's
information.
Id.,
Rosenau v. Tucker County Bd. of Educ., Docket No. 99-47-192 (Nov. 1,1999);
Jarvis v. W. Va. Dept. of Health and Human Serv., Docket No. 97-HHR-318 (July 22,
1999);
Burchell v. Bd. of Trustees, Marshall Univ., Docket No. 97-BOT-011 (Aug. 29, 1997).
In all instances, I find Grievant's testimony, as it conflicts with other witnesses, to be
incredible. In all instances involving the police and an attorney, their statements have been
consistent, while Grievant's alone advances another interpretation of the relevant events.
In all instances involving Ms. Bissett and Mr. Janco, again, their statements support each
other, while Grievant's alone differs in substance. In the case of the police officers and the
attorneys, no evidence is presented which would indicate they were being less than truthful
in their accounts of the relevant events. Indeed, with respect to the attorneys involved, Mr.
Mitchell and Mr. Bland, they both are quite supportive of Grievant, and provided letters in
support of him to the Commissioner of the DMV. Furthermore, in both cases involving Mr.
Mitchell and Mr. Bland, i.e, the Maroney case and the M.W. case, respectively, Grievant's
actions in proposing deals were favorable to their clients, and their testimony in this regard
only serves to throw a blemish on the results in their cases.
In addition, the evolving answers and theories presented by Grievant during the
DMV's investigation of his misconduct and throughout the course of this grievance
undermines his credibility, as does the incomplete, confusing nature of his testimony.
In contrast, the DMV's witnesses' testimony was corroborated in part by witnesses
such as Ms. Osborne and Mr. Bolyard, who had no real involvement with Grievant despite
being DMV employees. Further, the key testimony of witnesses such as Ms. Bissett and
Mr. Janco was corroborated by Mr. Mitchell, Officer Hedrick, and Officer Jones, as well as
the documentary evidence. In his defense, Grievant claims he was denied due process, and that DMV failed to
follow its own progressive discipline policy, and acted arbitrarily and capriciously in
dismissing him from employment. With regard to his due process claim, Grievant claims
he was not given adequate notice of the charges against him, nor an opportunity to respond
to the charges. All of the charges included in Grievant's dismissal letter were discussed
with on September 9, 1999, by Ms. Bissett and Mr. Janco, with Mr. Bolyard present as a
neutral witness. In each instance, Grievant was given an opportunity to explain his conduct
and he did so. In addition, Grievant's dismissal letter states he had fifteen days to contact
Ms. Bissett in order to respond to the charges, but he did not contact her or further discuss
the charges with her or Mr. Janco. Grievant had the opportunity to respond to the charges,
but simply failed to do so. Further, Grievant was given 15 days of severance pay in lieu of
fifteen days' notice of termination, which is a lawful substitution in cases where the public
interests are best served. In this case, DMV had canceled all of Grievant's hearings, and
based upon its belief that Grievant could not be trusted to hold any further hearings, there
was nothing left to do but dismiss him immediately.
Grievant further alleges DMV did not follow its own progressive discipline policy.
Specifically, Grievant points to the fact that he was not reprimanded following any of the
above incidents, until September 9, 1999, when all of the incidents were brought to his
attention. While Grievant may not have been formally reprimanded, in each case, he was
instructed by Mr. Janco on the appropriate course of action, and received memoranda from
Mr. Janco memorializing those instructions. Clearly, Grievant's blatant refusal to work on
the Gandee files was the proverbial straw in this case, along with the surfacing of theevents surrounding the Maroney and M.W. cases at about the same time. The other,
further removed in time incidents were merely additional instances of misconduct which
were ultimately brought up in discussions regarding what type of discipline to impose on
Grievant.
An agency is not required to follow all of the steps in progressive discipline if the
misconduct is so severe that it justifies immediate termination. In this instance, DMV felt
immediate termination was warranted.
Finally, there is no evidence to support Grievant's claim that the DMV's action in
dismissing him was arbitrary and capricious. Generally, an action is considered arbitrary
and capricious if the agency did not rely on criteria intended to be considered, explained or
reached the decision in a manner contrary to the evidence before it, reached a decision that
was so implausible that it cannot be ascribed to a difference of opinion. . . . An action is
recognized as arbitrary and capricious when 'it is unreasonable, without consideration, and
in disregard of facts and circumstances of the case.'
White v. W. Va. Bureau of
Employment Programs, Docket No. 99-BEP-496 (May 22, 2000). The record is replete with
evidence of DMV's investigation into incidents which resulted in the charges brought against
Grievant, and it cannot be said that DMV ignored any aspect of this case before reaching
its decision to terminate Grievant.
Therefore, based on all of the testimony and evidence presented in this case, I find,
by a preponderance of the evidence, the following material facts.
FINDINGS OF FACT
1. Grievant was employed as a hearing examiner by the DMV from July 1, 1992,
to September 20, 1999.
2. Hearing examiners are given training at two seminars a year.
3. Hearing examiners are taught they are never to initiate any type of a deal,
meaning an agreement between the parties. Grievant was specifically counseled by Mr.
Holley that the DMV is not allowed to enter into any kind of deals.
4. Hearing examiners are taught not to engage in ex parte communications with
the parties.
5. Hearing examiners are taught that if a party arrives for a hearing but wants to
withdraw the request for a hearing, that information must be transmitted to the DMV
immediately.
6. Hearing examiners are taught they are not to initiate withdrawals of requests
for hearing.
7. Hearing examiners are taught that if an arresting officer arrives at the hearing,
but wants to submit an amended statement, the examiner must continue the hearing and
submit the amended statement to the DMV. If it is accepted, an amended revocation order
must be issued and the parties properly noticed as to the issues involved. The only
exception is if the amended statement relates to a lesser included offense. DMV Ex. 35.
8. The period of revocation for the first infraction based on driving under the
influence (without aggravating factors such as bodily injury) is six months with a possibilityof reinstatement after 90 days if the driver completes a statutorily-mandated treatment
program.
9. A driver who has refused to take the designated secondary chemical test has
his license revoked, if a first-time offense, for a period of one year.
10. For purposes of an administrative license revocation, driving under the
influence of alcohol is not a lesser included offense of refusing to take a designated
secondary chemical test.
11. DMV has adopted a progressive discipline policy. However, depending upon
the nature and severity of the offense, not every step in the progression need be employed.
Some misconduct merits immediate dismissal.
12. Hearing examiner Gandee resigned in 1999. At the time of her departure,
there were sixty files in which she had held administrative hearings, but for which she had
not submitted proposed final orders.
13. When Mr. Janco became aware of the existence of the sixty files, he assigned
five to each of the remaining hearing examiners. Each examiner was asked to review the
tape recording of the hearing and prepare a proposed final order in each case assigned to
him or her.
14. In late July 1999, Mr. Janco assigned five of the Gandee files to Grievant. At
the time, Grievant complained that he should not be doing somebody else's work.
15. Mr. Janco reminded Grievant of a prior occasion when Mr. Janco was still a
hearing examiner and Grievant needed assistance getting caught up on his final orders.
To help Grievant, Mr. Janco drafted proposed final orders for submission in cases wherethe hearings had been conducted by Grievant. Grievant did not object to receiving such
assistance.
16. Grievant did not, at any time, attempt to listen to the tapes or draft proposed
final orders in any of the five Gandee files he had been given. Rather, Grievant retained
the files for nearly a month and then returned them to the DMV's main office without
discussing the matter with his superior. An office assistant called Mr. Janco's attention to
the fact that the files had been returned by Grievant without proposed final orders.
17. Mr. Janco discussed the files with Grievant and asked him to prepare the final
orders, and Grievant said no.
18. During a September 9, 1999, meeting between Ms. Bissett, Mr. Janco, David
Bolyard, and Grievant, Grievant once again was asked why he had not prepared the final
orders in the Gandee files. Specifically, Grievant was asked if he thought it was illegal for
him to prepare the final orders, and he responded he did not think it was illegal.
19. Grievant admitted to Ms. Bissett that Mr. Janco had twice asked him to
prepare final orders in the Gandee files, and that he twice refused.
20. When informed on September 9, 1999, that he was going to be disciplined for
refusing to prepare the Gandee final orders, along with other misconduct, Grievant then
offered to prepare the final orders. His offer was refused by Ms. Bissett and Mr. Janco.
21. Only after the September 9, 1999 meeting did Grievant contact legal counsel
regarding the appropriateness of him preparing final orders in the Gandee files, when he
did not hold the administrative hearings. 22. On April 13, 1999, Officer Terry Hedrick of the Charleston Police Department
arrested Eileen Maroney on a DUI charge. Officer Hedrick reported the arrest in his
Statement of Arresting Officer as an implied consent case, as Ms. Maroney refused to take
the Intoxilyzer test.
23. An administrative hearing in the Maroney case was held before Grievant on
August 3, 1999, with Officer Hedrick and John R. Mitchell, Jr., Esq., Ms. Maroney's counsel,
in attendance.
24. On August 15, 1999, Grievant submitted a proposed final order upholding the
revocation of Ms. Maroney's license based on her refusal to take the Intoxilyzer test, and
the order was issued under the commissioner's signature on August 27, 1999.
25. On August 10, 1999, Officer Hedrick appeared for a hearing in front of
Grievant, unrelated to the Maroney case. Upon entering the room, Officer Hedrick saw
Grievant was on the telephone, and heard him say, He's here now. Grievant subsequently
indicated that it was Ms. Maroney who had been on the telephone.
26. Grievant engaged in an ex parte communication with a party to an
administrative hearing before him.
27. After hanging up the telephone with Ms. Maroney, Grievant asked Officer
Hedrick if he would agree to reduce the charge against Ms. Maroney, and in return, she
would waive her right to appeal.
28. Grievant provided Officer Hedrick with a blank Statement of Arresting Officer
form and assisted him in filling out the form. At the time this was going on, Ms. Maroney
was still represented by Mr. Mitchell, who was on a two week vacation. 29. Upon Mr. Mitchell's return, he appeared before Grievant on August 30, 1999,
in a matter unrelated to the Maroney case. At that time, Grievant handed him the amended
Statement of Arresting Officer form completed by Officer Hedrick. Grievant also provided
Mr. Mitchell with a form for withdrawing the request for administrative hearing. Grievant had
filled out the entire form with the exception of the signature lines for Mr. Mitchell. On August
30, 1999, Mr. Mitchell signed the form on behalf of his client, Ms. Maroney.
30. There was no hearing related to Ms. Maroney scheduled for August 30, 1999.
Nevertheless, Grievant tape recorded the transaction between him and Mr. Mitchell with
regard to Ms. Maroney. Officer Hedrick was not present at this meeting, nor was he given
any notice of this meeting.
31. Grievant engaged in ex parte communications with both Officer Hedrick and
Mr. Mitchell with regard to the Maroney case.
32. Grievant initiated a deal to reduce Ms. Maroney's charge from an implied
consent to a DUI case.
33. Despite all of this, Grievant's attempts to carve out a deal for Ms. Maroney
were for naught, because he had already prepared a proposed final order in her case,
which had been issued by the commissioner on August 27, 1999, before Grievant even met
with Mr. Mitchell.
34. On May 2, 1999, Officer Brian Jones of the Charleston Police Department
arrested M.W. for driving under the influence of alcohol. M.W. refused the Intoxilyzer test,
so Officer Jones submitted an implied consent statement to the DMV. 35. An administrative hearing was scheduled for August 18, 1999, before
Grievant. Officer Jones and his witness appeared timely for the hearing, but M.W.'s
counsel, Shannon Bland, Esq., was running late. While they waited for Mr. Bland to arrive,
Grievant asked Officer Jones if he would submit a statement of arresting officer for a DUI
case rather than an implied consent case.
36. Officer Jones said he would not make that offer, but that Grievant could do so
if he wanted to. Thus, when Mr. Bland arrived, Grievant proposed that deal to him.
37. Mr. Bland conditionally agreed, pending obtaining approval of the deal from
his client, who did not attend the hearing.
38. To expedite matters, Grievant provided Officer Jones with a blank Statement
of Arresting Officer form. Officer Jones filled out the form, marking amended at the top,
and left it with Grievant.
39. Grievant tacked the amended statement of arresting officer to his bulletin
board, pending word from Mr. Bland that his client had agreed to the deal.
40. Sometime thereafter, Mr. Janco saw the amended statement on the bulletin
board, and removed it.
41. Later, Mr. Bland sent Grievant a letter setting forth his understanding of the
deal Grievant had arranged with respect to M.W.'s case. Mr. Janco met with Grievant about
this letter, and Grievant gave the impression that he wasn't exactly sure what the situation
was.
42. Grievant engaged in ex parte communications with Officer Jones in the M.W.
case. 43. Grievant initiated a deal to reduce the charge against M.W. from an implied
consent to a DUI.
44. On May 29, 1999, and into the early morning of May 30, 1999, the Charleston
Police Department conducted a sobriety checkpoint which resulted in the arrest of, among
others, Gavin Hogue.
45. An administrative hearing to challenge the legality of the sobriety checkpoint
and the validity of the revocation was held before Grievant on May 5, 1999, and May 27,
1999.
46. Grievant submitted a proposed final order in which he refused to uphold the
revocation because of problems with the sobriety checkpoint.
47. Lt. Tabaretti asked Ms. Bissett if he and the arresting officer could review the
tape of the hearing because certain of the findings were inconsistent with their memories
of the evidence they had presented.
48. Lt. Tabaretti was not attempting to have DMV rescind or reconsider the final
order in Mr. Hogue's case, but only attempting to decide whether he would have a basis for
appeal.
49. Lt. Tabaretti, the arresting officer, Ms. Bissett, Mr. Holley, and Mr. Janco, met
in early July, 1999, to review the tape. Mr. Janco instructed Grievant to attend the meeting.
50. Grievant did not appear at the meeting until after about 1-1/2 hours, and only
after being called by Ms. Bissett.
51. A review of the tape indicated some inconsistencies with regard to Grievant's
Findings of Fact Numbers 3 and 4, and the evidence presented. 52. It is a policy of the DMV that a final order should be predicated upon the
evidence adduced at the administrative hearing. In the context of the Gavin Hogue case,
Grievant's order ignored evidence presented at the hearing, or misconstrued the nature of
such evidence.
53. In early 1999, Grievant submitted a proposed final order in which he
recommended that an applicant, Steven May, be permitted to obtain a learner's permit using
bioptic lenses. Even with bioptic lenses, Mr. May could not satisfy the minimum visual
acuity standards to obtain a learner's permit.
54. Bioptic lenses are special aids for drivers with certain visual problems. West
Virginia does not allow licensure of drivers who must rely upon bioptic lenses to satisfy the
visual acuity requirements.
55. The reason Grievant ruled in favor of Mr. May was because he had decided
an earlier case involving Mr. May's twin brother, who also relied on bioptic lenses to drive.
In that case, he turned down Michael May's application because bioptic lenses were not
allowed in West Virginia. However, the Circuit Court of Logan County overturned Grievant's
order, and allowed Michael May to drive. Therefore, Grievant believe the same thing would
happen with Steven May, so he ruled in his favor.
56. Grievant conducted a hearing and submitted a proposed final order relating
to Robert Robertson in a DUI case. The driver appealed the order to the Circuit Court of
Kanawha County. Upon reviewing the transcript of the hearing, counsel for DMV noted
there were some problems with the final order. 57. DMV sought and obtained a remand order from the circuit court to afford
Grievant an opportunity to submit an amended final order addressing whether the Intoxilyzer
test was properly administered in light of the fact that the driver testified he had chewing
gum in his mouth. This would also give Grievant an opportunity to address the fact that the
arresting officer left the hearing room after presenting his case-in-chief, but before the end
of the hearing, meaning no one was available to cross-examine the driver.
58. Mr. Janco directed Grievant to draft and submit a new proposed order
addressing the foregoing issues. Grievant submitted a proposed order in which he did not
explain why he was adopting the arresting officer's testimony over that of the driver as to
whether there was a proper foundation for the Intoxilyzer test.
59. Mr. Janco returned the order to Grievant with instructions to explain why he
was giving one witness's testimony greater weight. Grievant submitted another proposed
order, virtually unchanged.
60.
Ultimately, Mr. Janco was forced to draft a final order himself.
CONCLUSIONS OF LAW
1. Insubordination involves the willful failure or refusal to obey reasonable
orders of a superior entitled to give such order.
Riddle v. Bd. of Directors/So. W. Va.
Community College, Docket No. 93-BOD-309 (May 31, 1994);
Webb v. Mason County Bd.
of Educ., Docket No. 26-89-004 (May 1, 1989).
2. In order to establish insubordination, an employer must demonstrate that a
policy or directive that applied to the employee was in existence at the time of the violation,
and the employee's failure to comply was sufficiently knowing and intentional to constitutethe defiance of authority inherent in a charge of insubordination.
Conner v. Barbour County
Bd. of Educ., Docket No. 94-01-394 (Jan. 31, 1995).
3. Employees are expected to respect authority and do not have the unfettered
discretion to disobey or ignore clear instructions.
Reynolds v. Kanawha-Charleston Health
Dept., Docket No. 90-H-128 (Aug. 8, 1990). As a rule, few defenses are available to the
employee who disobeys a lawful directive; the prudent employee complies first and
expresses his disagreement later.
Maxey v. W. Va. Dept. of Human Resources, Docket No.
93-HHR-424 (Feb. 28, 1995).
4. An employees belief that management's decisions are incorrect, absent a
threat to the employee's health or safety, does not confer upon him the right to ignore or
disregard the order, rule, or directive.
White v. W. Va. Bureau of Employment Programs,
Docket No. 99-BEP-496 (May 22, 2000).
5. In the context of insubordination, it is established that [u]nless the order
entails an illegal act or undue physical danger, the employee must obey and resolve
questions regarding its legality later.
Surber v. Mingo County Board of Education, Docket
No. 96-29-015 (Dec. 30, 1996). This is so even when the order appears contrary to
statutes, policies or agreements governing the employee-employer relationship.
Grishaber/Crist v. W. Va. Division of Corrections, Docket No. 97-CORR-067/068 (Oct. 27,
1997).
6. Gross misconduct implies a willful disregard of the employer's interest or a
wanton disregard of the employer's interest or a wanton disregard of standards of behavior
which the employer has a right to expect of its employees.
Vickers v. Board of Directors/W.Va. State College, Docket No. 97-BOD-112B (Jan. 31, 1995) (quoting
Graley v. W. Va.
Parkways Economic Dev. and Tourism Auth., Docket No. 91-PEDTA-225 (Dec. 23, 1991)).
7. It is generally held that an administrative decision is not invalid because a
member who participated in a decision was not present when the evidence was taken,
provided he considers and acts upon the evidence taken at the hearing.
Kanawha Co.
Transportation Co. v. Public Service Commission, 159 W. Va. 88, 219 S.E.2d 332 (1975).
See,
Coleman v. Sopher, 201 W. Va. 588, 499 S.E.2d 592 (1977);
Tennant v. Marion
Health Care Foundation, 194 W. Va. 97, 459 S.E.2d 475 (1995).
8. Grievant was insubordinate when he returned the Gandee files, which had
been assigned to him by Mr. Janco, without complying with Mr. Janco's instruction that he
draft proposed final orders of each of the files.
9. Grievant was insubordinate when Mr. Janco asked Grievant to reconsider his
refusal to do the Gandee files, and Grievant again refused.
10. In negotiating a deal on behalf of Ms. Maroney, Grievant violated the DMV's
policies in several respects, including a) having ex parte communications with a party during
the pendency of the decision; b) communicating with a represented party outside of the
presence of the party's counsel; c) abandoning the neutral and impartial role of a hearing
examiner to act as an advocate on behalf of Ms. Maroney's interests; d) initiating
discussions regarding withdrawal of a request for hearing; and e) conducting a sham
hearing. With respect to each of these issues, Grievant was insubordinate.
11. Grievant's actions with respect to the Maroney matter impugned the integrity
of DMV's hearing process, thereby causing harm to the rights and interests of the public. 12. During the investigation of the Maroney matter, Grievant misrepresented his
role to Mr. Janco, and thereafter, to Ms. Bissett. Lying to his superiors is not only
insubordinate, but undermines any trust they may have reposed in Grievant. Inevitably his
actions undermined the trust placed in Grievant by the commissioner.
13. An employer has the right to expect an employee to perform his duties in an
honest and forthright manner.
Vickers v. Board of Directors/W. Va. State College, Docket
No. 97-BOD-112B (Jan. 31, 1995). Grievant failed to meet this expectation.
14. In proposing a deal in the M.W. case, Grievant again violated the DMV's
policies in several respects, including a) abandoning the neutral and impartial role of a
hearing examiner; and b) initiating discussions regarding withdrawal of a request for
hearing. With respect to each of these issues, Grievant was insubordinate.
15. Grievant was insubordinate in refusing to comply with Mr. Janco's direction
that he attend the meeting with the police officers regarding Gavin Hogue. Because such
meeting took place after the final order had been issued, and the police did not intend for
DMV to reconsider the case, there was no impropriety in such a meeting.
16. Grievant was insubordinate in failing to conform his proposed order in the
Steven May case to the requirements of the law, as directed by Mr. Janco.
17. Grievant was insubordinate in refusing to follow Mr. Janco's directions to draft
an order, following remand from the circuit court, wherein Grievant was to address the
conflicts in the testimony as to whether there was an appropriate foundation for admitting
the Intoxilyzer test results in the Robert Robertson case. 18. The employer bears the burden with respect to disciplinary matters. With
respect to termination, the employer must prove the charges supporting Grievant's
dismissal by a preponderance of the evidence.
Dooley v. W. Va. Bureau of Employment
Programs, Docket No. 93-BEP-128 (Aug. 30, 1993).
19. The DMV has met its burden of establishing by a preponderance the charges
upon which Grievant's termination was predicated.
20. Each of the acts of insubordination was sufficient to support Grievant's
termination.
21.
Grievant's acts of insubordination amounted to gross misconduct.
22. Given the nature of Grievant's misconduct, DMV did not need to comply with
the fifteen day notice requirement. Fifteen day notice is not required for employees in
certain cases when the public interests are best served by withholding the notice, and is at
the discretion of the appointing authority for employees in any case where the cause of
dismissal is gross misconduct.
Tolley v. W. Va. Department of Natural Resources, Docket
No. 94-DNR-629 (May 18, 1995). Grievant was not denied due process.
23. DMV did not abuse its discretion in immediately terminating Grievant,
continuing to pay him, and providing him with an immediate opportunity to present reasons
in opposition to his termination.
Accordingly, this grievance is DENIED.
Any party or the West Virginia Division of Personnel may appeal this decision to the
Circuit 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.
___________________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: October 31, 2000
Footnote: 1