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 - Ex. 2 - Ex. 3 - Ex. 4 - Ex. 5 - Ex. 6 - Ex. 7 - Ex. 8 - Ex. 9 - Ex. 10 - Ex. 11 - Ex. 12 - Ex. 13 - Ex. 14 - Ex. 15 - Ex. 16 - Ex. 17 - Ex. 18 - Ex. 19 - Ex. 20 - Ex. 21 - Ex. 22 - Ex. 23 - Ex. 24 - Ex. 25 - Ex. 26 - Ex. 27 - Ex. 28 - Ex. 29 - Ex. 30 - Ex. 32 - Ex. 33 - Ex. 34 - Ex. 35 - Ex. 36 - Ex. 37 - Ex. 38 - Ex. 39 - Ex. 40 - Ex. 41 - Ex. 42 - Ex. 43 - Ex. 44 - Ex. 45 - Ex. 46 - Ex. 47 - Ex. 48 - Ex. 49 - Ex. 50 - Ex. 51 - Ex. 52 - Ex. 53 - Ex. 54 - Ex. 55 - Ex. 56 - Ex. 57 - Ex. 59 - Ex. 60 - Ex. 61 - Ex. 62 - Ex. 63 - Ex. 64 - Ex. 65 - Ex. 66 -
Grievant's Exhibits

Ex. 1 -

Ex. 2 - Ex. 3 - Ex. 4 - Ex. 5 - Ex. 6 - Ex. 7 - Ex. 8 - Ex. 9 - Ex. 10 - Ex. 11 - Ex. 12 -
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:
      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:



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.
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.       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
      “Classified service” is defined by W. Va. Code § 29-6-2(g) as “an employee whose job satisfies the definition for 'class' and 'classify' and who is covered under the civil service system[.]”
Footnote: 2
      It is with respect to the Gandee files that Grievant alleged in his proposed findings of fact and conclusions of law he was a “whistle-blower” and therefore protected from discipline for reporting this practice.
Footnote: 3
      The parties agreed that, for purposes of confidentiality, this driver's initials would be used.