LARRY VANGOSEN


v. DOCKET NO. 91-DPS/RJA/-087

WEST VIRGINIA DEPARTMENT OF PUBLIC SAFETY/
WEST VIRGINIA REGIONAL CORRECTIONAL and
JAIL FACILITY AUTHORITY



DECISION



Grievant, Larry VanGosen, has been employed by the West
Virginia Regional Jail and Correctional Facility Authority
(RJA) at the Eastern Regional Jail (ERJ) in Martinsburg,
West Virginia, since September 1989. On March 7, 1991, Mr.
VanGosen filed a grievance at level four in which he alleged
that he was improperly denied the opportunity to retain a
part-time position with the Harpers Ferry/Bolivar Police
Department. By letter dated April 19, 1991, Grievant's
representative advised the undersigned that the matter had
been prematurely filed at level four and moved that the
grievance be remanded to level three for hearing. The
motion was granted and a level three hearing was held on
June 21, 1991. Following denial at that level Grievant
advanced his claim to level four on August 9, 1991. An
evidentiary hearing was conducted at level four on
December17, 1991, and the submission of proposed findings of
fact and conclusions of law completed the record for
decision.
The facts of this matter are not in dispute and may be
set forth as follows:
1. Grievant has been employed as a full-time correc- tional officer by the RJA at the ERJ since September 1989.
2. Grievant has been employed as a part-time police
officer with the Harpers Ferry/Bolivar Police Department
since 1984. Grievant's jurisdiction as a law enforcement
officer for the local police department extends only to the
city limits of the municipalities of Harpers Ferry and
Bolivar.
3 Any person or persons arrested within the city
limits of Harpers Ferry or Bolivar requiring incarceration
are held at the ERJ.
4. W.Va. Code §31-20-5 grants the RJA broad powers to
promulgate rules and regulations to govern the effective
operation and management of the regional jail facilities.
5. RJA Policy and Procedure Statement No. 3035,
effective November 14, 1989, sets forth certain guidelines
and restrictions concerning secondary employment which its
employees may accept. Paragraph E, relevant herein, pro-
vides, "No employee shall hold a secondary employment that
may be an actual or perceived conflict of interest with
employment by the Authority."
6. Billy B. Burke, Executive Director of the RJA, advised Grievant by letter dated November 2, 1990, that his
secondary employment as a police officer for a local munic-
ipality was a conflict of interest with his duties as a
Correctional Officer at the ERJ and, therefore, Grievant
would be required to terminate the secondary employment in
compliance with Policy 3035.
7. Grievant exercised an in-house appeal which was
denied by Executive Director Burke on November 16, 1990.
8. Although several employees at the ERJ were formerly
employed as law enforcement officers, none currently hold
secondary employment with a local law enforcement agency.
In his letter of November 16, 1990, Executive Director
Burke offered the following explanation to Grievant as to
why his secondary employment constituted a conflict of
interest with his assignment at the ERJ.
Officer VanGosen, I don't think you entirely
understand the rationale for this decision. By
way of example, let's say you arrested an indi-
vidual who physically resisted and assaulted you
and some time during his incarceration you are
required to use force on this individual for some
reason. If this inmate were to bring charges
against you, either in court or administrative,
your justification could be weakened, especially
in the eyes of a jury, if he were to claim you used excessive force against him in retaliation
for the hard time he gave you during the arrest.


A second example might be where you were the
arresting officer for a particularly heinous crime
and again at some point during subject's incar-
ceration, you were required to use force, this
time the subject could weaken your justification
by alleging that you were retaliating against him
because you became so emotionally distraught upon
discovery and investigation of his crime.

Respondent asserts that it is quite likely that
Grievant, in his capacity as an officer with a local police
department, could arrest an individual whom he would subse-
quently supervise at the ERJ. Considering that the
floorplan of the facility consists of two pods and that
correctional officers are assigned rotating shifts which
require them to work in each area of the facility, it is
probable that any correctional officer would be required to
supervise any and all inmates at the jail. Although it was
suggested that Grievant could be assigned to a station
separate from any inmate he had arrested, Respondent as-
serted that such an accommodation may not be possible since
it experiences a constant problem in retaining a full staff
of correctional officers.
Grievant asserts that in his two years of employment
with the RJA there has been no instance similar to that
suggested as a possibility by Mr. Burke and that allegations
of excessive force can be raised by an inmate in any event.
Grievant asserts that rather than being in conflict with his
assignment at the ERJ, his work as a police officer provides
him with additional training and sharpens his skills as a
law enforcement officer, thereby making him a better cor-
rectional officer. Grievant argues that the RJA has failed
to show any actual or perceived conflict of interest exists
and none will exist unless he changes his secondary em-
ployment as a police officer to that of criminal.
The testimony offered at level four by Howard Painter,
Chief of Operations, establishes that Respondent's reasoning
behind the decision to deny Grievant permission to continue
in his secondary employment as a police officer was to
alleviate potential inmate allegations and liability for
both staff and the agency. Although Grievant's secondary
employment was very similar to his work for the RJA, it was the similarity in assignments which could have created the
conflict of interest described by Mr. Burke. In general,
when an employee holds any secondary employment which might
reasonably create a liability for the state agency which
provides his primary employment, a conflict of interest
results. Because an agency has a legitimate interest in
controlling liability which might be incurred during its
day-to-day operations the restriction of secondary employ-
ment which could reasonably create a conflict of interest is
a reasonable and proper exercise of its authority.
In addition to the foregoing it is appropriate to make
the following specific conclusions of law.

Conclusions of Law

1. It is incumbent upon a grievant to prove all the
allegations constituting the grievance by a preponderance of
the evidence. Payne v. W.Va. Dept. of Energy, Docket No.
ENGY-88-015 (Nov. 2, 1988).
2. Grievant has failed to prove by a preponderance of
the evidence that Respondent's restriction of his work as a
local law enforcement officer was contrary to its Policy
3035 prohibition against any employee holding secondary
employment which may be a conflict of interest with employ-
ment by the Authority. Grievant also failed to prove that
the Respondent's promulgation and application of the policy
was unreasonable, improper, or exceeded its authority.

Accordingly, the grievance is DENIED.

July 2, 1992