(See footnote 1)
v. Docket No. 95-DPS-497
DEPARTMENT OF PUBLIC SAFETY,
D E C I S I O N
Grievant, John C., grieves his indefinite suspension stating:
Suspension was wrongful. Col. Kirk knew I was on sick
(See footnote 2)
and would be for a long time[.] I have been
indi[c]ted on charges in Logan County.
Grievant requested the suspension be lifted until the Circuit
Court had ruled on his eight count felony indictment. As this
grievance involved an indefinite suspension, Grievant filed directly
at Level IV pursuant to W. Va. Code §29-6A-4(e).
(See footnote 3)
A Level IV hearingwas held on December 8, 1995, and the case became mature for decision
on January 10, 1996, the deadline for submission of proposed findings
of fact and conclusions of law.
The material facts in this grievance are not in dispute and are
stated below. Pursuant to W. Va. Code §29-6A-6, Grievant chose not
to testify at these administrative proceedings.
(See footnote 4)
Findings of Fact
1. Grievant is employed by the Department of Public Safety
("DPS") as a drivers' examiner. In this position, Grievant gives the
written test, eye exam, and driving test to individuals applying for
their operators license. During the driving test, Grievant is alone
in the car with the applicants. These applicants are usually teenage
males and females.
2. In June 1995, DPS received a complaint that Grievant had
sexually abused his teenage daughter.
3. On June 14, 1995, Respondent issued Special Order 223
ordering the West Virginia State Police Professional Standards Unit
("PPS") to conduct an administrative investigation of the charges.
All civilian complaints are referred to PPS as one of this unit's
function is to perform internal investigations.
4. Sgt. Sharen Deitz investigated the complaint and questioned
both Grievant and his daughter. Sergeant Deitz found Grievant's daughter to be credible, and her story to be consistent with the
information she had given Child Protective Services.
5. On September 12, 1995, prior to the completion of this
administrative investigation, the Logan County Grand Jury indicted
Grievant on eight felony counts as follows: 1) four counts of Sexual
Abuse in the First Degree in violation of W. Va. Code
2) four counts of Sexual Abuse by a Parent in violation of W. Va. Code
§61-8D-5. PPS suspended its investigation at that time.
6. On September 15, 1995, Colonel Kirk wrote Grievant notifying
him he would be suspended with pay for a period of ten days beginning
September 18, 1995. Resp. Exh. 3. Col. Kirk noted that Grievant, in
his position as a Civilian Drivers Examiner, had "daily unsupervised
contact with both young males and young females." Colonel Kirk also
stated "because of this contact, there is a direct nexus between the
criminal charges and your performance." In this same letter, Colonel
Kirk informed Grievant he would be suspended without pay on
September 28, 1995, for "an indefinite time", and this suspension
would "continue until resolution of the criminal charges which have
been filed." Id
7. On September 28, 1995, Colonel Kirk issued Special Order 438
suspending Grievant without pay until the resolution of the felony
charges. This order informed Grievant he would be allowed to utilize
his accrued annual leave during this suspension. Resp. Exh. 4.
8. Grievant is an at-will employee, and as such is not afforded
the same statutory protection as classified employees. Grievant was not hired from a West Virginia Division of Personnel Register, but was
hired pursuant to DPS's own hiring policies.
(See footnote 5)
9. Grievant has been employed by DPS since that time and has
a good work history. DPS has never received a complaint concerning
Grievant and any type of sexual impropriety.
The primary issue before this Board is whether Respondent had the
legal authority to suspend Grievant, an at-will employee, without pay
pending resolution of the criminal charges. Additionally, this Board
considered whether there is a rational nexus between the felony
charges, Grievant's alleged behavior, and his employment.
Respondent stated Grievant is an at-will employee, and because
his suspension violates no public policy, it was within its authority
to suspend Grievant. Further, Respondent argues there is a rational
nexus between the conduct cited in the indictment, sexual abuse by
Grievant of his teenage daughter; and his employment, giving driving
exams, and thus being alone in a car in a position of authority with
individuals who are typically teenagers.
Grievant argues that Colonel Kirk is "denying [him his]
Constitutional Rights." Grievant's post-hearing letter. Grievant
further argues the rights of the "accused in Criminal
Proceedings . . . [are] safeguards for life[,] liberty[,] and property" and these rights were ignored by his suspension. Id
hearing Grievant frequently stated he should be innocent until proven
guilty, and he feels like Colonel Kirk has already judged him and
found him guilty.
Grievant, as an at-will employee, may be discharged from his
employment for good cause, bad cause, or no cause unless this
termination contravenes some substantial public policy. Williams v.
Precision Coal, Inc.
, 194 W. Va. 52, 459 S.E.2d 329 (1995); Williams
, 190 W. Va. 202, 437 S.E.2d 775 (1993). Grievant did not
allege any violation of substantial public policy, other than stating
Respondent violated his constitutional rights "in criminal
proceedings." Since Respondent could discharge Grievant at any time
for no reason, it is clear he can be suspended without pay while he
is under felony indictment.
Further, this Board ruled in Kitzmiller v. Harrison County Bd.
, Docket No. 13-88-189 (Mar. 31, 1989), that a board of
education "may conditionally suspend an employee based upon an
indictment alone, if it can establish a rational nexus between the
indictment and the employee's ability to perform the duties of [his]
position." See also Golden v. Bd. of Educ. of County of Harrison
S.E.2d 665 (W. Va. 1981). While it is noted that school personnel are
not at-will employees, this case further supports Grievant's
suspension. The fact is Grievant has been indicted for sexual abuse
of his teenage daughter, and Grievant, in a position of authority, is
frequently alone with teenage females. The combination of these two facts presents a rational nexus between the alleged behavior and the
duties of his position. Golden
. See also Boyd v. Wood County
Bd. of Educ.
, Docket No. 93-54-003 (June 30, 1993); Kidd v. W. Va.
Dept. of Tax and Revenue
, Docket No. 91-T-127 (Dec. 12, 1991).
The above discussion will be supplemented by the following
conclusions of law.
Conclusions of Law
1. In suspension cases involving classified employees, the
burden of proof is upon the employer to establish the charges relied
upon by a preponderance of the evidence and to establish good cause
for suspending an employee. W. Va. Code
§29-6A-6. Davis v. W. Va.
Dept. of Motor Vehicles
, Docket No. 89-DMV-569 (Jan. 22, 1990);
Broughton v. W. Va. Div. of Highways
, Docket No. 92-DOH-325 (Dec. 31,
1992). In cases involving the suspension of classified-exempt, at-
will employees, state "agencies do not have to meet this legal
standard." Logan v. W. Va. Regional Jail and Correctional Auth.
Docket No. 94-RJA-225 (Nov. 29, 1994).
2. Respondent had the legal authority to suspend Grievant until
the resolution of the charges in the indictment, as he is an at-will
3. Although not necessary in this instance, Respondent
established a rational nexus between "the conduct performed outside
of the job and the duties the employee is to perform." Syl. Pt. 2,
in part, Golden v. Bd. of Educ. of County of Harrison
, 285 S.E.2d 665
(W. Va. 1981).
Accordingly, this grievance is DENIED.
Any party or the West Virginia Division of Personnel may appeal
this decision to the "circuit court of the county in which the
grievance occurred," and such appeal must be filed within thirty (30)
days of receipt of this decision. W. Va. Code §29-6A-7. 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. Any appealing party must advise this office of the
intent to appeal and provide the civil action number so that the
record can be prepared and transmitted to the appropriate court.
JANIS I. REYNOLDS
Administrative Law Judge
Dated: January 31, 1996