BRADLEY C. SWIGER,
v. DOCKET NO. 95-DEP-569
WEST VIRGINIA DIVISION OF
D E C I S I O N
Grievant, Bradley C. Swiger, filed this grievance on August 14, 1995, alleging:
Denial to conduct forest management consultation is arbitrary, capricious &
discriminatory. . . .
Grievant seeks as relief reversal of Respondent's denial of his request for self-
employment. Following adverse decisions at Levels I and II, Grievant appealed to Level III
where hearing was held on October 6, 1995. Despite repeated requests from Grievant, no
response was or has been issued by the Level III hearing examiner at this date. Grievant
exercised his statutory right under the Grievance procedure for state employees, W. Va.
§§ 29-6A-1, et seq
., and appealed to Level IV on December 20, 1995. This matter was
scheduled for hearing, and following several continuances for good cause, was submitted on
the record by agreement of the parties.
(See footnote 1)
The Level III transcript has been incorporated into the record at Level IV. This matter became mature on February 16, 1995, the deadline for
submission of proposed findings of fact and conclusions of law.
(See footnote 2)
Grievant has been employed by the West Virginia Division of Environmental
Protection ("Respondent"), and its predecessor, the West Virginia Division of Natural
Resources, since 1982. He is an Environmental Inspector Supervisor with the
Environmental Enforcement Office. Grievant's duties include oversight of regulatory
inspection/enforcement functions related to solid waste management and water pollution
By memorandum dated June 12, 1995, to Mike Zeto, Chief Environmental
Enforcement and Grievant's supervisor, Grievant requested approval for self-employment
to perform forestry resources management activities. Grievant had already requested an
exemption from the West Virginia Ethics Commission, pursuant to W. Va. Code
., for purposes of obtaining employment by regulated persons. Grievant was granted
an exemption by the Ethics Commission on January 11, 1995, which also directed Grievant
to "insure that your plans are consistent with the rules and regulations of your employing
agency." Based upon this exemption, as well as reliance upon an Advisory Opinion from
that body regarding private gain by a state public employee through "moonlighting", Grievant
incorporated Land Sakes Consulting Services on April 18, 1995, for the purposes of
performing forestry management consulting. By memorandum dated August 4, 1995, from Mike Zeto, Grievant was informed that
"[b]ased on . . . discussions and recent agency decisions regarding such employment, . . .",
his request for self-employment was denied. Grievant then filed this grievance protesting
the denial and requesting that Respondent's decision be reversed.
Grievant alleges that Respondent's denial of his request is arbitrary and capricious
as well as discriminatory in that other employees have been granted approval for self-
employment. Grievant alleges that the forestry management services he wishes to provide
in no way relate to his position with Respondent, and Respondent has not articulated any
legitimate reason for its denial.
Whether Respondent's denial of Grievant's request for self-employment was
arbitrary and capricious?
The purpose of the West Virginia Ethics Act, W. Va. Code
§§ 6B-1-1, et seq
., is to
define and establish minimum ethical standards for public employees and to eliminate actual
conflicts of interest which might arise in connection with public employment. W. Va. Code
§ 6B-1-2(b). Code
§ 6B-2-5(h)(1) prohibits employment of public employees by persons who
would be regulated under that employee's agency. The West Virginia Ethics Commission
issued an Advisory Opinion on this subject, wherein it stated:
It would be a violation of the Act's prohibition against working for
regulated persons for the employee to moonlight for any person regulated by
the State Division - regardless of where the person is located or the type of
work to be performed. The Ethics Commission can grant an exemption from
. . .
Even with an employment exemption, it would be a private gain
violation for the State Division employee to contract with landowners, located
within the geographic area for which he is responsible, to provide land
management plans for a fee.
. . .
It would not be a private gain violation for the employee who had
obtained an exemption to:
(1) receive private pay to provide land management plans to persons
located outside the geographic area for which he is responsible, or
(2) provide forestry services not provided by the Division to those located
within his area of responsibility.
, No. 92-5 (Nov./Dec. 1992).
As noted earlier, Grievant received an exemption from the West Virginia Ethics
Commission to perform forestry management services, which he plans to provide to those
landowners within his geographic area of responsibility. Grievant argues that his job in
Environmental Enforcement does not include forestry management services and further, that
he is not employed by the Division of Forestry.
As also noted earlier, Grievant was directed by the Ethics Commission to insure that
his plans were consistent with the rules and regulations of his employing agency.
Respondent states that its position ensures safeguards to prohibit employees from using
their positions in ways that constitute an appearance of personal or organizational conflict
of interest, and that it may refer and consider further criteria (other than the Ethics Act)
in deciding to grant or deny self-employment. Respondent does not have a policy relating
to "moonlighting", but rather relies on the Code Sections referred to above, and the West
Virginia Division of Personnel's Administrative Rules and Regulations (1995), specifically
§ 18.01. That section, entitled "Employment Conflicts", provides:
Other Employment: No employee shall hold other public office or have
conflicting employment while in the classified service. Determination of the
conflict shall be made by the appointing authority and the Board who shall
consider whether the other employment:
will be in conflict with the interests of the agency;
will interfere with the performance of the employee's official duties;
will use or appear to use information obtained in connection with
official duties which is not generally available to the public; or,
may reasonably be regarded as official action.
Respondent asserts that the potential for conflict exists because Grievant's
employment would be within his geographic area of responsibility; Grievant would be
employed by a landowner, whose logging operations might come under investigation for
water pollution violations, which Grievant would have an ethical duty to report and maybe
investigate; and Grievant's participation in the Stewardship Incentive Program makes him
an employee of the Division of Forestry, thus creating a direct conflict as illustrated by the
Ethics Commission Advisory Opinion's example.
Grievant presented evidence that, although the Environmental Enforcement Office
has authority to act under the Water Pollution Control Act, the Division of Forestry has
taken the lead in handling complaints and investigations of violations under that Act.
Indeed, Grievant presented evidence, which Respondent did not refute, that virtually no
forestry related water pollution violation complaints have been handled by his Office, and
are the sole responsibility of the Division of Forestry.
Grievant maintains that he would be employed by the landowner to select the type
and volume of trees to achieve the landowner's objectives based on site conditions in
harvesting situations. The harvesting operations would be performed by a third party, the
logger, hired by the landowner. Grievant admitted that he would be participating in theStewardship Incentive Program, a federally-funded program administered by the Division
of Forestry to provide financial cost-sharing assistance to landowners for practices to
improve the forest environment. Grievant, as a forester, would contract with the Division
of Forestry. Therefore, he would, in effect, be an employee of the Division of Forestry.
This calls into question whether this arrangement would create a private gain violation under
the Ethics Commission Advisory Opinion's example. The undersigned finds that, given the
above problem, as well as other concerns of Respondent summarized above, it was not
arbitrary or capricious for Respondent to deny Grievant's request for self-employment.
Whether Respondent discriminated against Grievant in denying his request
Grievant alleges that Respondent has discriminated against him in denying his
request for self-employment because other employees, some with the same classification,
have been granted approval to participate in the Stewardship Incentive Program.
Respondent does not deny this allegation. Indeed, in the Level II decision, the
hearing examiner states "[p]erformance of such self-employment by the past DEP employee
and one of the current DEP employees has been confirmed." The hearing examiner goes
on to state the general rule against discrimination of employees, but never addresses the
issue further. Level II Decision, August 30, 1995.
Mike Zeto testified at Level III that at least one other DEP employee performs
similar activities as those requested by Grievant, and that participation in Stewardship
Incentive Programs went on under past-Director, David Callaghan. Level III Tr., p. 31. Mr.
Zeto then went on to say:
I don't believe Director Callaghan, and obviously others, are aware of
employees in the agency doing such work. The one instance that I am
personally aware of, that decision was made, if I recall, is when we were still
in DNR under Director Hamrick. So, you know, that decision was made long
Level III Tr., p. 33.
Mr. Zeto testified that Director Callaghan took a rigid stance against outside
employment and that he wanted no indication that an employee was even remotely tied
through outside employment to regulatory activities. Level III Tr., p. 32.
W. Va. Code § 29-6A-2(d) describes "discrimination" as "any differences in the
treatment of employees unless such differences are related to the actual job responsibilities
of the employees or agreed to in writing by the employees."
(See footnote 3)
In order to establish a claim
of discrimination under the Grievance statute, Grievant must establish a prima facie
that he is similarly situated, in a pertinent way, to one or more other
that he has, to his detriment, been treated by his employer in a manner that
the other employee(s) has/had not, in a significant particular, and
Parsons v. W. Va. Div. Of Highways
that such differences were unrelated to actual job responsibilities of the
grievant and/or other employee(s) and were not agreed to by the
grievant in writing.
, Docket No. 91-DOH-246 (May 20, 1992).
Once a prima facie
case has been made, the employer may offer a legitimate, non-
discriminatory reason for its actions. If the employer is able to establish such reason, the
grievant must then show the employer's stated reason is pretextual. Id
Grievant has alleged that at least one other DEP employee has been given approval
to perform in similar moonlighting activities, specifically, participating in the Stewardship
Incentive Programs. Respondent has admitted that this employee performs moonlighting
activities similar to the ones Grievant has requested. Respondent does not offer any
evidence that this employee is not similarly situated to Grievant, or any explanation that the
circumstances surrounding that employee's request are in some way different than
Grievant's. Rather, Respondent merely states that the decision to grant that employee
permission to moonlight was made under a previous Director. Further, Respondent avers
that it has not discriminated against Grievant because it has temporarily granted him
approval to participate in the 1995 Stewardship Incentive Program. This defense does
nothing but strengthen the evidence that other employees are being allowed to engage in
While it certainly would be within one Director's purview to decide whether to let
his employees moonlight, in contradiction to the practices of a former Director, that decision
must be applied uniformly absent some "grandfather" clause. Respondent does not have a
"moonlighting" policy, and neither the Ethics Act nor the Division of PersonnelAdministrative Rules and Regulations provide "grandfather" clause exemptions. Therefore,
if indeed, Respondent has taken a "rigid stance" against moonlighting, then that stance must
be applied to all employees, even those who have previously been permitted to moonlight.
Otherwise, to treat employees differently with respect to moonlighting requests under similar
circumstances constitutes a discriminatory practice and is prohibited under the grievance
Because Respondent does not deny the other employee is similarly situated to
Grievant, and in fact confirms that he or she has been granted permission to participate in
the Stewardship Incentive Program, Grievant has successfully established a prima facie
of discrimination which Respondent has failed to rebut.
The foregoing discussion is supplemented with the following findings of fact and
conclusions of law.
Findings of Fact
1. Grievant has been employed by the Division of Environmental Protection since
1982. Grievant is currently an Environmental Inspector Supervisor with the Environmental
2. Grievant obtained an exemption from the West Virginia Ethics Commission
to engage in forestry management services outside of his employment with Respondent.
3. Grievant requested of his employer, by memorandum dated June 12, 1995,
permission to participate in moonlighting forestry management activities and to participate
in the Stewardship Incentive Program offered by the Federal government.
4. Respondent denied Grievant's request on August 4, 1995. 5. Respondent later granted Grievant temporary approval to participate in the
1995 Stewardship Incentive Program lottery which was to be held in August or September
1995, pending resolution of this grievance.
6. At least one other DEP employee has been granted permission in the past to
participate in the Stewardship Incentive Program in a moonlighting capacity.
Conclusions of Law
1. The burden is on the Grievant in a nondisciplinary matter to establish the
charges by a preponderance of the evidence.
2. Grievant has failed to prove that Respondent's denial of his request for self-
employment was arbitrary and capricious.
3. Discrimination is defined as "any differences in the treatment of employees
unless such differences are related to the actual job responsibilities of the employees or
agreed to in writing by the employees." W. Va. Code
4. Grievant has established a prima facie
case of discrimination as at least one
other DEP employee has been granted permission to moonlight and participate in the
Stewardship Incentive Programs.
5. Respondent has failed to offer a legitimate reason for its different treatment
of Grievant and the other employee.
Accordingly, this grievance is GRANTED and Respondent is hereby ORDERED to
grant Grievant approval to participate in the Stewardship Incentive Program on the same
basis as the other employee who has been granted approval to participate in the program,
or until such time as a "non-moonlighting" policy is implemented and enforced uniformly
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.
MARY JO SWARTZ
Administrative Law Judge
Dated: March 12, 1996