McNally v. Va. Dep't of Motor Veh.

899 S.E.2d 55

80 Va.App. 483

Lawrence MCNALLY

v.VIRGINIA DEPARTMENT OF MOTOR VEHICLES

Record No. 0816-23-3

Court of Appeals of Virginia, Lexington.

March 26, 2024

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY, Andrew S. Baugher, Judge

J. Caleb Jones (Simms Showers, LLP, on briefs), for appellant.

Muhammad Umar, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Beales, O’Brien and Raphael

OPINION BY JUDGE STUART A. RAPHAEL

₄₉₅Following his for-cause termination by the Department of Motor Vehicles ("DMV"), Lawrence McNally sought reinstatement under the State Grievance Procedure, Code §§ 2.2-3000 to 2.2-3008. After an evidentiary hearing, the hearing officer upheld the DMV’s decision, issuing written findings of fact and conclusions of law. On administrative review, the Director of the Department of Human Resources Management (DHRM) found the hearing officer’s decision consistent with agency policy. McNally appealed to the circuit court, claiming that the hearing officer’s decision was "contradictory to law." Code § 2.2-3006(B). McNally argued that he was denied procedural due process because the hearing officer was biased, improperly restricted cross-examination, and invented facts not supported by the record. The circuit court rejected those arguments, however, finding that McNally was attempting to challenge "factual, procedural, and policy elements of the Hearing Officer’s decision" that are not subject to judicial review under the State Grievance Procedure.

The circuit court was right to reject McNally’s appeal because the hearing officer did not violate due process. Though dressed up in the language of a constitutional violation, McNally’s claims are simply repackaged versions of his arguments to the hearing officer and DHRM. McNally received fair notice of the charges against him and a fair opportunity to respond to those charges. As McNally received all the process that was due, the hearing officer’s decision was not "contradictory to law." Code § 2.2-3006(B).

₄₉₆Background

[1, 2] An appeal to the circuit court under the State Grievance Procedure is based on the "grievance record" compiled during proceedings before the agency. See Code § 2.2-3006(B). The circuit court, "much like an appellate court," must review the "facts developed in the agency record in the light most favorable to the party prevailing in that forum." Va. Dep’t of Alcoholic Beverage Control v. Tyson, 63 Va. App. 417, 421, 758 S.E.2d 89 (2014) (quoting Va. Dep’t of Transp. v. Stevens, 53 Va. App. 654, 658, 674 S.E.2d 563 (2009)). "On further appeal to us, we apply the same standard." Id. We therefore view the facts here in the light most favorable to DMV.

In 2020, McNally served as a Senior Special Agent in the DMV’s Law Enforcement Division. He reported to Assistant Special Agent in Charge John Lamper, who in turn reported to Special Agent in Charge Dave Kyger. Kyger reported to Joseph Hill, the DMV’s Assistant Commissioner of Enforcement and Compliance. Hill, in turn, reported to the Commissioner of DMV.

Agent Kyger first met McNally when McNally moved to Kyger’s neighborhood in Rockingham County. McNally joined the Ruritan Club, where Kyger had been a member for 30 years. McNally had law-enforcement experience working for the United States Park Service. Kyger hired McNally as a law-enforcement officer for DMV, and the two became close friends.

A. McNally’s conduct during two incidents prompt DMV to investigate.

The three offenses for which DMV fired McNally stemmed from two events: a March 2020 incident in which McNally totaled his cruiser after taking medication for an MRI; and an August 2021 off-duty incident in which McNally reportedly lied to the fire marshal that he was watching a controlled burn on his own property when McNally was actually at the Ruritan Club, a couple miles away.

₄₉₇1. The March 2020 cruiser incident

On March 3, 2020, McNally called Agent Lamper to report that he was having an MRI the next morning but planned to come to work afterward. Kyger was having lunch with Lamper when McNally called, and Kyger could hear McNally’s voice over the phone. Kyger had worked with McNally in the same office for about ten years. Kyger knew that McNally was claustrophobic and had to take a "sedative" before undergoing an MRI. Upon hearing McNally tell Lamper that he planned to drive to work, Kyger took the phone from Lamper to speak to McNally directly. Kyger told McNally that, because "you’re taking the sedative," "you cannot work that day, take the day off." McNally at first resisted: "I know how to control this." But Kyger insisted that McNally not drive while medicated. McNally "argued a little bit," but finally relented, saying "okay, all right."

In his testimony at the grievance hearing, Lamper corroborated Kyger’s account of that conversation. Lamper specifically recalled Kyger’s instructing McNally not to drive his car the next day after being medicated.

Yet McNally drove himself to the MRI appointment the next morning, where he took twice the prescribed dose of Lorazepam, a generic version of the Ativan he had been prescribed. After the MRI, McNally drove to work. Shortly before 6:00 p.m., while driving home in his state cruiser, McNally veered across the center line of Route 612, struck an oncoming pickup truck, and ran off the road through a field and into a swamp. His state cruiser was "totaled."

McNally did not remember the crash; his first memory of the incident was driving through the field. McNally left a voicemail message on Kyger’s phone that he had just "had a wreck." After hearing the message, Kyger jumped into his truck and drove to the scene. Emergency responders had arrived and had taken custody of McNally’s knife and service weapon. Kyger testified that McNally’s "speech was slurred." One of the first responders told Kyger, "I know Larry [McNally]. He ain’t right, something’s wrong."

₄₉₈On March 6, McNally confided in Lamper by telephone that he should not have been driving the cruiser after his MRI. After Lamper reported that conversation to Kyger, Kyger instructed Lamper to memorialize what McNally had said. Lamper’s notes recorded McNally as having said, "I could feel the signs and I knew I should not be driving the cruiser—but I did anyway."

Kyger reported the incident to the State Police and to DMV’s human resources division for further investigation. Pending that investigation, McNally was placed on paid administrative leave.

2. The August 2021 fire-marshal incident

In July 2021, McNally obtained a six-month "Open Burn" permit from the Rockingham County fire department to dispose of brush and landscape waste. The permit required, among other things, that the "responsible party must stay outside with the fire until it is completely extinguished. You may not leave the fire unattended or smoldering." The permit recited that a violation of its terms was a "Class 1 Misdemeanor."¹

McNally conducted an open burn on his property sometime during the day on August 3, 2021. It is undisputed that McNally went to the Ruritan meeting at some point before the fire was extinguished, but the testimony about when he left for the Ruritan meeting was in conflict. The Ruritan meeting was about two and a half miles from McNally’s home. The club convened for dinner that evening at 7:00 p.m., with a business meeting that followed.

Kyger testified that he saw McNally at the meeting "somewhere around" 7:00 p.m., when McNally arrived "to eat supper." Kyger recalled "with certainty" that he saw McNally there for dinner. The DMV investigator, Kellie Powell, testified that Larry Custer, the director of the Ruritan Club, ₄₉₉confirmed in an interview that McNally was present when the meeting started.

At 7:43 p.m., the 911 dispatcher radioed that an anonymous caller had reported seeing an unsupervised open burn near McNally’s home. Stacey Wilkins, McNally’s neighbor and a volunteer E.M.S. worker, heard the dispatch and called Custer, whom Wilkins knew would be at the Ruritan meeting. Wilkins told Custer about the open-burn dispatch and asked about McNally. Custer responded that McNally was there at the Ruritan Club meeting with him.

Shortly after the 7:43 p.m. dispatch, the 911 dispatcher spoke with the fire marshal, who recalled having issued an open-burn permit to McNally. The fire marshal told the dispatcher to call McNally and ask if he was burning something and if it was under control.

At 7:49 p.m., the dispatcher telephoned McNally and asked if he had his fire under control. McNally responded:

Yeah, … it’s just one of those smoldering things, that’s it, I’m … I’m at the house, I’ve got an eyeball on it, so I’m keeping an eye on it, yeah …. I’ve just got some smoke coming up. On one or two little logs. There’s no open flame, it’s just smoldering, you know what I mean?

(Emphasis added). The dispatcher thanked McNally and said she would report that information to the fire department.

After hearing that report, the fire marshal asked the dispatcher to be connected with McNally by phone. McNally told the fire marshal that he was in his house, looking out his window at the burn. The fire marshal responded that, even though McNally could see the fire from his house, he needed to "either be there with it or it needs to be extinguished." McNally said he would take care of it.

Having no reason to think that McNally was being untruthful, the fire marshal cleared the incident at 7:57 p.m. Wilkins heard the fire marshal’s report over the radio that McNally had "told him that he was watching the fire from his living room window."

₅₀₀Kyger testified that he saw McNally at the Ruritan Club speaking on his phone before 8:00 p.m. Kyger was unsure whether McNally participated in a second call. McNally seemed "agitated" and his voice was loud, making it hard to hear the club’s speaker and almost prompting Kyger to walk over to tell McNally to take the call elsewhere. But before Kyger could do...