Virginia Dept. of Corrections v. Compton

Page 397

623 S.E.2d 397

47 Va. App. 202

VIRGINIA DEPARTMENT OF CORRECTIONS v. Jeffrey COMPTON.

Record No. 0634-05-3.

Court of Appeals of Virginia, Salem.

December 20, 2005.

COPYRIGHT MATERIAL OMITTED

Banci E. Tewolde (Joel C. Hoppe, Assistant Attorney General, on briefs), for appellant.

Timothy W. McAfee, Norton, for appellee.

Present: HUMPHREYS, FELTON and McCLANAHAN, JJ.

HUMPHREYS, Judge.

The Virginia Department of Corrections ("VDOC") appeals pursuant to the State Grievance Procedure, Code §§ 2.2-3000 through 2.2-3008, from the circuit court's reversal of an order terminating the employment of appellee Jeffrey Compton ("Compton"). Compton's termination for cause was based upon conduct unbecoming a corrections lieutenant ("conduct unbecoming") as well as a criminal conviction that was ultimately vacated following a de novo appeal to the circuit court. VDOC contends that, in reversing the termination order, the circuit court erroneously held that: (1) the underlying disciplinary notice was based solely on Compton's criminal conviction for assault; (2) the hearing officer usurped the authority of VDOC by upholding the disciplinary charge on the basis of conduct unbecoming; and (3) the disciplinary notice did not provide sufficient notice that the termination was based on Compton's criminal conviction as well as conduct unbecoming. For the reasons that follow, we agree that the circuit court erred and, therefore, reverse the judgment below and reinstate the termination for cause.

I. BACKGROUND

The relevant facts are not in dispute. Compton, a corrections lieutenant, routinely worked with Kevin Stapleton, another corrections officer, at a state correctional facility. On January 18, 2004, Compton encountered Stapleton pumping gas at a convenience store. Compton approached Stapleton and called out, "f____ you, Stapleton, you f____ing snitch."¹ Stapleton responded that he "didn't want no trouble or nothing." Compton then told Stapleton to "bring your snitching ass over here because I've got something for you." There was no physical contact between the men, however, and the altercation ended when Compton drove away from the area. At the time of the incident, Compton was Stapleton's supervisor.

Stapleton reported the altercation to the prison warden and filed a criminal complaint for the verbal assault against Compton. On April 27, 2004, Compton was convicted of assault in the general district court. Compton then appealed his conviction. However, on May 4, 2004—prior to the resolution of Compton's appeal—VDOC issued a written notice and "Group III" termination,² describing the alleged offense as follows:

Violation of DHRM Policy 1.60 and DOC Procedure 5-10 Standards of Conduct, criminal convictions for illegal conduct occurring off the job that clearly are related to job performance or are of such a nature that to continue you in your position could constitute negligence in regard to the agency's duties to the public or to other state employees and conduct unbecoming a Corrections Lieutenant which undermines your effectiveness as a supervisor and a law enforcement officer to wit: On 4/27/04, you were found guilty as charged to verbal assault of Kevin Stapleton on or about 1/18/04. This type of behavior will not be tolerated.

Three weeks after Compton's termination, the circuit court reversed and vacated Compton's conviction for assault. Thus, on June 1, 2004, Compton filed a grievance contesting his termination, arguing that he should be reinstated because "[t]he guilty conviction was appealed and I was found not guilty." The prison warden denied the request, reasoning that, "[a]lthough the court decision was overturned during appeal, the unbecoming conduct outlined in the Written Notice toward a subordinate employee cannot be tolerated." Compton then appealed to the head of the agency, who responded that Compton was "removed for a criminal conviction and for conduct unbecoming a Corrections Lieutenant" and that, "[a]lthough [his] criminal conviction was overturned during appeal[,] [his] unbecoming conduct clearly undermines [his] effectiveness as a supervisor." (Emphasis added). Thus, the agency head "upheld" Compton's "termination for this offense."

Compton then requested a formal hearing before a grievance officer. By opinion dated August 26, 2004, the hearing officer upheld the termination. The hearing officer reasoned that the written notice of termination stated two grounds for the disciplinary charge: (1) the criminal conviction, and (2) conduct unbecoming a corrections lieutenant. Although acknowledging that the criminal conviction was no longer an issue, the hearing officer reasoned that the termination was justified on the charge of conduct unbecoming a corrections official. The hearing officer noted that the charge in the written notice was similar to another Group III charge, specifically, "threatening or coercing persons employed by a state agency." Although that charge was not listed in the notice of termination, the hearing officer concluded that verbal assault of a co-worker falls within the scope of a Group III offense and, thus, upheld the Group III written notice and termination.

Compton appealed the hearing officer's decision to the circuit court. By order dated February 17, 2005, the circuit court vacated the hearing officer's decision, finding the decision "to be contrary to the law in two interrelated respects." First, the circuit court stated that it "disagree[d] with the Hearing Officer's legal conclusion that the Notice advised Compton of his termination based on conduct unbecoming," reasoning that the criminal conviction "is the stated basis for both violations" listed in the notice of termination. Because the notice of termination did not provide sufficient notice of a charge of conduct unbecoming, the circuit court concluded that "the hearing Officer's decision to uphold the termination on grounds other than the criminal conviction was without sufficient notice to the petitioner, and therefore contrary to law."

Second, the circuit court held that the hearing officer lacked "the authority to find alternative grounds for dismissal on which the Agency `could have' relied to uphold a termination decision originally made by the Agency based on grounds which no longer exist." Thus, the circuit court concluded that "the portion of the Hearing Officer's decision upholding termination of the petitioner which is based upon conduct unbecoming is contrary to the law in that it is lacking the statutorily required notice to petitioner and exceeds the authority granted to the Hearing Officer pursuant to Virginia Code § 2.2-3005."

VDOC appeals.

II. MOTION TO DISMISS

Initially, Compton has moved to dismiss the appeal, contending that VDOC's appeal is procedurally barred. Specifically, Compton argues that VDOC violated Rules 5A:6 and 5A:8 because: (1) "[t]he Notice of Appeal was defective in that it did not contain a statement certifying that a copy of the transcript of the hearings will be filed or that a Statement of Facts surrounding the hearings will be filed," (2) "VDOC failed to post an appeal bond," (3) VDOC did not give notice "of a filing of the transcript of the Grievance Hearing to Counsel for the Appellee," and (4) "[t]here is no indication that the Transcript of the Grievance Hearing was filed within the 60 day requirement of Rule 5A:8." For the reasons that follow, we hold that VDOC's appeal is not procedurally barred and, therefore, deny the motion to dismiss.

A.

The grievance hearing, conducted on August 23, 2004, was recorded with an audiocassette tape recorder. After Compton appealed the hearing officer's decision, VDOC compiled a transcript of the grievance hearing and sent a copy of the transcript, along with the cassette tapes, to the circuit court. The circuit court, however, noted that the transcript was "extremely deficient" because it was "plagued with significant gaps, numerous instances of inaudible responses, and various other omissions." In resolving the appeal, the circuit court therefore "relie[d] upon the decision of the Hearing Officer and the exhibits to the hearing," rather than the transcript itself.

In the notice of appeal filed with the circuit court, VDOC stated that "[a] transcript of the grievance hearing will be filed." VDOC then obtained a new, more complete transcript of the grievance hearing and designated that transcript for inclusion in the appendix filed on appeal. The updated transcript, however, was never filed with the circuit court and, thus, is not part of the lower court's record.

It is not clear whether the "transcript" mentioned in VDOC's notice of appeal is intended to reference the original, incomplete transcript of the grievance hearing, or the second, more complete transcript of the hearing. Nor has Compton argued with any specificity whether he is contending that VDOC's appeal is barred because VDOC failed to follow the proper procedures when filing the first transcript with the circuit court, whether he is contending that VDOC's appeal is barred because VDOC failed to follow the proper procedures when "filing" the second transcript during its appeal to this Court, or whether he is contending that VDOC's appeal is barred because VDOC did not file a transcript of the appellate proceedings conducted before the circuit court. However, in Part II(B)(3), infra, we address each of these arguments in turn.

B.

The procedures to be followed when appealing a decision pursuant to the State Grievance Procedure are established almost entirely by statute.³ As pertinent here, Code § 2.2-3006 provides that,

Within 30 days of a final decision, a party may appeal on the grounds that the determination is contradictory to law by filing a notice of appeal with the clerk of the circuit court in the jurisdiction in which the grievance arose. . . . After a notice of appeal has been filed by either party, the agency shall then transmit a copy...