John Carpenter v. Virginia Department of Social Services

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Alston
UNPUBLISHED
Argued at Richmond, Virginia
JOHN CARPENTER
MEMORANDUM OPINION BY
v. Record No. 0560-17-2 JUDGE ROSSIE D. ALSTON, JR.
APRIL 24, 2018
VIRGINIA DEPARTMENT OF
SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Clarence N. Jenkins, Jr., Judge
Richard F. Hawkins, III (Hawkins Law Firm, PC, on briefs), for
appellant.
Sarah Flynn Robb, Assistant Attorney General (Mark R. Herring,
Attorney General; Samuel T. Towell, Deputy Attorney General;
Gregory C. Fleming, Senior Assistant Attorney General, on brief),
for appellee.
John Carpenter (appellant) appeals the denial of his petition for judicial review by the
Circuit Court for the City of Richmond (circuit court). Appellant specifically contends that the
hearing officer acted in a manner contradictory to law by violating his constitutional right to due
process on three grounds: (1) appellant was disciplined on charges contained in the withdrawn
Written Notice (WN), (2) the Commonwealth’s Department of Social Services’ (Agency) delay
in disciplining appellant for more than eight months was not properly considered as a mitigating
factor, and (3) appellant was denied the opportunity to cross-examine the witnesses responsible
for formulating the basis for the Agency’s action against him.

Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
Appellant was employed as the Supplemental Nutrition Assistance Program (SNAP)
Quality Assurance Manager for the Agency. Prior to 2013, the Agency contracted with Julie
Osnes Consulting (Osnes) to “develop methods1 to increase performance so as to qualify for the
[federal] bonus pool;” this pool is divided among the top seven or eight states based on
“performance criteria.” Appellant subsequently worked for Osnes, implementing Osnes methods
in other states to improve their chances at receiving those bonus funds. Appellant engaged in
these behaviors for multiple years in secret while still employed by the Agency. An investigator
from the Office of the State Inspector General (OSIG) launched an investigation of the “Quality
Control and SNAP ME Review process” for “using an outside contractor to help mitigate errors”
in violation of federal regulations. The OSIG investigator requested that the Agency keep the
investigation confidential. The Agency’s director complied with the request but provided
negative feedback on appellant’s subsequent performance evaluation. The Agency launched its
own investigation into appellant’s activities after civil investigative demands were served.
Appellant was issued two notices of intent and timely responded. Subsequently, appellant was
issued three Group III WN’s indicating termination. WN 1 alleged that appellant’s behavior
constituted unethical conduct, created a serious conflict of interest, and violated the Conflicts of
Interest Act. WN 2 alleged that appellant “established a consulting business without complet[ing
the required forms, and] understated [his] earnings from that business on [his] 2013 and 2014
[Statements of Economic Interest].” WN 3 alleged that appellant engaged in unethical conduct.
Appellant filed a grievance to challenge the Agency’s action.
1
These methods were used “for quality control review to lower []error rates.” This is
public information.
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The Agency withdrew WN 3 before the hearing date. The matter was heard by a hearing
officer of the Office of Employment Dispute Resolution (EDR), Department of Human Resource
Management (DHRM). Regarding WN 1, the hearing officer concluded that the Agency did not
prove that appellant violated the Conflict of Interest Act; “[t]hat leaves for [WN 1] the issue of
whether the activity was unethical conduct.”2 The hearing officer found that
[Appellant’s] conduct in secretly engaging in the unapproved
outside employment, so closely related to his Agency’s business,
lacked integrity, raised an inference of conflict of interest . . . , and
was not approved as required by the Standards of Conduct and the
Agency’s handbook . . . .
The issue of the unapproved outside employment is more squarely
addressed in [WN 2]. Because I find that the offense the Agency
has spread over two separate [WNs] is all related to [appellant’s]
outside employment, without the Agency’s approval, the discipline
should properly be considered one [WN] . . . . Because the nature
of the outside employment was so closely aligned with the
Agency’s business, the ethical aspects of integrity, proprietary
information, and inference of conflict of interest are aggravating
factors. Because of these concerns, the nature of the unapproved
outside employment is serious rather than trivial. [Appellant] sold
his Agency experience and knowledge to other states.
Regarding WN 2, the hearing officer concluded that “the Agency failed to prove
[appellant] materially misrepresented his business interest on the [Statement of Economic
Interest]’s.” Yet,
[Appellant] engaged in outside employment without notification or
approval, as required by the Agency and the Standards of Conduct.
I also find that [appellant] kept the business secret from his
Agency, and the nature of the outside employment, being so
dependent on his Agency duties and specialization, justifies a
2
The Agency’s code of ethics requires employees to:
 Act with integrity in all relationships.
 Refrain from any activity or relationship that is or could be
inferred as a violation of the State and Local Government
Conflict of Interest Act.
 Abide by Virginia’s Standards of Conduct for Employees and
related regulations.
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Group III [WN]. The Agency had no knowledge or control over
the dissemination of its information and processes.
Addressing mitigation factors, the hearing officer noted that because he found that
appellant engaged in misconduct constituting a violation of one Group III WN, he “may mitigate
the [A]gency’s discipline only if . . . the [A]gency’s discipline exceeds the limits of
reasonableness.” Appellant argued that the Agency’s delay in disciplining him was a mitigating
factor. The hearing officer indicated that delaying discipline for an extended period of time
“gives the appearance that the offense is not serious.” Here, the hearing officer found that the
delay did not “negate the alleged seriousness of the offense” because the OSIG was conducting
an investigation. The hearing officer also recognized that the Agency did not act sooner due to
the OSIG investigator’s request. Further, the hearing officer noted that appellant was not
prejudiced by the delay. The hearing officer then noted that “[t]ermination is the normal
discipline for a Group III [WN]” and that “[s]uch decision falls within the discretion of the
Agency so long as the discipline does not exceed the bounds of reasonableness.” The hearing
officer found that the Agency’s action was “within the limits of reasonableness,” declined to
mitigate the discipline, and upheld the Agency’s decision.
Appellant petitioned for administrative review before EDR on the same grounds. EDR
found that appellant’s due process rights were not violated because he was provided adequate
notice. EDR also found that the hearing officer did not abuse his discretion in deciding not to
mitigate the Agency’s action, highlighting the hearing officer’s finding that no prejudice resulted
from the delay. And finally, EDR ruled that appellant had the opportunity to cross-examine
those formulating the Agency’s grounds for discipline; the Agency conducted its own
investigation, and based on those findings, disciplined appellant. Ultimately, EDR refused to
disturb the hearing officer’s findings. Accordingly, the hearing officer’s decision became a final
hearing decision.
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Appellant sought judicial review in the circuit court. Appellant asserted the same
arguments presented to EDR. The circuit court denied appellant’s petition for judicial review,
and appellant appealed to this Court. We remanded the matter back to the circuit court “because
we [could not] determine whether or not the circuit court conducted an independent review” and
because appellant “did not file a transcript.” The circuit court then issued an order clarifying that
the question before it was whether the hearing officer’s decision to uphold the Agency’s
determination to terminate appellant was contradictory to law. The circuit court set forth
appellant’s arguments. Based on the record, arguments, and briefs, the circuit court
“OVERRULE[D appellant]’s arguments on the merits and [FOUND] that the decision of the
[h]earing [o]fficer . . . was not contradictory to law.” The circuit court then affirmed the hearing
officer’s decision. Having a complete record before us, we affirm the circuit court’s
determinations on the merits.
ANALYSIS
“The authority of a court to review state employee grievances is limited. ‘The only
grounds of appeal of the hearing officer’s decision is ‘that the determination is contradictory to
law.’” Burke v. Catawba Hosp., 59 Va. App. 828, 834, 722 S.E.2d 684, 687 (2012) (quoting Va.
Dep’t of State Police v. Barton, 39 Va. App. 439, 445, 573 S.E.2d 319, 322 (2002)). “We review
questions of law . . . de novo.” Id. (citing Louis Latour, Inc. v. Va. Alcoholic Bev. Control Bd.,
49 Va. App. 758, 766, 645 S.E.2d 318, 322 (2007)).
“In a plainly stated statutory framework, the Code of Virginia provides grievance
procedures applicable to state agency employees, granting an employee a right to a hearing
before a designated hearing officer when that employee has been formally disciplined.” Va.
Polytechnic Inst. v. Quesenberry, 277 Va. 420, 428, 674 S.E.2d 854, 858 (2009) (citing Code
§§ 2.2-3001 and 2.2-3004(A)(i)).
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[A] hearing officer appointed by the [EDR] has certain powers and
duties with regard to a grievance hearing, including the
consideration of evidence and the determination of appropriate
remedies. Code §§ 2.2-3005 and 2.2-3005.1. The hearing
officer’s decision, which must be in writing, shall contain findings
of fact and the hearing officer’s basis for making those factual
findings. Code § 2.2-3005.1(C)(i) and (ii). The hearing officer’s
decision is final and binding “if consistent with law and policy.”
Code § 2.2-3005.1(C)(iii).
Id. (emphasis added).
A party may request administrative review pursuant to Code § 2.2-3006(A) to determine
whether the hearing officer’s decision is contrary to policy. Id. at 428-29, 674 S.E.2d at 858
(citing Code § 2.2-3006(A)). A party may request judicial review pursuant to Code
§ 2.2-3006(B) to determine whether the decision is contrary to law. Id. at 429, 674 S.E.2d at
858. “This review procedure allows the executive branch latitude to manage and discipline
executive branch employees and to develop its own policy and procedures, subject to limited
legal constraints.” Burke, 59 Va. App. at 834, 722 S.E.2d at 687.
Appellant contends that his constitutional right to due process was violated in three
separate ways. Appellant first argues that the hearing officer’s decision that appellant behaved
unethically constitutes such a violation because the Agency did not provide him with adequate
notice. Appellant also argues that being denied the opportunity to cross-examine the witnesses
formulating the basis of the Agency’s discipline against appellant constitutes a second violation.
“[W]hen considering whether the State has provided all the process that is due in
depriving an individual of life, liberty, or property, we must look at both pre- and
post-deprivation processes.” Skinner v. Switzer, 562 U.S. 521, 540 (2011). Regarding
pre-termination proceedings, the Due Process Clause requires that appellant “be given an
opportunity for a hearing before he is deprived of any significant property interest.” Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (emphasis omitted) (quoting Boddie v.
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Connecticut, 401 U.S. 371, 379 (1971)). This pre-termination hearing “need not be elaborate”
and “should be an initial check against mistaken decisions.” Id. at 545. Individuals must also be
given “notice and an opportunity to respond.” Id. “[T]enured public employee[s are] entitled to
oral or written notice of the charges against [them], an explanation of the employer’s evidence,
and an opportunity to present [their] side of the story.” Id. at 546 (citing Arnett v. Kennedy, 416
U.S. 134, 170-71(1974)). Regarding post-termination proceedings, “the existence of
post-termination procedures is relevant to the necessary scope of the pre[-]termination
procedures.” Id. at 547 n.12. “[T]he Due Process Clause requires provision of a hearing ‘at a
meaningful time.’” Id. at 546 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
Regarding the pre-termination proceeding, the Agency provided appellant with the
requisite notice; the charges against appellant were fully set forth in the issued WNs, and
although WN 3 was withdrawn, WN 1 and WN 2 both addressed appellant’s unethical conduct.
Regarding the post-termination proceeding, the Agency initiated its own investigation and
disciplined appellant based on its own findings. Consistent with the requirements of the
applicable law, the proceeding before the hearing officer provided appellant the opportunity to
present evidence, call witnesses, and cross-examine Agency witnesses who formulated the basis
of the Agency’s action.
Finally, appellant argued that the hearing officer did not properly consider the Agency’s
delay as a mitigating factor constituted a third violation. “Hearing officers shall have the . . .
power[] and dut[y to r]eceive and consider evidence in mitigation or aggravation of any offense
charged by an agency in accordance with rules established by [DHRM] pursuant to [Code]
§ 2.2-1202.1.” Code § 2.2-3005. The Rules for Conducting Grievance Hearings require that “if
the hearing officer finds that:”
(i) the employee engaged in the behavior described in the [WN],
(ii) the behavior constituted misconduct, and (iii) the agency’s
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discipline was consistent with law and policy, the agency’s
discipline must be upheld and may not be mitigated, unless, under
the record evidence, the discipline exceeds the limits of
reasonableness.
§ VI(B).
The hearing officer did consider the Agency’s delay in disciplining appellant. However,
the hearing officer did not find that the delay created the appearance that the charge was less than
serious. The OSIG was investigating appellant and asked the Agency’s director to keep that
confidential. The Agency’s director did so and later initiated its own investigation after the
Agency and appellant were served with civil investigative demands. The hearing officer found
that the Agency’s action did not exceed the limits of reasonableness and chose not to mitigate.
CONCLUSION
Exercising its limited judicial review and based on the record, arguments, and briefs, the
circuit court “overrule[d]” appellant’s arguments on the merits and affirmed the hearing officer,
finding that the decision of the hearing officer “was not contradictory to law.” Appellant’s due
process rights were not violated. Considering pre-termination and post-termination proceedings
that occurred, appellant had adequate notice and the opportunity to cross-examine the witnesses
who formulated the grounds for the Agency’s action against him. Further, the hearing officer
complied with the statutory directive; he considered the delay and decided not to mitigate the
Agency’s discipline.
The hearing officer’s findings were not contrary to law. Thus, we affirm the circuit
court’s decision.
Affirmed.
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