State police officer’s discharge upheld

Where a Virginia State Police officer was discharged for failing to follow policy and making false statement regarding an accident with his police vehicle, there were no flaws in the administrative proceedings leading to his discharge or in his subsequent appeal.

Criminal matter

Brennan backed his police car into another vehicle, damaging both. “Brennan and the other vehicle owner agreed to resolve the damage themselves without using insurance or reporting the collision.”

Two days later, Brennan told Lieutenant Jay Perry that his police vehicle was damaged but he had no information about when or how the damage happened. Perry told Brennan to get repair estimates, which were more than $1,000.

Perry asked Trooper Jones to investigate. He went to Brennan’s house and “completed a Form SP-155 Vehicle Crash/Damage Report. Brennan told Trooper Jones that he noticed the damage to his police vehicle when he was removing equipment from the rear of the vehicle and that he did not know when or how the damage occurred.”

Brennan later revised his story and said there were two incidents, a minor one involving the driver with whom he had settled and a second one that resulted in “more significant damage.” Brennan asserted he had no information about the second incident.

“[T]he VSP began an investigation into the incident and referred the matter to the Commonwealth’s Attorney for prosecution against Brennan.” Brennan was convicted in in the general district court “for knowingly giving a false report to a law-enforcement officer.”

On appeal, the commonwealth requested that the charge be dismissed “after Lieutenant Perry during his testimony referred to a newly-created Form FR300P Police Crash Report that had not been disclosed to Brennan as part of discovery.

“Lieutenant Perry also possessed a revised Form SP-155 Vehicle Crash/Damage Report that had not been disclosed to Brennan during discovery. The FR300P and revised SP-155 forms contained new information regarding Brennan’s vehicle crash that the VSP had obtained as part of its investigation into the incident.”

Administrative discharge

“Major Tricia Powers sent Brennan written notice of the administrative charges alleged against him, to which Brennan gave both oral and written responses. … Major Powers sent written notice to Brennan that he was being terminated for engaging in one Group II offense of failing to follow policy and two Group III offenses of knowingly making a false statement.”

Brennan grieved the discharge.  A hearing officer “acknowledged that Brennan presented ‘significant’ evidence suggesting that the VSP ‘unnecessarily pursued criminal charges against him and created documents it failed to disclose which ultimately resulted in the charges being dismissed.’”

The hearing officer found this circumstance “did not constitute a mitigating factor …  and therefore did not warrant a reduction in the disciplinary action.”

Brennan’s discharge was administratively upheld. Brennan appealed.

Excluded evidence

“Brennan asserts that the hearing officer had to exclude the Form FR300P and revised Form SP-155 from the grievance proceeding to sanction the VSP for not disclosing those documents during Brennan’s criminal proceedings. Brennan contends that this remedy would be akin to a trial sanction for a party that willfully spoils evidence or violates discovery rules.

“Brennan argues that the hearing officer’s failure to sanction the VSP was contradictory to law, and he cites various Virginia cases involving sanctions for bad-faith conduct in a trial setting, and also cites Code § 8.01-379.2:1, which permits a trial court to impose sanctions against a party that spoils evidence.

“Brennan’s argument misses the mark. Virginia case and statutory law dealing with sanctions for bad-faith conduct in a trial setting are inapplicable to hearings governed under the State Grievance Procedure; thus, a hearing officer’s actions regarding sanctions, by definition, cannot be contradictory to these laws. …

“Since a hearing officer’s decision to impose sanctions is governed by [the Office of Employment Dispute Resolution (EDR)]’s own rules of procedure, and not Virginia law, the question whether a hearing officer should have imposed sanctions is one of agency procedure – not law – that is subject only to administrative review by EDR.”

Due Process

“Brennan asserts that the hearing officer erred by admitting into evidence the Form FR300P and revised Form SP-155 and by not finding that this evidence showed bad faith from the VSP and warranted mitigation of the disciplinary action.”

“Brennan [also] asserts that the VSP failed to follow its own internal policies regarding vehicle accident investigations and departed from its own procedures when disciplining him. …

“Brennan claims that these errors are contradictory to law because they violated his constitutional right to due process.

“We disagree. … Before his termination, Brennan received written notice of the charges alleged against him and was given an opportunity to respond to the charges.

“Then, after his termination, Brennan participated in a full evidentiary hearing where he was represented by counsel, was presented with the VSP’s evidence against him, and was able to present evidence in his defense, to call and cross-examine witnesses, and to contest all aspects of the VSP’s termination decision.

“Thus, ‘[i]t is hard to imagine how this process violated [Brennan’s] due process rights.’”

Other constitutional arguments

“Brennan asserts that the State Grievance Procedure violates due process and is unconstitutional as applied to him because it does not permit a circuit court to reconsider the factual findings of a hearing officer in situations involving alleged bad-faith conduct by an employer. …

“Brennan contends that the circuit court’s inability to reconsider the factual findings of a hearing officer causes the State Grievance Procedure to be a systemic violation of due process and unconstitutional on its face.

“Brennan’s argument is unavailing. Brennan’s due process right to notice and a hearing was fully satisfied under the circumstances of this case. Moreover, ‘[t]he right to appellate review is a statutory right and is not a necessary element of due process.’ …

“As such, the ability for a grievant to appeal to a circuit court under the State Grievance Procedure is a purely statutory right that does not arise from the U.S. Constitution[.] …

“Since a grievant does not have a due process right to appeal to a circuit court from a hearing officer’s decision, it follows that the State Grievance Procedure’s limitation of circuit court appellate review to only legal errors cannot be a violation of due process.

“Thus, the State Grievance Procedure is not facially unconstitutional, nor is it unconstitutional as applied to Brennan.”

Affirmed.

Brennan v. Virginia State Police, Record No. 0233-22-3, Feb. 7, 2023, 2022. CAV unpublished opinion (Callins). From the Circuit Court of Orange County (Franzén). Mark Bong for appellant. Melissa Y. York for appellee. VLW 023-7-075, 10 pp.