Home / Fulltext Opinions / Virginia Court of Appeals / HICKMAN v. VIRGINIA BOARD FOR BRANCH PILOTS




JUNE 9, 1998
Record No. 2779-97-1





William F. Rutherford, Judge
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia

Robert F. McDonnell (Reeves W. Mahoney; Richard S. Sperbeck;
Huff, Poole & Mahoney, P.C., on briefs), for appellant.

Richard B. Zorn, Assistant Attorney General (Mark L. Earley,
Attorney General, on brief), for appellee.

This case comes to us on appeal pursuant to Code Sect. 9?6.14:16. The
Circuit Court of the City of Norfolk affirmed the decision of the
Virginia Board for Branch Pilots (hereinafter "Board")
finding that David P. Hickman (appellant) violated two of its
regulations on November 25 and 26, 1996. Appellant contends there
is insufficient evidence to support the Board’s findings and the
Board failed to comply with its procedures and regulations
because it relied on evidence not in the record. Because we find
sufficient evidence to support the Board’s findings and the Board
acted properly in making its findings and issuing its decision,
we affirm.


Appellant is a branch pilot, a licensee of the state agency
charged with the responsibility for piloting ships through the
coastal waters and ports of the Commonwealth. See Code Sect. 54.1?910. A ship
bound for a Virginia port must accept a pilot whose duty is to
guide that ship to its destination safely. Pilots work in shifts
and are "on call" during specific time periods during
which they may be called to a ship. At the time leading to the
incident forming the basis for this appeal, appellant’s duty
period started at 12:00 a.m. on November 26, 1996.

Appellant was taking a number of prescription drugs for
various aliments, each of which produced side effects. Depakote,
which treated appellant’s headaches, caused gastritis, diarrhea,
nausea and dehydration. Soma, a muscle relaxant, had a sedative
effect so that one tablet "can knock a person completely
out." Fiorinal with codeine, also for headaches, combined
with the other drugs, caused an acute toxic reaction leading to
"organic impairment." Appellant took the Fiorinal with
codeine sometime on Monday and Depakote and Soma on Monday night
before his duty period. The record indicates that appellant took
his medication as prescribed, but appellant admitted he doesn’t
normally take Fiorinal before going to work.

Appellant was called to pilot a ship, the MSC Rita, up the
James River at 2:00 a.m. on November 26. He was on the ship for
three hours and completed its passage safely. Appellant testified
he suffered from fatigue, nausea and diarrhea that morning. After
leaving the vessel he went home and, without eating or sleeping,
took more Depakote and Soma. He was called back to work at 8:00
a.m. Appellant testified that when he reported for duty at the
pilot’s office he "started to feel bad," becoming sick,
shaky, dizzy, tired and incoherent. Captain Counselman,
appellant’s supervisor, first asked appellant if he would like
someone else to pilot the vessel. When appellant insisted he was
fine, Captain Counselman ordered appellant to go home.

On December 13, 1996 the Board assigned a hearing officer to
conduct an informal fact?finding hearing and make
recommendations of law and fact pursuant to Code Sect. 9?6.14:11. The
Board reviewed the hearing officer’s report and issued its own
final opinion and order on February 24, 1997. The Board ruled
appellant violated 18 VAC 45?20?40(5), negligence or misconduct
in the performance of duties, and 18 VAC 45?20?40(14),
performing or attempting to perform any of the duties of his
office while under the influence of alcohol, or any medication
(controlled or otherwise) to the extent that he is unfit for the
performance of the duties of his office. The Board found
"that accepting an order to pilot a ship while on duty initiates
the performance of duties of the Office of Branch Pilot. A
Pilot . . . would not be fit for duty if the Pilot
presented his services in an impaired state of mind or
body." Consequently, when appellant took drugs which he knew
or should have known would cause incapacitation during his duty
period he was negligent in the performance of his duties.
Additionally, by piloting the MSC Rita and presenting himself as
fit to pilot a second vessel, he performed his duties while under
the influence of medication so as to make him unfit for the
performance of those duties.

Sufficiency of the Evidence

Appellant first contends the Board’s decision lacks sufficient
evidence. See Code Sect. 9?6.14:17(iv).
Our "review shall be based solely upon the agency record,
and the court shall be limited to ascertaining whether there was
evidence in the agency record to support the case decision of the
agency acting as the trier of fact." Code Sect. 9?6.14:16. We
"may reject the agency’s findings of fact only if,
considering the record as a whole, a reasonable mind would
necessarily come to a different conclusion." Johnston-Willis
v. Kenley
, 6 Va. App. 231, 242, 369 S.E.2d 1, 7 (1988)
(citations omitted).

The record before us clearly supports the agency decision. The
Board specifically found appellant’s duty was to be fit to pilot
a vessel during his duty period. However, appellant was heavily
medicated with legal, but powerful, drugs causing him to be
severely ill. The Board found appellant was aware of the effects
of some drugs and should have been aware of the effects of
others. Several doctors testified credibly as to the effects
these drugs had on appellant’s body, and appellant himself
corroborated this information. The Board’s findings that
appellant was performing a duty required by a pilot at the time
he incapacitated himself was within the "specialized
competence" of the Board and is entitled to "special
weight." Id. at 244, 369 S.E.2d at 8. In these
circumstances, we hold the record fully supports the Board’s
determination that appellant violated its regulations.

Compliance with Procedures

Appellant contends the Board failed to comply with required
procedures because it considered evidence outside of the record. See
Code Sect. 9?6.14:17.
Such errors will be reversed only if they do not constitute mere
harmless error. See id. "No reversible error
will be found . . . unless there is a clear
showing of prejudice arising from the admission of such evidence,
or unless it is plain that the agency’s conclusions were
determined by the improper evidence, and that a contrary result
would have been reached in its absence." Johnston-Willis,
6 Va. App. at 258, 369 S.E.2d at 16 (citing Virginia Real
Estate Commission v. Bias
, 226 Va. 264, 270, 308 S.E.2d 123,
126 (1983)). None of appellant’s arguments crest this standard.

In the introduction section of the Board’s Final Order, it
described the duties of a Branch Pilot and noted "[t]he
ports of Virginia contain some of the most sophisticated shipping
facilities in the world." The Board also noted that, unlike
normal business practice, the captain of a ship entering Virginia
waters cannot reject a pilot when he comes aboard, but must
accept his pilotage services. See Code Sect. 54.1?910. While
these facts appear nowhere in the record, appellant has not
demonstrated how they prejudiced his case. We hold their
inclusion was harmless.

Appellant also ascribes error to statements made by Captain
L.D. Amory, president of the Virginia Pilot’s Association, at a
special meeting of the Board. Captain Amory stated he believed
there were serious questions regarding appellant’s abilities
which were not addressed at the hearing. He also cautioned the
Board to view the evidence in context. Appellant suggests Captain
Amory’s position as president of the Virginia Pilot’s Association
automatically prejudiced the Board against appellant. We do not
see how innocuous, cautionary statements such as these created
bias in the minds of the Board. We hold the Board’s exposure to
them was not error.

Appellant next contends the Board erroneously characterized
appellant as "quite ill" when he appeared for duty.
Those who observed appellant and appellant himself testified that
he was shaky, dizzy, tired and incoherent and experienced nausea,
diarrhea and stomach aches. If anything, the Board minimized, not
hyperbolized, the degree of appellant’s infirmity. The Board’s
inclination towards accurate understatement does not amount to a
procedural error.

Finally, appellant contends the Board erroneously found that
appellant could have requested sick leave if he knew he was ill.
Appellant argues the record is devoid of information regarding
appellant’s ability to take sick leave. Yet appellant himself
testified that if he was aware he was sick, "I would have
stayed home. I would have said I was sick, put me on the sick
list right now." Because appellant provided evidence that he
could have taken sick leave, his argument that he did not provide
such evidence must be rejected.


We hold the evidence was sufficient to satisfy the Board’s
determination that appellant violated both regulations. We
further hold the Board complied with all required procedures and
that any deviations from them constituted harmless error.
Accordingly, the decision of the lower court is affirmed.







[1] Pursuant to Code Sect. 17?116.010 this
opinion is not designated for publication.