TENNESSEE DEPARTMENT OF SAFETY, Department/, Petitioner, vs. CSGP 06-52VINCENT TUROCY, Grievant/, Respondent

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1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law TENNESSEE DEPARTMENT OF SAFETY, Department/, Petitioner, vs. CSGP 06-52VINCENT TUROCY, Grievant/, Respondent Follow this and additional works at: Part of the Administrative Law Commons This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov

2 BEFORE THE TENNESSEE CIVIL SERVICE COMMISSION TENNESSEE DEPARTMENT ] OF SAFETY, ] Department/Petitioner, ] vs. ] Docket No J ] (CSGP 06-52) VINCENT TUROCY, ] Grievant/Respondent. ] INITIAL ORDER This contested administrative case was heard on April 19, 2007, in Nashville, Tennessee, before J. Randall LaFevor, Administrative Judge, assigned by the Secretary of State, and sitting for the Civil Service Commission for the State of Tennessee. Ms. Deborah Martin, Staff Attorney for the Department of Safety, represented the Department/Petitioner. The Grievant/Respondent, Vincent Turocy, was represented by his legal counsel, Mr. Fletcher W. Long. Upon conclusion of the hearing, the matter was taken under advisement pending submission of the hearing transcript. That document was filed on May 18, 2007, and the matter was declared ready for consideration. PROCEDURAL HISTORY The Commissioner of the Tennessee Department of Safety convened a Step IV Disciplinary Hearing on June 21, 2006 to consider possible disciplinary action against the Grievant for alleged violations of various State Statutes and Regulations, and Departmental General Orders. Based on his analysis of the facts, and upon applying the law, the Commissioner suspended the Grievant for ten (10) days without pay, and ordered that he make restitution to the Department of Safety for all profits he received from transactions with the Department. This contested administrative proceeding was a Fifth-Step Disciplinary Hearing convened at the Grievant s request, to consider the sanctions imposed by the Commissioner of the Department of Safety for engaging in certain prohibited conduct, including (1) Violation of Tennessee Code Annotated , (2) Violation of specific

3 Department of Safety General Orders, and (3) Conduct unbecoming an employee in the State service;. Upon consideration of the evidence and arguments, and the entire record, it is determined that the Grievant engaged in the prohibited conduct, as charged, and that the proper disciplinary action for those offenses is a ten (10) day suspension without pay and restitution of all profits realized from the Grievant s company s transactions with the Department of Safety. This determination is based on the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. The Grievant was first employed in July 2000, by the Tennessee Highway Patrol, the law enforcement agency within the Tennessee Department of Safety, and has been continuously employed as a State Trooper with that agency since that date. 2. In January of 2004, the Grievant began an internet business operating under the name of State Trooper Store or Statetrooperstore.com, which sold silk-screened clothing and other novelty items to law enforcement personnel and others. He was soon joined in this venture by another trooper, and profits from the business were divided equally between them. 3. In February 2004, the Grievant sought permission from the Department to operate this business as a secondary employment, by signing and filing a Secondary Employment Memorandum. 1 By signing that document, he verified that The request is in accordance with General Order No This employment will present no conflict of interest and will not bring embarrassment upon the Department. His request was approved with a notation from Colonel Lynn Pitts to make sure this is off-duty time only and never interferes with your Trooper job. 4. In July 2004, the Grievant was contacted by the office of Deputy Commissioner Tom Moore, expressing an interest in purchasing challenge coins for an upcoming 1 See Memorandum dated 2/10/04, included in Collective Hearing Exhibit # 1. 2

4 meeting. The Grievant was informed that such a sale could not occur unless his company was registered with the Tennessee Online Purchasing System ( TOPS ). The Deputy Commissioner s office forwarded a blank Bidder s Application 2 that the Grievant filled out and returned, to complete the TOPS enrollment. The first page of that form displays the following language: NOTE: All Vendors must comply with TCA , Bidding by State Employees Prohibited. 5. In the following months, the Grievant s company sold various items of merchandise to the State on multiple occasions, and received payment from the State for that merchandise in the total amount of $5, From those sales, the Grievant s business realized a profit of $ The Grievant s share was approximately one-half (1/2) of the proceeds, or $ While employed with the Tennessee Highway Patrol, the Grievant received, acknowledged receipt of, and was responsible for reading, Tennessee Department of Safety General Orders, including, inter alia, General Order #216-2, Disciplinary Regulations; General Order #250, Secondary Employment; and General Order #263, Conflicts of Interest. 7. During his tenure with the Tennessee Highway Patrol, the Grievant has received at least ten (10) commendations from the Colonel s Office and the District Office. He was named Trooper of the Month in February 2001, and Trooper of the Year in His employment record contains no previous disciplinary actions. CONCLUSIONS OF LAW and ANALYSIS 1. The Tennessee Department of Safety is the Petitioner in this matter, the party that initiated the proceedings, and as such, is assigned the burden of proof. The burden of 2 See Bidder s Application dated 7/13/04, included in Collective Hearing Exhibit # 1. 3

5 proof is the duty imposed upon a party to establish, by a preponderance of the evidence, that an allegation is true, or that an issue should be resolved in favor of that party. A preponderance of the evidence means the greater weight of the evidence, or the more probable conclusion, based on the evidence presented. The burden of proof is generally assigned to the party seeking to change the present state of affairs with regard to any issue. See, Rule (7), TENN. COMP. R. & REGS. In the instant case, that means that the Department of Safety must prove, by a preponderance of the evidence, that the Grievant engaged in conduct prohibited by State statute, State Departmental Regulations, or in Department of Safety General Orders; and that the appropriate disciplinary response is a ten (10) day suspension without pay and restitution of the profits realized by the Grievant from his improper transactions. 2. Tennessee law (TENN. CODE ANN , et. seq.) provides that it is a criminal act for a State employee to sell merchandise to the State of Tennessee: Bidding by state employees prohibited. It is hereby declared unlawful for any state official or employee to bid on, sell or offer for sale, any merchandise, equipment or material, or similar commodity, to the state of Tennessee during the tenure of such official s or employee s office or employment, or for six (6) months thereafter, or to have any interest in the selling of the same to the state. [Italics added.] Penalty for unlawful transactions. (a) Any person guilty of a violation of shall be liable to the state for any and all sums paid out by the state, together with interest thereon at eight percent (8%), growing out of any such transaction. (b) A violation of is a Class E felony. 3. By selling $5, worth of merchandise to the State during his tenure as a State Trooper, the Grievant violated the terms of TENN. CODE ANN As indicated in , such conduct is a felony, and conviction would require a penalty of one (1) to six (6) years in prison and a fine of up to $3,000. Additionally, the offender is liable to the State, not only for the profits derived from the venture, but for any and all sums paid out by the state, plus interest. In this case, that would amount to $5,322.40, plus interest, not simply the $ that he was ordered to pay by the Commissioner. 4

6 4. In addition to the laws governing all persons in the State of Tennessee, the Department of Safety has promulgated certain General Orders that are binding on, and govern the conduct of its law enforcement officers. All of those General Orders were provided to the Grievant in the course of his employment. He acknowledged receipt of them, and is charged with knowledge of their content. Those orders reflect the Department s determination that, due to the sensitive and highly visible nature of their positions, Highway Patrol officers may, in certain instances, be held to a higher standard of conduct than other State employees. Among those Orders are General Order #216-2, Disciplinary Regulations; General Order #250, Secondary Employment; and General Order #263, Conflicts of Interest. The Department has charged the Grievant with violating those Orders. 5. DEPARTMENT OF SAFETY, GENERAL ORDER 263 [30 Jan 2004 & 28 Feb 2006]: CONFLICTS OF INTEREST: IV. Procedures: A. Direct Conflict of Interest: 3. An employee shall not own a controlling interest in, or engage in, a financial transaction for personal gain with an entity administered by or doing business with the department. B. Indirect Conflict of Interest: 2. An employee shall not accept or maintain outside employment with a business which receives funds from, or is regulated in any manner by, the department. C. Effect of Conflict of Interest: 4. An employee who violates a statutory conflict of interest is subject to all sanctions provided by law, and may also be subject to disciplinary action in accordance with the Department of Personnel rules and regulations. D. Conduct Prohibited by Tennessee Statutes: 6. State Officials or Employees Cannot Sell to the State TCA It is unlawful for any Department of Safety employee to 5

7 bid on, sell, or offer to sell, any merchandise, equipment, or material [or] similar commodity, to the State of Tennessee during the tenure of his/her office or employment, or for six (6) months thereafter, or to have any interest in the selling of the same to the state. DEPARTMENT OF SAFETY, GENERAL ORDER 250 [28 Feb 1999 & 15 May 2005]: SECONDARY EMPLOYMENT: IV. Departmental Provisions and Conditions of Employment: C. An employee shall not own a controlling interest in, or engage in, a financial transaction for personal gain with an entity administered by or doing business with the Department. In February 2004, when the Grievant sought the Department s permission to engage in secondary employment, he submitted a Memorandum to Colonel Pitts. In that document, he certified that his secondary employment with State Trooper Store met the requirements of General Order 250, and that it would present no conflicts of interests. The Grievant in this case established and operated a business that sold over $5,000 worth of merchandise to the Department of Safety. That conduct violated the conditions imposed on his secondary employment by General Order 250, IV, C, and created both a direct and indirect conflict of interests, as defined by General Order 263 IV,A,3 and IV,B,2. That General Order also restates the statutory prohibition against State employees selling merchandise to the Department [General Order 263 IV,D,6], and makes clear that the Department may seek administrative disciplinary sanctions against an offending employee in addition to any criminal penalties [General Order 263 IV,C,4]. 6. DEPARTMENT OF SAFETY, GENERAL ORDER [15 Aug 1999]: DISCIPLINARY REGULATIONS: II. Policy: It is the policy of the Department of Safety to warn, suspend, demote or dismiss any employee whenever just or legal cause exists. When off duty, no employee shall commit any act that would reflect discredit upon themselves or the Department, or which would hamper their ability to perform their duties. 6

8 IV. Causes for Disciplinary Action: B. It is not feasible to itemize every cause in which disciplinary action may be taken. The following causes are examples of those considered for disciplinary action and should not be considered the only causes. 1. Violations of a regulation or policy. (a) Violation of any written rule, regulation, policy, or procedure including all rules of the Tennessee Department of Personnel. (b) Willful disobedience of the rules and regulations or a negligent disregard thereof. (c) No employee shall plead ignorance of the rules and regulations or offer same as a defense in a charge of omission or commission. 3. Violation or conviction of any criminal offense. (a) Criminal laws of the United States and any state, city and county ordinances are included... (b) Employees are expected to be an example to the public in abiding by and complying with all traffic laws, rules and regulations, and other laws. It was clearly the intention of Department of Safety General Order to place all Departmental employees on notice that they would be subject to disciplinary sanctions for Violations of a regulation or policy, [General Order 216-2,IV,B,1] such as a Departmental General Order or a Department of Personnel Rule or Regulation, and for Violation or conviction of any criminal offense [General Order 216-2,IV,B,3]. The latter provision specifies that a conviction of a criminal offense is not required, but simply a finding that the employee committed an act that would be a violation of the law is sufficient to trigger the imposition of sanctions. In the instant case, even though there was no evidence that a criminal prosecution was initiated, it is clear that the Grievant violated the provisions of a criminal statute [TENN. CODE ANN ]. 7. Additionally, The Rules of the Tennessee Department of Personnel, Disciplinary Action, Chapter , TENN. COMP. R. & REGS, describe certain prohibited conduct for all State employees that may result in disciplinary action being taken against them. As a State employee, the Grievant knew, or should have known, of the application of those Rules to his conduct. Those Rules contain the following provision: 7

9 EXAMPLES OF DISCIPLINARY OFFENSES. The following causes are examples of those considered for disciplinary action and should not be considered the only causes of action. (8) [C]onduct unbecoming an employee in the State service. When the Tennessee Highway Patrol employs an individual as a Trooper, and entrusts the safety of its citizens to him, the State has a right to expect that employee to obey the laws that apply to all other citizens of the State, and to adhere to all regulations specifically addressing the behavior of employees of the Department of Safety. In this case, by acting in violation of both the State s criminal statutes and the Department of Safety s General Orders, the Grievant engaged in conduct unbecoming an employee in the State service. 7. A State employee may be disciplined for (1) causes relating to performance of duty, or (2) causes relating to conduct which may affect an employee s ability to successfully fulfill the requirements of the job. [See, Department of Safety General Order 216-2,IV,A, and Rule , TENN. COMP. R. & REGS.] A career employee may be warned, suspended, demoted or dismissed by his appointing authority whenever just or legal cause exists. The degree and kind of action is at the discretion of the appointing authority... Rule , TENN. COMP. R. & REGS. Although the law prescribes implementation of progressive discipline for State employees, it also provides that disciplinary action must be administered at the step which is most appropriate for the misconduct. (See, Tennessee Code Annotated ; and Rule , TENN. COMP. R. & REGS.) As the courts have recognized in other cases dealing with these provisions,... the key word in the statute is appropriate.... (T)he language of these provisions does not mandate application of discipline in a routine fashion without regard to the nature or severity of the behavior it is intended to address. The supervisor has discretion to determine what punishment fits the offense. Berning v. State, 996 S.W.2d 828, 830 (Tenn. App. 1999). 8

10 8. When the Commissioner considered the issue of punishment in this case, he had a wide range of options at his disposal. (See, Rule , TENN. COMP. R. & REGS.) Suspension without pay is one of those options. Rule (4), TENN. COMP. R. & REGS. Pursuant to that regulation, After minimum due process is provided, a suspension without pay may be issued by the appointing authority 3 for one (1) to thirty (30) days. Rule (4)(a), TENN. COMP. R. & REGS. The record establishes, by a preponderance of the evidence, that the Grievant s conduct violated provisions of the State Code, Departmental General Orders, and Rules of the Department of Personnel. His conduct was unacceptable, and warranted a significant disciplinary response. However, the record also reflects that, prior to this episode of inappropriate activity, the Grievant had been employed by the Department for nearly four years without a disciplinary action, he had received several commendations, and he had been named Trooper of the Month [February 2001] and Trooper of the Year [2001]. Given the gravity of the Grievant s action, violating a criminal law and multiple General Orders, the lesser sanctions of a verbal or written warning (See, Rule (2) & (3), TENN. COMP. R. & REGS.) failed to convey the seriousness of the situation. On the other hand, in light of his unblemished, albeit short, tenure with the Department, the harsher sanctions of transfer, demotion or termination (See, Rule (5) & (6), TENN. COMP. R. & REGS.) would have been too severe. The disciplinary sanction imposed by the Commissioner struck a responsible balance between those two extremes. 9. Counsel for the Grievant argued that disciplinary action against the Grievant should be withheld or reduced because he was only one person involved in the purchase and sale of merchandise to the State, and that the Department employees who ordered the merchandise shared his culpability, but received lesser or no punishment for their involvement. He referred specifically to the Deputy Commissioner who requested some of the merchandise, and his executive administrative assistant, who relayed his interest to the Grievant. The record contains testimony indicating that the Deputy Commissioner retired or left the Department around the time of the investigation into this incident. However, it contains no details of other actions that may have led to his departure, or any 3 In this case, the appointing authority was the Commissioner of the Department of Safety. 9

11 conditions that may have attached to his leaving. Testimony also indicated that the Deputy Commissioner s executive administrative assistant received a verbal warning for her involvement in the purchase of merchandise from the Grievant s company. The record reflects that she told the Grievant that the Deputy Commissioner was interested in purchasing challenge coins to distribute during a meeting, and that she provided the Grievant with a form that he could fill out to request that his company be added to the TOPS vendor list. Other than that limited involvement in a single transaction, there is nothing in the record, such as length of employment, performance evaluation ratings, prior disciplinary actions and/or commendations, etc., which may have influenced the Commissioner s disciplinary decision in her case. Therefore, even if it had been established that this was a case where consideration of comparative culpability and disparate disciplinary measures was appropriate, there is insufficient evidence in the record from which to make such an analysis. Thus, the Grievant s argument is not supported by the proof. 10. The issues presented for consideration in this case are (1) whether the Department has proven, by a preponderance of the evidence, that the Grievant engaged in conduct prohibited by The Rules of the Tennessee Department of Personnel and/or the Department of Safety General Orders; and (2) if so, whether the disciplinary sanction imposed by the Commissioner was appropriate. With respect to both issues, the Department has met its burden of proof. Accordingly, IT IS HEREBY ORDERED that the Tennessee Department of Safety has established by a preponderance of the evidence that the Grievant, Vincent Turocy, engaged in conduct prohibited by the Tennessee Code, The Rules of the Tennessee Department of Personnel and Department of Safety General Orders, by selling merchandise to the Department of Safety while he was employed by the Department. 10

12 IT IS FURTHER ORDERED that the appropriate disciplinary sanction for the Grievant s conduct is a ten (10) day suspension without pay, and repayment of all profits that he derived from the sale of merchandise to the State, in the amount of $ IT IS FINALLY ORDERED that the Grievant s appeal of the Commissioner s decision is hereby DISMISSED. Entered and effective this 12th day of July, J. Randall LaFevor, Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State, this 12th day of July, Thomas G. Stovall, Director Administrative Procedures Division 11