Opinion
No. HHB CV 07-4013095-S
July 17, 2008
MEMORANDUM OF DECISION
This is an administrative appeal of a decision of the defendant Employee Review Board (ERB) affirming the termination of Mr. Watts employment with the State of Connecticut Department of Children and Family (DCF). This administrative appeal is authorized pursuant to Connecticut General Statute § 5-202(m) (with respect to Employee Review Board decisions) and § 4-183 et. seq. (the Uniform Administrative Procedures Act).
The Employee Review Board decision which is subject of this appeal is dated January 5, 2006 and is unanimous decision of a panel of such board consisting of Sandra Biloon, Leslie A. Williamson, Jr., and Matthew Borrelli. The Employee Review Board decision denied Mr. Watts appeal of the termination of his employment; determining that the termination decision was neither arbitrary nor taken without reasonable cause.
The plaintiff has an undergraduate degree in drug and alcohol counseling, a masters degree in education and a doctorate in criminal justice. The plaintiff was terminated from his position as Assistant Superintendent at the Connecticut Juvenile Training School (CJTS) in Middletown. The plaintiff was employed in the position of Assistant Superintendent for approximately 11 years performing various managerial functions. The plaintiff as a non-bargaining unit employee is entitled to have his termination reviewed by the Employee Review Board. Connecticut General Statute § 5-202(a) provides that an employee may appeal to the Board if he is dismissed and § 5-202(c) provides that if the action appealed from was arbitrary or taken without reasonable cause the appeal shall be sustained. The regulation of Connecticut Agencies Reg. Conn. Agencies, D.A.S., § 5-240-5a(a) (1988) provides that an employee may be dismissed for just cause also see Reg. Conn. Agencies, D.A.S., § 5-240-1a(c) (1988) defining "just cause" as any conduct for which an employee may be dismissed, including, but not limited to, specified grounds of discharge. This specified grounds of discharge set forth in § 5-240-1a(c)(7) include "Theft, willful neglect or misuse of any state funds, property, equipment, material or supplies." Section 5-240-1a(c)(a) provides another ground of discharge as "Deliberate violation of any law, state regulation or agency rule." Section 5-240-1a(c) 11 provides a specific ground of discharge of "Neglect of duty or other employment related misconduct."
The ERB held hearings on the plaintiffs appeal on September 21 and 25, 2006. At such hearings the plaintiff Dr. John Watts, Jr., testified as did Ms. Wanda Estrella, Director of Human Resources, DCF; Dr. Brett Rayford, Bureau Chief of Adolescent Services, DCF and Donald DeVore, Director of Juvenile Justice, DCF.
STANDARD OF REVIEW
The parties agree on the correct standard of review and administrative appeal.
"Judicial review of an administrative agency decision requires the court to determine whether there is substantial evidence in the administrative record to support the agencies findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency's finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . it imposes an important limitation on the power of the courts to overturn the decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . . this substantial evidence rule is embodied in General Statutes § 4-183(j)(5) and (6) . . ." (Internal quotation marks and citations omitted.) Commission on Human Rights and Opportunities v. True Love Maclean Inc., 238 Conn. 337, 352, 680 A.2d 1261 (1996), Slootskin v. Commission on Human Rights and Opportunities, et al., 72 Conn.App. 452, 457-58 (2002).
FACTS
The ERB following the two days of hearing on Mr. Watts' appeal made:
1. At the time of his dismissal on January 10, 2006, Dr. Watts (hereinafter Watts) was employed by DCF as Assistant Superintendent of Schools at the Connecticut Juvenile Training School (CJTS). (Appellant 2, Watts testimony.)
2. At the time of his termination Watts had served in the DCF since his hiring in 1993 with various titles and responsibilities.
3. During his tenure Watts received satisfactory evaluations and no disciplinary actions. (Appellant 2, Watts testimony.)
4. In 2000, the then Long Lane School was essentially closed and the male clients were moved to CJTS. (Watts testimony.)
5. There was reorganization due to the move and Watts reported to several individuals at the Bureau Chief or Deputy Commissioner level from 2000-2002. (Rayford testimony.)
6. In 2002 under Dr. Rayford (hereinafter Rayford) the then-Acting Superintendent and then Bureau Chief of Juvenile Justice, Watts was assigned the functional title of Director of Community Support Services and the oversight of the Community Services Unit with the goal of developing community based programs for children released from CJTS.
7. Rayford considered Watts a high level administrator with executive decision making authority.
8. Watts continued in this role under Rayford until Rayford's reassignment in the summer of 2004.
9. In his role as Director of Community Support Services, Watts proposed the idea of developing a community gardening program in early 2004. (Rayford, Watts testimony.)
10. In the summer of 2004 after Rayford's departure, the State hired Don DeVore (hereinafter DeVore) as a consultant through September 2004 and then as Bureau Chief of CJTS to lead this department. DeVore began his state employment on or about September 27, 2004.
11. DeVore supervised Watts. (DeVore, Estrella testimony.)
12. Watts enrolled in a Master Gardener Course at the University of Connecticut Extension Program in Hamden in August of 2004 and attended this program on Tuesdays from January 2005 through mid-April 2005.
13. Watts missed the first two sessions due to vacation but attended 13 of the full day classes during normal work hours.
14. Watts completed successfully the course and received a certificate as a Master Gardener, (Watts testimony.)
15. Watts testified that he believed the Master Gardener course was necessary for him to carry out his duties as Director of Community Support Services. (Watts testimony.)
16. Watts testified that he asked for no reimbursement for the Master Gardener course. Previously, he had not sought reimbursement for his advanced degree from Northfield University, London, England. (Watts testimony.)
17. Through his secretary, Watts recorded the time spent in the Master Gardener course as regular time. (Watts testimony.)
18. According to Estrella's testimony there is a Training Code, which should be used on time sheets when an employee is in training.
19. While at the Master Gardener class, Watts made himself available by cell phone. (Watts, Estrella testimony.)
20. DeVore testified that he held staff meetings every Wednesday, which Watts attended. At those meetings each staff member was asked to give a report on their activities that week. DeVore testified that Watts never informed him through venue or through personal contact that Watts was attending the Master Gardener Course. (DeVore testimony.)
21. Rayford testified that he was not aware that Watts had signed up for the Master Gardener course, but testified that the program was worthy of pursuit. (Rayford testimony.)
22. When Devore came on board Watts contends that he continued in his role, doing business as usual, adopting the philosophy, "change nothing until you are told to." (Watts testimony.)
23. Watts testified that he sent a two-sentence email to Karen Snyder, Deputy Commissioner in August 2004 indicating he was taking a Master Gardener course. A copy of the email could not be located. (Watts testimony.)
24. DeVore stated that if he had received a request from Watts to take the Master Gardener Course he would not have approved the request. (DeVore testimony.)
25. Watts was placed on administrative leave with pay on April 22, 2005. The letter notifying him of the action stated, in pertinent part, "you will remain in this status until such time as you are contacted regarding the scheduling of an investigatory interview." (State 3.)
26. On June 15, 2005 Watts was informed of an investigatory hearing. The notification letter stated, in pertinent part, "at this meeting we will discuss allegations relative to misuse of state time." (State 4.)
27. Estrella testified that Watts remained on leave past regulatory time limits. (Estrella testimony.)
28. Watts was notified of a Loudermill hearing scheduled for September 20, 2006, by letter dated September 13, 2006. The letter stated, in pertinent part, "you are charged with violation of the Department of Administrative Services, Personnel Regulation Section 5-240-1a(c)11, which indicates, `neglect of duty, or other employment related misconduct,' and is just cause for serious discipline up to and including dismissal." The letter continued, "this violation has resulted from your misuse of state time as evidence [sic] by your taking a Master Gardener course during your work hours without authorization. Additionally, there is evidence of falsification of time cards. This has been substantiated by your admission during the investigation and was documented by your attendance records." (State 5.)
29. Watts received notice of his dismissal, with an effective date of January 10, 2006, in a letter from DeVore dated December 27, 2005. This letter states in pertinent part: "you are being dismissed from your position as Assistant Superintendent with the Department of Children and Families effective January 10, 2006, close of business. This action is taken for just cause and is in compliance with State Administrative Regulations, Sections 5-240-5a and 5-240-8a(b) inclusive." DeVore continues. "Specifically, this action is taken for misuse of state time as demonstrated through your attendance at a Master Gardening course during work time for the period of January 2005 through April 2005. You failed to advise me and obtain supervisory approval to attend this course on state time. You also falsified your time card when you coded regular work time during the time period you traveled to and attended class. Your actions constitute neglect of duty and are in direct violation of the following agency policy and state regulations:
DCF policy 7-4-3.1, Neglect of Duty
Administrative Regulation: 5-240-1a (7): Theft, willful neglect or misuse of any state funds, property, equipment, material of supplies.
Administrative Regulation: 5-240-1a(8): Deliberate violation of any law, state regulation or agency rule.
Administrative Regulation: 5-240-1a(11): Neglect of duty, or other employment related misconduct." (Joint 4.)
30. Given the gravity of the issue DeVore stated he did not consider past work history in agreeing with the decision to terminate Watts. (DeVore testimony.)
The court finds that with respect to the findings of fact that there is substantial evidence in the record to support each of the findings of fact.
The ERB from its findings of fact concluded that "Attending a training course without notice or permission is a violation of DCF policy regarding Neglect of Duty and state regulations regarding misuse of state time (conclusions of law number 5). Further the ERB concluded "Under the provisions of § 5-240-1a of the Regulations of Connecticut State Agencies, DCF has just cause to dismiss Watts for misuse of state time in violation of § 5-240-1a(7) of the regulations of Connecticut State Agencies and violation of DCF policy 7-4-3.1, Neglect of Duty.
The ERB also concluded that "Under the provisions of § 5-240-1a of the regulation of Connecticut State Agencies DCF did not have just cause to dismiss Watts for falsification of time sheets (conclusions of law number 7). In upholding the dismissal and denying Mr. Watts' appeal the ERB decision concludes "after careful study of the record in its entirety, including all evidence and arguments submitted by the parties, it is held that the termination of John Watts was neither arbitrary nor taken without reasonable cause. The appeal of John Watts is denied." The issues submitted to the ERB by the parties was: "Did the state dismiss Dr. John K. Watts, Jr., for just cause in accordance with Connecticut General Statute § 5-240 in Connecticut Agencies Regulations § 5-240-5a?
If not, what shall the remedy be?"
The Uniform Administrative Procedure Act (UAPA) Connecticut General Statute §§ 4-166, 4-183j significantly limits the court's review of agency decisions: "the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative finding, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedures; (4) affected by other errors of law; (5) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or (6) arbitrary capricious or characterized by abuse of discretion are clearly unwarranted exercise or discretion. If the court finds such prejudice, it shall sustain the appeal . . ." If the court were engaged in a de-novo review of the appropriate discipline under this factual scenario a less severe penalty would be a more likely outcome. However, the employment disciplinary standards for DCF are not the province of the court but by statute are entrusted to the agency. The court may only intercede under the UAPA standards set forth above. The court does not find the type of prejudice as required by the statute to overturn the agency determination.
The plaintiff missed at least 13 full days of normal work hours to attend the Master Gardener Course for which he received no approval by any supervisory employee. The course was never mentioned to his immediate supervisor with whom he met at least weekly. The plaintiff recorded the time spent in the gardener course as regular time, rather than using a training code. Missing at least 13 full days of work for these unapproved reasons should certainly be viewed as reasonable cause for the termination. It would also not constitute arbitrary action by the employer.
The procedural objections of Mr. Watts relate to the placing of Mr. Watts on administrative leave for a period in excess of 15 days. The plaintiff fails to demonstrate how this prejudiced substantial rights of his as it continued his pay while the investigation dragged on. His failure to file an appeal of the administrative leave status in accordance with § 5-240-5a(f) Regulation of Connecticut State Agencies is reasonably construed as a waiver.
The decision of the ERB is affirmed. The plaintiffs appeal is dismissed.