STATE OF RHODE
ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION
CENTRAL
COVENTRY FIRE DISTRICT :
V. : No. A.A. 04-04
BOARD OF REVIEW, et al. :
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Introduction
Cenerini, J. The matter before this Court is the Central Coventry Fire District's
(hereinafter CCFD), petition for review pursuant to R.I.G.L. 1956 § 42-35-15,
challenging the January 9, 2004 decision of the Board of Review, which reversed
the Director of the Department of Labor and Training's decision dated November
19, 2003, thus finding Michael A. Stevens (hereinafter Stevens), an employee
of CCFD eligible for unemployment benefits.
Facts and Travel
On August 14, 2001, Stevens began his employment as a firefighter with the CCFD.
On January 21, 2003, Stevens was arrested by the West Warwick Police Department
and charged with drug related felonies. Stevens was notified by letter dated
January 29, 2003 that he was being "placed on administrative leave with
pay until further notice, due to [his] pending legal case." (Employer's
Exhibit 1.)
On March 12, 2003, a letter was forwarded to Stevens advising him that a hearing
would be held during a regularly scheduled CCFD meeting on March 20, 2003 to
consider whether to take disciplinary action against him for violation of his
oath of office, or violation of the Department's Standard Operating Procedures
Governing "Responsibilities of Members", subsections (1) and (2).
The Board also noticed that it would inquire into the status of his Emergency
Medical Technician (hereinafter EMT) license at that time. Stevens was given
notice that he had the right to attend the hearing "with counsel and to
request the opportunity to present testimony under oath." (Employer's Exhibit
2.)
Stevens did not attend the hearing, and the Board acted in his absence. Notification
was sent to Stevens's attorney indicating Stevens would be "suspended without
pay pending a full hearing on these charges. The suspension will include a suspension
of all monetary payments and other benefits…" (Employer's Exhibit 4.)
As a condition of his employment as a firefighter, Stevens is required to maintain
an EMT-C license. As stated in the collective bargaining agreement, the CCFD
is required to provide its employees with EMT refresher training to maintain
their certification. Stevens was participating in the CCFD EMT refresher program
prior to his arrest.
CCFD Chief Robert Seltzer told Stevens, upon his suspension without pay, that
he would be ineligible to continue with the CCFD program. The Chief informed
Stevens that he had the option of taking an outside class. His EMT certification
was set to expire on June 30, 2003.
On August 4, 2003, the CCFD attorney inquired into the status of Stevens' EMT
license. The following day, the Chief of Emergency Medical Services with the
Department of Health indicated in writing that Stevens's EMT license had expired
on June 30, 2003. (Employer's Exhibit 7.) As a result of the license expiration,
Stevens was notified by letter dated August 5, 2003 that a hearing would be
held during a meeting of the Board of Directors for the CCFD on August 14, 2003.
The hearing would determine whether disciplinary action should be taken as a
result of Stevens's failure to maintain an active EMT license.
Stevens did not appear at the hearing. He was represented at the hearing by
two union officials from the Rhode Island Association of Firefighters, AFL-CIO.
It was determined that Stevens' EMT license had expired on June 30, 2003. At
the hearing, the Board of Directors voted to terminate Stevens' employment with
the CCFD for violation of Article I, Section 7 of the collective bargaining
agreement. That provision required an EMT-C license be maintained as a condition
of employment. Stevens' termination was effective August 15, 2003. Stevens was
notified of his termination by Chief Seltzer's letter dated August 18, 2003.
(Employer's Exhibit 8.)
On August 18, 2003, Sevens filed a claim for unemployment security benefits.
On August 27, 2003, Stevens plead nolo contendere to a reduced misdemeanor possession
of marijuana, first offense and received a sentence of one year probation, fifty
(50) hours of community service, and was ordered to attend drug counseling and
screening. On September, 3, 2003, the Director determined Stevens voluntarily
quit his job without good case, within the meaning of § 28-44-17. Stevens
timely appealed the Director's decision on September 16, 2003.
On October 22, 2003, the Department of Labor and Training sent notice of a hearing
to Stevens and the CCFD. The October 31, 2003 hearing was to address whether
or not Stevens leaving his employment was voluntary. After beginning this hearing,
both parties agreed the claimant was terminated by the employer and did not
voluntarily leave his position. The hearing was continued on November 7, 2003,
where Stevens and the Fire Chief, both represented, testified.
The Referee determined that Stevens was discharged, but not for reasons of job
related statutory misconduct, under G.L. § 28-44-18, and would be entitled
to receive Employment Security benefits if he met all other eligibility requirements.
On November, 26, 2003, CCFD timely appealed the Referee's decision and the matter
was heard by the Board of Review on January 7, 2004. The Board determined "that
the decision of the Referee is a proper adjudication of the facts in this case
and the law applicable thereto." Thereafter, the CCFD filed a petition
for review; jurisdiction for review of the decisions of the Board is vested
in the District Court by Rhode Island General Laws § 28-44-52.
Standard of Review
The standard of review is provided by Rhode Island General Laws § 42-35-15(g),
a section of the Administrative Procedures Act, which provides as follows:
42-35-15. Judicial review of contested cases.
(g) 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 may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, 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 procedure;
(4) Affected by other error or law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
Thus, on questions
of fact, the District Court "…may not substitute its judgment for that
of the agency and must affirm the decision of the agency unless its findings
are clearly erroneous." Guarino v. Department of Social Welfare, 122 R.I.
583, 584, 410, A.2d 425 (1980) (citing Rhode Island General Laws § 42-35-15
(g)(5)). The Court will not substitute its judgment for that of the Board as
to the weight of the evidence on questions of fact. Cahoone v. Board of Review
of the Department of Employment Security, 104 R.I. 503, 246 A.2d 213 (1968).
Stated differently, the findings of the agency will be upheld even though a
reasonable mind might have reached a different result. Cahoone, 246 A.2d at
215. See also, D'Ambra v. Board of Review, Department of Employment Security,
517 A.2d 1039, 1041(R.I. 1986).
The Court has recognized that a liberal interpretation shall be utilized in
construing and applying the Employment Security Act:
…eligibility for benefits is to be determined in the light of the expressed
legislative policy that "Chapters 42 to 44, inclusive, of this title shall
be construed liberally in aid of their declared purpose which declared purpose
is to lighten the burden which now falls on the unemployed worker and his family."
G. L. 1956, § 28-42-73. The legislature having thus declared a policy of
liberal construction, this court, in construing the act, must seek to give as
broad an effect to its humanitarian purpose as it reasonably may in the circumstances.
Of course, compliance with the legislative policy does not warrant an extension
of eligibility by this court to any person or class of persons not, intended
by the legislature to share in the benefits of the act; but neither does it
permit this court to enlarge the exclusionary effect of expressed restrictions
on eligibility under the guise of construing such provisions of the act. Harraka
v. Board of Review of Department of Employment Security, 98 R.I. 197, 201, 200
A.2d 595, 597 (1964).
Argument
Petitioner requests
this Court to reverse the Board of Review's decision. The Petitioner argues
that Stevens was appropriately "discharged for proved misconduct"
as defined in G.L. § 28-44-18. More specifically, Petitioner asserts that
Stevens' failure to renew his EMT license certification and his criminal conduct
are both sufficient bases under the statute to warrant a misconduct termination,
which would disqualify Stevens from receiving unemployment compensation benefits
The Board of Review determined that Stevens was discharged, but not for reasons
of misconduct. The Board of Review adopted the following findings of fact from
the Referee:
"In December 2002 the claimant began taking a refresher course in order
to maintain his EMT-C License which was set to expire June 30, 2003. The employer
was administering this refresher course. According to the collective bargaining
agreement an employee must maintain a Rhode Island EMT - C license as a condition
of employment. On January 21, 2003 the claimant was arrested for possession
of marijuana. This marijuana was found in the basement of claimant's home. As
a result of the pending criminal charges against the claimant he was placed
on paid administrative leave effective January 29, 2003. He had a discussion
with the Chief concerning his attendance at the EMT-C refresher course. He was
advised by the Chief to stay away from the Fire Department and not to continue
with the refresher course…[After a March 20, 2003 hearing, the claimant] was
placed on leave without pay pending a full hearing on the charges. Due to the
claimant's suspension he was again unable to participate in the EMT-C refresher
training. On March 21, 2003 claimant called Roger Williams Hospital in an attempt
to try to obtain the EMT-C training privately. He was advised the hospital was
not conducting an EMT-C training class until July 2003. The claimant was unable
to renew his EMT-C license by June 30, 2003…As a result of the claimant's failure
to renew his EMT-C license; the Board of Directors terminated the claimant from
employment."
The Board adopted
the following conclusions of the Referee:
"The claimant was discharged because he failed to renew his EMT-C license…The
facts clearly show that the employer originally removed the claimant from the
EMT-C refresher course due to the pending criminal charges. The claimant made
a reasonable attempt to try and secure the EMT-C through a private agency, but
was unsuccessful. Since the claimant did make a reasonable attempt to try to
renew his EMT-C license, before it expired, [the Referee could not] find that
there [was] any evidence to show that the claimant committed an act of willful
misconduct in connection with his work. In the absence of any evidence of any
proven misconduct on the part of the claimant, he cannot be disqualified from
benefits under the provisions of section 24-44-18."
The issue before
the Board was whether or not Stevens was discharged from his job under disqualifying
circumstances within the provisions of § 28-44-18 of the Rhode Island Employment
Security Act. To impose disqualification for unemployment compensation benefits,
there must be proof that the individual discharged committed an act of misconduct
in connection with the work. This Court is guided by G. L. § 28-44-18 and
Rhode Island case law in determining whether the Board erred in finding no misconduct.
Under the statute, misconduct is defined as:
"…deliberate conduct in willful disregard of the employer's interest, or
a knowing violation of a reasonable and uniformly enforced rule or policy of
the employer, provided that such violation is not shown to be as a result of
the employee's incompetence. Notwithstanding any other provisions of chapters
42 - 44 of this title, this section shall be construed in a manner that is fair
and reasonable to both the employer and the employed worker. G.L. § 28-44-18.
Further, the Rhode
Island Supreme Court has provided the standard for defining "misconduct"
under the statute in Turner v. Department of Employment Security, 479 A.2d 740,
741-41 (R.I. 1984).
"'Misconduct'…is limited to conduct evincing such willful or wanton disregard
of an employer's interests as is found in deliberate violations or disregard
of standards of behavior which the employer has the right to expect of his employee,
or in carelessness or negligence of such degree or recurrence as to manifest
equal culpability, wrongful intent or evil design, or to show an intentional
and substantial disregard of the employer's interests or of the employee's duties
and obligations to his employer. On the other hand mere inefficiency, unsatisfactory
conduct, failure in good performance as the result of inability or incapacity,
inadvertencies or ordinary negligence in isolated instances, or good faith errors
in judgment or discretion are not to be deemed 'misconduct' within the meaning
of the statute." Id. (citing Boynton Cab Co. v. Neubeck, 237 Wis. 249,
296 N.W. 636 (1941)).
Petitioner suggests this matter is analogous to the case of Bunch v. Board of
Review. 690 A.2d 335 (R.I. 1997). In Bunch, West Warwick police discovered narcotics
and drug paraphernalia at the employee's home. Criminal charges were filed against
the employee, Superintendent of the Rhode Island Training School. Following
an administrative hearing, the employee was terminated. In finding the employee
was discharged under disqualifying circumstances, the Rhode Island Supreme Court
stated:
"…it is undisputed that the claimant had a position of high visibility
and great responsibility. As superintendent of the training school, she had
an obligation to maintain standards of conduct at the very least in compliance
with the criminal law both on and off the job. To possess controlled substances
and drug-related paraphernalia in her home was completely to violate those standards
of conduct that the employer had a right to expect from her." Id.
Petitioner suggests
Stevens' failure to maintain licensure as an Emergency Medical Technician goes
to the heart of the performance of his duties. Petitioner asserts that Stevens
allowed this lapse to occur in spite of his personal knowledge that his EMT-C
license certification was a condition of his employment under the collective
bargaining agreement. (Tr. at 60.) Petitioner further suggests that due solely
to Stevens' own wrongful conduct, he was justifiably suspended from his employment
duties and consequently unable to continue with his training offered by the
CCFD. The Petitioner argues it was Stevens' responsibility, and his alone, to
maintain an active license and he failed to do so.
The record clearly shows that Stevens was unable to maintain his EMT-C license.
Stevens's failure to maintain the license was attributed to his suspension from
the CCFD because the CCFD did not permit Stevens to continue participating in
their training program during that time. The Board found that, "[d]ue to
the claimant's suspension he was again unable to participate in the EMT-C refresher
training." The collective bargaining agreement states, "[e]ach employee
is required to maintain a current State of Rhode Island EMT-A license and current
certification as an EMT-C…" and that "[t]he District will provide
EMT refresher training…as required by State Law to maintain [their certification.]"
However, neither Stevens, nor the employer were required to fulfill their respective
EMT training obligations while Stevens was suspended from his duties.
Petitioner further argues that Stevens was clearly guilty of the underlying
criminal wrongdoing that lead to his suspension, and suggests this criminal
conduct alone is an adequate basis for his termination. Petitioner also asserts
that the employer was under no obligation to wait until Stevens admitted to
criminal conduct before discharging him from employment. See Bunch, 690 A.2d
335 (R.I. 1997). In Bunch, an arrest warrant was issued and criminal charges
were filled against the employee, following a toxicology report that the substance
seized from her house had tested positive for cocaine. Because of the criminal
charges, an administrative hearing was held and the employee was terminated
from her position prior to the adjudication of the criminal charge. In holding
that the Board of Review had ample competent evidence to support its finding
that the misconduct was job related, the Court made note of the employee's position.
"Many of the young people committed to her care at the training school
were confined for drug-related offenses. A superintendent who committed similar
offenses and was criminally charged for so doing could scarcely be said to have
committed a non-job-related offense." Id. at 337-8. The Bunch case is not
directly analogous to the case at bar. Although Stevens position as a firefighter
is considered a position of "great responsibility," the criminal conduct
Stevens was charged with did not "totally extinguish" his "ability
to carry out the duties of [his] office]", as in the Bunch case. Id. at
338.
Further, Petitioner argues Stevens' nolo contendere plea was admissible before
the Board of Review. See Turner v. Department of Employment Security, 479 A.2d
740 (R.I. 1984). In Turner, the Rhode Island Supreme Court held "the board
was correct to consider Turner's admitted wrongdoing and deny him benefits pursuant
to § 28-44-18." Id. at 743. In so holding, the Court considered Turner's
plea of nolo contendere in regard to criminal charges which arose out of work-related
incidents.
The instant case is to be distinguished in that Stevens charges did not arise
out of work-related incidents, as in Turner. Also, Stevens did not plead nolo
contendere to the criminal charges until after his termination. Moreover, the
CCFD did not rely on the criminal allegations in its termination notice to Stevens.
(Employer's Exhibit 8). Pursuant to the United States and Rhode Island Constitutions,
a person is presumed innocent until such time as the state proves the defendant
(claimant) guilty beyond a reasonable doubt. Here, Stevens had not been convicted,
nor had he admitted to the reduced charge as of the time of his termination.
Also, Stevens' subsequent plea of nolo contendere is not to be considered in
determining whether the Board erred in refusing to find statutory misconduct
to warrant disqualification of unemployment benefits because his criminal wrongdoing
was non-work related.
After review of the entire record, this Court finds the decision of the Board
allowing the claimant benefits under the discharge provisions of the Rhode Island
Employment Security Act is not clearly erroneous. The Board found the claimant
was discharged, but not for reasons of misconduct in connection with his work.
This Court finds the Board's determination that Stevens was entitled to receive
Employment Security benefits was supported by the reliable, probative and substantial
evidence on the whole record, and further that its decision is not arbitrary
or capricious or an abuse of discretion.
Accordingly, the decision of the Board is affirmed.