SC Administrative Law Court Decisions

STATEMENT OF THE CASE

The above-captioned matter is before the South Carolina Administrative Law Court (“ALC” or “Court”) pursuant to S.C. Code Ann. §§ 1-23-320(d) and 1-23-600(F) (2005 and Supp. 2006). On July 19, 2007, South Carolina State University (“Respondent”) filed a motion to quash three subpoenas which were issued during the course of proceedings before the South Carolina State Employee Grievance Committee (“Committee”) concerning Stanard Johnson (“Petitioner”) and Respondent.[1] Although he did not respond to Respondent’s motion, Petitioner subsequently filed a motion to dismiss the instant matter before the Court for lack of jurisdiction; however, the motion was denied on July 30, 2007. Based upon the parties’ motions and supporting documents, a teleconference between the parties to discuss their various positions with the Court, and the applicable law, I find that Respondent’s motion must be denied in part and granted in part.

PROCEDURAL HISTORY

On August 28, 2006, Petitioner was terminated from his employment with Respondent. Consequently, Petitioner initiated review of his termination by Respondent through the internal grievance process, and this process is currently ongoing within the Committee.[2] Respondent’s General Counsel, Edwin D. Givens (“Mr. Givens”), has been involved in this grievance process, which included mediation, a subsequent hearing by Respondent’s Grievance Review Panel (“Panel”), and potentially the present matter pending before the Committee. The Panel met on November 30, 2006 to consider Petitioner’s grievance concerning his termination by Respondent. The Panel was composed of three persons during its hearing process: Derrick Greene, an employee of Respondent who served as the Panel’s chairman (“Panel Chairman” or “Mr. Greene”), Cynthia Pyatt-Green, and Lillian Adderson. During the Panel hearing, Myron Samuels, Director of Respondent’s Campus Services, John E. Smalls, Respondent’s Senior Vice President for Finance, and Eartha Fickling, an administrative specialist with Respondent, testified on behalf of Respondent. Also, during the Panel hearing Petitioner called as witnesses Allen Adgerson, a person hired by Petitioner as a member of Respondent’s building and grounds crew, and Charles Young, a former employee of Respondent’s building and grounds department.

After the hearing process was concluded, the Panel found that based upon Respondent’s “Progressive Discipline Guidelines,” Respondent followed the proper procedures in terminating Petitioner for gross insubordination.[3] (Respt.’s Mot. at 5). Based upon the Panel’s decision, Petitioner sought further review of this matter by initiating proceedings before the Committee. During the course of the proceedings before the Committee and pursuant to S.C. Code Ann. § 8-17-340 (Supp. 2006), the Committee Chairperson issued three subpoenas to Respondent. The first subpoena required the Respondent to produce specific documents to Petitioner’s counsel, and the second and third subpoena required two individuals to appear and testify at the Committee hearing scheduled for April 25, 2007. Respondent, through counsel, filed a Motion to Quash Subpoena on May 15, 2007 with the Committee; however, Respondent was informed that the motion was more properly made before the ALC, and Respondent filed its motion with the ALC on July 19, 2007.[4] Petitioner did not file a written response to Respondent’s motion. Rather, Petitioner, through counsel, filed a motion to dismiss with the ALC based upon lack of jurisdiction. Petitioner’s motion to dismiss was denied on July 30, 2007, and counsel for the parties participated in a teleconference with the undersigned on August 1, 2007.

DISCUSSION

Title 8, Article 5, entitled “State Employee Grievance Procedure” (the “Act”), contains definitional provisions and procedures for “covered employees” which are intended to assist them in resolving appeals of adverse employment actions. See generally S.C. Code Ann. §§ 8-17-320 and 8-17-370 (Supp. 2006); § 8-17-320(7) (defining “covered employee”). Covered employees must first seek resolution of the matter through the agency grievance procedure, which includes a hearing before an agency grievance panel. If the employee receives an adverse decision from the agency grievance panel, the employee may appeal that decision to the State Human Resources Director by filing a written appeal within ten (10) calendar days from its receipt of the panel’s adverse decision or within fifty-five (55) calendar days after the employee files the grievance with the agency. The State Human Resources Director forwards to the Committee all appeals which meet jurisdictional requirements and which relate to the following adverse employment actions: terminations, salary decreases based on performance, demotions, suspensions for more than ten days, and reductions in force when the State Human Resources Director determines that there is a material issue of fact regarding inconsistent or improper application of the agency’s reduction in force plan or policy.

Pursuant to the Act, the Committee serves as the administrative hearing body for covered employee appeals and, unlike the agency grievance panel, conducts all its hearings in accordance with the South Carolina Administrative Procedures Act (APA). § 8-17-330. In creating this grievance process and applying the APA, it is apparent that the South Carolina General Assembly sought to ensure that fair hearings were provided by allowing parties to introduce evidence into the record at hearings conducted by the Committee.[5] Furthermore, it is equally apparent that the matter heard by the Committee is conducted as a contested case hearing.[6] As in APA contested case hearings, there is pre-hearing discovery and a trial where witnesses are called to present direct testimony and are subject to cross-examination.

In section 8-17-340(E), there are two standards or burdens of proof which the Committee must apply in reviewing decisions of agency grievance panels:

(1) In cases involving actual or threatened abuse, neglect, or exploitation . . . of a patient, client, or inmate by an employee, the agency’s decision must be given greater deference and may not be overruled by the committee, unless . . . :

(a) [t]he agency’s finding . . . is clearly erroneous in view of the reliable, probative, and substantial evidence;

(b) [t]he agency’s disciplinary action was not within its established personnel policies, procedures, and regulations; or,

(c) [t]he agency’s action was arbitrary and capricious.

(2) In all other cases [heard on review], the Committee may not alter or overrule an agency [panel’s] decision unless the covered employee establishes that the [panel’s] decision is one or more of the following and prejudices substantial rights of the covered employee:

(a) in violation of constitutional or statutory provisions;

(b) in excess of statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Id. (emphasis added).[7] In these hearings before the Committee, the petitioner is statutorily required to meet a higher standard of proof than in most all other contested case matters heard in this state. The burden of proof on the petitioner in these Committee hearings is not the preponderance of the evidence, but is the substantial evidence standard which is used in all appeals to this Court, the circuit court, the Court of Appeals and the Supreme Court when reviewing on appeal a final decision in a contested case. See S.C. Code Ann. § 1-23-380(A)-(B) (Supp. 2006). The preponderance of the evidence standard is not mentioned in the Act and is not mandated for usage in the Panel hearings or in the Employee Grievance hearings. In fact, there is no decisional or statutory law requiring any level of proof in the Panel hearings. Accordingly, since the South Carolina General Assembly has excluded the mandates of the APA in the agency grievance panel hearing process, and has not provided that any burden of proof standard is applicable in them, it appears that these hearings are limited in scope and of limited usage, if any, except to provide some record to the Committee to review on appeal.[8] Notwithstanding, the Panel hearing decision cannot be reversed unless the higher standard of proof is met by the petitioner/appellant.

Subpoena requiring the production of various records and documents

The first subpoena issued by the Committee Chairperson was directed to Respondent and required it to provide to Petitioner at his attorney’s office, not later than five days prior to the hearing date of April 25, 2007, the following:

(1) All documents in [Respondent’s Human Resources Department] pertaining to Allen Adgerson, including P-13’s and demographics information;

(2) All purchase orders and requisition forms for steam cleaning equipment purchased by Respondent in July of 2006 for use by [Respondent’s ground crew];

(3) Emails and cell phone records (803 378-5124) of Myron Samuels for the time period June 2, 2006 through September 30, 2006;

(4) Emails and cell phone records of John E. Smalls for the time period June 1, 2006 through September 30, 2006;

(5) All documents pertaining to and contracts between Enviro Ag Science and Respondent, including all documents reflecting the termination of such contract; (6) Complete investigative file pertaining t [sic] the hiring and retention of Allen Adgerson;

(7) Complete personnel file of Petitioner; and

(8) Contract between Petitioner and Respondent to run [Respondent’s grounds crew] for a one year period.

Respondent opposes providing the records sought by arguing that they are not relevant to the issues to be addressed in the proceeding before the Committee. In response, Petitioner argued during the teleconference that the requested documents may provide some rationale and/or reasoning for Petitioner’s termination that was neither adduced during the Panel hearing nor made a finding in the Panel’s order.

Since the hearing process before the Committee is a contested case matter, discovery in these matters is necessary, and the chairman of the Committee is authorized to issue subpoenas for files, records, and papers. § 8-17-330(C). Although the requested papers, records, and contracts may be irrelevant to the issues before the Committee, the Committee and its assigned attorney, applying the rules of evidence as required by the APA, can rule on their admissibility and make such determinations which are appropriately and inherently left to the trial judge. See S.C.R.E. 402 (providing that relevant evidence is generally admissible); § 1-23-301(1) (providing that irrelevant, immaterial or unduly repetitious evidence shall be excluded). It does not prevent such material from being reviewed during discovery; Petitioner has the right to review them and to make a preliminary determination as to whether or not they should be offered into evidence. Some of the requested records may have already been reviewed by Respondent and the Panel and may have been relied upon by the Panel in making its adverse decision to the Petitioner.

It would be presumptuous and improper for this Court to rule on the admissibility of these matters, records and contracts; they may be relevant and may contain materials and evidence needed by the Committee to make a ruling on all issues it will have to address. This Court cannot make a determination, as argued by Respondent, that none of these documents make it more or less probable that Respondent’s determination was improper based upon the criteria contained in section 8-17-340(E). The provisions set forth in that statute deal with the evidence to be presented to the Committee to assist it in either sustaining, rejecting, or modifying the Panel’s decision.

Since many of these documents appear to be confidential in nature and/or may contain information which, if disseminated to the public could cause unnecessary harm to the Respondent and its vendors, the court orders that these documents and/or verified copies must be maintained by counsel for Petitioner in a confidential manner, and that no copies will be made except to provide such to the Committee, if offered as evidence. No information derived there from shall be shared or disseminated to any third person except for use in these proceedings or other proceedings arising there from. Furthermore, at the conclusion of such proceedings, Petitioner and his attorney will destroy any copies not of record.

Accordingly, Respondent’s motion is denied in part and Respondent must furnish to Petitioner’s attorney within fifteen (15) days from the date of this Order the records and information requested in the subpoena.

Subpoena requiring Mr. Greene, Chairman of the Panel, to appear before the Committee to testify

As to the subpoena directed to Mr. Greene, the Panel Chairman, Respondent asserts that “he is immune from testifying in this matter under the mental processes rule because he was acting in a quasi-judicial manner as the Chairman of the University Grievance Review Panel.” (Respt.’s Mot. at 7). Respondent further asserts that “Panel members cannot be compelled to give any testimony regarding their deliberations in [Petitioner’s] grievance hearing” because “[t]he mental processes rule protects the secret mental processes of those who, acting in a judicial or quasi-judicial capacity, make decisions as to fact or law.” Id.

It is admitted that Mr. Greene acted in the official capacity of a hearing officer when he conducted the agency grievance hearing and when he signed the Panel’s order.[9] In U.S. v. Morgan, 313 U.S. 409 (1941), our Supreme Court held that the Secretary of Agriculture, acting as a hearing officer, “dealt with the enormous record in a manner not unlike the practice of judges in similar situations” and that he should never have been subjected to an examination concerning his mental process in ruling on the matter.[10] The Supreme Court further stated that:

The proceeding before the Secretary ‘has a quality resembling that of a judicial proceeding.’ Such an examination of a judge would be destructive of judicial responsibility. We have explicitly held in this very litigation that ‘it was not the function of the court to probe the mental processes of the Secretary.’ Just as a judge cannot be subjected to such a scrutiny, so the integrity of the administrative process must be equally respected. It will bear repeating that although the administrative process has had a different development and pursues somewhat different ways from those of courts, they are to be deemed collaborative instrumentalities of justice and the appropriate independence of each should be respected by the other.

Id. at 422 (citations omitted).

In 1991, the 4^th Circuit Court of Appeals held in Franklin Sav. Ass’n v. Ryan, 922 F.2d 209 (4th Cir. 1991), that “[s]ince Morgan, federal courts have consistently held that, absent ‘extraordinary circumstances,’ a government decision-maker will not be compelled to testify about his mental processes in reaching a decision, ‘including the manner and extent of his study of the record and his consultations with subordinates.’” Id. at 211. See Simplex Time Recorder Co. v. Sec’y of Labor, 766 F.2d 575, 586 (D.C. Cir. 1985); Sweeney v. Bond, 669 F.2d 542, 546 (8th Cir. 1982), cert. denied, 459 U.S. 878 (1982); Kyle Eng’g Co. v. Kleppe, 600 F.2d 226, 231-232 (9th Cir. 1979); Bank v. Camp, 396 F.2d 52, 56 (6th Cir. 1968); Stiftung v. Zeiss, Jena, 40 F.R.D. 318, 325-326 (D.D.C. 1966), aff’d sub nom. Zeiss, Jena v. Clark, 384 F.2d 979 (D.C. Cir. 1967), cert. denied, 389 U.S. 952 (1967). Franklin notes that the court in Zeiss stated:

The judiciary, the courts declare, is not authorized “to probe the mental processes of an executive or administrative officer. This salutary rule forecloses investigation into the methods by which a decision is reached, the matters considered, the contributing influences, or the role played by the work of others-results demanded by the exigencies of the most imperative character. No judge could tolerate an inquisition into the elements comprising his decision-indeed, ‘[s]uch an examination of a judge would be destructive of judicial responsibility’-and by the same token ‘the integrity of the administrative process must be equally respected.”

Franklin, 922 F.2d at 211 (emphasis in original). Further, the Franklin court noted that

Only where there is a clear showing of misconduct or wrongdoing is any departure from this rule permitted. This principle is well expressed in Feller v. Bd. of Educ. of Conn., 583 F. Supp. 1526, 1528 (D. Conn. 1984). As a matter of hornbook administrative law: In reviewing a decision of an administrative agency, it is not the proper function of the court to probe the mental processes of the agency or its members. . . . . Such probing should ordinarily be avoided, and there must be a strong showing of bad faith or improper behavior before such inquiry may be made.

Id. at 211-2 (emphasis in original).

Concerning those cases which allege bad faith or improper behavior on the part of an administrative agency, the 4th Circuit observed that the facts in Singer Sewing Machine Co. v. NLRB, 329 F.2d 200 (4th Cir. 1964) illustrated a prima facie showing of misconduct. In Singer, a field examiner of the NLRB was subpoenaed by Singer to testify at the NLRB hearing about any part he played in the determination process. The petition to revoke the subpoena was referred by the Regional Director to a trial examiner who ruled that the motion to revoke the subpoena should be granted. He held that the testimony would be immaterial to the issues in the case and that the interrogation was barred by NLRB’s rules and by court decisions that precluded “inquiry into the mental processes of administrative officials in the discharge of their official duties and quasi-judicial functions.” Id. at 205. The NLRB upheld the ruling. Upon appeal, the district court reversed the NLRB ruling, holding that Singer had shown at the NLRB hearing that the investigator might have participated in a violation of section 9(C)(5) of the National Labor Relations Act on behalf of the Board and it remanded the matter to the Board for further proceedings. Id. at 208.

However, the mere allegation of improper conduct in these matters does not require that an individual who participated in administrative agency hearing processes to later testify concerning those processes. In Grant v. Shalala, 989 F.2d 1332 (3rd Cir. 1993), the plaintiffs attempted to delve deeply into the decision-making process of a federal administrative law judge (“ALJ”). They deposed an employee who had assisted the judge in writing opinions for five years. In her deposition, she testified about the judge’s instructions, any “stock” language he used in opinions, differences between his work procedures and views from other judges, his consultation with law books, his familiarity with and views about particular rules of law, how he evaluated certain types of evidence, his views regarding alcoholism and obesity, and many other matters. Id. at 1345. Judge Alito, a member of the court at that time, wrote that the court did not approve of the discovery of the type permitted here, stating it “did not sanction depositions of a judge’s co-workers and staff”. Id. The court held that:

Such efforts to probe the mind of an ALJ, if allowed, would pose a substantial threat to the administrative process. Every ALJ would work under the threat of being subjected to such treatment if his or her pattern of decisions displeased any administrative litigant or group with the resources to put together a suit charging bias. Every ALJ would know that his or her staff members could be deposed and questioned in detail about the ALJ’s decision making and thought processes, that co-workers could be subpoenaed and questioned about social conversations, that the ALJ’s notes and papers could be ordered produced in discovery, and that any evidence gathered by these means could be used, in essence, to put the ALJ on trial in district court to determine if he or she should be barred from performing the core functions of his or her office.

Id. Further, Judge Alito wrote that the court fully recognizes that: (1) “bias on the part of ALJ’s may undermine the fairness of the administrative process”; (2) “[t]rial before an unbiased judge is essential to due process”; and, (3) “[a]ny tribunal permitted by law to try cases and controversies not only must be unbiased but also must avoid even the appearance of bias.” Id. at 1345-6 (citations omitted). The Grant court further found that the district court trial and the fact-finding that the plaintiffs sought was “not necessary in order to safeguard the impartiality of [the disability adjudications].” Id. at 1346.

In the instant matter, the hearing process before the Panel has a quality similar to that of a judicial proceeding. Any examination of Mr. Greene would be destructive of judicial responsibility and would undermine the fairness of the administrative process. Petitioner has made no showing of any bias, misconduct, or wrongdoing by Mr. Greene. Our courts have repeatedly held that in administrative proceedings it is not the function of the court to inquire into the mental processes of the hearing officer. If Petitioner knew or suspected that Mr. Greene had any testimony relevant to the matter or was biased, he should have objected to him serving as a decision-maker at the hearing or to be disqualified based upon such evidence, information or bias. He did not do so. The chairman of the Panel, Mr. Greene, acting in a quasi-judicial role for the Respondent by listening to the testimony and participating in the decision-making process as chairman of the Panel, cannot and must not be required to testify at the Committee hearing and be subjected to such scrutiny. Based upon the mental-process rule and the protections afforded to decision-makers who conduct administrative hearings, the subpoena requiring Mr. Greene to appear at a hearing to be conducted by the Committee is quashed.

Subpoena requiring Edwin Givens, Attorney for Respondent, to appear and testify at a hearing to be held by the Committee

Regarding the subpoena directed to Mr. Givens, Respondent contends that Mr. Givens “is precluded from giving testimony in this matter because any and all information he has learned [concerning the employment and termination of Petitioner] was in his capacity as General Counsel and legal representative for the [Respondent] in this matter” and that “these communications are thus subject to attorney-client privilege under Rule 1.6 of the Rules of Professional Conduct and S.C.R.E. 501.” (Respt.’s Mot. at 5).[11]

It is undisputed that Mr. Givens is an employee of Respondent and that during the grievance process he provided legal advice to his employer, the Respondent. Petitioner asks this Court to enforce the subpoena which would require him to attend a hearing to be conducted by the Committee and offer any relevant testimony he may conceivably have that would fall outside the attorney-client privilege, or one of its exceptions. But, Petitioner has not provided to this Court any suggestion or outline of any relevant testimony that Mr. Givens could provide that would not come within the attorney-client privilege. Obviously, as stated above, Mr. Givens cannot testify about any of Mr. Greene’s mental processes during the adjudicatory and hearing process. The only showing presented to this Court in support of this subpoena is that Mr. Givens served as legal counsel to Respondent during the entire process before and during the Panel hearing. Accordingly, there has been no showing that would require Mr. Givens to offer himself as a witness at a Committee hearing.[12] Based upon the protections afforded by the attorney-client privilege, the failure by Petitioner to provide an outline of any relevant testimony that Mr. Givens could testify to that would not fall within the attorney-client privilege, and the warnings by our courts to protect the integrity of the administrative process, Respondent’s Motion to Quash Subpoena is granted in part, and the subpoena issued to Mr. Givens requiring him to appear at a hearing to be conducted by the Committee to offer testimony is quashed.

ORDER

For the reasons set forth above,

IT IS HEREBY ORDERED THAT the Motion to Quash Subpoena regarding the subpoena issued to Respondent which required it to produce various records and documents is denied. Accordingly, Respondent must furnish to Petitioner’s attorney within fifteen (15) days of the date of this Order the records and information requested in the subpoena.

IT IS FURTHER ORDERED THAT the Motion to Quash Subpoena regarding the subpoena issued requiring Mr. Greene, Chairman of the Panel, to appear before the Committee to testify is granted.

IT IS FURTHER ORDERED THAT the Motion to Quash Subpoena regarding the subpoena issued requiring Mr. Givens, Attorney for Respondent, to appear and testify before the Committee with regard to this matter is granted.

AND IT IS SO ORDERED.

_____________________________________

Marvin F. Kittrell Chief Administrative Law Judge

October 15, 2007

Columbia, South Carolina