ORDERS:
ORDER
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. § 1-23-600(D) (Supp. 2006) for an administrative appeal. On October 11, 2006, Richard R. Sauls (“Appellant”) filed a notice of appeal to challenge the South Carolina State Board for Technical and Comprehensive Education’s decision (“Respondent” or “SCTCE”) to suspend him from his employment with Respondent for a period of five (5) days after Appellant admitted to carrying a firearm on a college campus against its policy.
After timely notice to the parties, oral arguments in this matter were held on May 15, 2007 at the ALC in Columbia, South Carolina. Based upon the Record on Appeal, the parties’ briefs and oral arguments, and upon the applicable law, I find that Respondent’s decision in this matter must be affirmed.
PROCEDURAL HISTORY
Appellant began employment with Respondent on approximately December 6, 1999, and his position is currently classified as Law Enforcement Officer II/Chief of Security for Respondent’s Midlands Technical College (“MTC”). During a meeting between Appellant, Craig Hess (“Mr. Hess”), who is Appellant’s immediate supervisor, and a contract employee for Respondent, Mr. Hess observed on Appellant what appeared to be a firearm. Subsequently, Mr. Hess spoke with Appellant and he confirmed that he had a 38 millimeter firearm strapped to his boot. Based upon Appellant’s response, Mr. Hess and his supervisor, Dr. Ronald L. Rhames (“Dr. Rhames”), Vice President for Business Affairs for MTC, suspended Appellant on November 28, 2005 for five (5) days as well as placed him on probation for a term of one (1) year. Accordingly, Appellant initiated review of his suspension by Respondent through its internal grievance process. Specifically, Appellant sought review with Dr. Rhames and John H. Hudgens (“Mr. Hudgens”), Interim President for MTC. Mr. Hudgens affirmed the decision to suspend Appellant for a period of five days; however, he reduced Appellant’s probationary period from one year to six months. After Appellant was informed of adverse decisions from these individuals, he sought further review by appealing Mr. Hudgens’ decision to Barry W. Russell (“Mr. Russell”), president of the South Carolina Technical College System. Mr. Russell upheld the decision to suspend Appellant for five days but rescinded Appellant’s probation in its entirety.
Based on an adverse decision from Mr. Russell and in accordance with § 8-17-330, Appellant sought review of the agency’s final decision with the State Human Resources Director (“Director”). § 8-17-330. Appellant and Respondent participated in mediation but were unable to reach an agreement concerning the issues in this matter. As such, Liza V. Robertson (“Arbitrator”) was appointed by the Director to serve as an arbitrator for Appellant’s appeal.
§ 8-17-345 (Supp. 2006). On June 9, 2006, the Arbitrator concluded that “Appellant failed to demonstrate the Respondent’s final administrative decision was unreasonable; therefore, I uphold the Respondent’s decision to suspend the Appellant for five (5) days for ‘poor judgment, negligence and admitting to carrying a weapon on campus against policy[.]’”
Thereafter, on October 11, 2006, Appellant filed a notice of appeal with this Court to challenge that decision.
STANDARD OF REVIEW
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 procedures, which are established by each agency, subject to approval by the South Carolina Budget and Control Board, Office of Human Resources. If the employee receives a final adverse decision from the agency – in this case, the SCTCS president – the employee may appeal that decision to the Director by filing a written appeal within ten (10) calendar days from its receipt of the president’s adverse decision or within fifty-five (55) calendar days after the employee files the grievance with the agency. § 8-17-330. The Director forwards all appeals which meet jurisdictional requirements to either the State Employee Grievance Committee or to mediation/arbitration depending upon the subject matter of the appeal.
The Director forwards to a mediator-arbitrator all appeals which relate to the following adverse employment actions: suspension for ten days or fewer, involuntary reassignments, and lack of promotional consideration and punitive reclassifications when the Director determines that there is a material issue of fact regarding these issues. § 8-17-345 (emphasis added). The mediator-arbitrator is assigned by the Director and initially serves as an impartial third party to preside over mediation conferences held between the employee and employer. During these conferences, the assigned mediator is permitted to meet with the parties either jointly or independently. If the parties are unable to reach an agreement concerning the employee’s appeal, the grievance proceedings advance to an arbitration conference where the parties are permitted to submit documentation and present oral arguments to the arbitrator before the final decision is made. S.C. Code Ann. Regs. 19-718.08(F)(2). Based upon this decision, either party may request reconsideration of the arbitrator’s final decision within thirty days of receipt of the decision. § 8-17-345. Thereafter, an adverse final agency decision may be appealed to the ALC pursuant to its appellate jurisdiction. § 1-23-600(D).
This Court’s appellate review of final decisions in state employee grievance proceedings is governed by the standards provided in S.C. Code Ann. § 1-23-380 (Supp. 2006). Section 1-23-380 provides that this Court “may not substitute its judgment for the judgment of the [Respondent] as to the weight of the evidence on questions of fact.” § 1-23-380(A)(5). However, this Court, pursuant to § 1-23-380(A)(5),
may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the [Board];
(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.; see also Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981) (stating “‘[s]ubstantial evidence’ is not a mere scintilla of evidence nor the evidence viewed blindly from one side of the case, but is evidence which, considering the Record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached or must have reached in order to justify its action.” Id. at 135, 276 S.E.2d at 306. Accordingly, “[t]he ‘possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.’” Grant v. S.C. Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995) (citing Palmetto Alliance, Inc. v. S.C. Pub. Serv. Comm., 282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984)).
Further, an abuse of discretion occurs when an administrative agency’s ruling is based upon an error of law, such as application of the wrong legal principle; or, when based upon factual conclusions, the ruling is without evidentiary support; or, when the trial court is vested with discretion, but the ruling reveals no discretion was exercised; or, when the ruling does not fall within the range of permissible decisions applicable in a particular case, such that it may be deemed arbitrary and capricious. State v. Allen, 370 S.C. 88, 94, 634 S.E.2d 653, 656 (2006) (application of standard to circuit court) (citing Fontaine v. Peitz, 291 S.C. 536, 539, 354 S.E.2d 565, 566 (1987); see also Converse Power Corp, 350 S.C. 39, 47 564 S.E.2d 341, 345 (Ct. App. 2002) (quoting Deese v. State Bd. of Dentistry, 286 S.C. 182, 184-85, 332 S.E.2d 539, 541 (Ct. App. 1985) (“A decision is arbitrary if it is without a rational basis, is based alone on one's will and not upon any course of reasoning and exercise of judgment, is made at pleasure, without adequate determining principles, or is governed by no fixed rules or standards.”).
DISCUSSION
Appellant raises several grounds on appeal of Respondent’s final decision: (1) the state Administrative Procedures Act (“APA”) is applicable to State Employee Grievance Proceedings, and the APA requires Respondent’s policies to be promulgated as regulations to have any force or effect in law; (2) Respondent’s enabling legislation, S.C. Code Ann. § 59-53-10 (Supp. 2006), requires that Respondent’s policies and guidelines be promulgated as regulations to have any force or effect in law; (3) the Arbitrator’s decision to uphold Appellant’s suspension for violation of MTC’s Policy Number 7.11 – Weapons on Campus – was clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; and, (4) Respondent did not follow its progressive order in determining an appropriate sanction for Appellant’s violation of MTC Policy Number 7.11.
State Employee Grievance Procedure
In the present matter, Appellant was suspended for a period of five days for violating MTC’s policy regarding weapons on campus. Because the matter concerns a suspension for fewer than ten days, Appellant’s appeal was forwarded by the Director to the mediation/arbitration track of the state employee grievance proceedings. In his brief, Appellant argues that the APA applies in State Employee Grievance Committee hearings, and pursuant to the APA, MTC’s policies must be promulgated as regulations in order to comply with the APA requirements. See S.C. Code Ann. § 1-23-10 et seq. (outlining procedures for promulgating agency policy and guidelines. As a result, Appellant contends that because Respondent failed to have the policy in question promulgated pursuant to the APA, the policy has no force or effect in law. § 1-23-10(4) (“Policy or guidance issued by an agency other than in a regulation does not have the force or effect of law.”).
While Appellant is correct in his contention that the APA applies in State Employee Grievance Committee hearings, the proceedings below in this case were held before an arbitrator, and pursuant to the Act, mediation-arbitration proceedings are not held in accordance with the APA. (“The provisions of the State [APA] do not apply to mediation-arbitration proceedings.”). § 8-17-345 (emphasis added). Cf. § 8-17-330 (“The provisions of the State [APA] apply in proceedings before the State Employee Grievance Commission. At other levels the State [APA] does not apply . . . .”). Id. (emphasis added). Although Appellant urges this Court to apply the APA in mediation-arbitration conferences, the plain language of the Act specifically states, without exception, that the APA does not apply in those specific conferences. See Brown v. State, 343 S.C. 342, 348-9, 540 S.E.2d 846, 850 (2001) (“When the terms of a statute are clear and unambiguous, the Court must apply them according to their literal meaning. Furthermore, ‘in construing a statute, words must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute’s operation.’”) (citations omitted); Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000) (“If a statute’s language is plain, unambiguous, and conveys a clear meaning ‘the rules of statutory construction are not needed and the court has no right to impose another meaning.’”).
Accordingly, the Department’s decision will not be reversed, as urged by Appellant, based upon his argument that all proceedings held in accordance with the Act must comply with APA requirements.
MTC’s Policy Concerning Weapons on Campus
Appellant next argues that Respondent’s enabling legislation requires that MTC’s policy concerning weapons on campus be properly promulgated as a regulation, and Appellant cites S.C. Code Ann. § 59-53-10 (Supp. 2006) to support his proposition:
There is hereby created the State Board for Technical and Comprehensive Education (Board) as a continuing body and agency and instrumentality of the State. . . . The board shall enter into contracts and make regulations, including policies and guidelines, as considered necessary . . . subject to the approval of the General Assembly.
Id. Appellant contends that Respondent’s enabling legislation requires that Respondent promulgate its policies as legislation before the policy can have any force or effect in law; Appellant further argues that Respondent’s policy cannot be enforced against Appellant because Respondent has failed to obtain approval from the legislature regarding the policy in question. See also S.C. Code Ann. § 59-53-20 (Supp. 2006) (mandating that “[a]ll personnel employed in the institutions and programs within the jurisdiction and control of [Respondent] are designated state employees . . . and are subject to the regulations, guidelines, and policies of the [Respondent], and the state personnel system.”).
Chapter 53 of Title 59 provides Respondent with the “responsibility for developing and maintaining short and long-range plans for providing up-to-date and appropriate occupations and technical training for adults” in state-supported technical schools. Further, Respondent was given the authority under its enabling legislation to establish policy and guidelines for the benefit and safety of individuals on its college campuses. Respondent delegated its authority by creating the various Commissions within the state to represent area technical schools. In this case, Midlands Technical College Commission was created as an administrative agency within SCTCE to serve Richland and Lexington Counties. § 59-53-1710. SCTCE authorized MTC’s Commission to govern the day-to-day activities of the school, which includes instituting rules and guidelines relating to the operations of its facilities. § 59-53-1720. MTC responded by enacting a policy which prohibits weapons on its campus and included its security officers within the group of individuals who must abide by such a policy. In addition, MTC is authorized to institute disciplinary proceedings against anyone who violates its policy – including its weapons on campus policy.
While Respondent’s enabling legislation does require that policies and guidelines issued by an agency must be promulgated as regulations to be applicable, § 1-23-10(4) defines the term “regulation” and included within the definition are exclusions of the general rule:
‘Regulation’ means agency statement of general public applicability that implements or prescribes law or policy or practice requirements of any agency. Policy or guidance issued by an agency other than in a regulation does not have the force or effect of law. The term ‘regulation’ . . . does not include descriptions of agency procedures applicable only to agency personnel; . . . [or to] decisions of the governing board of a . . . technical college . . . with regard to . . . disciplinary proceedings . . . .
Arbitrator’s Decision
In her June 9, 2006 Final Arbitration Decision, the Arbitrator determined that:
The Appellant failed to demonstrate the Respondent’s final administrative decision was unreasonable; therefore, I uphold the Respondent’s decision to suspend the Appellant for five (5) days for ‘poor judgment, negligence and admitting to carrying a weapon on campus against policy[.]’
(Arbitrator decision at 6). Appellant essentially contends that Respondent’s decision was unreasonable because he is a licensed state constable, his job with MTC is classified as a law enforcement officer, and MTC’s policy exempts law enforcement personnel who are performing official duties from complying with its policy. MTC’s Policy Number 7.11 – Weapons on Campus – states the following:
It is the policy of [MTC] to prohibit weapons on campus except for authorized law enforcement personnel who are performing official duties. . . .
MTC policy 7.17, Weapons on Campus (1996).
To the extent that Appellant should not have been reprimanded for violating this policy because he is a licensed constable with the state, Appellant is also a state employee and subject to the policies and guidelines of Respondent. See § 59-53-20. Further, Appellant’s job description and classification with Respondent do not include carrying a weapon as a responsibility or duty of the job. In fact, during a MTC Facility and Operations Committee (“Committee”) meeting in 2003, the topic of allowing MTC security personnel to carry a firearm on campus was raised as a result of discussions concerning the events of September 11, 2001. However, the Committee determined that “[t]he extremely low incidence of serious crimes would seem to dictate not arming [the security personnel].” (R. at 79). Moreover, Appellant was fully aware of the policy prohibiting MTC security personnel from carrying a weapon. Appellant, as a supervisor of security officers at MTC, advised new employees that MTC policy prohibited security officers from carrying a weapon while performing official duties for the college. While Appellant freely admitted to several supervisors that he was aware of this policy, he believed that he should be allowed to carry a firearm for his protection as well as for the general public’s protection. Regardless of Appellant’s beliefs, Appellant was specifically advised on several occasions that Respondent’s policy clearly prohibited weapons on campus and that Appellant’s job classification neither required nor expressly permitted an exception from this policy. Appellant was put on notice of Respondent’s policy and that his employment with Respondent did not fall within the exception to this policy. As such, there is substantial evidence in the record to affirm Respondent’s decision to suspend Appellant for violation MTC’s policy regarding weapons on campus.
Finally, Appellant argues that based upon “his longevity and dedicated service” to Respondent and that Respondent “totally ignored its progressive order of disciplinary sanction[s]” concerning this matter, Respondent’s reprimand to Appellant for violation of MTC’s policy is unreasonable. Specifically, Appellant argues that he should have received informal counseling – the least severe disciplinary sanction under its disciplinary scheme – from his supervisor for violating MTC’s policy instead of a disciplinary suspension – one of the more severe sanctions which can be imposed under Respondent’s disciplinary scheme. I disagree. MTC policy 2.7.1 provides that disciplinary issues will be handled as follow[s], “but not necessarily in this progressive order: 1) informal counseling; 2) oral warning; 3) written warning; 4) reassignment; 5) demotion; 6) disciplinary suspension; 7) investigatory suspension; and 8) termination.” MTC Policy 2.7.1, Disciplinary Actions (2004) (emphasis added). While Appellant argues that he should have received informal counseling in this matter rather than a suspension, there is substantial evidence in the record to support Respondent’s decision to suspend Appellant for a period of five (5) days. Appellant was fully aware that he was prohibited from carrying a weapon on campus while performing his official duties as he was specifically advised numerous times over several years that this behavior was strictly prohibited.
As referenced earlier, Appellant participated in the Committee hearing in 2002 when MTC’s policy regarding a security officer’s ability to carry a weapon was discussed, and Appellant advised new security officers of MTC’s policy that prohibited them from carrying a weapon on campus. While a disciplinary suspension is a very serious step to be used by Respondent in disciplining an employee, its policy dictates that this measure “should only be employed when management or supervision believes that by its use the employee will correct the misconduct.” Id. at 3. It is difficult to imagine that Appellant, fully aware of the policy and even advising others on this policy, would refrain from further violating the policy if he received informal counseling. In fact, Respondent essentially engaged in informal counseling with Appellant regarding this matter: (1) he was advised throughout his employment term that although he is a licensed constable, he is prohibited from carrying a weapon on campus while performing the duties of his job; (2) as a supervisor, he advised other security officers of this policy; and (3) Appellant participated in Committee meetings to have this policy changed to allow security officers at MTC to carry weapons on campus. Moreover, Respondent was not required to initially engage in informal counseling with Appellant regarding this matter as its disciplinary scheme specifically states that “disciplinary issues will be handled as follow[s], “but not necessarily in this progressive order: . . .” Id. (emphasis added). Appellant has simply not provided any evidence to this Court or presented any grounds of appeal that show any error by Respondent in reaching its final agency decision.
Therefore, in reviewing the entire record in this matter, there is substantial evidence in the record to support Respondent’s final agency determination and Respondent’s decision in this matter must be affirmed.
ORDER
For the reasons set forth above,
IT IS HEREBY ORDERED that Respondent’s final agency determination upholding Appellant’s five (5) days suspension in this matter is affirmed.
AND IT IS SO ORDERED.
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Marvin F. Kittrell Chief Administrative Law Judge
December 18, 2007
Columbia, South Carolina
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