Whittier v. DEPT. OF HEALTH AND WELFARE, 26783.

• Decision Date: 05 March 2002
• Docket Number: No. 26783.,26783.
• Citation: 137 Idaho 75,44 P.3d 1130
• Parties: Timothy WHITTIER, Plaintiff-Appellant, v. DEPARTMENT OF HEALTH AND WELFARE, State of Idaho, Defendant-Respondent.
• Court: Idaho Supreme Court

44 P.3d 1130

137 Idaho 75

Timothy WHITTIER, Plaintiff-Appellant, v. DEPARTMENT OF HEALTH AND WELFARE, State of Idaho, Defendant-Respondent.

No. 26783.

Supreme Court of Idaho, Boise, December 2001 Term.

March 5, 2002.

Rehearing Denied April 12, 2002.

Lynn, Scott, Hackney & Jackson, Boise, for appellant. John C. Lynn argued.

Hon. Alan G. Lance, Attorney General, Boise, for respondent. Ronald D. Christian, Deputy Attorney General, argued.

TROUT, Chief Justice.

Timothy Whittier ("Whittier") was dismissed from his job as supervisor of the Health Resources Section of the Bureau of Vital Statistics in the Department of Health and Welfare. He appealed to the Idaho Personnel Commission, which affirmed the dismissal after an evidentiary hearing conducted before a hearing officer. The district court on review affirmed, and Whittier now appeals to this Court.

I. FACTUAL AND PROCEDURAL HISTORY

Whittier was employed by the Idaho Department of Health and Welfare ("DHW") from August 15, 1995, until January 19, 1998. In June of 1997, he accepted a position as the Health Policy Section Supervisor, the position he held at the time of his dismissal. The responsibilities of this position included developing and coordinating community information referral services, consulting with service providers, promoting community collaboration with Department programs, as well as overseeing a telephone and information referral service for the health care needs of women and children called the "Idaho CareLine." Whittier continued to supervise the CareLine until Barbara Narbonne was hired in September of 1997 as the Community Resource Coordinator. At all times relevant to this case, Whittier's immediate supervisor was Bureau Chief Jane Smith ("Smith"), and the next level supervisor was Division Administrator Richard Schultz ("Schultz").

Two instances of misconduct are relevant to this appeal. First, in late 1996 or early 1997, the Director of the DHW instructed all departmental employees that answering machines used to cover the DHW's telephones should be disconnected and that employees should personally respond to the public's telephone calls. Whittier's secretary had an answering machine attached to her telephone, the type typically used in the home. After the Director issued her mandate to stop using such machines, Smith again directed Whittier to disconnect the answering machine attached to his secretary's telephone. Whittier did not comply. In late October or early November of 1997, Smith learned the answering machine was still in use when she called the telephone line and heard the answering machine. Smith left an angry message on the answering machine instructing Whittier and his staff to disconnect it. A telephone technician was contacted and the answering machine was disconnected that day.

Second, during a budget review meeting in October of 1997, Smith learned that no one was answering the Section's telephones. At that time, Whittier's Section had two telephone systems: their Section telephones and the CareLine telephones. Whittier was talking on the telephone with a subordinate from his department, when Smith gave him a direct order, in the presence of others, to instruct the subordinate to transfer the telephones from Whittier's section to the CareLine section so the telephones would be answered during the course of the meeting. Whittier did not carry out the instruction. Rather, Whittier simply hung up the telephone and looked at Smith without making any comment or explaining his reason for not doing so.

On December 15, 1997, Whittier was placed on administrative leave with pay pending an investigation of his actions relating to, among other things, negligence in the handling of some conference funds, the failure to disconnect the answering machine despite a direct order to do so, and the failure to transfer the Section telephone lines to the CareLine telephone lines so calls from the Section could be answered. On December 31, 1997, Whittier received a Notice of Contemplated Action and performance evaluation report for the period from May 23, 1997 to December 31, 1997, which had an overall rating of "unsatisfactory." Whittier filed a written response and thereafter, with the benefit of counsel, responded informally. On January 19, 1998, Schultz terminated Whittier's employment. The notice of dismissal cited violations of IDAPA 28.01.01.190.01 (currently IDAPA 15.04.01.190.01), and incorporated the December 31, 1997, performance evaluation as setting forth the factual basis for the dismissal.

Whittier appealed the dismissal and the matter was assigned to a hearing officer, who after conducting an investigation, upheld the dismissal based on the determination that the DHW proved, by a preponderance of the evidence, four out of twenty-three of its factual allegations regarding negligence and insubordination. The four factual bases the hearing officer determined the DHW proved were: 1) insubordination for handing conference funds within the Department and using the staff after specifically being told not to do so; 2) negligence for failing to exercise internal controls or reasonable care in handing the conference funds; 3) insubordination for failing to unplug the Sections' answering machine after being told to do so; and 4) insubordination for failing to transfer the Section's telephones to a different location after being told explicitly to do so.

The Idaho Personnel Commission ("IPC" or "Commission") upheld Whittier's dismissal on two grounds: insubordination or refusal to perform duties in failing to disconnect a telephone answering machine and failing to forward telephone lines. The IPC disagreed with the hearing officer's findings on the issue of negligence in handling conference funds and therefore did not reach the issue of insubordination regarding the conference funds.

Whittier next appealed the IPC's decision to the district court pursuant to I.C. § 67-5318. The district judge determined that the findings of the IPC were supported by substantial evidence and the decision was supported, as a matter of law, by the findings of fact. Accordingly, the district judge affirmed the IPC's decision. Whittier now appeals to this Court.

II. STANDARD OF REVIEW

In an evidentiary hearing before an IPC hearing officer, the agency bears the burden of proving, by a preponderance of the evidence, the justification for the disciplinary action. Idaho Dep't of Correction v. Anderson, 134 Idaho 680, 686, 8 P.3d 675, 681 (Ct.App.2000) (citations omitted). When a matter is subsequently appealed from the hearing officer's decision to the IPC, the Commission conducts a de novo review of the record and renders an independent decision on the facts. Id.

The review of an Idaho Personnel Commission decision is controlled by I.C. § 67-5318. Fridenstine v. Idaho Dep't of Admin., 133 Idaho 188, 190, 983 P.2d 842, 844 (1999). Under Idaho Code § 67-5318, when an appeal is taken to the district court from a decision of the IPC, the Commission's decision may not be set aside unless the court determines: (1) That the findings of fact are not based on any substantial, competent evidence; (2) That the Commission has acted without jurisdiction or in excess of its powers; (3) That the findings of fact by the Commission do not as a matter of law support the decision. I.C. § 67-5318; Id. This same standard applies when this Court reviews the IPC's decision on further appeal. Id.

The question of whether an employee's behavior constitutes misconduct is a question of fact. Sanchez v. Idaho Dep't of Correction, 134 Idaho 523, 525, 5 P.3d 984, 986 (2000). Therefore, this Court may not set aside the Commission's decision if such findings are based on substantial and competent evidence. Id. This Court exercises free review over issues of law. Id.

III. DISCUSSION

1. The findings of fact upholding Whittier's termination of employment are based on substantial, competent evidence.

The IPC upheld Whittier's termination based upon the grounds of insubordination regarding the two telephone issues (intentional disregard of directives to disconnect a telephone answering machine and intentional disregard of directives to transfer telephone lines).

In the unemployment benefits context, this Court has previously defined intentional insubordination as "a deliberate or willful refusal by an employee to obey a reasonable order or directive which an employer is authorized to give and entitled to have obeyed." Folks v. Moscow School Dist. No. 281, 129 Idaho 833, 837, 933 P.2d 642, 646 (1997); (quoting Avery v. B & B Rental Toilets, 97 Idaho 611, 613-14, 549 P.2d 270, 272-73 (1976)). Insubordination is also defined as a "willful or intentional disregard of the lawful and reasonable instructions of the employer." BLACK'S LAW DICTIONARY 801 (6th ed.1990).

Answering Machine:

The record fully supports the IPC's factual findings with regard to the charge of insubordination for failing to disconnect the answering machine.

The IPC concluded that Smith gave Whittier at least two direct orders to disconnect the answering machine connected to his secretary's telephone. Whittier did not do so, and offered no explanation to Smith at the time of the order. Whittier contends he was caught in a "Catch-22" with regard to Smith's directive to unplug the answering machine because he was faced with an opposing order not to unplug anything by "Ralph," an outside contractor hired to overhaul the telephone systems. Even if Whittier's contention is true, he failed to communicate this "Catch-22" to Smith at the times he was ordered to disconnect the machine.

Additionally, unplugging the answering machine had no bearing on the overall telephone system because the answering machine was a freestanding unit, only plugged into the actual telephone. In October, after Smith's second order to do so, the Section had no difficulty in immediately removing the machine. Even if it were to affect...