JOHN A. MANCUS, Appellant,
MERIT EMPLOYEE RELATIONS BOARD and THE COURT OF COMMON PLEAS, Appellees.
Submitted: November 28, 2018
Appeal from the Merit Employee Relations Board.
Edward Danberg, Esquire, The Danberg Law Firm LLC,
Wilmington, Delaware, Attorney for Appellant John A. Mancus.
Mims, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for Appellee Merit
Employee Relations Board.
R. Slattery, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for Appellee the
Court of Common Pleas.
RICHARD R. COOCH, R.J.
John A. Mancus' ("Appellant") appeal of a May
28, 2018, decision of the Merit Employee Relations Board (the
"MERB/Board") which upheld the Court of Common
Pleas' decision to suspend Appellant for ten days based
on Appellant's violation of the Code of Conduct for
Judicial Branch Employees, and for Appellant's violation
of the Judicial Branch Authorized Use Policy for the
Communications and Computer Systems. Appellant argues that
remand is necessary for "further proceedings,"
because the Board deliberated off the record and therefore
failed to create a full record of the underlying proceedings
for judicial review. Secondly, Appellant argues that the Court
of Common Pleas failed to inform the Office of Management and
Budget prior to enforcement of any discipline against
Appellant, which Appellant contends violated 29 Del.
C. § 5924. Appellant contends such a violation
separately merits reversal.
argue that the Board's decision should be affirmed
because it is supported by substantial evidence and that the
Board committed no error of law by conducting deliberations
off the record.
Court concludes that the Board committed no error of law by
deliberating off the record. The Court does not reach
Appellant's § 5924 claim, the Court finds that the
Board's decision was supported by substantial evidence.
Accordingly, the Court affirms the decision of the Board.
FACTS AND PROCEDURAL HISTORY
is employed by the Court of Common Pleas as a Management
Analyst III. At the time of the underlying violations,
Appellant's job responsibilities included managing the
Living Disaster Recovery Planning System ("LDRPS"),
which stored the private personal information of Judicial
Branch employees in case of emergencies. Pertinent to the
instant matter, the LDRPS included the personal information
of a judge of the Court of Common Pleas. In the course of his
employment, Appellant allegedly disseminated certain private
personal details about the judge and his family to an
employee of The George Washington University
("GWU") for the purposes of facilitating charitable
donations to the university. Appellant's conduct was
brought to the attention of the Court Administrator for the
Court of Common Pleas immediately upon its discovery. The
Court Administrator completed an investigation into the
matter and proposed that Appellant be suspended without pay
for ten days for Appellant's violation of the Code of
Conduct for Judicial Branch Employees ("Code of
Conduct"), and his violation of the Judicial Branch
Authorized Use Policy for Communications and Computer Systems
("Authorized Use Policy").
Court Administrator concluded Appellant had violated the Code
of Conduct and the Authorized Use Policy based on certain
conduct from July 2016 to April 2017. The investigation, and
subsequent testimony at the Board hearing on the matter,
found that on July 21, 2016, Appellant sent an email to a Ms.
Jane Kolson, employed at GWU, and supplied Ms. Kolson with a
phone number for the judge, which Ms. Kolson believed to be
the judge's home land line number. Shortly thereafter
however, the judge's personal cell phone number was added
to GWU's database. No other phone number for the judge
was in the GWU database in the pertinent time frame. On
February 15, 2017, the judge received a phone call on his
personal cell phone from a young woman who identified herself
as a GWU student. The caller solicited the judge for a
donation to the GWU alumni fund. The Court Administrator
"drew the adverse inference that [Appellant] accessed
[the judge's] personal cell phone number from the
[LDRPS]," as Appellant had complete access to the
database, and supplied the number to Ms.
April 11, 2017, at 2:59 p.m., Appellant received an email to
his State email address from Ms. Kolson regarding a
charitable donation made by the judge to GWU. In this email,
Ms. Kolson stated that she "did indeed pass along the
phone number for [the judge] that you [Appellant] gave me,
and [the judge] was called during our February student
phonathon." This statement aligns with the fact that
the judge was contacted on his personal cell phone in
February 2017 by a GWU student seeking donations. Ms.
Kolson's email continued "[w]hat do you want to bet
that he walks away from his remaining payments??? [sic]
I'm tempted to call and request a visit to discuss
planned giving - although I **know** the chances of his
agreeing to it would be very slight. Do you know if he is
married and has kids?"
April 11, 2017, at 3:23 p.m., Appellant responded to the 2:59
p.m. email from his State email address (the "response
email"). In the response email, Appellant provided Ms.
Kolson with personal details about the judge which included:
information about the judge's private life, his marital
status, his parents and relatives, his children's
educational history, his salary, the name and telephone
number of his secretary, and his State email
address. In Appellant's attempt to cut and
paste the judge's State email address into the body of
the response email, Appellant inadvertently copied the judge
on the response email and sent it to the judge. The judge was
"shocked" and "offended," and immediately
emailed Appellant to ask why Appellant was "sharing all
[of his] personal and family pedigree information with this
lady? Who is Jane Kolson?" Appellant's disclosure of
personal details about the judge and his family had not been
authorized by the judge or by any other person.
judge brought Appellant's conduct to the attention of the
Court Administrator and to the Chief Judge of the Court of
Common Pleas. The Court Administrator conducted an
investigation into the matter. The Court Administrator spoke
with Appellant multiple times regarding the source of the
information he provided to Ms. Kolson. Appellant's
explanation changed several times, and the Court
Administrator determined that Appellant was intentionally
misrepresenting Appellant's source for the judge's
personal information. Thereafter, the Court Administrator
proposed a suspension for ten days without pay for
Appellant's violation of the Code of Conduct and the
Authorized Use Policy. Appellant received a formal suspension
letter on June 15, 2017, which outlined the Court
Administration's reasoning for the suspension.
Importantly, the Court Administrator stated:
The disparaging e-mail conversation you engaged in and the
inappropriate e-mail you sent on April 11, 2017 at 3:23 p.m.
to Jane Kolson clearly demonstrates that your misconduct was
in direct violation of the aforementioned Code of Conduct for
Judicial Branch Employees. The e-mail you sent was
discourteous and since it was not your place to send such an
e-mail, your full time and energy was not being applied to
the business and responsibilities of your office during work
appealed his ten-day suspension and filed a grievance with
the Board. At the hearing on Appellant's grievance the
Board heard from several witnesses, including Ms. Kolson, the
judge, and Appellant, and reviewed the evidence regarding
Appellant's conduct. Although Appellant testified that he
did not provide anyone at GWU with the judge's personal
cell phone number, the Board "did not find him a
credible witness because his testimony on this key point
changed over time." After deliberations off the record, the
Board denied Appellant's grievance by a vote of 5-0. In
the Board's written decision and order, the Board
explained that Appellant's conduct, as described above,
constituted a violation the Code of Conduct, a violation of
the Acceptable Use Policy, and that Appellant also violated
the judge's common law right to privacy. Given the
circumstances and nature of the violation, the Board found it
appropriate to suspend Appellant for ten days without pay for
his violations. Although Appellant committed several
violations, the Board explained that Appellant's
violation of the Code of Conduct, on its own, was "just
cause for the ten-day suspension" as a matter of
law.Appellant timely filed an appeal of the
Board's decision to this Court on June 20, 2018. This
Court heard oral argument on the appeal on November 28, 2018.
THE PARTIES' CONTENTIONS
does not contend that the Board's decision is not
supported by substantial evidence. Instead, Appellant argues
on appeal that the Board committed two errors of law. First,
Appellant contends that this matter must be remanded back to
the Board for another hearing because the Board conducted
deliberations off therecord. Appellant contends that nothing
in the Merit System of Personnel Administration, the
Administrative Procedures Act, or the Rules of the Merit
Employee Relations Board authorize or permit the exclusion of
the Board's deliberations from the record. Appellant
claims that the Board is "concealing its deliberations
... to avoid review of its actual decision-making
process.". Specifically, Appellant alleges that
comments made by the Board during the off the record
deliberations demonstrated a "lack of
comprehension" of Appellant's defense and witness
testimony. As such, Appellant contends remand is
Appellant contends that pursuant to 29 Del. C.
§ 5924, the Court of Common Pleas was required to have
informed the Office of Management and Budget
("OMB") prior to the enforcement of any discipline.
Section 5924 states that in the event of a violation of the
Department of Technology and Information's Acceptable Use
Policy, "any discipline resulting in the loss of wages
must first be reviewed by the Office of Management and
Budget." Such a review did not take place in the
instant matter. At the Board hearing, Appellant moved to
dismiss the violations based on the language of § 5924.
The Board deemed the motion untimely and denied the request.
Appellant argues that the Board's decision should be
reversed based on the lack of review by OMB and the
Board's denial of Appellant's motion to dismiss the
Board argues that Appellant has failed "to show any harm
for the Board deliberating 'off the record' on the
merits of the matter." The Board contends that
Appellant failed to raise any specific allegations of how the
underlying record is insufficient or a factual basis for how
the Board allegedly lacked comprehension of the issues. The
Board argues that the issue in the instant appeal is not
analogous to prior cases in which Delaware courts overturned
quasi-judicial bodies' decision based on comments during
deliberations that demonstrated member bias. The Board
contends that Appellant has failed to specify any comment by
the members of the Board which would imply bias. The Board
contends that the final written decision adequately explained
the Board's reasoning for its final determination of law
and fact. Furthermore, the Board argues that the standard
pre-hearing conference was the appropriate ...