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Mancus v. Merit Employee Relations Board

Superior Court of Delaware

February 1, 2019

JOHN A. MANCUS, Appellant,
v.
MERIT EMPLOYEE RELATIONS BOARD and THE COURT OF COMMON PLEAS, Appellees.

          Submitted: November 28, 2018

          On Appeal from the Merit Employee Relations Board.

          M. Edward Danberg, Esquire, The Danberg Law Firm LLC, Wilmington, Delaware, Attorney for Appellant John A. Mancus.

          Rae M. Mims, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for Appellee Merit Employee Relations Board.

          Kevin R. Slattery, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for Appellee the Court of Common Pleas.

          MEMORANDUM OPINION

          RICHARD R. COOCH, R.J.

         I. INTRODUCTION

         This is 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.[1] 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.

         Appellees 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.

         The 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.

         II. FACTS AND PROCEDURAL HISTORY

         Appellant 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").

         The 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. Kolson.[2]

         On 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."[3] 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?"[4]

         On 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.[5] 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.[6] 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?"[7] Appellant's disclosure of personal details about the judge and his family had not been authorized by the judge or by any other person.

         The 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 hours.[8]

         Appellant 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."[9] 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.[10] 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.[11]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.

         III. THE PARTIES' CONTENTIONS

         A. Appellant's Contentions

         Appellant 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."[12]. 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.[13] As such, Appellant contends remand is necessary.

         Second, 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."[14] 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 violations.

         B. Appellees' Contentions

         The Board argues that Appellant has failed "to show any harm for the Board deliberating 'off the record' on the merits of the matter."[15] 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 ...


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