COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
ROBERT KELLY BLUM
v. Record No. 0363-96-3 MEMORANDUM OPINION *
PER CURIAM
VIRGINIA EMPLOYMENT COMMISSION JULY 23, 1996
AND
CITY OF BEDFORD
FROM THE CIRCUIT COURT OF BEDFORD COUNTY
William W. Sweeney, Judge
(Grady W. Donaldson, Jr.; Schenkel &
Donaldson, on brief), for appellant.
(James S. Gilmore, III, Attorney General;
Patricia H. Quillen, Assistant Attorney
General; Lisa J. Rowley, Assistant Attorney
General, on brief), for appellee Virginia
Employment Commission.
(Clinton S. Morse; Todd A. Leeson; Flippin,
Densmore, Morse, Rutherford & Jessee, on
brief), for appellee City of Bedford.
The Virginia Employment Commission (VEC) denied unemployment
benefits to Robert Kelly Blum (Blum) because it found that he was
discharged for work-related misconduct. Code § 60.2-618(2). The
circuit court affirmed the VEC's decision. On appeal to this
Court, Blum contends that the trial court erred (1) as a matter
of law in ruling that he was discharged for misconduct connected
with his work and (2) in finding there was sufficient evidence of
work-related misconduct. Upon reviewing the record and briefs of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
Rule 5A:27.
Under Code § 60.2-625(A), "the findings of the [VEC] as to
the facts, if supported by evidence and in the absence of fraud,
shall be conclusive, and the jurisdiction of the court shall be
confined to questions of law." See Shifflett v. Virginia
Employment Comm'n, 14 Va. App. 96, 97, 414 S.E.2d 865, 865
(1992). "The VEC's findings may be rejected only if, in
considering the record as a whole, a reasonable mind would
necessarily come to a different conclusion." Craft v. Virginia
Employment Comm'n, 8 Va. App. 607, 609, 383 S.E.2d 271, 273
(1989). "Whether an employee's behavior constitutes misconduct,
however, is a mixed question of law and fact reviewable by this
court on appeal." Israel v. Virginia Employment Comm'n, 7 Va.
App. 169, 172, 372 S.E.2d 207, 209 (1988).
The facts, as found by the VEC, established that Blum was
employed by the City of Bedford as a water treatment plant
operator. Under the city's drug-free workplace policy, the use
of illegal drugs off city property by city employees "which
affects an employee's ability to perform his or her duties, or
which generates publicity or circumstances which adversely affect
the City of Bedford or its employees, shall result in discipline,
including possible suspension or termination." 1 Blum regularly
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In order to be eligible for federal grants, the city was
required to provide a drug-free workplace by adopting and
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used marijuana and was arrested for possession of marijuana with
the intent to distribute following a sale he made to another city
employee. Blum told his supervisor of his arrest and was
subsequently discharged. The city stated its reasons for
removing Blum:
The City of Bedford is committed to offering
for its employees and maintaining a drug-free
workplace. Your continued employment under
these circumstances not only would raise
questions about your ability to perform your
duties when you are a regular user of
marijuana, but it also is inconsistent with
the City's desire to maintain a drug-free
workplace and undoubtedly would generate
adverse publicity for the City.
Misconduct Connected with Work
"The purpose of the Unemployment Compensation Act is 'to
provide temporary financial assistance to [employees] who become
unemployed through no fault of their own.'" Virginia Employment
Comm'n v. Gantt, 7 Va. App. 631, 634, 376 S.E.2d 808, 810,
(citation omitted), aff'd en banc, 9 Va. App. 225, 385 S.E.2d 247
(1989). Under Code § 60.2-618(2), an employee who has been
discharged for work-related misconduct is disqualified for
unemployment benefits.
[A]n employee is guilty of "misconduct
connected with his work" when he deliberately
violates a company rule reasonably designed
to protect the legitimate business interests
of his employer, or when his acts or
omissions are of such a nature or so
recurrent as to manifest a willful disregard
of those interests and the duties and
enforcing policies prohibiting employee drug abuse. See 41
U.S.C. § 702.
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obligations he owes his employer.
Branch v. Virginia Employment Comm'n, 219 Va. 609, 611, 249
S.E.2d 180, 182 (1978). "The rule violation prong . . . allows
an employer to establish a prima facie case of misconduct simply
by showing a deliberate act which contravenes a rule reasonably
designed to protect business interests." Gantt, 7 Va. App. at
634-35, 376 S.E.2d at 811. "When an employer adopts a rule, that
rule defines the specific behavior considered to harm or to
further the employer's interests. By definition, a violation of
that rule disregards those interests." Id. at 634, 376 S.E.2d at
811.
Blum admitted that he regularly smoked marijuana and that he
sold marijuana to support his habit. Cf. Virginia Employment
Comm'n v. Sutphin, 8 Va. App. 325, 380 S.E.2d 667 (1989); Blake
v. Hercules, Inc., 4 Va. App. 270, 356 S.E.2d 453 (1987).
However, Blum argues that the VEC erred in finding he had
committed work-related misconduct because there was no evidence
that those actions affected his work, caused adverse publicity
for the city, or created adverse circumstances for the city or
its employees. We disagree. It is true that the VEC found that
Blum's actions had not generated publicity at the time of his
removal. However, Blum's regular marijuana use while employed by
the city and his sale of marijuana to another city employee were
circumstances adversely affecting the city, as articulated by the
city in its removal notice. The VEC noted that
the fact that he was a regular user of the
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substance meant that the city could no longer
trust him to work alone in a job requiring
him to maintain the purity of the city water
system, because if any accident occurred, and
if it could be shown that the city was aware
of his drug use but did nothing about it,
then liability for damages might be
established.
Therefore, we agree with the conclusion of the VEC that Blum's
actions were a deliberate violation of the city's drug-free
workplace policy and constituted misconduct in connection with
his work.
Sufficiency of the Evidence
Blum asserts that there was no evidence showing that the
city employee who purchased marijuana from Blum was adversely
affected by the off-duty sale of marijuana. The VEC found that
the city, as well as its employee, was affected by Blum's drug
activities. We cannot say the record as a whole necessarily
leads us to a different conclusion.
Accordingly, the decision of the circuit court upholding the
agency's determination is summarily affirmed.
Affirmed.
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