COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Haley Argued at Richmond, Virginia

JOSEPHINE LEE MEMORANDUM OPINION * BY v. Record No. 0976-09-2 J UDGE JAMES W. HALEY, JR. FEBRUARY 2, 2010 SOUTHSIDE VIRGINIA TRAINING CENTER

FROM THE CIRCUIT COUR T OF DINWIDDIE COUNTY Thomas V. Warren, Judge Richard F. Hawkins, III (The Hawkins Law Firm , on brief), for appellant. Gregory C. Fleming, Senior Assi stant Attorney Gene ral (William C. Mims, Attorney General; Maureen Riley Matsen, Deputy Attorney General; Peter R. Messitt, Senior Assistant Attorney General, on brief), for appellee.

I. Pursuant to the provisions of the St ate Grievance Procedure, Code § 2.2-3000, et seq. , a hearing officer sustained the termination of Jose phine Lee as a Direct Support Associate at the Southside Virginia Training Center, a facility operated by the Departme nt of Mental Health, Mental Retardation and Substance Abuse Services . The officer found as facts, supported by the preponderance of the evidence, that Lee had phy sically abused severely mentally retarded residents, in violation of specific departmental instructions prohibiting such abuse. Lee appealed to the circuit court, as provided by Code § 2.2-30 06(B). That code sectio n authorizes a circuit court to determine, based solely on the administrative r ecord, if the hearing officer’s decision “is contrary to law.” In that app eal, Lee maintained that the heari ng officer’s decision was contrary

∗ Pursuant to Code § 17.1-413, this opin ion is not designated for publication.-2- to law because: (1) It relied upon “material evidence obtained so lely through the administration of an unlawful polygraph examination,” in viola tion of designated statut es; and (2) it relied upon “perjured testimony.” By order entered April 8, 2 009, the circuit court affirmed the termination. We affirm the decision of the circuit court.
II. FACTS A trainee co-worker saw Lee physically abus e several residents on October 10 and 11, 2007, and, apparently on October 12, reported the incidents. An investigation opened. Lee denied any incidents of abuse and had “no objecti on” to taking a polygraph exam. After the test, and being advised of her failure, she signed a wr itten statement acknowledging that she had, in fact, abused at least one resident. On December 27, 2007, Lee was given a written notice advising her of the termination of her employment with Southside Virginia Training Center. This notice further advised Lee of her right to ap peal the decision pursuant to the state grievance procedure. Lee appealed. The Department of Employment Dispute Resolution appointed a hearing officer to conduct a grie vance hearing in Lee’s case. This proceeding was held on May 29, 2008. During Lee’s grievance hearing, the trainee and another witness testified they had observed Lee abusing residents on several occasi ons and Lee’s written admission she had abused at least one resident was admitted into evidence. Lee denied committing any abuse. The polygraph examiner did not testify, and neither the results nor an anal ysis of the polygraph examination were introduced in evidence. Acco rdingly, the hearing offi cer makes no mention of such testimony, results or analysis in his written decision. In fi nding that the abuse occurred and that the termination was justifie d, the hearing officer wrote that “positions taken by [Lee] during-3- the investigation and hearing conflict with documents she ha s signed, defy logic and common sense and undercut her positions and her credibility.” Lee appealed to the circuit court, which a ffirmed the hearing offi cer’s decision. This appeal followed.
III. ANALYSIS A) Whether the Hearing Officer Correctly Considered Lee’s Written Statements Made After the Polygraph Test Pursuant to Code § 2.2-3006(B), a party may app eal to the circuit court from the decision of a hearing officer under the state grievance proc edure. Code § 17.1-405(1) authorizes a further appeal to this Court. However, our Supreme Court has described our standard of review for decisions of this kind as “very narrow . . . .” Va. Polytechnic Inst. & State Univ. v. Quesenberry , 277 Va. 420, 429, 674 S.E.2d 854, 858 (2009). “[B]ecause the General Assembly granted to the circuit courts only the authority to consider whether the final dete rmination of the hearing officer is ‘contrary to law,’ we are likewise limited to such review in considering whether the trial court erred in its determination.” Pound v. Dep’t of Game and Inland Fisheries , 40 Va. App. 59, 64, 577 S.E.2d 533, 535 (2003). In such a review, an appealing party must “‘identify [a] constitutional provision, statute, regulation or judicial deci sion which the [hearing officer’s] decision contradicted.’” Tatum v. Va. Dep’t of Agric. & Consumer Servs. , 41 Va. App. 110, 122, 582 S.E.2d 452, 458 (2003) (quoting Virginia Dep’t of State Police v. Barton , 39 Va. App. 439, 446, 573 S.E.2d 319, 323 (2002)). Lee maintains that this Cour t should reverse the circuit court’s decision because of two statutes, specifically Code § 8.01-418.2 and Code § 40.1-51.4:4. Code § 8.01-418.2 prohibits the admission of “the analysis of any polygra ph test charts produced during any polygraph examination administered to a party . . .” in a state grievance proceed ing. Code § 40.1-51.4:4(D)-4- reads in part that: “The analysis of any pol ygraph test charts produ ced during any polygraph examination administered to a party . . . shall not be submitted, referenced, referred to, offered or presented in any manner in any [state grievance] proceeding . . . .” Initially, we note that neither statute prohibits the use of a polygraph examination as an investigative tool involving actions by state em ployees. Rather the “analysis” of any polygraph test is inadmissible in state grievance proceedings . As noted, here neither the testimony of the examiner nor the results or analysis of the examination was offered in evidence before the hearing officer. Faced with this fact, Lee argues that, “it l ogically follows . . .” that Lee’s written statement, which was produced subsequent to th e examination, was inadmissible “like the Fourth Amendment’s exclusionary rule . . . .” We disagr ee. First, the remedy of exclusion for evidence obtained in violation of the constitution applies only to criminal cases, not to civil cases. Pennsylvania Bd. of Probation & Parole v. Scott , 524 U.S. 357, 363 (1998) (“ we have repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials”); see also Immigration & Naturalizati on Service v. Lopez-Mendoza , 468 U.S. 1032, 1034 (1984) (exclusionary rule does not apply to civil deportation proceedings); Janis v. United States , 428 U.S. 433, 454 (1976) (exclusionary rule does not apply to civil proceedings by or against the United States). Even in criminal cases, where the analysis or results of polygraph examinations are uniformly inadmissible, our Supreme Court has drawn a distinction between the analysis or results of a polygraph examination and stat ements made to a polygraph operator. See Jones v. Commonwealth , 214 Va. 723, 727, 204 S.E.2d 247, 249-50 (1974). We do not agree with counsel for defendant that because polygraph testing is not admissible, any st atement by defendant made to a polygraph operator in the pretes ting conditioning period, or as a preliminary to the testing, shoul d also be excluded. The same-5- reasons and considerations for excluding from the evidence the results of the lie detector or polygraph test do not apply to voluntary oral statements which are not made during the actual administering of such a test. Id. See also Turner v. Commonwealth , 278 Va. 739, 743-44, 685 S.E.2d 665, 667-68 (2009) (“Any voluntary statements or admissions made by a person being tested remain admissible subject to the ordinary rules of evidence. Our holding is limited to the exclusion of the opinions of the polygraph operator or others purporting to offer expert opinion interpreting the test results.”). Other jurisdictions to consider this questi on have reached similar conclusions. “The results of a polygraph examination are excluded because of their unreliability. Voluntary statements by the accused are not so regarded. Their reliability does not depend on the validity of the polygraph test or the opera tor’s skill in conducting the test or interpreting its results.” State v. Blosser , 558 P.2d 105, 107-08 (Kan. 1976). “The statements made by the defendant to the polygraph technician, if edited to remove re ferences to the polygraph examination itself, are admissible.” People v. Cummings , 706 P.2d 766, 771 (Colo. 1985). See also Commonwealth v. Hall , 14 S.W.3d 30, 31-32 (Ky. Ct. App. 1999); State v. Marini , 638 A.2d 507, 512 (R.I. 1994); People v. Ray , 430 N.W.2d 626, 628-29 (Mich. 1988); State v. Erickson , 403 N.W.2d 281, 283 (Minn. Ct. App. 1987); State v. Smith , 715 P.2d 1301, 1309-10 (Mont. 1986); State v. Bowden , 342 A.2d 281, 285 (Me. 1975). But see State v. Davis , 751 N.W.2d 332 (Wis. 2008). 1

1 The reason the Supreme Court of Wisconsin rejected the admissibility of similar testimony in Davis was not any common law principle akin to the exclusionary rule, which Lee urges us to adopt, but rather the plain language of a statute, which provides that: “[a] person has a privilege to refuse to disclose and to prev ent another from disclosi ng any oral or written communications during or any results of an ex amination using an honesty testing device in which the person was the test subject.” Wis. Stat. § 905.065(2). Unlike the Wisconsin statute examined in Davis , Code § 8.01-418.2 and Code § 40.1-51.4:4 are written more narrowly; they only forbid the admission into evidence of the “analysis” of any polygraph test.-6- The validity of Lee’s argument rests on the premise that any statements made during the course of a polygraph examination are inadmissi ble in a state grievance hearing according to legal principles akin to the exclusionary rule. Yet Lee provides no aut hority – and we can find none – which establishes such a rule. Instead, our precedents draw a distinction between the results of a polygraph test and voluntary statements made by a person being tested. Because these precedents hold that the first category is in admissible, and the second admissible, we must reject Lee’s argument that the circuit court erre d in affirming the hear ing officer’s decision on account of the hearing officer’s apparent consider ation of Lee’s written statement that she had abused at least one resident. B) Whether the Hearing Officer Relied On “Perjured” Testimony Under Code § 2.2-3000 et seq. , the State Grievance Procedure, an administrative officer serves as the fact finder. The hearing officer’s decision “shall contain findi ngs of fact as to the material issues in the case.” Code § 2.2-3005.1(C); see also Tatum , 41 Va. App. at 121, 582 S.E.2d at 458; Barton , 39 Va. App. at 445, 573 S.E.2d at 322 (“Th ese statutes clearly provide the hearing officer is to act as fact finder . . . .”). The circuit court reviews the decision of the hearing officer “on the record.” Code § 2.2-3006 (B). And in reviewi ng the hearing officer’s decision, the circuit court is not permitted to reweigh the evidence. See Commonwealth v. Needham , 55 Va. App. 316, 326, 685 S.E.2d 857, ___ (2009). Thus, in this case “[t]he [circuit] court’s function was limited to considering the parties’ legal arguments based upon the agency record.” Gordon v. Allen , 24 Va. App. 272, 277, 482 S.E.2d 66, 68 (1997). According to the agency record, the hearing officer found as a fact that: “The testimony of the witnesses called by the agency, including the Trainee, was both cred ible and consistent on the material issue before the hear ing officer of whether [Lee] abused clients.” Before the hearing officer reached this conclusion, counsel for L ee introduced four exhibits and called three-7- witnesses on her behalf. Both sides also had the opportunity to cross-examine opposing witnesses. See Code § 2.2-3004(F). Lee argues that the trial court’ s ruling violated her due proc ess rights under the federal and Virginia Constitutions because, according to Lee, the hearing officer relied on perjured testimony. It is true that the use of perjured testimony may implicate due process considerations.
See e.g. Napue v. Illinois , 360 U.S. 264, 269-72 (1959) (failu re of prosecutor to correct testimony he knew to be false violates due pr ocess). But the record before us does not demonstrate that the trainee perj ured herself when she testified that Lee abused residents of Southside Virginia Training Center. Lee’s argument to the contrary emphasizes an alleged discrepancy between the trainee’s testimony in her case and the trainee’s testimony in the grievance hearing of a co-worker, whom the trainee’s testimony also apparently implicat ed in the abuse of residents on October 11, 2007. According to the hearing officer in Lee’s case, th e trainee testified that she “received a verbal counseling from her Program Director” because sh e apparently did not report Lee’s actions until the next day, October 12. Lee contends that the trainee testified differently at Lee’s co-worker’s grievance hearing. But there is no evidence in the agency record that she did so. 2 No evidence suggests that the trainee’s testim ony in Lee’s grievance hearing was ever the basis for a perjury

2 On brief, Lee cites appendix pages 302-04 as establishing this pr oposition. These pages refer to part of the transcript of Lee’s argument before the circu it court. In this transcript, counsel for Lee refers to a reco rding of the trainee’s testimony at the co-worker’s grievance hearing, and apologizes for not havi ng made arrangements to transc ribe the testimony. There is no evidence that this tape recording was admitted into the administrative record in Lee’s case when it was before the hearing officer. The d ecision in Lee’s co-worke r’s grievance proceeding was issued on May 13, 2008, sixteen days before Lee’s grievance hearing. So Lee had the opportunity to use the trainee’s prior testimony in the other hearing to impeach her testimony at the administrative stage, and failed to do so. Relying on Brooks v. Arthur , 611 F. Supp. 2d 592, 597 (W. D. Va. 2009), Lee contends that we may ta ke judicial notice of the written decision of the hearing officer who presides over the grievan ce hearing in the case of Lee’s co-worker. But even if she is right about this, the written decision she mentions says nothing about the trainee’s testimony as to whether she was disciplined for failing to repo rt the incident immediately.-8- prosecution or conviction under C ode § 18.2-434. Moreover, the question of whether the trainee was telling the truth was a question of fact. To endorse Lee’s argument would be to adopt for this Court a fact-finding role that the General Assembly has expressly assigned to the hearing officer. Barton , 39 Va. App. at 445, 573 S.E.2d at 322.
IV. CONCLUSION We hold that the circuit court did not err in affirming the hearing officer’s decision. The ruling of the trial court is affirmed. Affirmed.