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. 
 2 

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 

 

 1In order to be eligible for federal grants, the city was 

required to provide a drug-free workplace by adopting and 
 3 

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. 
 4 

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 
 5 

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.