IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

KRYSTAL PATTERSON,
Employee-BeloW/Appellant,

V.

DEPARTMENT OF HEALTH AND
SOCIAL SERVICES/DIVISION OF
MANAGEMENT SERVICES,
Employer-BeloW/Appellee.
and the
MERIT EMPLOYEE RELATIONS
BOARD,
Appellee.

C.A. Nl 6A-07-004 AML

\/\/\/\./\./\/\/\/VV\/\/\./

Submitted: August 4, 2017
Decided: October l3, 2017

ORDER

On Appellant’s Appeal from the Merit Employee Relations Board: DENIED

l. This is an appeal from the Merit Employee Relations Board’s (“the
Board”) decision concerning Petitioner’s termination under Merit Rule lZ.l for
violation of the state code of conduct and IT policies. The appeal presents two
primary issues: (i) Whether the Board had substantial evidence to find Patterson
violated the state code of conduct and IT policies When her employee ID and
passWord Were used in connection With a scheme to defraud DMS of over $13,000
in unauthorized overtime pay; and (ii) Whether DMS had just cause for terminating
Patterson’s employment under Merit Rule 12.l When DMS found she violated said

policies.

Factual Background

2. Appellant Krystal Patterson Was an accounting specialist With the
Division of Management Services (“DMS”) until she Was terminated on September
4, 2015. As an accounting specialist, Patterson entered timekeeping and payroll
records for the Department’s employees into the Payroll/Human Resources
Statewide Technology (“PHRST”) system. Her termination followed an
investigation into apparent fraudulent authorization of overtime pay for two of
Patterson’s coworkers.

3. At DMS, employee overtime first is authorized by an accounting
specialist and then is entered into PHRST through a “special exceptions” report.
Each accounting specialist entering the special report has to sign it With their
initials. Then, a different accounting specialist conducting a quality assurance
review signs their initials on the same day, or by Wednesday of the same week.
Accounting specialists cannot enter their oWn overtime.

4. On June 18, 2015, Patterson's supervisor, a Fiscal Administrative
Officer, emailed DMS Controller Morton, relaying that Patterson complained the
overtime policy Was not being enforced fairly. Patterson and another accounting
specialist, Mandi Rosado, Were denied authorization for overtime because they did

not have the necessary documentation Before complaining to the supervisor,

Patterson entered Rosado's payroll information Without overtime and it Was
checked by quality control.

5. Later, Patterson Went into PHRST's system to discover Rosado Was
paid overtime Without the authorization. Patterson then told quality control that
she believed Rosado's payroll records Were changed after it Was approved by
quality control. Controller Morton confirmed later that Rosado received an
additional $293.63 in unauthorized overtime during that pay period.

6. Suspicious of these entries, Morton discovered that Christie Kahn,
another accounting specialist, received up to $l,lOO of unauthorized overtime
during the same period. The only and last modifications made to Rosado’s and
Kahn's timekeeping records Were made through Patterson’s electronic signature
Morton then launched a full investigation of the DMS payroll for FY 2014 & 2015.

7. That investigation revealed Kahn alone received $13,000 in
unauthorized overtime payments. The unauthorized overtime payments to Kahn
and Rosado Were made under Patterson's electronic signature for almost eight
months, although there Was no record Patterson received unauthorized overtime or
other financial gain. Patterson testified that she never gave her passWord to
anyone, never Wrote it down, and changed it according to IT policies.

8. Many of the key issues in the investigation centered around the

PHRST security system. The passWords each accounting specialist uses to enter

overtime into PHRST are changed every 90 days. Anyone attempting to sign in
has three attempts before they are locked out by the system. This Was designed to
prevent unauthorized users from guessing passWords. The PHRST system cannot,
however, identify Which computer is used to sign into the system.

9. Morton’s investigation revealed Patterson’s desk had sticky notes With
What appeared to be passWords on them. Patterson testified that these passWords
Were for other email accounts. One note, however, read “Phrst” With “Jaelyn26”
underneath Patterson could not explain Why “Phrst” Was on that sticky note or
What it meant. When asked What her last PHRST passWord Was, Patterson testified
it Was Jaelyn08. Jaelyn is the name of Patterson’s daughter; the numbers
associated With Jaelyn’s date of birth all Were used for various passWords posted at
Patterson’s desk. In addition to numerals, PHRST passWords require a special
character. Patterson testified that she “[thought] you have to use a dollar sign” as
the special character. Patterson’s desk contained at least one passWord that
included a dollar sign.

lO. Based on these findings, DMS recommended Patterson’s termination
DMS sent Patterson a letter advising her of her right to file a grievance and
participate in a pre-termination hearing. The letter stated the investigation revealed

unauthorized overtime for Rosado and Kahn Which “violated the public trust and

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reflected unfavorably on the State. The letter also cited three bases for

Patterson’ s termination:

Violation of State Code of Conduct:

Each state employee, state officer and honorary state official shall
endeavor to pursue a course of conduct which will not raise suspicion
among the public that such state employee, state officer or honorary
state official is engaging in acts which are in violation of the public
trust and which will not reflect unfavorably upon the State and its
government2

Violation of DHSS Policv Memorandum #3, Apnropriate Use of
DHSS lnformation Technologv:

It is expected that users will conduct the State of Delaware Business
with integrity, respect [sic] and prudent judgment while upholding the
state’ s commitment to the highest Standald of conduct3

Violation of the Department of Technologv and Information’s
Acceptable Use Policv:

All staff is personally responsible for information security. The roles
and responsibilities of staff is defined in local policies and procedures
and incorporated into the staff orientation process. All staff has the
following responsibility: Compliance with the State of Delaware
Information Security policies, procedures and standards established to
maintain the confidentiality, integrity and availability of State
information and data assets; Actions associated with assigned
accounts, equipment, and removable media; Protecting the secrecy of
their pas:;wor‘ds.4

ll. The DHSS cabinet secretary agreed with DMS management and

found that Patterson either entered the unauthorized overtime for Rosado and

 

l Board Op. 5.

2 29 Del. C. § 5806(a).

3 Policy Memorandum #3, sTATE oF DELAWARE DHSS (oct. 17, 2014),
hle:wa.dhss.delaware.gov/dhssfadmin/files/pm3.pdf.

4 D'.I`l lnformation Security Policy page l l,
https://dti.delaware.gov/pdfs/pp/DelawarelnformationSecurityPolicy.pdf.

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Kahn, or recklessly compromised her password and ID, facilitating her coworker’s
fraudulent scheme to steal from the state. Patterson filed a timely appeal with the
Board. After hearing the appeal, the Board unanimously found Patterson violated
the State Code of Conduct and the IT Policy, but was unable to reach a decision
regarding the appropriateness of the termination Because the Board was split 2-2
on whether to grant or deny the grievance, the DMS decision to terminate
remained in effect. On July 5, 2016, Patterson perfected her appeal to this Court.
l2. Patterson argues DMS lacked substantial evidence to find Patterson
violated the Code of Conduct and IT Policies because alternative explanations for
the entries were possible and the Board incorrectly interpreted Patterson’s
testimony regarding her passwords. Patterson also contends the Board erred in
upholding DMS’s decision because DMS did not have just cause to terminate
Patterson under Merit Rule lZ.l. Specifically, Patterson argues again that DMS
lacked evidence to support a finding that she violated the Code of Conduct and IT
Policy. In Response, the Board argues its decision regarding the violations was
supported by substantial evidence and DMS had just cause for termination when
Patterson left sensitive password information on her desk in violation of IT
policies. The Board contends this information was used to defraud the state in

violation of the code of conduct.

Analysis

13. An appellate court’s review of a Board decision is limited. The Court
merely determines whether the decision was supported by substantial evidence and
free of legal error.5 Upon review of an administrative agency’s findings, the Court
“will not substitute its judgment for that of an administrative body where there is
substantial evidence to support the decision and subordinate findings of the
agency.”6

14. “Substantial evidence is that which ‘a reasonable mind might accept
as adequate to support a conclusion’ lt is more than a scintilla, but less than a
preponderance of the evidence. lt is a low standard to affirm and a high standard to
overturn If the record contains substantial evidence, then the Court is prohibited
from reweighing the evidence or substituting its judgment for that of the agency.”7
When reviewing the Board’s conclusions of law, the Court’s review is de 1’101)0.8

15. A discharge recommendation is presumed correct. The appellant bears
the burden to present evidence sufficient to rebut the presumption and to convince
the Board that termination was without just cause.9

l6. Merit Rule 12.1 provides:

Employees shall be held accountable for their conduct.
Disciplinary measures up to and including dismissal shall

 

5 Ward v. Dep ’t of Elections, 2009 WL 2244413, at *1 (Del. July 22, 2009).

6 Olney v. Cooch, 425 A.2d 610, 613 (Del. 1981).

7 Hanson v. DelaWare State Public Integrity Com ’n, 2012 WL 3860732, at *7 (Del. Super. Aug.
30, 2012).

8 Ward, 2009 WL 2244413, at *1.

9 Hopson v. McGinnes, 391 A.2d 187, 188 (Del. Super. Ct. 1978).

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be taken only for just cause. ‘Just cause’ means that
management has sufficient reasons for imposing
accountability. Just cause requires: showing that the
employee has committed the charged offense; offering
specified due process rights specified m this chapterl; and
imposing a penalty appropriate to the circumstances. 0

Patterson concedes the Board provided the specified due process rights. She only
argues that there was insufficient evidence Showing she committed the offense and
that termination was an inappropriate penalty under these circumstances The
Board found Patterson violated the Department of Technology and Information’s
Acceptable Use Policy (the “Acceptable Use Policy”) and the State Employee

Code of Conduct (the “Code of Conduct”).

17. The department’s Acceptable Use Policy specifically provides that all
staff have the responsibility of protecting the secrecy of their passwords. It is
evident that Patterson’s ID and password were used to enter unauthorized overtime
for Kahn and Rosado. Morton’s investigation revealed Patterson’s desk displayed
several sticky notes with elements used in Patterson’s PHRST passwords,
including the numbers in her daughter’s birthday.

18. Additionally, one sticky note inexplicably had “Phrst” written on it
with a portion of Patterson’s most recent password written underneath. Based on
this evidence, a reasonable mind could accept the conclusion that Patterson’s

coworkers could have combined the information displayed on Patterson’s desk to

 

10 State Merit Rules, Chapter 12, http://www.delawarepersonnel.com/mrules/chapter-12.shtml.

8

guess her PHRST password. This constitutes substantial evidence of a violation of
the department’s acceptable use policy and therefore just cause for disciplinary
measures under Merit Rule 12.1.

19. The Code of Conduct provides that each employee shall endeavor to
conduct themselves in such a way as to not raise public suspicion that such
employee is engaging in acts that violate the public trust or will reflect unfavorably
upon the state. Assuming, at the very least, that Patterson failed to maintain the
secrecy of her password, the Board reasonably could conclude that she violated the
public trust and her actions reflected unfavorably on the state. As an accounting
specialist, Patterson was responsible for entering payroll, overtime, and other
functions affecting the state’s resources. The fraudulent scheme facilitated by the
use of Patterson’s ID and password enabled Kahn alone to receive $13,000 in
unauthorized overtime. The success of Such schemes reflects unfavorably on the
state and can erode public trust in the integrity of state agencies. Consequently,
there was substantial evidence to support the Board’s findings that Patterson
violated the code of conduct.

20. Patterson argues that her termination is not supported by just cause
because the measure was inappropriate under the circumstances. Patterson points

to the Board’s 2-to-2 tie vote regarding the appropriateness of her termination The

Board found that Patterson did not benefit from her coworker’s scheme and that
she Was the one to bring it to DMS’s attention

21. The Supreme Court has held that when the administrative board is
split, “the [Superior] Court may remand for further consideration by the [board] or
it may make its own findings based upon the record made before the [board].”ll In
the interest of judicial efficiency, this Court will make its own findings based on
the record made before the Board.

22. Patterson has not carried her burden to present evidence sufficient to
disturb DMS’s decision At this stage, Patterson must present more than
alternative exculpatory theories or alleged misinterpretation of her testimony.
Patterson presented no evidence for how Kahn and Rosado obtained her password.
Considering the three-attempt sign-in limitation it seems impossible that her
coworkers were able to access her PHRST account without her giving the
password to them or leaving it carelessly on her desk. DMS is accountable to the
citizens of this state and has the responsibility of ensuring its office is run without
the appearance of embezzlement Consequently, l hold Patterson’s discharge was

appropriate

 

11 Hopson v. McGinnes, 391 A.2d 187, 189(De1. 1978).
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For the foregoing reasons, the decision of DMS is AFFIRMED. IT IS SO

MA/

Abi gail l\lf LeGrow`,J Judge

ORDERED.

Original to Prothonotary

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