Gilchrist v. Board of Review of the Oklahoma Employment Security Commission

WATT, C.J. FACTS AND PROCEDURAL BACKGROUND ¶ 1 Appellant, Joyce Gilchrist, worked for the City of Oklahoma City Police Department as a forensic chemist for many years. Gilchrist was responsible for collecting and analyzing evidence from crime scenes and testifying as to the results in criminal prosecutions. Gilchrist was fired in 2001, in part based on United States District Judge Ralph Thompson’s published opinion in a habeas corpus proceeding, Mitchell v. Ward, 150 F.Supp 2d 1194 (W.D.Okla.1999). The issues before Judge Thompson arose from a criminal matter tried in the District Court of Oklahoma County in which Gilchrist had testified for the prosecution. Based on his analysis of the evidence developed in the habeas corpus matter, Judge Thompson concluded that Gilchrist’s testimony in the criminal trial concerning DNA evidence had been, “without question untrue,” 150 F.Supp.2d at 1226, and “terribly misleading, if not false,” 150 F.Supp.2d at 1229. ¶ 2 Judge Thompson’s opinion in Mitchell reveals that the petitioner, Mitchell, had been tried and convicted of forcible rape and murder. Mitchell’s habeas corpus proceeding was based on his claim that he had been denied access to exculpatory evidence. As a result of the seriousness of Mitchell’s claims, Judge Thompson allowed Mitchell to conduct discovery, which produced Gilchrist’s notes regarding her conversations with an FBI chemist regarding the DNA testing by the FBI. ¶ 3 Judge Thompson then granted Mitchell an evidentiary hearing. Gilchrist had testified at the criminal trial that the FBI’s DNA analysis was “inconclusive” as to whether any DNA sample may have matched Mitchell’s DNA. But the FBI chemist testified in the federal habeas corpus hearing that Mitchell’s DNA was not found in the FBI testing and that was the import of his report to Gilchrist. Gilchrist admitted in the federal court hearing that the DNA evidence did, indeed, exclude Mitchell. It was as a result of these revelations that Judge Thompson concluded that Gilchrist’s trial testimony, to the effect that the DNA results were “inconclusive,” was untrue. On appeal from Judge Thompson’s ruling the United States Court of Appeals for the 10th Circuit summarized the effect of Gilchrist’s testimony: “Ms. Gilchrist thus provided the jury with evidence implicating Mr. Mitchell in the sexual assault of the victim which she knew was rendered false and misleading by evidence withheld 74 from the defense.” [Emphasis by the court.] Mitchell v. Gibson, 262 F.3d 1036, 1064 (10th Cir.2001). ¶ 4 Immediately after Oklahoma City police department officials received a copy of Judge Thompson’s opinion in Mitchell in the Fall of 1999, they began an investigation into Gilchrist’s conduct. Although Gilchrist complains that excessive time elapsed from the time of her testimony against Mitchell in 1992 and the hearing, the record reflects that it was Judge Thompson’s 1999 opinion that brought to light the seriousness of Gilchrist’s misconduct and the police department investigation started immediately thereafter. Following its investigation the police department started disciplinary proceedings before the Police Department Review Board. These proceedings were significantly delayed as a result of Gilchrist’s having sought continuances and having filed a federal court lawsuit to prohibit the city from conducting the hearing. Finally, the Police Department Review Board, after fourteen days of hearings and deliberations ending September 12, 2001, terminated Gilchrist’s employment on September 25, 2001. ¶ 5 Gilchrist filed a claim with the Oklahoma Employment Securities Commission seeking unemployment benefits; On October 15, 2001 the Oklahoma Employment Securities Commission denied Gilchrist’s claim based on the Commission’s conclusion that Gilchrist had been fired for misconduct. On October 25, 2001, Gilchrist appealed to an Appeal Tribunal of the Oklahoma Employment Securities Commission. On December 12, 2001 a hearing was held before an Appeal Tribunal hearing officer, who affirmed the Commission’s determination on February 4, 2002. Gilchrist appealed from the Appeal Tribunal’s order and on April 26, 2002 the Oklahoma Employment Securities Commission Board of Review affirmed. Gilchrist filed her petition for judicial review in the District Court of Oklahoma County on May 7,2002. The trial court affirmed the opinion of the Board of Review on October 29, 2002 and this appeal ensued. STANDARD OF REVIEW ¶ 6 Title 40 O.S.2001 § 2-610 provides, . In any proceeding under this section the findings of the Board of Review as to the facts, if supported by evidence, shall be conclusive and the jurisdiction of said court shall be confined to questions of law....” This Court’s standard of review on appeal is the same as that of the trial court. Further, the question of what constitutes “misconduct” sufficient to deprive a terminated employee of entitlement to unemployment benefits is a question of law. Nordam v. Oklahoma Employment Securities Commission, 1996 OK 110, ¶ 12, 925 P.2d 556, 559. DISCUSSION ¶ 7 Title 40 O.S.2001 § 2-406 provides that an individual shall be disqualified from receiving unemployment benefits if the employee was discharged for “misconduct.”1 We have defined “misconduct,” as that word is used in § 2-406, to be: ... conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed “misconduct” within the meaning of the statute. 75 [Emphasis added.] Vester v. Board of Review of Oklahoma Employment Securities Commission, 1985 OK 21, ¶ 15, 697 P.2d 533, 538. ¶ 8 In addition to Judge Thompson’s and the 10th Circuit’s Mitchell opinions, the record in the trial court contains the Court of Criminal Appeals’s opinion in McCarty v. State, 1988 OK CR 271, 765 P.2d 1215, which similarly found fault with Gilchrist’s conduct. The record also contains other opinions that criticized Gilchrist’s conduct in other criminal prosecutions.2 ¶ 9 We hold that Gilchrist’s conduct in Mitchell, that is knowingly giving false and misleading testimony in a criminal case, constituted “misconduct” sufficient to support the denial of unemployment benefits under § 2-406, as defined in Vester, 1985 OK 21, ¶ 15, 697 P.2d 533, 538. Nothing could be more fundamental than the obligation of a forensic chemist employed by a police department to give testimony that is both honest and fair. Only in this way can our criminal justice system itself be regarded as both honest and fail-. Clearly, Gilchrist did not satisfy that standard when she testified in Mitchell that the DNA evidence was “inconclusive,” despite having been told by the FBI chemist that the DNA was not Mitchell’s.” ¶ 10 The McCarty opinion also reveals “misconduct,” as found by the Appeal Tribunal, the Board of Review, and affirmed by the trial court. Gilchrist had testified in a murder trial that forensic techniques were not sufficiently advanced to allow positive identification of a person through blood typing, secretor status, or hair analysis. The Court of Criminal Appeals, though, held, “We find it inconceivable why Ms. Gilchrist would give such an improper opinion, which she admitted she was not qualified to give.” McCarty, 1988 OK CR 271 at ¶ 6, 765 P.2d 1215. [Emphasis added.] The court went on to observe, “Whether or not Ms. Gilchrist’s opinion constituted an improper personal expression of the appellant’s guilt, her opinion that appellant was in fact present when violence was done to the victim ivas an improper expert opinion, because it was beyond the present state of the art of forensic science, and certainly beyond Gilchrist’s personal knowledge, as testified to by both Ms. Gilchrist and Mr. Wilson.” McCarty, 1988 OK CR 271 at ¶ 8, 765 P.2d 1215. [Emphasis added.] As noted, such testimony brings into question the honesty and fairness of the criminal justice system. ¶ 11 We hold that Gilchrist’s derelictions “show[ed] an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to [her] employer.” Vester, 1985 OK 21, at ¶ 15, 697 P.2d 533. Her conduct, therefore, was “misconduct,” as that word is used in 40 O.S.2001 § 2-406. Gilchrist had no constitutionally protected right to free speech sufficient to protect her from the consequences of her testimony in the Mitchell or McCarty prosecutions. ¶ 12 Gilchrist cites several opinions, which she claims support her contention that her constitutionally protected right to free speech was violated because she was fired as a result of her testimony in criminal prosecutions.3 We have found nothing in the cases Gilchrist cites, though, which would convince us that her constitutional rights were violated here. In most of those cases persons who had been accused of crimes sued parties who had been witnesses for the prosecution for money damages on the ground that those defendants’ testimony had deprived the convicted plaintiffs of their civil rights. Further, in none of those opinions was the testimony at issue judicially determined to have been false or misleading. ¶ 13 In stark contrast to any of the cases Gilchrist cites, the record of the testimony in the cases at issue here was carefully considered in post-trial proceedings by courts not 76 involved in the trials themselves. Those courts found that Gilchrist’s testimony was either false and misleading or wilfully improper in other ways. On this record, we hold that Gilchrist’s rights to free speech were not violated. CONCLUSION ¶ 14 The record supports the unanimous holding of the Oklahoma Employment Securities Commission, the Appeal Tribunal, the Board of Review, and the trial court that Gilchrist was guilty of “misconduct” in Gilchrist’s job performance, as that word is used in 40 O.S. § 2-406 and was interpreted in Vester v. Board of Review of Oklahoma Employment Securities Commission, 1985 OK 21, ¶ 15, 697 P.2d 533, 538. Gilchrist’s testimony in the criminal prosecutions described in Mitchell v. Ward, 150 F.Supp.2d 1194 (W.D.Okla.1999); Mitchell v. Gibson, 262 F.3d 1036 (10th Cir.2001); and McCarty v. State, 1988 OK CR 271, 765 P.2d 1215, amply supports the holding. By testifying as she did in those cases, Gilchrist violated her fundamental obligation as a forensic chemist for the Oklahoma City Police Department to give testimony that was both honest and fair. Gilchrist’s derelictions “show[ed] an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to [her] employer.” Vester, 1985 OK 21, at ¶ 15, 697 P.2d 533. Her conduct, therefore, was “misconduct,” as that word is used in 40 O.S.2001 § 2—106. Our holding serves to protect the integrity of the criminal justice system by demonstrating that giving false or unfair testimony in criminal prosecutions has consequences. ¶ 15 Gilchrist’s civil right to free speech did not serve to insulate her from the consequences of her testimony in the criminal prosecutions at issue here. Her testimony was judicially determined to have been either false and misleading or improper in other ways. Thus, the opinions cited by Gilchrist, see note 3, are inapposite because in none of them had the defendant’s testimony been judicially determined to have been false, misleading, or improper in some other way. JUDGMENT OF THE TRIAL COURT AFFIRMED. ALL JUSTICES CONCUR. Footnotes [1] Title 40 O.S.2001 § 2-406 provides: An individual shall be disqualified for benefits if he has been discharged for misconduct connected with his last work, if so found by the Commission. Disqualification under this section shall continue for the full period of unemploy-menl next ensuing after he has been discharged for misconduct connected with his work and until such individual has become reemployed and has earned wages equal to or in excess of ten (10) times his weekly benefit amount [2] Those opinions are: McCarty v. State, 1995 OK CR 48, 904 P.2d 110; Cannon v. Gibson, 259 F.3d 1253 (10th Cir.2001); Pierce v. State, 1990 OK CR 7, 786 P.2d 1255; Ables v. State, OK CR F-1986-776 (unpublished); and Fox v. State, 1989 OK CR 51, 779 P.2d 562. [3] In support of this proposition Gilchrist cites, among other opinions. Williams v. Hepting, 844 F.2d 138, 141 (3d Cir.1988); Worrell v. Henry, 219 F.3d 1197, 1204 (10th Cir.2000); and Briscoe v. LaHue, 460 U.S. 325, 330-331, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983).