Wetherington v. Due north Carolina Department of Public Safety, 368 North.C. 583 (2015)

December. eighteen, 2015 · Supreme Court of North Carolina · No. 22PA14

368 Northward.C. 583

THOMAS C. WETHERINGTON, Petitioner v. NORTH CAROLINA DEPARTMENT OF PUBLIC Condom (f/thousand/a Due north.C. Section OF CRIME CONTROL & PUBLIC SAFETY; NORTH CAROLINA HIGHWAY PATROL), Respondent

THOMAS C. WETHERINGTON, Petitioner v. NORTH CAROLINA Section OF PUBLIC SAFETY (f/1000/a N.C. Department OF Offense CONTROL & PUBLIC Safety; NORTH CAROLINA HIGHWAY PATROL), Respondent

No. 22PA14

Filed xviii Dec 2015

Police Officers — dismissal of highway trooper — failure to exercise discretion — misapprehension of police

The commanding officeholder of the N Carolina State Highway Patrol acted nether a misapprehension of law when he dismissed a State Trooper (petitioner) from employment for an alleged violation of the Patrol's truthfulness policy. The commanding officer erroneously believed that he was required to dismiss petitioner and thus failed to do his discretion based on the circumstances of the case. The Supreme Court remanded the matter to the employing *584agency for decision of whether petitioner'southward conduct constituted but cause for dismissal.

On discretionary review pursuant to N.C.Yard.S. § 7A-31 of a unanimous decision of the Court of Appeals,_N.C. App._, 752 S.Eastward.2d 511 (2013), affirming a conclusion and order entered on 14 Dec 2012 by Judge Howard East. Manning, Jr. in Superior Court, Wake County. On 18 December 2014, the Supreme Courtroom immune petitioner's conditional petition for discretionary review as to additional bug. Heard in the Supreme Court on 19 May 2015.

McGuinness Law Business firm, by J. Michael McGuinness, for petitioner-appellee/appellant.

Roy Cooper, Attorney General, byJohnF. Maddrey, Solicitor Full general, and Thomas J. Ziko, Special Counsel, for respondent-appellant/ appellee.

George J. Franks 4 and Richard C. Hendrix for National Association of Police Organizations, amicus curiae.

Crabbe, Brown & James, LLP, by Larry H. James, pro hac vice, and Christina L. Corl, pro hac vice, for National Fraternal Order of Police; and Richard Hattendorffor North Carolina Land Lodge of Fraternal Order of Constabulary, amici curiae.

Edelstein and Payne, past M. Travis Payne, for Professional person Burn down Fighters and Paramedics of North Carolina, amicus curiae.

Bailey & Dixon, LLP, by J. Heydt Philbeck and Sabra J. Faires, for Southern States Law Chivalrous Association and Due north Carolina Police Benevolent Association, amici curiae.

Law Offices of Michael C. Byrne, by Michael C. Byrne, for State Employees Clan of N Carolina, amicus curiae.

On 4 August 2009, Thomas Wetherington (petitioner) was dismissed from the North Carolina Thruway Patrol (the Patrol) for declared violations of the Patrol'due south truthfulness policy. The Land Personnel Commission (SPC) determined that petitioner's dismissal was supported *585by just cause. Petitioner filed for judicial review in Superior Courtroom, Wake County, and the superior court reversed, final that petitioner'due south "misconduct. . . did not amount to merely cause for dismissal" and that "the decision to dismiss [petitioner] was arbitrary and capricious." On appeal, the Due north Carolina Court of Appeals affirmed the superior court'south order. Wetherington five. Northward.C. Dep't of Offense Control & Pub. Safety, _ N.C. App. _, 752 S.E.2nd 511 (2013). We immune the petition for discretionary review filed past respondent, the North Carolina Section of Law-breaking Command and Public Rubber,1 and the conditional petition for discretionary review filed by petitioner. Because it appears that the official who dismissed petitioner proceeded nether a misapprehension of the law, namely that he had no discretion over the range of subject area he could administrate, we at present modify and affirm the opinion of the Court of Appeals and remand.

Petitioner was employed every bit a Trooper with the Patrol. On 21 May 2009, a complaint was filed against petitioner with the Patrol's Internal Affairs Section alleging that petitioner had provided contradictory statements most an incident in which he lost his campaign hat and in doing and then had violated the Patrol's truthfulness policy. This policy states: "Members shall exist truthful and consummate in all written and oral communications, reports, and testimony. No member shall willfully report any inaccurate, false, improper, or misleading information." After an investigation, the Patrol dismissed petitioner on 4 August 2009.

On 23 October 2009, petitioner filed a petition for a contested example hearing in the Function of Administrative Hearings (OAH), and a hearing was conducted on 17 and eighteen March 2010. On 3 September 2010, the administrative law gauge (AU) filed a recommended decision making findings of fact and final that the Patrol's decision to dismiss petitioner was supported past the evidence. The AU made extensive findings of fact that included:

5. On March 29, 2009, Petitioner, while on duty, observed a pickup truck pulling a boat and made a traffic terminate of that truck on US 70 at approximately x:00 pm. During that traffic stop, Petitioner discovered two loaded handguns in the truck and smelled the odor of alcohol coming from the interior of the truck. The ii male person occupants of the truck were cooperative and non belligerent. *586Petitioner took possession of the handguns. At the conclusion of that traffic stop, Petitioner proceeded to a stopped car that had pulled off to the side of the road a short altitude in forepart of the truck and boat trailer.
6. Petitioner testified that he first noticed his hat missing during his approach to the car parked in front of the truck. Petitioner heard a crunch racket in the roadway and saw a burgundy eighteen-wheeler drive by.
vii. Petitioner testified that after the decision [of] his investigation of the stopped car, he looked for his chapeau. Petitioner found the gilded acorns from his hat in the right hand lane well-nigh his patrol vehicle. The acorns were somewhat flattened.
9. After searching for, but not locating his hat, Petitioner contacted Sergeant Oglesby, his immediate supervisor, and told him that his hat blew off of his head and that he could not notice it.
11. Trooper Rink met Petitioner on the side of the road of U.s. 70. Trooper Rink asked Petitioner when he last saw his chapeau. Petitioner said he did not know.... Petitioner said that he was going down the road ... and was putting something in his seat when he realized he did not have his lid. Petitioner and then indicated that he turned effectually and went back to the scene of the traffic stops and that is when he establish the acorns from his hat. Petitioner was very upset and Trooper Rink told Petitioner that everybody loses stuff and that if Petitioner did not know what happened to his hat, then he should just tell his Sergeants that he didn't know what happened to information technology. Petitioner replied that it was a little late for that considering he already had told his Sergeant that a truck came by and blew it off of his head.
13. The testimony of Trooper Rink provides substantial show that Petitioner did not know what happened to his hat, was untruthful to Sergeant Oglesby when he *587said it blew off of his caput, and that Petitioner'south untruthfulness was willful.
15. The side by side day, March xxx, 2009, Sergeant Oglesby and several other members of the Patrol looked for Petitioner's hat.
16. Sergeant Oglesby had a detailed conversation with Petitioner on the side of the road regarding how the lid was lost. During the conversation, Petitioner remained consistent with his kickoff statement to Sergeant Oglesby from the night of March 29, 2009 as he explained to Sergeant Oglesby that a gust of wind blew his lid off of his head. Petitioner continued stating that the wind was blowing from the southeast to the northwest. Petitioner said he turned dorsum towards the direction of the roadway and saw a burgundy eighteen[-]wheeler coming down the road so he could not run out in the roadway and retrieve his hat. Petitioner then heard a crunch and did not run across his hat anymore.
18. Petitioner was not truthful to Sergeant Oglesby on March 30, 2009, when he explained how he lost his hat.
20. Petitioner testified that, approximately three to four days after the loss of the hat, he suddenly realized that the hat did not blow off of his head, just that he had placed the lid on the calorie-free bar of his Patrol vehicle and information technology blew off of the lite bar. Petitioner never informed any supervisors of this sudden realization.
21. Approximately 3 weeks after the hat was lost, Petitioner received a telephone phone call from Melinda Stephens, during which Petitioner was informed that her nephew, the commuter of the truck and boat trailer on March 29, 2009, had Petitioner's hat.
22. Petitioner informed Sergeant Oglesby that his chapeau had been found.
*58823. Petitioner's hat subsequently was returned to Sergeant Oglesby. When returned, the hat was in proficient status and did not appear to take been run over.
24. Due to the inconsistencies in Petitioner'due south statements and the condition of the hat, Commencement Sergeant Rock and Sergeant Oglesby chosen Petitioner to come in for a meeting. During the meeting, Start Sergeant Rock asked Petitioner to clarify that the hat blew off of his caput and that the lid was struck past a automobile. Petitioner said yes. Kickoff Sergeant Rock so pulled Petitioner's hat out of the chiffonier and told Petitioner that his story was not feasible because the chapeau did not appear to have been run over. At that point, Petitioner broke downwardly in tears and said he wasn't certain what happened to his hat. He didn't know if it was on the torso lid of the truck, the boat, or behind the light bar, and blew off. Petitioner stated that he told Sergeant Oglesby that the chapeau blew off his caput because he received some bad counsel from someone regarding what he should say about how the lid was lost.
25. During his meeting with First Sergeant Stone and Sgt. Oglesby, Petitioner was untruthful when he told Start Sergeant Rock that the lid blew off of his caput because by Petitioner's own testimony, three days after losing his hat he realized that he placed it on his light bar. All the same, three weeks later the incident, in the meeting with Showtime Sergeant Rock and Sergeant Oglesby he continued to merits that the hat blew off of his head. Information technology wasn't until First Sergeant Rock took the chapeau out and questioned Petitioner more that Petitioner admitted that the lid did not accident off of his caput, but blew off of the light bar. Therefore, even if Petitioner was confused on March 29, 2009, as he claims, he still was being untruthful to his Sergeants by continuing to tell them that the lid blew off of his head ....
33. Petitioner's untruthful statements to Get-go Sergeant Stone and Sergeant Oglesby were willful and were made to protect himself against possible farther reprimand because of leaving the patrol vehicle without his embrace.

*589(Citations omitted.) The findings also noted that Colonel Randy Glover ultimately was responsible for determining what type of field of study to impose upon petitioner for his conduct. The AU observed that Colonel Glover "considers the policy on truthfulness and then paramount to the organization that, in his opinion, a fellow member who is untruthful must exist terminated"; even so, the AU found that Colonel Glover "was aware that he had discretion" regarding what blazon of discipline to impose and "exercised that discretion in deciding to dismiss [petitioner." The AU concluded that "Respondent had just crusade to discipline Petitioner in the grade of dismissal." The SPC adopted the AU's findings of fact and conclusions of police force, constitute that "Respondent met its burden of proving that information technology had but cause to dismiss Petitioner," and affirmed.

On 25 February 2011, petitioner filed for judicial review in Superior Court, Wake Canton, and on 14 December 2012, the superior court entered an order reversing the final conclusion of the SPC. Although the superior court determined that the evidence supported the agency's findings that petitioner engaged in untruthful bear and that his actions constituted unacceptable personal carry, the courtroom ultimately ended that the conduct did non provide just cause for dismissal. In improver, the superior court ruled that the decision to dismiss petitioner "was arbitrary and capricious" and that Colonel Glover failed to "consider alternative, lesser sanctions against [petitioner] over this incident involving the temporary loss of a $fifty.00 hat during a legitimate traffic stop and [petitioner's] variable recollections of the circumstances under which the hat disappeared."

Respondent appealed to the Court of Appeals, and petitioner filed a cantankerous entreatment. On 17 December 2013, the Court of Appeals filed a unanimous, published opinion affirming the superior court'southward social club. Wetherington, _ N.C. App. at _, _, 752 S.E.2d at 511, 517. We allowed both respondent's petition for discretionary review and petitioner's conditional petition for discretionary review.

Respondent argues that the Court of Appeals erred by affirming the superior court'due south order reversing the SPC'southward decision. We disagree. Considering Colonel Glover did not understand that he had discretion to consider the full range of potential discipline, his decision was "[ajffected past [an] error of constabulary." See Northward.C.M.Southward. § 150B-51(b)(four) (2009).2

*590"On judicial review of an administrative agency'south final determination, the substantive nature of each assignment of error dictates the standard of review." Northward.C. Dep't of Env't & Nat. Res. v. Carroll, 358 North.C. 649, 658, 599 Due south.E.2d 888, 894 (2004) (citing, inter alia, Human action-UP Triangle 5. Comm'northward for Health Servs., 345 N.C. 699, 706, 483 S.E.2nd 388, 392 (1997), questioned in Shackleford-Moten five. Lenoir Cty. Dep't of Soc. Servs., 155 Northward.C. App. 568, 572, 573 South.E.2d 767, 770 (2002), disc. rev. denied, 357 Northward.C. 252, 582 S.E.2d 609 (2003), and Land ex rel. Utils. Comm'northward 5. Bird Oil Co., 302 N.C. fourteen, 21, 273 Southward.E.2d 232, 236 (1981)). The reviewing court may, inter alia,

opposite or modify the bureau'due south decision ... if the substantial rights of the petitioners may accept been prejudiced considering the agency'southward findings, inferences, conclusions, or decisions are:

(ane) In violation of constitutional provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(iii) Made upon unlawful process;
(4) Afflicted by other fault of law;
(5) Unsupported past substantial evidence ... in view of the entire record as submitted; or
(half dozen) Arbitrary, arbitrary, or an abuse of discretion.

N.C.G.South. § 150B-51(b). This Courtroom has explained that if "the gravamen of an assigned error is that the agency violated subsections 150B-51(b)(l), (2), (three), or (four) ... a court engages in de novo review." Carroll, 358 Northward.C. at 659, 599 South.East.2d at 895 (citing, inter alia, Meads 5. Northward.C. Dep't of Agric., 349 N.C. 656, 665, 509 South.E.second 165, 171 (1998)). "Under the de novo standard of review, the trial courtroom 'considers] the matter afresh[ ] and freely substitutes its own judgment for the agency's.' " Id. at 660, 599 South.E.2d at 895 (quoting Isle of mann Media, Inc. 5. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2nd 9, 17 (2002) (alterations in original)).

Affiliate 126 of our Full general Statutes provides that "[northward]o career Country employee subject area to the State Personnel Act shall exist discharged, suspended, or demoted for disciplinary reasons, except for just cause." N.C.G.S. § 126-35(a) (2009). A career Land employee is defined as

a State employee or an employee of a local entity who is covered by this Affiliate pursuant to G.Southward. 126-5(a)(two) who:
*591(1) Is in a permanent position appointment; and
(2) Has been continuously employed by the State of Northward Carolina or a local entity as provided in Chiliad.S. 126-five(a)(2) in a position subject to the State Personnel Act for the firsthand 24 preceding months.

Id. § 126-i.1 (2009).

As authorized by N.C.G.S. § 126-35(a), the SPC has adopted rules that define just cause for discipline of a career land employee. Run across 25 NCAC 01J .0604 (June 2014). These rules establish two grounds for subject field: unsatisfactory job performance and unacceptable personal conduct. Id. Unacceptable personal conduct is defined, inter alia, equally

(a) conduct for which no reasonable person should look to receive prior warning;
(b) job-related conduct which constitutes a violation of state or federal law;
(c) confidence of a felony or an offense involving moral turpitude that is detrimental to or impacts the employee's service to the Country;
(d) the willful violation of known or written work rules;
(east) behave unbecoming a state employee that is detrimental to land service[.]

25 NCAC 01J .0614(8) (June 2014).

"Nonetheless, the fundamental question in a case brought under N.C.G.S. § 126-35 is whether the disciplinary action taken was 'only.' Inevitably, this inquiry requires an irreducible act of judgment that cannot e'er be satisfied past the mechanical awarding of rules and regulations." Carroll, 358 Northward.C. at 669, 599 South.E.2d at 900. Just crusade "is a 'flexible concept, embodying notions of equity and fairness,' that tin merely be determined upon an examination of the facts and circumstances of each private case." Id. at 669, 599 Due south.E.2nd at 900-01 (citations omitted) (quoting Crider v. Spectralite Consortium, Inc., 130 F.3d 1238, 1242 (seventh Cir. 1997)). Information technology follows that, pursuant to Carroll'due south "flexible" definition of "just cause," Colonel Glover has discretion, equally a matter of law, in dismissing an employee for violating the Patrol'southward truthfulness policy.

*592Here, the AU found that petitioner behaved as alleged and that his behavior violated a written work rule. The error of constabulary occurred when Colonel Glover was unaware of his responsibility to exercise discretion. Colonel Glover's testimony at the OAH hearing establishes that he decided to dismiss petitioner not based upon consideration of the facts and circumstances of petitioner'south conduct, only instead because of his erroneous view that any violation of the Patrol's truthfulness policy must result in dismissal. Colonel Glover testified that because petitioner'southward conduct "was manifestly a violation of the truthfulness policy," dismissal was required, and he repeatedly asserted that he "had no choice" to impose any lesser penalty. Afterward petitioner's counsel asked Colonel Glover whether, "when there is a substantiated or adjudicated finding of untruthfulness ... [a trooper] would necessarily need to be terminated," Colonel Glover reiterated that if "that'due south the violation, over again ... I have no pick because that's the way I view it." Petitioner's counsel then asked, "[D]oes that mean if you observe a substantiated or adjudicated violation of the truthfulness policy... that you lot don't feel like that gives you whatsoever discretion every bit Colonel to do annihilation less than termination?" Colonel Glover agreed with that argument.

As written, the truthfulness policy applies to "all written and oral communications," and information technology applies to a wide range of untruthful, inaccurate, "improper," or "misleading" statements. Zilch in the text of the policy limits its awarding to statements related to the trooper's duties, the Patrol's official business, or any other significant subject matter. Notwithstanding the potentially expansive scope of this policy, Colonel Glover confirmed that he could not impose a penalty other than dismissal for whatever violation, apparently regardless of factors such every bit the severity of the violation, the subject matter involved, the resulting harm, the trooper's piece of work history, or discipline imposed in other cases involving like violations. We emphasize that consideration of these factors is an appropriate and necessary component of a decision to impose discipline upon a career State employee for unacceptable personal carry.

Colonel Glover's mistaken view that he had no discretion over the advisable mensurate of subject field was a misapprehension of the law, which subjects his decision to reversal or modification pursuant to N.C.G.Due south. § 150B-51(b)(4) considering it is "[a]ffected by other error of police." The approach employed by Colonel Glover in applying a fixed penalization of dismissal for whatsoever violation is antithetical to the flexible and equitable standard described in Carroll and is at odds with both the Help's and the SPC's finding of fact that Colonel Glover exercised discretion in reaching his conclusion to dismiss petitioner.

*593Application of an inflexible standard deprives management of discretion. While dismissal may be a reasonable course of action for quack conduct, the better practice, in keeping with the mandates of both Chapter 126 and our precedents, would exist to allow for a range of disciplinary actions in response to an individual act of untruthfulness, rather than the categorical arroyo employed by management in this case.

Equally such, by upholding respondent's apply of a per se dominion of mandatory dismissal for all violations of a detail policy, the SPC failed to examine the facts and circumstances of petitioner's individual case as required past this land'due south jurisprudence. For these reasons, nosotros conclude that the superior court correctly reversed the SPC's decision.

Nevertheless, the superior court determined that petitioner's conduct did non constitute just cause for dismissal, and the Courtroom of Appeals affirmed that conclusion. Because we conclude that Colonel Glover's employ of a dominion requiring dismissal for all violations of the Patrol's truthfulness policy was an error of police force, see North.C.G.S. § 150B-51(b)(4), we detect information technology prudent to remand this affair for a conclusion by the employing bureau as to whether petitioner should be dismissed based upon the facts and circumstances and without the application of a per se rule. Equally a outcome, nosotros do not determine whether petitioner'south bear constitutes only cause for dismissal.

Accordingly, the decision of the Court of Appeals is modified and affirmed, and the instance is remanded to the Court of Appeals with instructions to that court to remand to the Superior Court, Wake County for subsequent remand to the SPC and further remand to the employing agency for additional proceedings not inconsistent with this opinion. We further conclude that petitioner's conditional petition for discretionary review was improvidently allowed.

MODIFIED, AFFIRMED, AND REMANDED; DISCRETIONARY REVIEW IMPROVIDENTLY Allowed IN Function.