State of North Carolina s5

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF ROBESON 04 OSP 1458

WAYNE PETTIT, ) ) Petitioner, ) ) v. ) DECISION ) NC DEPARTMENT OF CORRECTION, ) ) Respondent. )

This matter was heard before Beecher R. Gray, Administrative Law Judge, on May 26, 2005 in Courtroom 3 of Harnett County Courthouse, Lillington, North Carolina, commencing at 9:00 a.m. Respondent submitted a draft proposed decision on July 20, 2005.

APPEARANCES

For Petitioner: Gregory Bullard. Esq. Bullard & Bullard 206 East Third Street P.O. Box 1182 Pembroke, North Carolina 28372

For Respondent: Brian C. Wilks, Esq. Assistant Attorney General North Carolina Department of Justice 9001 Mail Service Center Raleigh, North Carolina 27699-9001

Did Respondent meet its burden to show just cause to dismiss Petitioner under N.C.G.S. § 126-35?

Based upon the official documents in the file, sworn testimony of the witnesses and other competent and admissible evidence, the undersigned makes the following:

FINDINGS OF FACT

1. Petitioner, Wayne Pettit (“Petitioner”) was employed by Respondent, Department of Correction (“DOC”) at Lumberton Correctional Institution (“LCI”) for approximately 7 years prior to his termination. T. p. 279.

2. On April 19, 2004, LCI conducted a drug interdiction search. During that drug interdiction search Lieutenant Glen Hunt was assigned the duty of an observer. T. pp. 100-101.

3. As an observer, Lt. Hunt was to monitor people who came onto LCI property by vehicle to see if people attempted to turn around or back out of the LCI driveway and to notify the interdiction team if people did so. T. p. 101.

4. During the drug interdiction search at LCI on April 19, 2004, Lt. Hunt was standing outside the unit a distance from the road when a black car turned into the driveway. Once the car turned in, it stopped. Lt. Hunt motioned for the vehicle to come on and it sat there for a moment and then backed out the driveway. T. pp. 101-102.

5. LCI has permanent signs that are posted all the time at the unit stating:

ATTENTION: Proceeding beyond this point constitutes consent to a search of all persons, property and vehicles that enter this property. Such search may include the use of a canine and electronic devices for detection of narcotics, weapons and explosives.

Respondent’s Exhibit 4.

6. During drug interdiction, the drug interdiction team places temporary additional signs on the entrance driveway next to the road containing the same language as the permanent signs. T. p. 102, Respondent’s Exhibit 5.

7. During the drug interdiction at LCI on April 19, 2004, a black vehicle, later determined to be occupied by Petitioner, went past the drug interdiction signs posted at LCI. T.p. 103.

8. Once Lt. Hunt saw the vehicle pass the drug interdiction signs, stop, and back off the property, he called for assistance. T. p. 103. Another car drove off LCI property right after Petitioner’s car backed out of the driveway and parked right in front of Petitioner’s car along the roadside. This car was driven by Dennis Barnes, an employee of LCI. Prior to the time the Lumberton Police officers or Correction officials arrived at Petitioner’s car, Petitioner’s wife walked back and forth between her car and the car parked in front of Petitioner’s car.

9. At this time, Lumberton Police Department Officers Mr. Jones and Mr. Surles came down to the LCI driveway where it intersects with the road. T. p. 103.

10. Officer Burnis Wilkins, of the Lumberton Police Department arrived at the scene, positioned his vehicle, and got out. As he got out of his vehicle, Officer Wilkins could hear Officer Atkinson asking Mrs. Pettit, the driver, for her driver’s license. T. p. 140.

11. Officer Wilkins heard Petitioner making comments about him not being on prison property and that he couldn’t be searched and didn’t like being harassed, while constantly cursing. T. p. 140.

12. Petitioner stated that, “I’m not going through no fucking interdiction.” T. p. 173.

13. Petitioner then exited the vehicle and continued to curse at both Officer Wilkins and Officer Atkinson. Several Corrections officials had walked up to the scene. T. p. 141.

14. Once the Corrections officials came to the scene, the driver of the vehicle, Mrs. Pettit, gave consent for the Lumberton Police Officers to search the vehicle. T. p. 142.

15. Mrs. Pettit began opening the doors on the vehicle by slinging them open, while, at the same time, Petitioner continued to curse. T. p. 143.

16. After the initial search of the vehicle by the Lumberton Police Department, Officer Wilkins begin to shut the gas cap that Mrs. Pettit had taken off when the Petitioner rushed up on Officer Wilkins in an aggressive manner saying “man leave that alone, I’ll get it.” Officer Wilkins instructed the Petitioner to back off or he would be arrested. T. pp. 146, 175.

17. The Lumberton Police Department search of the vehicle occupied by the Petitioner and Mrs. Pettit concluded, but officials from the Department of Correction decided that Petitioner and Mrs. Pettit needed to bring the vehicle they arrived in through the interdiction process. T. p. 177-178.

18. After Officer Wilkins returned to his designated position in the parking lot of LCI he immediately began typing up the events that had just transpired because, based on Petitioner’s actions, Officer Wilkins knew he was going to submit a complaint on this incident. T. pp. 147- 148.

19. Once instructed that the vehicle he arrived in needed to go through the drug interdiction, Petitioner asked Mr. Surles what would happen if he didn’t go through the drug interdiction search, to which it was explained that failing to cooperate could be grounds for dismissal. At this point Petitioner told his wife that they needed to go through the interdiction. T. p. 179.

20. After the vehicle returned to the premises, Petitioner signed a consent to search form and parked the vehicle in a search lane. T. p. 180.

21. As the search took place, Petitioner and his wife refused to enter the designated waiting area, despite being told to do so by Mr. Surles. At this point Petitioner was being uncooperative with a direct order from his superior, Mr. Surles. Petitioner was advised two or more times to sit in the waiting area and he refused. T. pp. 180-181.

22. During the drug interdiction search, the drug dogs alerted both on the vehicle occupied by Petitioner and on his wife, as well as on her purse. Once the purse was alerted on, a female member of the drug interdiction team brought it over to Mrs. Pettit who consented to a search inside the purse. T. p. 182.

23. As a result of the dogs alerting on the vehicle, Petitioner was searched. Any time the drug interdiction team has a hit on a vehicle, all passengers of that vehicle are searched as well. T. p. 184.

24. When a member of the drug interdiction team asked Petitioner to empty his pockets, Petitioner pulled out his billfold, slammed it on the table, and began taking off all of his clothes. He pulled his shirt off and took his shoes and socks off, while constantly being told that he did not have to take his clothes off. T. pp. 184-185.

25. Petitioner even went to the point of unbuckling his pants as if he were going to pull his pants off. T. p. 185.

26. At no time was Petitioner ordered to take off his shirt and shoes. T. p. 185.

27. After the search was completed, Petitioner was informed that he needed to report back to the facility in full uniform to take a mandatory drug test. T. p. 189.

28. After Petitioner was administered the drug test he temporarily was reassigned while a full investigation was conducted concerning his behavior during the interdiction. T. p. 189.

29. Captain Jimmy Evans was assigned to conduct an investigation into the events that took place during the drug interdiction on April 19, 2004 because he was not directly involved with the events on that day. T. pp. 217-218.

30. During the investigation, Captain Evans took statements from Joel Herron, Correctional Captain; Ron Jones, Operations Manager, Burnis Wilkins, Jr., Lumberton Police Department; Ronald Surles, Assistant Superintendent of Custody and Operations; Wayne Pettit, Correctional Officer; James Atkinson, Lumberton Police Department; and Lieutenant Glen Hunt, Correctional Lieutenant. T. pp. 219-220.

31. It was determined by Captain Evans, that, “Officer Pettit’s actions during the facility drug interdiction [inaudible] disrespect and willful disobedience to both facility and local law enforcement authorities as well as Department policy, which constitutes unacceptable personal conduct unbecoming of a state employee for which a reasonable person should expect to receive no prior warning. Therefore, based on Officer Pettit’s personal conduct and supporting evidence, this investigator recommends that Correctional Officer Wayne Pettit be dismissed for unacceptable personal conduct.” T. p. 220.

32. After reviewing the investigation conducted by Captain Jimmy Evans and his recommendations, Superintendent Kenworthy concurred and recommended that Petitioner be dismissed from service for the Department of Correction. T. p. 22.

33. All due process procedures regarding notice of Petitioner’s rights surrounding the pre-disciplinary conference, and subsequent dismissal were followed concerning Petitioner. T. pp. 22-33.

34. Petitioner also had been involved in a prior event concerning his behavior at a drug interdiction search where he was issued a written warning for unacceptable personal conduct on August 19, 2003. T. pp.36-37, Respondent’s Exhibit 20.

35. In the August 19, 2003 written warning, Petitioner was warned, “[p]lease keep in mind that if this problem reoccurs, you could be issued further disciplinary action up to and including dismissal.” T. p. 39. Respondent’s Exhibit 5.

Based upon the Findings of Fact above the Court makes the following:

CONCLUSIONS OF LAW

1. The parties properly are before the Office of Administrative Hearings.

2. Petitioner is a career state employee subject to the provisions of N.C.G.S. Chapter 126, the State Personnel Act. N.C.G.S. § 126-1.1, -5(c)(1).

3. This contested case is based upon N.C.G.S. § 126-35 and has the single issue of whether Petitioner was dismissed from his position with the Department of Correction for “just cause” because of unacceptable personal conduct. 25 NCAC 1J.0608.

4. Petitioner, by and through his speech and actions during this drug interdiction, displayed a disrespectful attitude toward law enforcement officers and superiors at the Department of Correction and willfully refused to follow proper orders when he had the ability to do so, has engaged in unacceptable personal conduct for a correctional officer sufficient to support Respondent’s decision to dismiss him from its employment.

5. Respondent followed applicable State and DOC disciplinary and dismissal procedures in this case, and has met its burden to show that Petitioner has properly been dismissed from employment with the DOC for just cause in accordance with N.C.G.S. § 126-35.

Based on the foregoing Findings of Fact and Conclusions of Law, I make the following

DECISION

Respondent’s termination of the employment of Petitioner Wayne Pettit for unacceptable personal conduct is supported by the evidence and is affirmed. NOTICE

The State Personnel Commission (Commission) will make the final decision in this contested case.

The Commission is required to give each party an opportunity to file exceptions to this RECOMMENDED DECISION, and to present written arguments to those in the Commission who will make the final decision. N.C.G.S. § 15OB-36(a). The Commission is required by N.C.G.S. § 15OB-36(b) to serve a copy of the FINAL DECISION on all parties and to furnish a copy to any attorneys of record and to the Office of Administrative Hearings.

In accordance with N.C.G.S. § 150B-36, the Commission shall adopt each finding of fact contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the preponderance of the admissible evidence. For each finding of fact not adopted by the Commission, the Commission shall set forth separately and in detail reasons for not adopting the finding of fact and the evidence in the record relied upon by the Commission in not adopting the finding of fact. For each new finding of fact made by the Commission that is not contained in the Administrative Law Judge’s decision, the Commission shall set forth separately and in detail the evidence in the record relied upon by the Commission in making the finding of fact.

This the 29th day of July 2005.

______Beecher M. Gray Administrative Law Judge