State of North Carolina s30

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF DAVIE NO. 03 OSP 1547

JOHN P. LORDEN a/k/a JACK LORDEN,

Petitioner, DECISION v.

CENTERPOINT HUMAN SERVICES,

Respondent.

This case came on for hearing before the undersigned on May 4, 2004, in the Davie County Commissioners Room, Second Floor of the Davie County Administrative Building, 123 South Main Street, Mocksville, North Carolina. Following months of promising but ultimately unsuccessful negotiations, Respondent filed a proposed decision on January 11, 2005.

APPEARANCES

For the Petitioner Scott B. Lewis, Esq. P. O. Box 233 Lexington, NC 27293-0233

For the Respondent: Louis W. Doherty, Esq. Corena A. Norris-McCluney, Esq. Kilpatrick Stockton LLP 1001 West Fourth Street Winston-Salem, NC 27101-2400

ISSUES

1. Whether Respondent lacked just cause in accordance with N.C. Gen. Stat. § 126- 35 in terminating Petitioner.

2. Whether Respondent followed its policies and directives in connection with the disciplinary process that led to the termination of Petitioner.

EXHIBITS

The following exhibits were admitted into evidence: Respondent’s Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and Petitioner’s Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10.

STIPULATIONS

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

2. At the commencement of the hearing in this matter, Petitioner voluntarily dismissed with prejudice any discrimination claims regarding handicapped condition, age, sex, or religion.

Based upon the exhibits admitted into evidence, the stipulations of the parties, and the sworn testimony of the witnesses, the undersigned makes the following:

FINDINGS OF FACT

A. BACKGROUND

1. CenterPoint Human Services (hereinafter “Respondent” or “CenterPoint”) is an area mental health, developmental disabilities and substance abuse authority organized under N.C. General Statutes Chapter 122C. The appointing authority is the Respondent’s Chief Executive Officer, Ronald W. Morton (hereinafter “Mr. Morton”). Mr. Morton is responsible for employee appointment and disciplinary actions, including termination.

2. Petitioner John P. Lorden a/k/a Jack Lorden (hereinafter “Petitioner” or “Mr. Lorden”) was employed by Respondent CenterPoint Human Services as a substance abuse counselor.

3. Petitioner began his employment with CenterPoint on August 23, 1997. During his employment with CenterPoint, Petitioner provided substance abuse counseling and treatment to clients of CenterPoint in Davie County.

4. In 2003, John Coble (hereinafter “Mr. Coble”) was manager of all services offered by CenterPoint for Davie County. Mr. Coble served as the Petitioner’s administrative supervisor.

5. Cindy Hogan (hereinafter “Ms. Hogan”) was the Petitioner’s clinical supervisor.

6. In April 2003, Respondent received information indicating that Petitioner had possibly disclosed confidential information of one of Respondent’s clients and was involved in a situation in which he placed his own interest above those of a patient. These actions by Petitioner constituted possible violations of Respondent’s Policy on Conflict of Interests and its Directive on Ethics.

7. Immediately following the alleged violation, Petitioner was placed on paid administrative leave pending further investigation.

2 8. During May, June, and July 2003, Mr. Morton conducted an investigation into the allegations regarding Petitioner.

9. On May 16, 2003, Mr. Morton gave Petitioner notice that he was to appear for a Pre-Dismissal Conference to be conducted in Mr. Morton’s Office on May 22, 2003.

10. While investigating Petitioner’s alleged inappropriate personal conduct, Respondent kept Petitioner on paid administrative leave.

11. On July 31, 2003, following an investigation by Mr. Morton, Petitioner was terminated, effective August 1, 2003, for unacceptable personal conduct.

12. Petitioner filed a Petition for a Contested Case Hearing on September 9, 2003.

B. THE INCIDENT

13. On March 27, 2003, Mr. Coble received a voicemail message from a client, Jane Doe1, who was participating in an intensive out-patient group treatment session (hereinafter “IOP”) with Petitioner. Ms. Doe participated in the IOP with Petitioner as a condition of her pre- trial release in connection with criminal charges alleged against her. In her voicemail message, Ms. Doe informed Mr. Coble that she was concerned over an alleged breach of her confidential records by Petitioner during an IOP session.

14. Mr. Coble telephoned Ms. Doe on March 28, 2003. During that telephone call, Ms. Doe expressed concerns to Mr. Coble that Petitioner had breached her confidentiality by sharing information from her confidential records with a group participant in an IOP session.

15. On April 8, 2003, Mr. Coble followed up with Petitioner to gain an understanding of Petitioner’s perspective on what had occurred with Ms. Doe during the IOP session on March 27, 2003. Mr. Coble discussed with Petitioner Ms. Doe’s complaint and reiterated the need to protect the confidentiality of Respondents’ clients and patients.

16. On April 8, 2003, Mr. Coble telephoned Ms. Doe and informed her that he had met with the Petitioner. Mr. Coble further conveyed to Ms. Doe that Respondent and its employees had a responsibility to protect patient and client confidentiality and took this role seriously. Mr. Coble informed Ms. Doe that he had also reiterated this role and responsibility to Petitioner. At that time, Ms. Doe was satisfied with the manner in which the complaint had been resolved and indicated that she was done with the situation.

17. On April 11, 2003, Mr. Coble received a telephone call from Ms. Doe stating that following a group IOP on the previous night, the Petitioner had presented her with an affidavit and had requested her signature on the affidavit. Ms. Doe informed Mr. Coble that she was not comfortable with signing the affidavit.

1 To protect the confidentiality and privacy of the client, she will be referred to as “Jane Doe” or “Ms Doe” throughout this decision.

3 18. Immediately thereafter, Mr. Coble obtained a copy of the affidavit from Ms. Doe. At the time Mr. Coble obtained the affidavit from Ms. Doe, Ms. Doe had not signed the document.

19. The affidavit stated:

I, ______[redacted] (date of birth: ______[redacted]), acknowledge that I have been repeatedly called by John Coble and Cindy Hogan over the last two weeks, confidentially encouraging me to confidentially file a complaint against Jack Lorden over an event that allegedly happened several weeks ago.

I have told them repeatedly that this has been handled between Mr. Lorden and I and I have no interest in pursuing this further.

I have even received calls from both John Coble or Cindy Hogan as recently as yesterday, 04/09/2003.

It is obvious that they are persistent in trying to get something on Jack Lorden to discredit him and I wish to be no part of this.

I swear to the above as being true to the best of my knowledge. I also waive my right of confidentiality if Mr. Lorden should need to use this to defend himself legally.

Petitioner provided the affidavit to Ms. Doe at the conclusion of and immediately following an IOP.

20. On or about April 23, 2003, Mr. Morton learned of Ms. Does’ original complaint regarding the breach of confidentiality. Mr. Morton further learned that the complaint had been resolved to the satisfaction of Ms. Doe. However, after the situation had been resolved to the satisfaction of Ms. Doe, Petitioner presented her with an affidavit after an intensive outpatient group treatment session.

21. When Mr. Morton spoke with Ms. Doe, she expressed concern about her treatment resources and whether she could or should return to treatment with Petitioner. Ms. Doe was also concerned about whether she would satisfy the conditions of her pre-trial release.

22. Effective April 29, 2003, Petitioner was placed on administrative leave with pay from Respondent, pending an investigation into the matters that had been raised during April 2003 regarding Ms. Doe.

23. Mr. Morton’s memorandum to Petitioner regarding the paid administrative leave informed Petitioner that he was being placed on paid administrative leave to allow sufficient time for Mr. Morton to conduct an investigation into allegations of unacceptable personal conduct related to Petitioner’s interactions with Ms. Doe.

4 24. On May 16, 2003, Mr. Morton informed Petitioner, by memorandum, that he had scheduled a pre-dismissal conference with Petitioner on May 22, 2003, to discuss Petitioner’s continuing employment with Respondent in light of allegations of unacceptable personal conduct on the part of Petitioner.

25. On Thursday, May 22, 2003, Petitioner met with Mr. Morton for the purpose of conducting the pre-dismissal conference.

26. During the pre-dismissal conference, Petitioner was informed of the allegations against him and given an opportunity to respond. Petitioner acknowledged that he had presented an affidavit to Ms. Doe and that she had not signed it.

27. Petitioner further acknowledged during the pre-dismissal conference that it was possible that Ms. Doe could perceive the affidavit as threatening and that she might be uncomfortable with signing the affidavit.

28. Petitioner confirmed that he had presented the affidavit to Ms. Doe following an intensive out-patient group session on the evening of April 10, 2003.

29. Respondent’s Directive on Disciplinary Process defines unacceptable personal conduct as:

Conduct for which no reasonable person should expect to receive prior warning. Personal conduct are those employee behaviors which create the potential for, or actually cause, physical or emotional harm to clients or other employees. . . . Unacceptable actions of personal conduct include those which would reflect unfavorably upon the credibility of the reputation of the Authority. For such action, an employee may be, without any prior warning, suspended, demoted, or dismissed.

30. In addition, N.C. Gen. Stat. § 126-35 states that no employee “subject to the State Personnel Act shall be discharged, suspended or demoted for disciplinary reasons, except for just cause.” N.C. Gen. Stat. § 126-35 also states that “in contested cases conducted pursuant to Chapter 150B of the General Statutes, the burden of showing that a career State employee subject to the State Personnel Act was discharged, suspended, or demoted for just cause rests with the department or agency employer.”

C. DISMISSAL

31. Following the pre-dismissal conference, Mr. Morton informed Petitioner, through a memorandum dated May 30, 2003, that Petitioner’s paid administrative leave would be extended so that Mr. Morton could have the opportunity to review the notes taken during the pre-dismissal conference as well as interview other individuals, as appropriate, prior to making a decision regarding Petitioner’s continued employment with Respondent.

32. Between May 22, 2003 and July 31, 2003, Mr. Morton spoke with a number of individuals, including Ms. Hogan, Mr. Coble, and Ms. Doe. In addition, Mr. Morton reviewed

5 the Respondent’s ethics policy and clients rights policy, as well as North Carolina Substance Abuse Counselors Licensing Board policies.

33. Mr. Morton determined that Petitioner’s conduct on April 10, 2003, amounted to unacceptable personal conduct. Specifically, Respondent determined that Petitioner’s conduct violated Respondent’s Directive on Ethics and Respondent’s Conflict of Interest Policy in that: Petitioner was engaged in an activity or decision which placed his personal gain in conflict with the health, safety, security or well being of the individuals in his care; Petitioner took part in or exerted influence in a transaction where his own interests were in conflict with the best interests of Respondent and Ms. Doe; and Petitioner failed to place the welfare and safety of Ms. Doe above all other concerns.

34. The investigation conducted by Respondent revealed that Petitioner’s behavior and actions constituted coercion of Ms. Doe for matters of personal benefit and did not contribute to the success of Ms. Doe’s treatment. Specifically, Respondent determined that:

(a) Petitioner’s actions and behavior were in violation of CenterPoint’s Policy and Directive on Conflict of Interest in that he took part in a transaction where his own interests conflicted with the best interests of his client and Respondent;

(b) Petitioner’s actions and behavior were in violation of CenterPoint’s Policy and Directive on Ethics in that he did not place the welfare of his client in a manner that concerned her above all other concerns and Petitioner engaged in an activity that could be construed as exploitation for his own personal benefit;

(c) Petitioner’s actions and behavior had the potential for emotional harm to his client; and

(d) Petitioner’s actions and behavior were potentially damaging to the credibility of his program and of Respondent.

35. Petitioner admitted to Mr. Morton as well as during his testimony in this matter that he presented the affidavit to Ms. Doe after Ms. Doe had been involved in an IOP.

36. Petitioner admitted that at the time he presented the affidavit to Ms. Doe, she was vulnerable, facing imprisonment, and potentially losing her child.

37. Petitioner denied that he violated any policies of Respondent or that he did not act within the best interest of Ms. Doe.

38. Respondent’s Directive on Disciplinary Process provides that an employee may be disciplined or dismissed on the basis of unacceptable personal conduct. For unacceptable actions of personal conduct, an employee may be, without any prior warning, dismissed.

39. Unacceptable personal conduct resulting in dismissal, as defined by the Respondent, includes conduct which is detrimental to the emotional or physical health and safety of a client;

6 any violation of client rights; any violation of professional ethics; or any conduct detrimental to the credibility of a service or program provided by Respondent.

40. Chapter 25 of the North Carolina Administrative Code, Subchapter 1J, Section 0614(h) defines unacceptable personal conduct as the willful violation of a known or written work rule; or the abuse of client(s) or patient(s) over whom the employee has a responsibility.

41. Pursuant to Respondent’s Directive on Disciplinary Process, the Chief Executive Officer is to conduct a pre-dismissal conference with the employee, providing advanced written notice to the employee, including the reason for the recommended dismissal, given at least one day in advance. At the pre-dismissal hearing, the employee is given an opportunity to respond to the allegations. Finally, if dismissal occurs, the employee must be given written notice of dismissal, including the specific acts or omissions previously committed.

42. Prior to Respondent conducting the pre-dismissal conference with Petitioner, Respondent provided advanced notice on May 16, 2003 that the conference would be held on May 22, 2003. At the pre-dismissal conference, Respondent informed Petitioner of the allegations, and Petitioner was given an opportunity to respond to those allegations. Petitioner acknowledged that he had presented an affidavit to a client following a IOP session.

43. Mr. Morton informed Petitioner of his dismissal on July 31, 2003, effective at 5:00 p.m. on August 1, 2003. In the written notice of termination, Respondent informed Petitioner of the acts he had committed and the manner in which these acts violated Respondent’s Conflict of Interest Policy and its Directive on Ethics.

CONCLUSIONS OF LAW

1. The parties properly are before the Office of Administrative Hearings. Petitioner John P. Lorden was an employee of Respondent CenterPoint Human Services prior to his discharge, and was subject to the provisions of the State Personnel Act pursuant to N.C. Gen. Stat. § 126-5(a)(2) providing that all employees of area mental health authorities are subject to the state personnel system.

2. Respondent properly concluded that Petitioner’s conduct on April 10, 2003, constituted a violation of Respondent’s Directive on Ethics and Respondent’s Policy on Conflict of Interest in that Petitioner’s behavior and conduct placed his own personal gain in conflict with the health, safety, security, and/or well being of a client in his care, and Petitioner placed his own concerns over the welfare and safety of his client. For this reason, Petitioner’s conduct on April 10, 2003, constituted unacceptable personal conduct, sufficient to justify Respondent’ dismissal of Petitioner pursuant to 25 NCAC 1J.0614.H and as defined by Respondent’s Directive on Disciplinary Process.

3. Regardless of whether Petitioner believed he was acting in the best interests of Ms. Doe, Petitioner’s behavior constituted coercion and placed his own interests and concerns over that of Ms. Doe. Petitioner’s presentation of the affidavit did not aid in the treatment of Ms. Doe, but was intended solely for the benefit of Petitioner and was in conflict with the policies and directives of Respondent.

7 4. Petitioner’s conduct on or around April 10, 2003, was a violation of Respondent’s policies and directives constituting unacceptable personal conduct sufficient to justify Respondent’s dismissal of Petitioner pursuant to Respondent’s Directive on Disciplinary Process and pursuant to 25 NCAC 1J.0614(h).

5. Respondent dismissed Petitioner for just cause relating to personal conduct detrimental to Petitioner’s service pursuant to N.C. Gen. Stat. § 426-35(a).

6. Respondent adequately followed its Directive on Disciplinary Process in terminating Petitioner.

DECISION

Respondent’s decision to terminate Petitioner from his employment for unacceptable personal conduct is supported by the evidence and should be affirmed.

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, North Carolina 27699-9001 in accordance with N.C. Gen. Stat. § 150B-36(d).

NOTICE

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this recommended decision and to present written arguments to those individuals in the agency who will make the final decision in accordance with N.C. Gen. Stat. § 150B-36(a).

The agency is required by N.C. Gen Stat. § 150B-36(b3) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorney on record and to the Office of Administrative Hearings. The agency that will make the final decision in the contested case is CenterPoint Human Services.

This the 14th day of January, 2005.

______Beecher R. Gray Administrative Law Judge