State Of North Carolina In The Office Of

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF WAYNE 02 OSP 1670

TERENCE L. HARDY, ) Petitioner, ) v. ) DECISION ) NC HIGHWAY PATROL, )) Respondent. )

The above-entitled matter was heard before North Carolina Administrative Law Judge Sammie Chess on February 19, 2003, in New Bern, North Carolina.

APPEARANCES

Petitioner: John Duke, Esquire

Respondent: Isaac T. Avery, III Special Deputy Attorney General

ISSUES

Whether Petitioner carried his burden of proof that certain statements made by his supervisor during the course of interview conducted during an investigation of Petitioner for making racially offensive remarks were inaccurate or misleading and subject to removal pursuant to N.C. Gen. Stat. § 126-25.

FINDINGS OF FACT

1. Lieutenant Anthony Midgett, testified that he is a member of the North Carolina State Highway Patrol currently stationed in Raleigh, North Carolina. That during the time that he was stationed in Goldsboro, North Carolina, that he was First Sergeant in charge of the Goldsboro Troop. That during the year 2002 the State Highway Patrol conducted an Internal Affairs Inquiry concerning a complaint against Trooper Terence Hardy, who was then stationed in Goldsboro and was a subordinate of Sergeant Midgett. That among other things, the complaint being investigated involved Petitioner’s use of a State Patrol “Logo” in connection with his website, and his participation in a “chat room” on the internet. 2

2. That during the course of the investigation by Internal Affairs, Lieutenant Midgett was interviewed by personnel from the Internal Affairs branch of the North Carolina State Highway Patrol.

3. That during the course of the investigation, in response to questions propounded to him by Lieutenant VunCannon, Lieutenant Midgett stated to Lieutenant VunCannon as follows: “Lieutenant, I would be amiss if I didn’t mention this, but there was also, a lot of speculation that Trooper Hardy was driving impaired on certain occasions and with this particular Trooper over in Johnston County; and it was Trooper Carlton over in Johnston County that I heard on several occasions that folks were talking about that he would go to Carlton’s house and they would drink and that Terence would drive himself back home. However, I never had any concrete evidence of it other than what people were saying and one of my Line Sergeants did talk to him on a couple of occasions that if he ever got caught he was gonna be arrested just like anybody else, and he did tell him that needed to clean up his act as far as that was going….”

4. Lieutenant Midgett further reported to Lieutenant VunCannon that Trooper Hardy had written a letter to the editor at the News Argus, a newspaper in Goldsboro one time and “…it had some racial connotations with it but it was about some black issues that were in the news, and I was aware that it was a sensitive issue with him.”

5. Lieutenant Midgett further testified that he, Lieutenant Midgett, had some pictures on his office desk of himself with some confederate re-enactors. He stated that they were small and further stated “I do not know who in particular called, but I was told that there was a call made to the NAACP about the pictures that I had in my office….” Further, “I do not know who made the call, but it was my understanding that it was Trooper Hardy.”

6. Lieutenant Midgett further made statements to Lieutenant VunCannon as follows: “He goes to breaks, but, however, there was some places in Goldsboro Lieutenant Hardy would not go, and there was a small restaurant on 70, west of Goldsboro that a lot of guys went to; it’s called Betty’s. It is a little breakfast and lunch place and they had some confederate memorabilia inside that restaurant and Terence would not go to that restaurant because my understanding was because of the confederate memorabilia that they had displayed inside the restaurant.”

7. He further stated that in reference to Trooper Hardy’s appearance, “His uniform and patrol car were often sloppy and needed cleaning.”

8. On further examination of the witness Midgett, respecting the statements made to the investigators, he stated he had never had a conversation with Trooper Hardy with respect to driving with alcohol on his person. He was also unable to point out any racial connotations in the letter which Trooper Hardy wrote to the newspaper, and he did not have any personal knowledge that Trooper Hardy “would not go to Betty’s restaurant.” He further admitted that the performance reports and inspection reports did not indicate that Trooper Hardy had a “sloppy car and uniform,” even though he, Lieutenant Midgett, initialed these reports. 3

9. Sergeant Dwayne Banks testified, in response to questions from the Internal Affairs Investigators, that he had never spoken with Trooper Hardy concerning the allegations that he had driven a vehicle while intoxicated, directly contradicting statements given by Sergeant Midgett.

10. Trooper Hardy testified in his own behalf that he had never driven while intoxicated, and had not driven from Smithfield to Goldsboro or at any time with any alcohol in his system. He identified his letter to the newspaper, which was introduced into evidence, and testified that the article had no racial connotations. He further denied that he had called the NAACP about the confederate re-enactment pictures, and testified that he had frequented Betty’s restaurant from time to time.

11. He further introduced Petitioner’s Exhibit #2 showing that there was no indication in any report, initialed by Lieutenant Midgett and signed by one of the Line Sergeants, that he had a “sloppy car and uniform.”

12. The investigation revealed that there was no improper concerns about race on Petitioner’s part in the performance of his duties.

13. The Petitioner contends that five statements contained in the interview of Lt. Midgett are inaccurate or misleading and should be removed. These statements are:

(a) A letter to the editor of the News Argus newspaper in Goldsboro “. . . had some racial connotations with it but it was about some black issues that were in the news . . .” (Respondent’s Exhibit #3, p. 27)

Petitioner, by being an officer of the State Highway Patrol, does not lose his right to free speech guaranteed under the First Amendment of the United States Constitution or under Article 1, Section 14 of the Constitution of the State of North Carolina. The article, written and signed by “Terence L. Hardy Goldsboro,” does not involve or mention the N.C. Highway Patrol. Because he rightfully exercised his rights is not cause to include that fact in any file kept by the Highway Patrol. There is a reasonable chance that this irrelevant, inaccurate and misleading information could be used to hamper or prejudice his progress in his employment. A review of Petitioner’s arrests by the Highway Patrol found that race was not a factor in Petitioner’s enforcement of the law and Line Sgt., now, Lt. Midgett testified that he was a good officer. Therefore, to include the matter about the letter to the editor of the News Argus in Goldsboro is irrelevant, inaccurate and misleading and should be removed from his file N.C.G.S. 126-25.

(b) “. . . Terence would not go to that restaurant [Betty’s] because my understanding was because of the Confederate memorabilia that they had displayed inside the restaurant.” (Respondent’s Exhibit #3, p. 29)

To begin with, Petitioner should not have been put in the position of having to express concerns to his Line Sgt. about eating at an establishment “because of the 4

Confederate Memorabilia that they had displayed inside the restaurant.”(14(2)), supra. And to, then, somehow, make Petitioner a racist for being uncomfortable is to add insult to injury. His being uncomfortable, if he was, is understandable, and not to be entered in his file as to infer he is somehow a racist or an ‘uppity’ black highway patrolman. Petitioner is not to be inferred a racist or ‘uppity’ because he rejects indignities, whether by words, deeds or symbols. This irrelevant, inaccurate and misleading matter should be removed from Petitioner’s personal file.

(c) Trooper Hardy was the one who complained about Civil War memorabilia and photographs in Lt. Midgett’s office. (Respondent’s Exhibit #3, p. 29)

Petitioner was not racist because he complained about Civil War Memorabilia and photographs in Lt. Midgett’s office, if he did. The removal of this matter made for a better work environment for African-Americans. If there was inappropriate conduct, it was not on Petitioner’s part. Therefore, this material should be removed from Petitioner’s file. The record shows that Petitioner performs his duties without regard to race.

(d) Petitioner’s uniform and patrol car were often sloppy and needed cleaning. (Respondent’s Exhibit #3, p. 30)

Webster’s Third New International Dictionary defines ‘often’ as: ..on many occasions, ...not seldom, ...frequently.

Respondent’s evidence did not support the statement that Petitioner’s car was often sloppy and needing cleaning, where Respondent’s best evidence, if believed, indicates about three occasions.

This evidence also, if believed, does not support the statement that “Petitioner’s uniform was often sloppy.” These statements are misleading and inaccurate because Respondent’s best evidence, if believed, is two or three occasions.

(e) “. . . there was also, a lot of speculation that Trooper Hardy was driving impaired on certain occasions, and with this particular trooper over in Johnston County . . . I never had any concrete evidence of it other than what people were saying, and one of my line sergeants did talk to him on a couple of occasions, that if he ever got caught that he was gonna be arrested just like anybody else . . .” (Respondent’s Exhibit #3, p. 31)

There is no evidence of Petitioner drinking and driving. Lt. Midgett testified that there was “speculation” about Petitioner driving under the influence. Neither speculation nor innuendo qualifies as evidence.

This material in Petitioner’s file is considered to be inaccurate and misleading. 5

14. The Respondent says Petitioner has been given an opportunity to place a statement in the file contradicting anything that was said and has failed to do so.

N.C. Gen. Statutes 126-25 provide the proper procedure to deal with inaccurate and misleading material in one’s file.

15. The Highway Patrol maintains a separate Internal Affairs file from the regular personnel file. The Internal Affairs file is available to persons in the Petitioner’s direct chain of command, but only with permission of the Patrol Commander and others deemed to be entitled by rule or law. However, since the material is inaccurate and misleading it should not be in his file.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, the Court makes the following Conclusions of Law.

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

2. The Petitioner met his burden of establishing that the information contained in the statement given by Lt. Midgett was inaccurate or misleading and warrants removal from the Internal Affairs/Personnel file.

DECISION

Based upon all the evidence, the undersigned finds that the statements of Lt. Midgett are inaccurate and misleading, and should be removed from Petitioner’s Internal Affairs file.

Petitioner should recover reasonable attorney’s fee and costs associated with the filing and prosecution of this contested case.

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, NC 27699-6714, in accordance with North Carolina General Statutes Section 150B-36(b).

NOTICE

Before the agency makes the FINAL DECISION, it is required by N.C.G.S. Section 150B-36(a) to give each party an opportunity to file exceptions to this DECISION, and to present written arguments to those in the agency who will make the final decision.

The agency that will make the final decision in this contested case is the State Personnel Commission. 6

The agency is required by N.C.G.S. Section 150B-36(b) to serve a copy of the Final Decision to all parties and to furnish a copy to the Parties’ attorney of record.

This the 24 day of April, 2003.

______Sammie Chess, Jr. Administrative Law Judge