State of North Carolina s1

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF NEW HANOVER 05 OSP 0774

Kenneth Ray Sholar ) Petitioner, ) ) vs. ) DECISION ) New Hanover County Health Department ) Respondent. ) ) ______

This contested case was heard before Administrative Judge Beryl E. Wade on February 2, 2006 in Carolina Beach, North Carolina. In this contested case, Kenneth Ray Sholar, Petitioner appealed New Hanover County Health Department’s (Respondent) disciplinary action against him for unacceptable personal conduct.

APPEARANCES

For Petitioner: For Respondent: Ashley Culbreth Council E. Holt Moore, III Stephen E. Culbreth Assistant County Attorney Culbreth Law Firm 320 Chestnut Street, Room 309 P.O. Box 446 Wilmington NC 28401-4095 Wilmington, NC 28402

STATUTORY SECTIONS AND RULES IN QUESTION

25 N.C.A.C. 1J.0604(b) 25 N.C.A.C. 1J.0614(i)

ISSUE

1. Whether Petitioner engaged in unacceptable personal conduct such that his demotion by Respondent was appropriate.

TESTIFING WITNESSES

Petitioner:

1. Kenneth Ray Sholar, Petitioner Respondent:

1. David Rice, Health Director, New Hanover County 2. Dianne Harvell, Environmental Health Services Manager, New Hanover County 3. Sharon Neuschafer, Fiscal Support Technician, Health Department Purchasing, New Hanover County 4. Joe Garcia, Environmental Management, New Hanover County 5. Kim Roane, Business Office, Heath Department, New Hanover County 6. James Derseraux, Equipment Shop Superintendent, Property Management, New Hanover County 7. Scott Harrelson, Assistant Health Director, New Hanover County

EXHIBITS RECEIVED INTO EVIDENCE

Petitioner:

1. Claim summary sheet from Petitioner’s insurance co.

Respondent:

1. Pre-Hearing Statement 2. Letter affirming demotion decision from David Rice.

Based upon careful consideration of the testimony and evidence presented at the hearing, the documents and exhibits received into evidence, and the entire record of this proceeding, the undersigned makes the following:

FINDING OF FACT

1. That on March 8, 2005, a windstorm lifted personal items from the bed of the Petitioner’s personal vehicle including a bed liner and tools. This bed liner along with other debris caused damage to a fellow employee’s vehicle.

2. The Petitioner became aware of the damage to the other vehicle at approximately 10:45 a.m. on the morning of March 8, 2005. The Petitioner did not contact his supervisor, nor the owner of the damaged vehicle, Joe Garcia at that time.

3. Petitioner met Mr. Garcia in the parking lot upon Mr. Garcia’s return from his shift, and Petitioner told Mr. Garcia that he had seen the entire incident and that Mr. Garcia’s truck had been damaged by a mini-tornado between their trucks which kicked up gravel.

4. On March 9, 2005, Joe Garcia viewed the parking lot surveillance tape which revealed that an object coming from the bed of the Petitioner’s vehicle struck Joe Garcia’s vehicle at approximately 10:42 a.m. on the morning of March 8, 2005. The tape further depicted the Petitioner and two other individuals placing the blown object back in to the Petitioner’s truck at 11:10a.m.

5. On March 9, 2005, Sharon Neuschafer, New Hanover County Health Department Purchasing, stated that the Petitioner requested payment for the repairs to Mr. Garcia’s vehicle from Vector Control’s budget. At that time, the Petitioner stated to Mr. Garcia that he should get estimates on the damage whereupon a PO would be obtained.

6. On March 10, 2005, Joe Garcia stated to Kim Roane, New Hanover County Health Department Accounting/Contracts that he had seen the video surveillance tape of the incident and that he was told by the Petitioner that New Hanover County would cover the claim since it happened on county property. Mr. Garcia stated to Ms. Roane that the Petitioner claimed James Deseraux of New Hanover County Property Management advised him that this was the correct protocol. Mr. Garcia further stated to Ms. Roane that he was upset about this situation and did not believe that Petitioner was completely honest. Ms. Roane stated to Mr. Garcia that the matter would be handled appropriately.

7. On March 10, 2005, Kim Roane spoke to James Deseraux who stated that he had also viewed the video tape and unequivocally stated to the Petitioner that he did not advise the bill for the damage to be submitted to the New Hanover County Health Department for payment.

8. On March 11, 2005 the Petitioner stated to Dianne Harvell that Mr. Garcia had been very angry about the damage to his new truck. The Petitioner further stated that the wind had blown the bed liner out of the truck and battered it against Joe’s truck, but Petitioner had also seen piles of gravel at the site of the incident. The Petitioner again stated that Mr. Deseraux had advised him that County protocol for such an incident was to pay for the damages from the department budget.

Based on the foregoing Findings of Facts, the undersigned Administrative Law Judge makes the following:

CONCLUSIONS OF LAW

1. All parties are properly before the Office of Administrative Hearings, and the Office of Administrative Hearings has jurisdiction over both the parties and over the subject matter at issue.

2. All parties have been correctly designated, and there is no question as to misjoinder or nonjoinder.

3. Petitioner properly falls within the parameters of the State Personnel Act.

4. Petitioner engaged in unacceptable personal behavior as defined in 25 N.C.A.C.1J.0614(i), in that his falsification of the events which transpired pertaining to the damage to Joe Garcia’s truck done by the items from Petitioner’s truck, and by his attempts to have the damage paid for from Respondent’s resources, including but not limited to requesting a purchase order, constituted:

(a) Conduct for which no reasonable person should expect to receive prior warning prior to discipline,

(b) Job-related conduct which potentially could have constituted a violation of state or federal lawn had county funds been converted for payment of what was essentially a personal matter,

(d) Conduct unbecoming a state employee that is detrimental to state service and/or

(e) The abuse of person(s) over whom the employee has charge or to whom the employee has a responsibility.

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following:

DECISION

The State Personnel Commission should uphold the New Hanover County Health Director’s decision to demote Petitioner from Senior Environmental Health Program Specialist to Environmental Health Specialist.

ORDER

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 27699-6417 in accordance with N.C. Gen. Stat. § 105b-36(b).

NOTICE

The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S 150B-36(b)(b1) and (b2). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written argument to those in the agency who will make the final decision. G.S. 150B-36(a).

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

This the 20th day of April, 2006. ______Beryl E. Wade Administrative Law Judge