State of North Carolina in the Office Of s13

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF GRANVILLE 10 OSP 04792

Daniel Chase Parrott, ) Petitioner, ) ) vs. ) ) DECISION North Carolina Department of Crime Control ) and Public Safety, Butner Public Safety ) Division, ) Respondent. )

This contested case was heard before Beecher R. Gray, administrative law judge, in the Office of Administrative Hearings in Raleigh, North Carolina on November 8, 9, and December 21, 22, and 30, 2011. Respondent filed a proposed decision on February 27, 2012.

APPEARANCES

PETITIONER: Joy Rhyne Webb Merritt, Wilson, Webb, and Caruso, PLLC PO Box 2247 Durham, NC 27702

RESPONDENT: Tamara S. Zmuda Assistant Attorney General and Jess D. Mekeel Assistant Attorney General N.C. Department of Justice 9001 Mail Service Center Raleigh, NC 27609

Whether Respondent had just cause to dismiss Petitioner from Butner Public Safety.

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following Findings of Fact and Conclusions of Law. In making the Findings of Fact, the Undersigned has weighed all the evidence and assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility including, but not limited to, the demeanor of the witness; any interests, bias, or prejudice the witness may have; the opportunity of the witness to see, hear, know, or remember the facts or occurrences about which the witness testified; whether the testimony of the witness is reasonable; and whether the testimony is consistent with all other believable evidence in the case.

BASED UPON the foregoing and upon the preponderance or greater weight of the evidence in the whole record, the Undersigned makes the following:

FINDINGS OF FACT

1. The parties received notice of hearing by certified mail more than 15 days prior to the hearing and each stipulated on the record that notice was proper.

2. Prior to his termination, Petitioner was employed as a Lieutenant with Butner Public Safety (“BPS”) for over seven years. (T p. 741)

3. On May 13, 2010, Petitioner was dismissed from BPS for engaging in unsatisfactory job performance and several acts of unacceptable personal conduct.

4. BPS’s written policy on Unsatisfactory Job Performance states:

Members shall maintain sufficient competency to properly perform their duties and to assume the responsibilities of their positions. Members shall perform their duties in a manner which will tend to establish and maintain the highest standards of efficiency in carrying out the functions and objectives of BPS.

The policy provides examples of unsatisfactory job performance, including “failing to take appropriate enforcement action at any time.” (Res. Ex. 6)

5. BPS’s written policy on Truthfulness states:

Members shall be truthful and complete in all written and oral communications, reports and testimony. No member shall willfully report any inaccurate, false improper or misleading information. (Res. Ex. 6)

6. On the evening of April 2, 2010, Petitioner was on duty as the Assistant Supervisor. Captain Walter Bruce Williams (“Cpt. Bruce Williams”) was on duty as the supervisor and was the highest ranking officer on duty. (T pp. 6, 160)

7. Petitioner’s wife, Heather Parrott, was given permission to ride on-duty in the patrol car with Petitioner on April 2, 2010 as part of BPS's Ride-Along Program. (Pet. Ex. 13) BPS’s Ride-Along Program allows a participant to ride with an officer for a maximum of

2 four hours. (Pet. Ex. 12) Petitioner’s wife began riding with Petitioner at approximately 7:00 p.m. (T p. 808)

8. April 2, 2010 was a Friday and the beginning of Easter weekend. (T p. 480)

9. On the evening of April 2, 2010, all available BPS officers were called to work a residential fire. The fire was considered a major event. (T pp. 15, 103)

10. Petitioner left the scene of the fire to attend to other police business. (T p. 18)

11. At approximately 1:48 a.m. on April 3, 2010, Petitioner announced over the police radio that he had an extremely impaired driver getting on the Interstate and the driver “can’t hold the [vehicle] on the road.” Petitioner said he was going to make a stop of the vehicle. (Res. Ex. 2)

12. At approximately 1:49 a.m., Petitioner called Cpt. Bruce Williams over the police radio and said he needed for him to come to the scene of the vehicle stop “as soon as possible.” Petitioner repeated, “I’m going to need someone, a supervisor here as soon as possible.” Cpt. Bruce Williams responded that he was “enroute.” (Res. Ex. 2)

13. Petitioner approached the stopped vehicle prior to Cpt. Bruce Williams arriving on the scene. Petitioner asked the driver for his driver’s license. Petitioner testified that he and the driver of the vehicle carried on a conversation regarding a noise coming from the vehicle. (T p. 782)

14. The vehicle stopped by Petitioner was a convertible Ford Mustang being driven by James Williams. At the time of the stop, James Williams was a Captain with the North Carolina State Highway Patrol (“the Patrol”). (T pp. 330-31, 779-80, 830)

15. BPS and the Patrol are sister law enforcement agencies under the control of the North Carolina Department of Crime Control and Public Safety. (T p. 620)

16. Petitioner always wanted to be a Highway Patrol Trooper. Petitioner’s career plan was to start his law enforcement career at BPS and transfer to the Patrol. (T pp. 860-61)

17. While talking to James Williams at the scene of the traffic stop, Petitioner smelled a faint odor of alcohol coming from James Williams’ breath. (T p. 784; Res. Ex. 11, Bate 6)

18. Petitioner asked James Williams if he had been drinking. James Williams admitted that he had consumed alcohol earlier in the evening. (T p. 784; Res. Ex. 11, Bate 6)

19. Field sobriety tests are taught to Petitioner as the “most effective means of evaluating a driver’s impairment.” (Res. Ex. 16, pg 51) At no time did Petitioner perform any field sobriety tests on James Williams, however.

3 20. Petitioner could not determine if James Williams was impaired; therefore, Petitioner decided he needed to call a supervisor to obtain a second opinion. (T pp. 880-81)

21. At approximately 1:50 p.m., Petitioner contacted Cpt. Bruce Williams via cellular telephone to make sure he was coming to the scene of the traffic stop. Petitioner told Cpt. Bruce Williams that he had a trooper stopped, that he smelled a faint odor of alcohol on his breath, and he needed a second opinion as to impairment. (T p. 878)

22. Cpt. Bruce Williams arrived on the scene of the traffic stop.

23. Petitioner testified that Cpt. Bruce Williams walked straight up to James Williams and had a discussion with him. Petitioner testified that after Cpt. Bruce Williams talked to James Williams, he walked over to Petitioner and told Petitioner, “You ain’t got nothing.” (T p. 742)

24. Lynn Rudd (“Dispatcher Rudd”) was employed by BPS and was on duty as a telecommunicator and dispatcher on the evening of April 2, 2010 and the early morning of April 3, 2010. (T p. 8)

25. Anthony Moss (“Maj. Moss”) was employed as a Major over police operations with BPS on April 2 and 3, 2010. (T p. 470) On the night in question, Maj. Moss was the administrator on call. As the administrator on call, Maj. Moss would be called if anything of significance and justifying his involvement occurred. (T p. 480)

26. At approximately 1:56 a.m., Cpt. Bruce Williams called Dispatcher Rudd and asked him to call Maj. Moss at home. He told Dispatcher Rudd to advise Maj. Moss that “I have a Trooper stopped. He is a Captain with the Highway Patrol and he is extremely [impaired].” Cpt. Bruce Williams also stated, “I’m out at the scene right now.” He requested Dispatcher Rudd to wake Maj. Moss up and have Maj. Moss call him. (Res. Ex. 2)

27. Dispatcher Rudd called Maj. Moss at home, woke him up, and relayed the message. (T pp. 33-34)

28. Maj. Moss testified that Cpt. Bruce Williams called him and told him that the Highway Patrol Captain was not impaired, but was just a stranded motorist. (T p. 487)

29. Initially, there was some discussion about either Cpt. Bruce Williams or Petitioner driving James Williams’ car to the BPS employee parking lot. Cpt. Bruce Williams, however, suggested that James Williams’ car be towed by Morgan’s Towing to the BPS employee parking lot. (T pp. 359-60)

30. Thereafter, Buck Morgan, the tow truck driver for Morgan’s Towing, was called and towed James Williams’ car to the BPS employee parking lot. (T pp. 701, 710, 716)

4 31. Brandon Lemons (“Officer Lemons”) was on duty and employed by BPS as a Senior Public Safety Officer on April 2 and 3, 2010. In the early morning hours of April 3, 2010, Cpt. Bruce Williams called Officer Lemons and informed him that a white Mustang was going to be parked at the BPS employee parking lot. Officer Lemons was instructed to get the keys from the tow truck driver and give the keys to Cpt. Bruce Williams “and only [Cpt. Bruce Williams].” (T p. 160)

32. When Buck Morgan arrived on the scene of the stop, the convertible top of the Mustang was in a closed position. Buck Morgan did not put the convertible top of the Mustang in a closed position on the night in question. Buck Morgan’s statements during the ensuing investigation indicated some confusion on his part as to whether the top was up or down when he arrived on the scene. (T p. 735)

33. James Williams testified that the convertible top of the Mustang was in a closed position at all times during the traffic stop. (T p. 337) James Williams qualified his testimony about the convertible top by testifying that the top was not locked or properly connected to the windshield and that, as he drove, he had to hold it with one hand because the top was trying to blow back and become completely open.

34. Petitioner and Cpt. Bruce Williams testified that the convertible top of the Mustang was in an open position during the traffic stop. (T pp. 694, 830)

35. Petitioner drove James Williams to a hotel. (T p. 348) James Williams rode in the back passenger side of Petitioner’s car, directly behind Petitioner’s wife. (T pp. 348-49)

36. James Williams decided not to stay at the hotel. (T p. 350)

37. Respondent’s Exhibit 15 is a Reservation Modification Log from Best Western Hotel (“Log”) that indicated “Guest was dropped off by BPS (drunk) decided not to stay.” The hotel clerk on duty that night who made the entries on the Log, Debbie Thornton, gave two statements during interviews by investigators. Initially, she said that James Williams was not intoxicated; in the second interview, however, she said he was intoxicated. Debbie Thornton was not called as a witness and her conflicting statements are disregarded as unreliable.

38. Cpt. Bruce Williams kept James Williams’ car keys with him until James Williams returned at approximately 7:30 pm on April 3, 2010. (T p. 724) James Williams had to contact Cpt. Bruce Williams to retrieve his car keys. (T pp. 343, 724)

39. On the evening of April 3, 2010, James Williams drove his car home from BPS without mechanical assistance. (T p. 343)

40. Wayne Hobgood (“Director Hobgood”) is the Director of BPS. He has held that position since 2005. His job duties as Director of BPS include supervising overseeing the police and fire operations of the Town of Butner, the Butner fire district, and Butner jurisdiction surrounding the Town of Butner. (T p. 517)

5 41. Director Hobgood first was made aware of the stop of James Williams on April 9, 2010, when he received an inquiry from a newspaper reporter. (T p. 520) After receiving the inquiry, Director Hobgood listened to the radio communications from the night of the traffic stop. (T p. 523; Res. Ex. 2) After listening to the radio communications, Director Hobgood questioned Petitioner, Cpt. Bruce Williams, and Maj. Moss regarding the incident. All three individuals stated that James Williams was a stranded motorist. (T pp. 521-24) Neither Petitioner, Cpt. Bruce Williams, nor Maj. Moss indicated that Maj. Moss initially had been contacted on the night of the stop and informed that James Williams was extremely impaired. (T pp. 521-24)

42. On April 12, 2010, Director Hobgood listened to the telephone communications from the traffic stop. This was the first time that Director Hobgood was made aware that Maj. Moss initially had been contacted and informed that James Williams was an impaired driver. (T p. 528) After listening to the telephone communications, Director Hobgood became concerned that he was not told by his employees that the stop of James Williams initially was called in to Maj. Moss as an impaired driver and opened an internal investigation into the matter. (T p. 528) Initially, Petitioner and Cpt. Bruce Williams were under internal investigation.

43. Danny Roberts (“Maj. Roberts”) is employed as a Major with BPS. Maj. Roberts was assigned by Director Hobgood to investigate the complaint against Petitioner. (T p. 528)

44. As part of the internal investigation, Petitioner was interviewed. Prior to his interview, Petitioner was provided with a copy of BPS’s truthfulness policy. Petitioner indicated that he read it and understood it. (T pp. 93-94)

45. Prior to being interviewed by Maj. Roberts, Petitioner was provided with a copy of BPS’s policy D.14. Petitioner indicated that he read it and understood it. D.14 Section III C.1 states, “Members under investigation for possible violations of the BPS Rules of Personal Conduct, Grossly Inefficient Job Performance, or Job Performance shall truthfully and fully answer all questions asked of them by investigators concerning the incident being investigated.” (Res. Ex. 7; Res. Ex. 11, Bate 5)

46. Petitioner was interviewed by Maj. Roberts on April 12, 2010. (Res. Ex. 11) During this interview, Petitioner represented that he never had been trained in any form of field sobriety testing and that he was not aware of how to do them. (Res. Ex. 11, Bates 9 and 10)

47. At the hearing of this matter, Petitioner maintained that he never had been trained in any field sobriety tests. (T p. 850)

48. Lieutenant Bryan Daniel (“Lt. Daniel”) was Petitioner’s field training officer at BPS. (T p. 192) A field training officer is responsible for acclimating and training a new employee to the policies, procedures, local ordinances, and state and federal laws that apply to BPS and its jurisdiction. (T p. 192) As part of Petitioner’s field training program, Lt. Daniel trained and reviewed field sobriety tests with Petitioner, including

6 the walk-and-turn, one-leg stand, and finger-to-nose tests. (T p. 194) Petitioner’s Exhibit 30 shows, in paragraph 5, subsection 2, that Lt. Daniel trained and reviewed field sobriety testing with Petitioner and that both Lt. Daniel and Petitioner initialed the form indicating that the subject matter had been covered.

49. After receiving his own training, Petitioner later served as a BPS field training officer to Chris Perry. (T p. 414) Petitioner trained Chris Perry in field sobriety tests, including the walk-and-turn, one-leg stand, and finger-to-nose tests, as part of the field training officer program. (T p. 415) Petitioner’s Exhibit 29 shows, in paragraph 5, subsection 2, that Petitioner trained and reviewed field sobriety testing with Chris Perry and that both Chris Perry and Petitioner initialed the form indicating that the subject matter had been covered.

50. Petitioner attended Basic Law Enforcement Training (“BLET”) at Vance-Granville Community College from January 2004 through May 2004. (T p. 750)

51. Tony Pendergrass is the coordinator of law enforcement training at Vance-Granville Community College. (T p. 460) Field sobriety testing, including, but not limited to, the walk-and-turn and one-leg stand tests, was part of the curriculum taught in BLET at Vance-Granville Community College in 2004. (T pp. 460-66)

52. Respondent’s Exhibit 16 is an excerpt of the BLET lesson plan for “Techniques of Traffic Law Enforcement,” which was taught to Petitioner in 2004 at Vance-Granville Community College. Field sobriety tests are covered extensively in the lesson plan.

53. Petitioner was taught and trained in field sobriety tests in BLET and by Lt. Daniel.

54. Petitioner was untruthful when he told Maj. Roberts during his April 12, 2010 interview that he never had been trained in any form of field sobriety testing or that he never had been to any school to do any field sobriety testing. Petitioner’s untruthfulness was willful.

55. On April 2 and 3, 2010, Petitioner was certified to operate intoximeters. During Petitioner’s intoximeter training, simulated drinking exercises were performed. (T p. 774)

56. Petitioner was interviewed again by Maj. Roberts on April 16, 2010. (Res. Ex. 11, Bates 48) At the time of the April 16, 2010 interview of Petitioner, Maj. Roberts was not aware that Petitioner’s wife was riding with him as part of the Ride-Along Program or that Petitioner’s wife was with him during the stop of James Williams. During the April 16, 2010 interview, Maj. Roberts asked Petitioner about the stop of James Williams. Maj. Roberts asked Petitioner if he was the only one in his patrol car at the time of the traffic stop. Petitioner replied, “Yes sir.” (Res. Ex. 11, Bate 49)

7 57. Petitioner was untruthful to Maj. Roberts when he stated that he was the only one in his patrol car during the traffic stop of James Williams. Petitioner’s untruthfulness was willful.

58. Petitioner’s wife was in Petitioner’s patrol vehicle with him from approximately 7:00 p.m. on April 2, 2010 until approximately 2:30 a.m. on April 3, 2010. Petitioner’s wife was in Petitioner’s patrol car during the traffic stop of James Williams. (T pp. 808-09; 863)

59. Petitioner testified that he did not know that Cpt. Bruce Williams was under investigation. (T p. 832)

60. Petitioner was notified by memorandum of his predisciplinary conference, which was conducted on May 11, 2010. (Res. Exs. 20 & 21) At his predisciplinary conference, Petitioner was provided with the opportunity to refute the charges lodged against him and to present evidence, names of witnesses, and any documents he wanted Director Hobgood to consider prior to a decision being made regarding discipline.

61. Director Hobgood has the responsibility to determine what type of discipline to render in all BPS disciplinary actions. (T p. 517) Director Hobgood made the disciplinary decision in Petitioner’s case. (T p. 537)

62. Director Hobgood read and considered the report of investigation, all of the supporting documents to the Report of Investigation, and the transcript of Petitioner’s predisciplinary conference prior to making his determination to dismiss Petitioner. (T pp. 537, 540)

63. Prior to determining dismissal was the appropriate form of discipline, Director Hobgood considered Petitioner’s work history, similar conduct engaged in by other employees, and other available discipline. (T pp. 541-42)

64. Director Hobgood determined, based on all the factors he considered, that dismissal was appropriate.

65. On May 13, 2010, Petitioner was dismissed from BPS. (Res. Exs. 22 & 23)

66. Petitioner appealed his dismissal to Reuben Young, the Secretary of Crime Control and Public Safety. (Res. Ex. 25)

67. Secretary Young upheld Director Hobgood’s decision to dismiss Petitioner. (Res. Ex. 27)

68. Both Director Hobgood and Secretary Young testified that truthfulness is very important, particularly to the career of a law enforcement officer. Law enforcement officers often work alone and are the sole witnesses to a crime. If the officer is not credible and their testimony is not believable, every case that the officer handles is potentially in jeopardy. (T pp. 542, 634-36)

8 69. Petitioner had a reputation among some individuals at BPS for being untruthful. (T pp. 170-71, 489-90, 493, 529)

70. Maj. Moss testified that, in his opinion, Petitioner lies a lot. (T p. 493)

CONCLUSIONS OF LAW

1. All parties properly are before the Office of Administrative Hearings; jurisdiction and venue are proper. To the extent that the Findings of Fact contain Conclusions of Law, or that the Conclusions of Law are Findings of Fact, they should be so considered without regard to the given labels.

2. Petitioner was a career State employee at the time of his dismissal and, therefore, is entitled to the protections of the North Carolina State Personnel Act (N.C. Gen. Stat. § 126-1 et seq.), specifically the just cause provision of N.C. Gen. Stat. § 126-35.

3. N.C. Gen. Stat. § 126-35(a) provides that, “[n]o career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.” Although the statute does not define “just cause,” the words are to be accorded their ordinary meaning. Amanini v. Dep’t of Human Res, 114 N.C. App. 668, 443 S.E.2d 114 (1994) (defining “just cause” as, among other things, good or adequate reason).

4. While just cause is not susceptible of precise definition, our courts have held that it is “a flexible concept, embodying notions of equity and fairness, that can only be determined upon an examination of the facts and circumstances of each individual case.” NC DENR v. Carroll, 358 N.C. 649, 669, 599 S.E.2d 888, 900 (2004).

5. The North Carolina Supreme Court has held that, “Determining whether a public employer had just cause to discipline its employee requires two separate inquires: First, whether the employee engaged in the conduct the employer alleges, and second, whether that conduct constitutes just cause for the disciplinary action taken.” Id. at 665, 599 S.E.2d at 898.

6. Because Petitioner has alleged that Respondent lacked just cause for his dismissal, the Office of Administrative Hearings has jurisdiction to hear his appeal and issue a decision to the State Personnel Commission, which will make the final decision in this matter.

7. Under N.C. Gen. Stat. § 126-35(d), in an appeal of a disciplinary action, the employer bears the burden of proving that “just cause” existed for the disciplinary action.

8. The definition of unacceptable personal conduct includes: conduct for which no reasonable person should expect to receive prior warning; the willful violation of known or written work rules; or conduct unbecoming a State employee that is detrimental to

9 State service. 25 N.C.A.C. 1J.0614. Petitioner engaged in conduct that meets all three definitions of unacceptable personal conduct.

9. When an employer has just cause to discipline an employee for unacceptable personal conduct “[t]he degree and type of action shall be based on the sound and considered judgment of the appointing authority….” 25 N.C.A.C. 1J.0604.

10. Respondent has met its burden of proving that Petitioner engaged in unacceptable personal conduct in that Petitioner violated BPS’s written policy on Truthfulness when Petitioner stated during his interview with Maj. Roberts that he was the only one in his patrol vehicle during the traffic stop of James Williams on April 3, 2010.

11. Respondent has met its burden of proving that Petitioner engaged in unacceptable personal conduct in that Petitioner violated BPS’s written policy on Truthfulness when Petitioner stated during the internal investigation that he never had been trained in field sobriety testing procedures.

12. Respondent has failed to meet its burden of proving that Petitioner was willfully untruthful in stating that the convertible top of James Williams’ vehicle was down.

13. Respondent has failed to meet its burden of proving that Petitioner was willfully untruthful in stating that he had no knowledge of Cpt. Bruce Williams being under internal investigation.

14. Respondent has failed to meet its burden of proving that Petitioner was willfully untruthful when he advised Director Hobgood verbally and in writing that James Williams was not impaired at the time of the traffic stop on April 3, 2010.

15. A career State employee can be disciplined for a single act of unacceptable personal conduct, up to and including dismissal. 25 N.C.A.C. 1J.0608.

16. Petitioner engaged in the willful violation of Respondent’s known work rule on Truthfulness by stating to Maj. Roberts that he was the only one in his patrol vehicle during the traffic stop of James Williams on April 3, 2010 and stating that he had never been trained in field sobriety testing procedures. These statements by Petitioner were willful and represent unacceptable personal conduct by Petitioner sufficient to constitute just cause for his dismissal from employment with BPS.

17. No reasonable law enforcement officer would expect to receive a prior written warning before being dismissed for being untruthful. A law enforcement officer being untruthful is detrimental to state service in that credibility is paramount and without credibility, a law enforcement officer’s ability to effectively perform the duties of his job significantly is diminished.

18. Petitioner has met its burden in showing that Petitioner engaged in unsatisfactory job performance in failing to take proper enforcement action against James Williams after he

10 stopped him when Petitioner failed to take additional steps to determine if James Williams was impaired, particularly by failing to perform field sobriety tests on James Williams after, by Petitioner’s admission, Petitioner smelled a faint odor of alcohol on James Williams’ breath.

19. Respondent considered all relevant and appropriate factors in determining that dismissal was appropriate in the present case.

20. Director Hobgood was not arbitrary and capricious in dismissing Petitioner and he exercised appropriate discretion in making the discipline determination.

21. All procedural requirements for terminating Petitioner’s employment were followed under the State Personnel Act, the North Carolina Administrative Code, the rules and policies of the North Carolina Department of Crime Control and Public Safety, and Butner Public Safety.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, I find that Respondent’s decision to terminate the employment of Petitioner is supported by the evidence and is AFFIRMED. Petitioner is not entitled to recover reasonable attorney’s fees and costs associated with the filing and prosecution of this contested case.

It hereby is 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 N.C. Gen. Stat. § 150B-26(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). 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 arguments to those in the agency who will make the final decision. G.S. 150B-36(a).

The agency making the final decision is the North Carolina State Personnel Commission.

11 This the 30th day of March, 2012.

______Beecher R. Gray Administrative Law Judge