Wetherington v. N.C. Dep't of Pub. Safety , 368 N.C. 583 ( 2015 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 22PA14
Filed 18 December 2015
THOMAS C. WETHERINGTON,
Petitioner
v.
NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY (f/k/a N.C.
DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY; NORTH CAROLINA
HIGHWAY PATROL),
Respondent
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, ___ N.C. App. ___, 752 S.E.2d 511 (2013), affirming a decision
and order entered on 14 December 2012 by Judge Howard E. Manning, Jr. in Superior
Court, Wake County. On 18 December 2014, the Supreme Court allowed petitioner’s
conditional petition for discretionary review as to additional issues. Heard in the
Supreme Court on 19 May 2015.
McGuinness Law Firm, by J. Michael McGuinness, for petitioner-
appellee/appellant.
Roy Cooper, Attorney General, by John F. Maddrey, Solicitor General, and
Thomas J. Ziko, Special Counsel, for respondent-appellant/appellee.
George J. Franks IV and Richard C. Hendrix for National Association of Police
Organizations, amicus curiae.
Crabbe, Brown & James, LLP, by Larry H. James, pro hac vice, and Christina
L. Corl, pro hac vice, for National Fraternal Order of Police; and Richard
Hattendorf for North Carolina State Lodge of Fraternal Order of Police, amici
curiae.
Edelstein and Payne, by M. Travis Payne, for Professional Fire Fighters and
Paramedics of North Carolina, amicus curiae.
WETHERINGTON V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
Bailey & Dixon, LLP, by J. Heydt Philbeck and Sabra J. Faires, for Southern
States Police Benevolent Association and North Carolina Police Benevolent
Association, amici curiae.
Law Offices of Michael C. Byrne, by Michael C. Byrne, for State Employees
Association of North Carolina, amicus curiae.
JACKSON, Justice.
On 4 August 2009, Thomas Wetherington (petitioner) was dismissed from the
North Carolina State Highway Patrol (the Patrol) for alleged violations of the Patrol’s
truthfulness policy. The State Personnel Commission (SPC) determined that
petitioner’s dismissal was supported by just cause. Petitioner filed for judicial review
in Superior Court, Wake County, and the superior court reversed, concluding that
petitioner’s “misconduct . . . did not amount to just cause for dismissal” and that “the
decision to dismiss [petitioner] was arbitrary and capricious.” On appeal, the North
Carolina Court of Appeals affirmed the superior court’s order. Wetherington v. N.C.
Dep’t of Crime Control & Pub. Safety, ___ N.C. App. ___, 752 S.E.2d 511 (2013). We
allowed the petition for discretionary review filed by respondent, the North Carolina
Department of Crime Control and Public Safety,1 and the conditional petition for
discretionary review filed by petitioner. Because it appears that the official who
dismissed petitioner proceeded under a misapprehension of the law, namely that he
1 Subsequently, this Court allowed respondent’s motion to substitute the North
Carolina Department of Public Safety as respondent.
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had no discretion over the range of discipline he could administer, we now modify and
affirm the opinion of the Court of Appeals and remand.
Petitioner was employed as a Trooper with the Patrol. On 21 May 2009, a
complaint was filed against petitioner with the Patrol’s Internal Affairs Section
alleging that petitioner had provided contradictory statements about an incident in
which he lost his campaign hat and in doing so had violated the Patrol’s truthfulness
policy. This policy 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.” After an investigation,
the Patrol dismissed petitioner on 4 August 2009.
On 23 October 2009, petitioner filed a petition for a contested case hearing in
the Office of Administrative Hearings (OAH), and a hearing was conducted on 17 and
18 March 2010. On 3 September 2010, the administrative law judge (ALJ) filed a
recommended decision making findings of fact and concluding that the Patrol’s
decision to dismiss petitioner was supported by the evidence. The ALJ made
extensive findings of fact that included:
5. On March 29, 2009, Petitioner, while on duty,
observed a pickup truck pulling a boat and made a traffic
stop of that truck on US 70 at approximately 10:00 pm.
During that traffic stop, Petitioner discovered two loaded
handguns in the truck and smelled the odor of alcohol
coming from the interior of the truck. The two male
occupants of the truck were cooperative and not
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belligerent. Petitioner took possession of the handguns. At
the conclusion of that traffic stop, Petitioner proceeded to a
stopped car that had pulled off to the side of the road a
short distance in front of the truck and boat trailer.
6. Petitioner testified that he first noticed his hat
missing during his approach to the car parked in front of
the truck. Petitioner heard a crunch noise in the roadway
and saw a burgundy eighteen-wheeler drive by.
7. Petitioner testified that after the conclusion [of]
his investigation of the stopped car, he looked for his hat.
Petitioner found the gold acorns from his hat in the right
hand lane near his patrol vehicle. The acorns were
somewhat flattened.
....
9. After searching for, but not locating his hat,
Petitioner contacted Sergeant Oglesby, his immediate
supervisor, and told him that his hat blew off of his head
and that he could not find it.
....
11. Trooper Rink met Petitioner on the side of the
road of US 70. Trooper Rink asked Petitioner when he last
saw his hat. Petitioner said he did not know. . . . Petitioner
said that he was going down the road . . . and was putting
something in his seat when he realized he did not have his
hat. Petitioner then indicated that he turned around and
went back to the scene of the traffic stops and that is when
he found the acorns from his hat. Petitioner was very upset
and Trooper Rink told Petitioner that everybody loses stuff
and that if Petitioner did not know what happened to his
hat, then he should just tell his Sergeants that he didn’t
know what happened to it. Petitioner replied that it was a
little late for that because he already had told his Sergeant
that a truck came by and blew it off of his head.
....
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13. The testimony of Trooper Rink provides
substantial evidence that Petitioner did not know what
happened to his hat, was untruthful to Sergeant Oglesby
when he said it blew off of his head, and that Petitioner’s
untruthfulness was willful.
....
15. The next day, March 30, 2009, Sergeant Oglesby
and several other members of the Patrol looked for
Petitioner’s hat.
16. Sergeant Oglesby had a detailed conversation
with Petitioner on the side of the road regarding how the
hat was lost. During the conversation, Petitioner remained
consistent with his first statement to Sergeant Oglesby
from the night of March 29, 2009 as he explained to
Sergeant Oglesby that a gust of wind blew his hat off of his
head. Petitioner continued stating that the wind was
blowing from the southeast to the northwest. Petitioner
said he turned back towards the direction of the roadway
and saw a burgundy eighteen[-]wheeler coming down the
road so he could not run out in the roadway and retrieve
his hat. Petitioner then heard a crunch and did not see his
hat anymore.
....
18. Petitioner was not truthful to Sergeant Oglesby
on March 30, 2009, when he explained how he lost his hat.
....
20. Petitioner testified that, approximately three to
four days after the loss of the hat, he suddenly realized that
the hat did not blow off of his head, but that he had placed
the hat on the light bar of his Patrol vehicle and it blew off
of the light bar. Petitioner never informed any supervisors
of this sudden realization.
21. Approximately three weeks after the hat was
lost, Petitioner received a telephone call from Melinda
Stephens, during which Petitioner was informed that her
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nephew, the driver of the truck and boat trailer on March
29, 2009, had Petitioner’s hat.
22. Petitioner informed Sergeant Oglesby that his
hat had been found.
23. Petitioner’s hat subsequently was returned to
Sergeant Oglesby. When returned, the hat was in good
condition and did not appear to have been run over.
24. Due to the inconsistencies in Petitioner’s
statements and the condition of the hat, First Sergeant
Rock and Sergeant Oglesby called Petitioner to come in for
a meeting. During the meeting, First Sergeant Rock asked
Petitioner to clarify that the hat blew off of his head and
that the hat was struck by a car. Petitioner said yes. First
Sergeant Rock then pulled Petitioner’s hat out of the
cabinet and told Petitioner that his story was not feasible
because the hat did not appear to have been run over. At
that point, Petitioner broke down in tears and said he
wasn’t sure what happened to his hat. He didn’t know if it
was on the trunk lid of the truck, the boat, or behind the
light bar, and blew off. Petitioner stated that he told
Sergeant Oglesby that the hat blew off his head because he
received some bad counsel from someone regarding what
he should say about how the hat was lost.
25. During his meeting with First Sergeant Rock
and Sgt. Oglesby, Petitioner was untruthful when he told
First Sergeant Rock that the hat blew off of his head
because by Petitioner’s own testimony, three days after
losing his hat he realized that he placed it on his light bar.
However, three weeks after the incident, in the meeting
with First Sergeant Rock and Sergeant Oglesby he
continued to claim that the hat blew off of his head. It
wasn’t until First Sergeant Rock took the hat out and
questioned Petitioner more that Petitioner admitted that
the hat did not blow off of his head, but blew off of the light
bar. Therefore, even if Petitioner was confused on March
29, 2009, as he claims, he still was being untruthful to his
Sergeants by continuing to tell them that the hat blew off
of his head . . . .
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....
33. Petitioner’s untruthful statements to First
Sergeant Rock and Sergeant Oglesby were willful and were
made to protect himself against possible further reprimand
because of leaving the patrol vehicle without his cover.
(Citations omitted.) The findings also noted that Colonel Randy Glover ultimately
was responsible for determining what type of discipline to impose upon petitioner for
his conduct. The ALJ observed that Colonel Glover “considers the policy on
truthfulness so paramount to the organization that, in his opinion, a member who is
untruthful must be terminated”; however, the ALJ found that Colonel Glover “was
aware that he had discretion” regarding what type of discipline to impose and
“exercised that discretion in deciding to dismiss [p]etitioner.” The ALJ concluded that
“Respondent had just cause to discipline Petitioner in the form of dismissal.” The
SPC adopted the ALJ’s findings of fact and conclusions of law, found that
“Respondent met its burden of proving that it had just cause to dismiss Petitioner,”
and affirmed.
On 25 February 2011, petitioner filed for judicial review in Superior Court,
Wake County, and on 14 December 2012, the superior court entered an order
reversing the final decision of the SPC. Although the superior court determined that
the evidence supported the agency’s findings that petitioner engaged in untruthful
conduct and that his actions constituted unacceptable personal conduct, the court
ultimately concluded that the conduct did not provide just cause for dismissal. In
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addition, the superior court ruled that the decision to dismiss petitioner “was
arbitrary and capricious” and that Colonel Glover failed to “consider alternative,
lesser sanctions against [petitioner] over this incident involving the temporary loss
of a $50.00 hat during a legitimate traffic stop and [petitioner’s] variable recollections
of the circumstances under which the hat disappeared.”
Respondent appealed to the Court of Appeals, and petitioner filed a cross
appeal. On 17 December 2013, the Court of Appeals filed a unanimous, published
opinion affirming the superior court’s order. Wetherington, ___ N.C. App. at ___, ___,
752 S.E.2d at 511, 517. We allowed both respondent’s petition for discretionary
review and petitioner’s conditional petition for discretionary review.
Respondent argues that the Court of Appeals erred by affirming the superior
court’s order reversing the SPC’s decision. We disagree. Because Colonel Glover did
not understand that he had discretion to consider the full range of potential
discipline, his decision was “[a]ffected by [an] error of law.” See N.C.G.S. § 150B-
51(b)(4) (2009).2
“On judicial review of an administrative agency’s final decision, the
substantive nature of each assignment of error dictates the standard of review.” N.C.
2 The General Assembly amended section 150B-51 in 2011. Act of June 18, 2011,
ch. 398, sec. 27, 2011 N.C. Sess. Laws 1678, 1689. The amendments apply only to contested
cases commenced on or after 1 January 2012. Id., sec. 63, at 1701. The petition for a
contested case hearing in the case sub judice was filed 23 October 2009.
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Dep’t of Env’t & Nat. Res. v. Carroll, 358 N.C. 649, 658, 599 S.E.2d 888, 894 (2004)
(citing, inter alia, ACT-UP Triangle v. Comm’n for Health Servs., 345 N.C. 699, 706,
483 S.E.2d 388, 392 (1997), questioned in Shackleford-Moten v. Lenoir Cty. Dep’t of
Soc. Servs., 155 N.C. App. 568, 572, 573 S.E.2d 767, 770 (2002), disc. rev. denied, 357
N.C. 252, 582 S.E.2d 609 (2003), and State ex rel. Utils. Comm’n v. Bird Oil Co., 302
N.C. 14, 21, 273 S.E.2d 232, 236 (1981)). The reviewing court may, inter alia,
reverse or modify the agency’s decision . . . if the
substantial rights of the petitioners may have been
prejudiced because the agency’s findings, inferences,
conclusions, or decisions are:
(1) In violation of constitutional provisions;
(2) In excess of the statutory authority or
jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence . . . in view
of the entire record as submitted; or
(6) Arbitrary, capricious, or an abuse of discretion.
N.C.G.S. § 150B-51(b). This Court has explained that if “the gravamen of an assigned
error is that the agency violated subsections 150B-51(b)(1), (2), (3), or (4) . . . a court
engages in de novo review.” Carroll, 358 N.C. at 659, 599 S.E.2d at 895 (citing, inter
alia, Meads v. N.C. Dep’t of Agric., 349 N.C. 656, 665, 509 S.E.2d 165, 171 (1998)).
“Under the de novo standard of review, the trial court ‘consider[s] the matter anew[ ]
and freely substitutes its own judgment for the agency’s.’ ” Id. at 660, 599 S.E.2d at
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895 (quoting Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565
S.E.2d 9, 17 (2002) (alterations in original)).
Chapter 126 of our General Statutes 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.” N.C.G.S. § 126-35(a) (2009). A career
State employee is defined as
a State employee or an employee of a local entity who is
covered by this Chapter pursuant to G.S. 126-5(a)(2) who:
(1) Is in a permanent position appointment; and
(2) Has been continuously employed by the State of
North Carolina or a local entity as provided in
G.S. 126-5(a)(2) in a position subject to the State
Personnel Act for the immediate 24 preceding
months.
Id. § 126-1.1 (2009).
As authorized by N.C.G.S. § 126-35(a), the SPC has adopted rules that define
just cause for discipline of a career state employee. See 25 NCAC 01J .0604 (June
2014). These rules establish two grounds for discipline: unsatisfactory job
performance and unacceptable personal conduct. Id. Unacceptable personal conduct
is defined, inter alia, as
(a) conduct for which no reasonable person should
expect to receive prior warning;
(b) job-related conduct which constitutes a violation
of state or federal law;
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(c) conviction of a felony or an offense involving
moral turpitude that is detrimental to or impacts the
employee’s service to the State;
(d) the willful violation of known or written work
rules;
(e) conduct unbecoming a state employee that is
detrimental to state service[.]
25 NCAC 01J .0614(8) (June 2014).
“Nonetheless, the fundamental question in a case brought under N.C.G.S.
§ 126-35 is whether the disciplinary action taken was ‘just.’ Inevitably, this inquiry
requires an irreducible act of judgment that cannot always be satisfied by the
mechanical application of rules and regulations.” Carroll, 358 N.C. at 669, 599 S.E.2d
at 900. Just cause “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.” Id. at 669, 599 S.E.2d at 900-01 (citations omitted) (quoting
Crider v. Spectralite Consortium, Inc., 130 F.3d 1238, 1242 (7th Cir. 1997)). It follows
that, pursuant to Carroll’s “flexible” definition of “just cause,” Colonel Glover has
discretion, as a matter of law, in dismissing an employee for violating the Patrol’s
truthfulness policy.
Here, the ALJ found that petitioner behaved as alleged and that his behavior
violated a written work rule. The error of law occurred when Colonel Glover was
unaware of his responsibility to exercise discretion. Colonel Glover’s testimony at the
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OAH hearing establishes that he decided to dismiss petitioner not based upon
consideration of the facts and circumstances of petitioner’s conduct, but instead
because of his erroneous view that any violation of the Patrol’s truthfulness policy
must result in dismissal. Colonel Glover testified that because petitioner’s conduct
“was obviously a violation of the truthfulness policy,” dismissal was required, and he
repeatedly asserted that he “had no choice” to impose any lesser punishment. After
petitioner’s counsel asked Colonel Glover whether, “when there is a substantiated or
adjudicated finding of untruthfulness . . . [a trooper] would necessarily need to be
terminated,” Colonel Glover reiterated that if “that’s the violation, again . . . I have
no choice because that’s the way I view it.” Petitioner’s counsel then asked, “[D]oes
that mean if you find a substantiated or adjudicated violation of the truthfulness
policy . . . that you don’t feel like that gives you any discretion as Colonel to do
anything less than termination?” Colonel Glover agreed with that statement.
As written, the truthfulness policy applies to “all written and oral
communications,” and it applies to a wide range of untruthful, inaccurate, “improper,”
or “misleading” statements. Nothing in the text of the policy limits its application to
statements related to the trooper’s duties, the Patrol’s official business, or any other
significant subject matter. Notwithstanding the potentially expansive scope of this
policy, Colonel Glover confirmed that he could not impose a punishment other than
dismissal for any violation, apparently regardless of factors such as the severity of
the violation, the subject matter involved, the resulting harm, the trooper’s work
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history, or discipline imposed in other cases involving similar violations. We
emphasize that consideration of these factors is an appropriate and necessary
component of a decision to impose discipline upon a career State employee for
unacceptable personal conduct.
Colonel Glover’s mistaken view that he had no discretion over the appropriate
measure of discipline was a misapprehension of the law, which subjects his decision
to reversal or modification pursuant to N.C.G.S. § 150B-51(b)(4) because it is
“[a]ffected by other error of law.” The approach employed by Colonel Glover in
applying a fixed punishment of dismissal for any violation is antithetical to the
flexible and equitable standard described in Carroll and is at odds with both the ALJ’s
and the SPC’s finding of fact that Colonel Glover exercised discretion in reaching his
decision to dismiss petitioner.
Application of an inflexible standard deprives management of discretion.
While dismissal may be a reasonable course of action for dishonest conduct, the better
practice, in keeping with the mandates of both Chapter 126 and our precedents,
would be to allow for a range of disciplinary actions in response to an individual act
of untruthfulness, rather than the categorical approach employed by management in
this case.
As such, by upholding respondent’s use of a per se rule of mandatory dismissal
for all violations of a particular policy, the SPC failed to examine the facts and
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circumstances of petitioner’s individual case as required by this state’s jurisprudence.
For these reasons, we conclude that the superior court correctly reversed the SPC’s
decision.
Nevertheless, the superior court determined that petitioner’s conduct did not
constitute just cause for dismissal, and the Court of Appeals affirmed that
determination. Because we conclude that Colonel Glover’s use of a rule requiring
dismissal for all violations of the Patrol’s truthfulness policy was an error of law, see
N.C.G.S. § 150B-51(b)(4), we find it prudent to remand this matter for a decision by
the employing agency as to whether petitioner should be dismissed based upon the
facts and circumstances and without the application of a per se rule. As a result, we
do not decide whether petitioner’s conduct constitutes just cause for dismissal.
Accordingly, the decision of the Court of Appeals is modified and affirmed, and
the case is remanded to the Court of Appeals with instructions to that court to remand
to the Superior Court, Wake County for subsequent remand to the SPC and further
remand to the employing agency for additional proceedings not inconsistent with this
opinion. We further conclude that petitioner’s conditional petition for discretionary
review was improvidently allowed.
MODIFIED, AFFIRMED, AND REMANDED; DISCRETIONARY REVIEW
IMPROVIDENTLY ALLOWED IN PART.
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