Wetherington v. NC Dep't of Pub. Safety ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1018
Filed: 18 February 2020
Office of Administrative Hearings, No. 16 OSP 9787
THOMAS C. WETHERINGTON, Petitioner,
v.
NC DEPARTMENT OF PUBLIC SAFETY, NC HIGHWAY PATROL, Respondent.
Appeal by petitioner from order entered 17 May 2018 by Administrative Law
Judge Donald W. Overby in the Office of Administrative Hearings. Heard in the
Court of Appeals 7 August 2019.
The McGuinness Law Firm, by J. Michael McGuinness; Law Offices of Michael
C. Byrne, by Michael C. Byrne, for petitioner-appellant.
Attorney General Joshua H. Stein, by Special Deputy Attorney General
Tammera S. Hill, for respondent-appellee.
Milliken Law, by Megan A. Milliken, for Southern States Police Benevolent
Association and North Carolina Police Benevolent Association, amici curiae.
Crabbe, Brown & James, LLP, by Larry H. James and Christopher R. Green,
for National Fraternal Order of Police; Essex Richards, P.A., by Norris A.
Adams, II, for North Carolina Fraternal Order of Police, amici curiae.
Edelstein & Payne, by M. Travis Payne, for the Professional Fire Fighters and
Paramedics of North Carolina, amicus curiae.
Tin, Fulton, Walker & Owen, PLLC, by John W. Gresham, for the National
Association of Police Organizations, amicus curiae.
STROUD, Judge.
WETHERINGTON V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
It is unlikely so many lawyers have ever before written so many pages because
of a lost hat. True, hats have caused serious problems in prior cases. Once a street
car passenger was blinded in one eye by a hat thrown by a man quarreling with
others.1 Lost and misplaced hats have been important bits of evidence in quite a few
murder and other felony cases.2 People have suffered serious injuries trying to catch
a hat.3 As in those cases, the real issue here is far more serious than an errant hat,
but that is where it started. Up to this point, this case includes over 1,000 pages of
evidence, testimony, briefs, and rulings from courts, from the agency level to the
Supreme Court and back to this Court for a second time. But we agree with
Respondent, this matter is not just about a hat. It is about the tension between the
statutorily protected rights of a law enforcement officer and proper discipline to
protect the integrity and reliability of the North Carolina State Highway Patrol.
This case began in 2009 when Petitioner Wetherington, then a trooper with
the North Carolina State Highway Patrol, misplaced his hat during a traffic stop; he
then lied about how he lost his hat, which was later recovered, mostly intact.
1 Giblett v. Garrison, 232 N.Y. 618, 134 N.E. 595 (1922).
2 Sulie v. Duckworth, 743 F. Supp. 592, 598 (N.D. Ind. 1988), aff’d, 908 F.2d 975 (7th Cir. 1990);
Johnson v. State, 289 Ga. 106, 709 S.E.2d 768 (2011); Bower v. State, 5 Mo. 364 (1838); People v. Baker,
27 A.D. 597, 50 N.Y.S. 771, (N.Y. App. Div. 1898); Thomas v. State, 171 Tex. Crim. 54, 344 S.W.2d 453
(1961);Wilson v. State, 63 Tex. Crim. 81, 138 S.W. 409 (1911); Nelson v. State, 52 Wis. 534, 9 N.W. 388
(1881).
3Rosenberg v. Durfree, 87 Cal. 545, 26 P. 793 (1891); Gulf, C. & S.F. Ry. Co. v. Newson, 45 Tex. Civ.
App. 562, 102 S.W. 450 (1907).
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Opinion of the Court
Respondent terminated Petitioner’s employment as a trooper based upon its “per se”
rule that any untruthfulness by a state trooper is unacceptable personal conduct and
just cause for dismissal. See N.C. Gen. Stat. § 126-35 (2017). In the first round of
appellate review, the North Carolina Supreme Court concluded, “Colonel Glover’s use
of a rule requiring dismissal for all violations of the Patrol’s truthfulness policy was
an error of law,” and remanded for Respondent to make a decision on the proper legal
basis “as to whether petitioner should be dismissed based upon the facts and
circumstances and without the application of a per se rule.” Wetherington v. N.C.
Dep’t of Pub. Safety, 368 N.C. 583, 593, 780 S.E.2d 543, 548 (2015) (hereinafter
Wetherington I), aff’d as modified, 231 N.C. App. 503, 752 S.E.2d 511 (2013). In 2015
on remand, based upon the same evidence and facts, Respondent again determined
Petitioner engaged in unacceptable personal conduct and there was just cause for his
dismissal. Because Respondent failed to consider the factors as directed by the
Supreme Court on remand, we again reverse and conclude as a matter of law, on de
novo review, that Petitioner’s unacceptable personal conduct was not just cause for
dismissal. In accord with North Carolina General Statute § 126-34.02(a), we remand
to the Office of Administrative Hearings for entry of a new order imposing some
disciplinary action short of dismissal and reinstating Petitioner to the position from
which he was removed.
I. Background
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Opinion of the Court
The full factual and procedural history of this case leading up to remand can
be found in Wetherington I, 368 N.C. 583, 780 S.E.2d 543. By the time of remand
from the Supreme Court, Colonel Randy Glover, who had originally terminated
Petitioner’s employment, had retired. In March 2013, Colonel William Grey became
the Commander of the North Carolina State Highway Patrol responsible for
considering the appropriate discipline for Petitioner’s violation of the truthfulness
policy on 28 March 2009. Col. Grey did not provide notice or a pre-dismissal
conference to Petitioner, and he reviewed the existing record. On 20 May 2016, Col.
Grey sent a termination letter to Petitioner. The letter states:
Pursuant to the decision of the North Carolina Supreme
Court filed on 18 December 2015, this case has been
remanded back to the North Carolina Highway Patrol for
me to determine, based upon the facts and circumstances
of this case, whether you should be dismissed from the
Highway Patrol, as previously determined by Colonel
Glover, or whether you should be reinstated.
This letter serves as notification of my decision to uphold
your dismissal. My decision is based on my review of the
Report of Investigation and attached documents, my
viewing of the video recording of your interview with
Internal Affairs and the evidence presented by you during
your pre-dismissal conference.
This case has been remanded for me to review based on a
determination that Colonel Glover’s earlier decision to
dismiss you from the Highway Patrol was premised on a
“misapprehension of the law, namely that he had no
discretion over the range of discipline he could administer.”
Accordingly, I review this case with an open mind and with
the full understanding that the range of discipline to be
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Opinion of the Court
administered, if any, is within my discretion and based on
the unique facts and circumstances of your case.
Your dismissal was based on evidence that you provided
contradictory statements about an incident in which you
lost your campaign hat during a traffic stop, thereby
violating the Highway Patrol’s truthfulness policy. That
policy, at all relevant times, stated, in pertinent part:
“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.”
....
Consistent with the mandate of the North Carolina
Supreme Court, I have reviewed the record with the
understanding that I have discretion in determining what,
if any, level of punishment is most appropriate based on
the facts and circumstances of this case. I have considered
the entire range of disciplinary actions available under
state law. In that regard, I have taken into consideration
the fact that you had been employed by the Highway Patrol
as a Cadet and as a State Trooper from June 2007 until the
time of your dismissal on August 4, 2009 that you did not
have any disciplinary actions prior to the time of your
dismissal and that your overall performance rating and
work history since being sworn as a Trooper in November
2007 was “Good.”
I am also mindful that, pursuant to Brady v. Maryland, 373
U.S. 83 (1963), prosecutors have constitutional obligation
to disclose evidence favorable to the defendant. “Favorable
evidence” includes evidence that is exculpatory as well as
information that could be used to impeach the testimony of
a prosecution witness. Giglio v. U.S., 405 U.S. 150 (1972).
Consistent with this Constitutional obligation, law
enforcement agencies have a duty to disclose information
to prosecutors, including a summary of Internal Affairs
findings and other applicable conduct that bears on the
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WETHERINGTON V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
credibility of any witness who may testify. In federal court,
the United States Attorney, in each of the three North
Carolina districts, routinely requires the Highway Patrol
to disclose, in writing, potential Giglio issues for each and
every case in which a Trooper may testify. Several District
Attorneys have adopted similar policies based on an
understanding that the credibility of the judicial system
rests on the foundation that public servants possess
integrity that is beyond reproach and can be trusted to
testify truthfully in every case. Despite these
Constitutional concerns, I understand that not every
violation of the Highway Patrol’s truthfulness policy
warrants dismissal.
Based upon the facts and circumstances of this case, as
described above, I have no confidence that you can be
trusted to be truthful to your supervisors or even to testify
truthfully in court or at administrative hearings. Given
that you were willing to fabricate and maintain a lie about
such an insignificant fact as losing a campaign cover4 as
part of an attempt to cover up the fact that you did not wear
it during an enforcement contact, I have no confidence that
you would not alter material facts in court in an attempt to
avoid evidence from being suppressed or for the purpose of
obtaining a conviction. Even if my confidence in your
ability to testify truthfully had not been lost, your ability
to perform the essential job functions of a Trooper is
reparably limited due to the Highway Patrol’s duty to
disclose details of the internal investigation to prosecutors,
as discussed above. If you were to return to duty with the
Highway Patrol I could not, in good conscience, assign you
to any position where you may potentially have to issue a
citation, make an arrest or testify in a court of law or
administrative proceeding. There are no Trooper positions
available within the Highway Patrol that do not include
these essential job functions, accordingly, any assignment
would compromise the integrity of the Highway Patrol and
the ability of the State to put on credible evidence to
4 Campaign cover is another term for the official hat worn by State Highway Patrol troopers.
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WETHERINGTON V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
prosecute its cases.
For the above-stated reasons, I do not find any level of
discipline, short of dismissal, to be appropriate in your
case. Your violation of the Highway Patrol’s truthfulness
policy, while over a trivial matter, does not negate the fact
that your false story was created by you with
premeditation and deliberation to lie to your supervisor
and you continued to lie to your supervisor for a period of
weeks and only decided to tell the truth after being
confronted with compelling evidence that your story was
untruthful. Additionally, there was no coercion, no
trickery and no other mitigating circumstance present to
mitigate or even explain your misconduct. Instead, the
evidence shows that your fabricated an elaborate story
merely because you were afraid you would possibly be
reprimanded for leaving your patrol vehicle without your
cover. As indicated above, I simply have no confidence
that, if allowed to return to the Highway Patrol, you can be
trusted to testify truthfully and having considered all
mitigating factors and lesser levels of discipline, I have
concluded that the appropriate level of discipline in this
case is Dismissal from the North Carolina Highway Patrol.
The obligations outlined above under Brady and Giglio, as
well as the high standards expected of each member of the
Highway Patrol, preclude me, in my capacity as Patrol
Commander, from ever allowing you to testify in court as a
representative of the Highway Patrol. Therefore it is my
decision to uphold your dismissal.
Petitioner received a final agency decision from Frank Perry, Secretary of the
North Carolina Department of Public Safety, by a letter dated 31 August 2016. The
letter stated the North Carolina Department of Public Safety Employee Advisory
Committee convened and upheld his dismissal for the same reasons as stated in Col.
Grey’s letter. Having exhausted his administrative remedies for a second time,
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Opinion of the Court
Petitioner filed a second contested case petition with the Office of Administrative
Hearings (“OAH”) to challenge his termination. Petitioner filed motions for judgment
as a matter of law, for judgment on the pleadings, and for summary judgment. These
were all denied by Administrative Law Judge Donald W. Overby. A contested case
hearing was held on 29-30 January 2018 before ALJ Overby.
At the 2018 hearing, all of the exhibits and testimony from the 2009 hearing
were admitted. The only new witnesses were Melvin Tucker, an expert witness for
Petitioner, and Col. Grey, who testified regarding his decision-making process after
remand from the Supreme Court.5 Col. Grey testified that he did not draft or prepare
Petitioner’s termination letter. Col. Grey also testified that he did not review the
Supreme Court’s decision or this Court’s prior decision before making his
determination regarding Petitioner’s termination:
Q. Okay. Now, at that point -- well, I would presume that
you would have been provided the supreme court decision
that, sort of, dumped this back in your lap?
A. I never saw the supreme court decision.
Q. Oh.
A. I didn’t review it.
Q. Okay. All right.· Did anyone provide you the court of
appeals decision in the case right before it reached the
supreme court?
5At the time of the hearing, Col. Grey had been retired from the Highway Patrol for approximately
one year.
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Opinion of the Court
A. And I don’t know -- I do -- I saw the OAH information,
but I don’t know that -- you know, I don’t recall reviewing
the court of appeals stuff.
Col. Grey was asked about this again on cross examination:
Q. Colonel, you did share with us earlier that you did not
read the supreme court decision; but didn’t you become
aware through some source that the entire court of appeals
and the superior court found there was no just cause for
Trooper Wetherington’s termination?
MS. HILL: Objection.
BY MR. MCGUINNESS:
Q. Did you become aware of that?
THE COURT: Overruled.
THE WITNESS: I did. At some point I understood that, I
think, correct me if I’m wrong, Mr. McGuinness, that OAH
was in favor of the organization, superior court and court
the appeals was in favor of Mr. Wetherington, and the
supreme court remanded it back to the agency. Am I right?
BY MR. MCGUINNESS:
Q. I believe you are. And I guess it just makes me curious
as to why in light of the history of the case and the concerns
that you’ve articulated that -- that you didn’t get into the
supreme court decision and see what particular factors
that they thought was most important, not myself or Miss
Hill, but the supreme court. In your, obviously, your course
of actions, but you chose not to get into that, apparently?
A. That’s correct.
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WETHERINGTON V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
In an order entered 17 May 2018, ALJ Overby conducted de novo review of
whether just cause existed for Petitioner’s termination and affirmed the decision to
terminate Petitioner concluding in part:
38. Whether just cause existed for disciplinary
action against a career status State employee is a question
of law, to be reviewed de novo. In conducting that review,
this Court owes no deference to DPS’s just cause decision
or its reasoning therefore and is free to substitute its
judgment for that of the agency on whether just cause
exists for the disciplinary action taken against the
employee.
39. Respondent met its burden of proof and
established by substantial evidence that it had just cause
to dismiss Petitioner from employment with the State
Highway Patrol for unacceptable personal conduct.
40. The Respondent has not exceeded its authority
or jurisdiction; acted erroneously; failed to use proper
procedure; acted arbitrarily or capriciously; and has not
failed to act as required by law or rule.
(Citations omitted.) Petitioner timely appealed to this Court.
II. Preliminary Procedural Issues
We first note that during the long pendency of this case, the procedure for this
appeal has changed.
A. Jurisdiction
The appeal process under North Carolina General Statute Chapter 126, Article
8 for Petitioner’s case changed as of 21 August 2013, when amendments to North
Carolina General Statute Chapter § 126-34.02 became effective.
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Opinion of the Court
Once a final agency decision is issued, a potential,
current, or former State employee may appeal an adverse
employment action as a contested case pursuant to the
method provided in N.C. Gen. Stat. § 126-34.02 (2015). As
relevant to the present case, N.C. Gen. Stat. § 126-34.02(a)
provides:
(a) [A] former State employee may file a
contested case in the Office of Administrative
Hearings under Article 3 of Chapter 150B of
the General Statutes. . . . In deciding cases
under this section, the [ALJ] may grant the
following relief:
(1) Reinstate any employee to the
position from which the employee has
been removed.
(2) Order the employment, promotion,
transfer, or salary adjustment of any
individual to whom it has been
wrongfully denied.
(3) Direct other suitable action to
correct the abuse which may include
the requirement of payment for any
loss of salary which has resulted from
the improper action of the appointing
authority.
One of the issues, which may be heard as a contested
case under this statute, is whether just cause existed for
dismissal, demotion, or suspension. As here, “[a] career
State employee may allege that he or she was dismissed,
demoted, or suspended for disciplinary reasons without
just cause.” N.C. Gen. Stat. § 126-34.02(b)(3). In such
cases, “the burden of showing that a career State employee
was discharged, demoted, or suspended for just cause rests
with the employer.” N.C. Gen. Stat. § 126-34.02(d). In a
contested case, an “aggrieved party” is entitled to judicial
review of a final decision of an administrative law judge
[ALJ] by appeal directly to this Court. N.C. Gen. Stat. §
126-34.02(a); N.C. Gen. Stat. § 7A-29(a).
Harris v. N.C. Dep’t of Pub. Safety, 252 N.C. App. 94, 98, 798 S.E.2d 127, 131-32,
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WETHERINGTON V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
aff’d, 370 N.C. 386, 808 S.E.2d 142 (2017) (alterations in original).
The amendments in 2013 eliminated one step in appellate review, so there was
no Superior Court review of the OAH decision after remand by the Supreme Court,
as there was in Wetherington I. Neither party has raised any challenges to the
procedure on remand. Petitioner timely appealed the ruling from the OAH to this
Court pursuant to North Carolina General Statute § 126-34.02(a) and North Carolina
General Statute § 7A-29(a). See Peterson v. Caswell Developmental Ctr., ___ N.C.
App. ___, ___, 814 S.E.2d 590, 593 (2018) (“An appeal lies with this Court of a final
decision of the Office of Administrative Hearings pursuant to N.C. Gen. Stat. § 7A-29
(2017).”).
B. Standard of Review
Section 150B-51 of our State’s Administrative
Procedure Act (APA) establishes the scope and standard of
review that we apply to the final decision of an
administrative agency. The APA authorizes this Court to
affirm or remand an ALJ’s final decision, but such a
decision may be reversed or modified only
if the substantial rights of the petitioners may
have been prejudiced because the findings,
inferences, conclusions, or decisions are:
(1) In violation of constitutional provisions;
(2) In excess of the statutory authority or
jurisdiction of the agency or [ALJ];
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence
admissible under G.S. 150B-29(a), 150B-30,
or 150B-31 in view of the entire record as
submitted; or
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Opinion of the Court
(6) Arbitrary, capricious, or an abuse of
discretion.
The particular standard applied to issues on appeal
depends upon the nature of the error asserted. “It is well
settled that in cases appealed from administrative
tribunals, questions of law receive de novo review, whereas
fact-intensive issues such as sufficiency of the evidence to
support an agency’s decision are reviewed under the whole-
record test.”
To that end, we review de novo errors asserted under
subsections 150B-51(b)(1)-(4). Under the de novo standard
of review, the reviewing court “considers the matter anew
and freely substitutes its own judgment[.]”
When the error asserted falls within subsections
150B-51(b)(5) and (6), this Court must apply the “whole
record standard of review.” Under the whole record test,
[the reviewing court] may not substitute its
judgment for the agency’s as between two
conflicting views, even though it could
reasonably have reached a different result
had it reviewed the matter de novo. Rather,
a court must examine all the record
evidence—that which detracts from the
agency’s findings and conclusions as well as
that which tends to support them—to
determine whether there is substantial
evidence to justify the agency’s decision.
“‘Substantial evidence’ means relevant evidence a
reasonable mind might accept as adequate to support a
conclusion.”
“In a contested case under the APA, as in a legal
proceeding initiated in District or Superior Court, there is
but one fact-finding hearing of record when witness
demeanor may be directly observed.” It is also well
established that
[i]n an administrative proceeding, it is the
prerogative and duty of [the ALJ], once all the
evidence has been presented and considered,
to determine the weight and sufficiency of the
evidence and the credibility of the witnesses,
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Opinion of the Court
to draw inferences from the facts, and to
appraise conflicting and circumstantial
evidence. The credibility of witnesses and the
probative value of particular testimony are for
the [ALJ] to determine, and [the ALJ] may
accept or reject in whole or part the testimony
of any witness.
Our review, therefore, must be undertaken “with a high
degree of deference” as to “‘[t]he credibility of witnesses and
the probative value of particular testimony[.]’” As our
Supreme Court has explained, “the ALJ who conducts a
contested case hearing possesses those institutional
advantages that make it appropriate for a reviewing court
to defer to his or her findings of fact.”
Brewington v. N.C. Dep’t of Pub. Safety, 254 N.C. App. 1, 12-13, 802 S.E.2d 115, 124-
25 (2017) (alterations in original) (citations omitted), review denied, 371 N.C. 343,
813 S.E.2d 857 (2018).
The primary issue on appeal is whether the OAH erred in upholding Col.
Grey’s determination of “just cause” to terminate Petitioner’s employment.
Career state employees are entitled to statutory
protections, including the protection from being
discharged, suspended, or demoted without “just cause.”
This Court established a three-part analysis to determine
whether just cause existed for an employee’s adverse
employment action for unacceptable personal conduct:
The proper analytical approach is to first
determine whether the employee engaged in
the conduct the employer alleges. The second
inquiry is whether the employee’s conduct
falls within one of the categories of
unacceptable personal conduct provided by
the Administrative Code. Unacceptable
personal conduct does not necessarily
establish just cause for all types of discipline.
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Opinion of the Court
If the employee’s act qualifies as a type of
unacceptable conduct, the tribunal proceeds
to the third inquiry: whether that misconduct
amounted to just cause for the disciplinary
action taken. Just cause must be determined
based “upon an examination of the facts and
circumstances of each individual case.”
Here, only the third prong of the analysis is at issue,
as the ALJ concluded, and Petitioner did not appeal, the
first two findings that Petitioner had engaged in the
alleged unacceptable personal conduct and that conduct
fell within one of the provided categories.
Peterson, ___ N.C. App.at ___, 814 S.E.2d at 593 (citation omitted) (quoting Warren
v. N.C. Dep’t of Crime Control, 221 N.C. App. 376, 383, 726 S.E.2d 920, 925 (2012)).
Here, as in Peterson, only the “third inquiry” is challenged on appeal, and we
review the conclusion of “just cause” de novo. “Under the de novo standard of review,
the trial court considers the matter anew and freely substitutes its own judgment for
the agency’s.” Wetherington I, 368 N.C. at 590, 780 S.E.2d at 546 (citation and
brackets omitted).
C. Law of the Case
This case’s long history adds another layer of complication. Our review of the
order on appeal is guided both by the standard of review and by the prior rulings in
this case under the law of the case doctrine.
According to the doctrine of the law of the case, once an
appellate court has ruled on a question, that decision
becomes the law of the case and governs the question both
in subsequent proceedings in a trial court and on
subsequent appeal.
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Opinion of the Court
Weston v. Carolina Medicorp, 113 N.C. App. 415, 417, 438 S.E.2d 751, 753 (1994)
(citing Transportation, Inc. v. Strick Corp., 286 N.C. 235, 210 S.E.2d 181 (1974)).
The law of the case doctrine applies only to the issues decided in the previous
proceeding.
In North Carolina courts, the law of the case applies only
to issues that were decided in the former proceeding,
whether explicitly or by necessary implication, but not to
questions which might have been decided but were not.
“[T]he doctrine of the law of the case contemplates only
such points as are actually presented and necessarily
involved in determining the case.”
Goldston v. State, 199 N.C. App. 618, 624, 683 S.E.2d 237, 242 (2009) (alteration in
original) (quoting Hayes v. Wilmington, 243 N.C. 525, 536, 91 S.E.2d 673, 682 (1956)),
aff’d by an equally divided court, 364 N.C. 416, 700 S.E.2d 223 (2010).
In his Petition for a Contested Case Hearing filed after Col. Grey issued his
determination on remand, Petitioner argued, “The law of the case controls[,]” citing
to Wetherington I. In Wetherington I, the Supreme Court notably did not reverse or
vacate either the Superior Court’s order or this Court’s opinion, which was affirmed
as modified. See Wetherington I, 368 N.C. at 593, 780 S.E.2d at 548-49. In addition,
the Superior Court’s order and this Court’s opinion reversed ALJ Gray’s order which
was on appeal in Wetherington I. The Supreme Court instead held:
Nevertheless, the superior court determined that
petitioner’s conduct did not constitute just cause for
dismissal, and the Court of Appeals affirmed that
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Opinion of the Court
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, 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.
Id. at 593, 780 S.E.2d at 548 (citation omitted). Therefore, the Supreme Court
modified this Court’s opinion in Wetherington I only regarding this Court’s holding,
which was, “The superior court did not err in concluding that Petitioner’s conduct did
not constitute just cause for dismissal.” 231 N.C. App. at 513, 752 S.E.2d at 517.
As ALJ Overby noted, the basic facts as to the traffic stop in 2009, the loss of
the hat, and Petitioner’s statements about it were determined in Wetherington I. The
remand by the Supreme Court did not limit Respondent’s options on remand but gave
Respondent the opportunity to develop additional evidence as to those events in 2009,
to amend its charges against Petitioner, and to present additional substantive
evidence at another contested case hearing. See Wetherington I, 368 N.C. at 593, 780
S.E.2d at 548-49. Since the Supreme Court was considering a legal issue, the holding
and open-ended remand gave Respondent at least two options. One option was for
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Opinion of the Court
Respondent to pursue amended charges or consider additional evidence on remand,
if it determined the facts required further development. See N.C. Dep’t of Env’t &
Nat. Res. v. Carroll, 358 N.C. 649, 674-75, 599 S.E.2d 888, 904 (2004) (“Ordinarily,
when an agency fails to make a material finding of fact or resolve a material conflict
in the evidence, the case must be remanded to the agency for a proper finding.”).
Another option, which Respondent elected, was to proceed upon the same evidence
and facts as established in Wetherington I regarding the events in 2009 and to make
a new determination of “whether petitioner’s conduct constitutes just cause for
dismissal” based upon the specific factors as directed by the Supreme Court. See
Wetherington I, 368 N.C. at 593, 780 S.E.2d at 548.
D. Adjudicated Facts
At the second contested case hearing, no new substantive evidence regarding
the facts surrounding the loss of the hat was presented. The transcripts and exhibits
from the first hearing were all admitted into evidence. In the order, ALJ Overby
noted that both the Court of Appeal and Supreme Court in Wetherington I had quoted
“fifteen specific findings of fact” from the prior order which were not “successfully
challenged on appeal” in Wetherington I and “thus are conclusively established on
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Opinion of the Court
appeal.”6 “[T]he established and settled facts of the underlying events for which
Petitioner was terminated” quoted by the Supreme Court in Wetherington I are:
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 U.S. 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
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.
6 These findings were in ALJ Beecher Gray’s order based upon the 2009 hearing. It is true that these
findings are the “established and settled facts,” although the Superior Court and this Court reversed
ALJ Gray’s order in Wetherington I based upon de novo review of the “just cause” conclusion. Petitioner
challenges some of these “adjudicated facts” on appeal as unsupported by substantial evidence. There
are good arguments both ways on whether this Court would be able to review those facts on appeal or
if they are part of the law of the case. But based upon our analysis of the case, we need not address
this portion of Petitioner’s argument.
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Opinion of the Court
....
11. Trooper Rink met Petitioner on the side of the
road of U.S. 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.
....
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
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Opinion of the Court
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
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.7
7 As noted in Finding 7, “Petitioner found the gold acorns from his hat in the right hand lane near his
patrol vehicle. The acorns were somewhat flattened.” Wetherington I, 368 N.C. at 586, 780 S.E.2d at
544. When the hat was recovered, the acorns were missing from the hat, but it was not crushed. Thus,
the hat had not been run over by an eighteen-wheeler—at least not to the point the hat was destroyed.
There was some debate at the hearing over whether a hat without acorns is in “good condition.” For
purposes of this opinion, we assume so.
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Opinion of the Court
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 . . . .
....
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.
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Opinion of the Court
Wetherington I, 368 N.C. at 585-88, 780 S.E.2d at 544-46 (alterations in original).
III. New Findings of Fact on Remand
ALJ Overby made additional findings of fact regarding Col. Grey’s
consideration on remand. Many of these findings did not exist before remand and
were not addressed in Wetherington I, although some are essentially reiterations of
the “adjudicated facts” regarding events in 2009 and some are actually conclusions of
law. We will refer to these new findings as the “remand findings” to distinguish them
from the “adjudicated facts.” Petitioner challenges some of the remand findings as
unsupported by substantial evidence.8
8. Col. Grey’s termination letter is very specific
about what he reviewed in making his decision. He
considered the Report of Investigation and attached
documents, the video recording of Petitioner’s interview
with Internal Affairs, and the evidence presented by
Petitioner during his pre-dismissal conference.
9. In the letter, Col. Grey recognizes that he has
discretion to administer any level of punishment. He
acknowledges mitigating factors, including Petitioner’s
work history.
10. There are four enumerated facts that the
Colonel recites as the basis of his decision to terminate.
Those facts, as set forth in the letter, are consistent with
the Facts as found by ALJ Gray. Within the four
enumerated facts, Col. Grey states his conclusions
regarding the facts as he recites the proven facts as the
basis for his decision.
8Petitioner challenges Findings 15, 17, 18, 28, 29, 30, 32, 34, 35, 36, 47, 48, 60, 62, 64, 65, and 66. We
address the arguments as to specific findings as appropriate below.
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Opinion of the Court
11. Col. Grey states that Petitioner violated the
Patrol’s truthfulness policy by making contradictory
statements (plural) about how he lost his campaign cover.
....
14. Col. Grey did not write the termination letter,
and he does not know who wrote the letter. It was given to
him to sign.
15. It is not of consequence that Col. Grey did not
write the dismissal letter. By signing the letter, he is
taking full responsibility and ownership for its contents.
Likewise, Col. Grey did not need to be fully aware of Col.
Glover’s testimony because Col. Grey was reviewing the
file and drawing his own conclusions from the full record in
the hearing.
16. Trooper Wetherington’s employment was
terminated based on the allegations of untruthfulness.
Petitioner’s untruthful statements were about where his
hat was physically located when it was blown away from
his care and control.
17. Wetherington initially stated his hat blew off his
head and became lost during a traffic stop, and that is what
he reported to his supervisor, Sergeant Oglesby, knowing
that statement not to be true.
18. From the Adjudicated Facts of this case,
Petitioner Wetherington sought counsel from someone who
suggested what he should say about the lost hat, after
which he called Sgt. Oglesby. He then talked with Trooper
Rink who counseled him to tell the truth, but Petitioner
told Trooper Rink that it was too late because he had
already told Sgt. Oglesby a story that was not true.
Petitioner continued to maintain his untrue statements
until confronted with the return of his campaign cover, i.e.,
hat.
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Opinion of the Court
19. According to Petitioner Wetherington, he had a
sudden realization three to four days later of the hat’s
actual location when he lost it but never informed any of
his superiors of that revelation.
20. It has been practically a universally held
opinion, including Col. Grey, that the underlying premise
of a lost campaign cover in and of itself was not a
significant violation. The issue pertains to Petitioner’s
untruthfulness.
....
23. The remand hearing before the undersigned
primarily focused on Col. Grey’s decision, including his
application of the just cause factors required by North
Carolina’s just cause law. Two witnesses testified at the
remand hearing on January 29 and 30, 2018, Col. William
Grey for the Respondent and retired Chief Melvin Tucker
for Petitioner.
....
25. At the time of the hearing, Col. Grey was still
familiar with the policies of the SHP. The policy on
truthfulness, he remembered, was fairly simple: “You’re
just required to be truthful in all your communications
whether they’re oral or written at all times.”
26. As the commander of the SHP, Col. Grey felt that
truthfulness was paramount, not just for the SHP, but for
all law enforcement:
[Y]ou gotta have trust that a person is
credible, has moral courage to step up and do
the right thing and is going to be honest and
forthright in all their communications…. You
take people’s freedoms, you’re gonna charge
them with stuff and in a worst case scenario,
you can-you can take their life, if the situation
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Opinion of the Court
calls for it, so you got [to] be sure that person
is always aboveboard and forthright.
27. During his tenure as Colonel, Col. Grey
disciplined members of SHP. He gave the full range of
discipline from written warnings to days off to dismissals.
In making his decision to discipline a member, it was Col.
Grey’s practice to review the entire case, including the
internal affairs investigation and the member’s work
history, and he would make a decision based on the totality
of the circumstances surrounding the case.
28. Col. Grey received this case after the Supreme
Court ruled to remand the matter for decision. Col. Grey
never read the Supreme Court decision in this contested
case; however, it was explained to him. As he understood
the Supreme Court ruling, he was to review the case as if
for the first time and make his decision from the evidence
presented.
29. Col. Grey did not have to read the Supreme Court
decision to understand the full import of all of its holdings.
The provisions of the decision were explained to him in
sufficient detail for him to properly consider the provisions
of the Supreme Court decision in conducting the review
and making his decision in this contested case.
30. Over the course of a few days, Col. Grey reviewed
the recordings, transcripts, internal investigation report,
and pre-disciplinary information, as well as Petitioner’s
work history and disciplinary history. Col. Grey treated
this case like any other case coming to him for the first
time.
31. Col. Grey did not know Petitioner and had never
worked with him at SHP. Col. Grey did not speak with
Petitioner during his review of Petitioner’s case. This was
not unusual since he did not usually speak with members
prior to issuing discipline. He would only review the
information presented to him after the pre-disciplinary
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Opinion of the Court
conference just as he did with Petitioner’s case.
32. Col. Grey determined Petitioner’s dismissal was
appropriate based on Petitioner's violation of the
truthfulness policy. It was not a “spontaneous lie.” Rather,
Petitioner “had time to think about it, he thought about it,
and then he called his sergeant and told him a lie, knowing
that it was untrue, and then he changed his story from his
first statement to a second statement.” It was not until he
was confronted with the truth that Petitioner finally
admitted: “Okay, I’m not telling the truth.”
33. Col. Grey considered evidence of mitigation, as
well as all other forms of discipline available to him, but
decided that dismissal was the most appropriate discipline
given Petitioner’s conduct. Col. Grey made his decision
without regard for what the Secretary of the Department
of Public Safety or anyone else wanted. He was not
pressured to dismiss Petitioner.
34. Col. Grey did not feel that the matter was “just
about a hat.” Instead, the Colonel was bothered that
Petitioner was willing to go to such lengths to lie about an
event when there was not “a whole lot on the line there.”
Had Petitioner been truthful and confessed that he simply
did not know what happened to his hat, the Colonel likely
would not have known about it, because it would not rise
to the level of his review. Petitioner would most likely have
been given a written warning or a counseling.
35. Col. Grey felt that the fact that Petitioner had
just concluded a “high-intensity” yet routine traffic stop
does not negate the fact that Petitioner intentionally lied
to his sergeant about how he lost his hat. Col. Grey also
felt that the fact that Petitioner was a relatively new
trooper does not negate the fact that he intentionally lied
to his sergeant and continued to maintain the lie. While it
might be expected that less experienced troopers will make
more technical mistakes, the same cannot be said for moral
mistakes, according to Col. Grey.
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Opinion of the Court
36. The fact that Petitioner was willing to lie about
such a relatively small thing as losing his hat caused Col.
Grey to lose confidence in the integrity of Petitioner. This
is consistent with the findings in the Recommended
Decision by Judge Gray, which speaks of the widely held
position with the Highway Patrol and not just Colonel
Glover’s position of a per se violation. For Col. Grey to
reach that conclusion is not a new allegation, but a finding
based upon the facts and circumstances existing in the
2009 case as found by Judge Gray.
....
52. The transcript of the first OAH hearing shows
that Trooper Wetherington was 23 years old at the time of
the first hearing. He graduated from New Bern High
School in 2005. Wetherington was a volunteer firefighter
and an American Red Cross Instructor. Wetherington
graduated from the Highway Patrol Academy in 2007.
53. According to that transcript, Wetherington was
not previously disciplined by SHP. Wetherington was
rated as one of the highest producers while in the field
training program. His work and conduct history revealed
exemplary service and conduct. In his 2008-2009
evaluation, Trooper Wetherington was rated as good or
very good in every rating category. Judge Gray found that
Wetherington’s overall performance rating in 2008 was “3,”
which was average. Colonel Grey was aware of
Wetherington’s work history.
54. The Employee Advisory Committee report found
that Wetherington was a very “devoted, dedicated”
Trooper, and unanimously recommended reinstatement.
Colonel Grey was aware of the Committee report.
55. The record of this contested case reflects that
several laypersons and some of Wetherington’s supervisors
testified before Judge Gray in the first hearing at OAH.
They testified to Wetherington’s excellent work
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Opinion of the Court
performance, character, and conduct. This Tribunal did not
hear their testimony and therefore is unable to assess the
credibility of their individual testimonies by taking into
account the appropriate factors generally used for
determining credibility. Their testimony is considered and
given the appropriate weight.
56. Likewise, seven letters were written on
Petitioner’s behalf. Two of the authors also appeared and
testified before Judge Gray. The letters have been
considered.
57. The circumstances of the traffic stop wherein the
hat was lost was also considered by Col. Grey and the
undersigned. It is noted that there were two occupants in
the truck he stopped, that there was an odor of alcohol, and
that there were two guns in the truck. The guns were
removed, and the occupants were cooperative and were
released without incident.
...
58. Disparate treatment is a factor which may be
considered in assessing discipline.
59. The issue of disparate treatment was raised in
the OAH hearing before Judge Gray in 2009. Judge Gray
made specific Findings of Fact concerning disparate
treatment.
60. In 2009, Judge Gray, in Finding No. 43, found
that substantial evidence existed that “since at least 2002
all members of the Patrol with substantiated violations of
truthfulness have been dismissed.”
61. Judge Gray concluded then that it was not
incumbent on the Highway Patrol to look back through
history to find a lowest common denominator for assessing
punishment from the historical point forward. There is no
evidence of cases of disparate treatment more recent in
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Opinion of the Court
time before this Tribunal for determining the most recent
punishment by the Patrol for violation of the truthfulness
policy; however, this Tribunal is not going to reach back
into history in order to compare Petitioner’s case with
similar cases from several years ago, without any recent
cases for comparison, and especially cases decided by Col.
Grey.
62. This current case was decided by Col. Grey in
2016. It is not fair or reasonable to hold the Highway
Patrol to a standard set by disposition of its worse cases
from many years before. Col. Grey decided the case based
upon his thorough review of the totality of facts and
circumstances of this case, including how he had disposed
of cases during his tenure as Colonel. Col. Grey
acknowledged that he reviewed only cases decided during
his tenure.
...
63. Petitioner Wetherington contends that Col.
Grey’s reliance on the Brady and Giglio cases is
tantamount to inserting a new allegation of sorts that
should not have been brought into consideration in this
current review on remand.
64. The undersigned excluded evidence on the Brady
and Giglio cases, at least in part, out of an abundance of
caution, to avoid evidence that would indeed constitute a
totally new allegation not within the purview of the
original charge sheet. On further review, Col. Grey’s
reliance on Brady and Giglio was not ill-founded. Brady
was decided by the Supreme Court of the United States in
1963, and Giglio was decided by the Supreme Court of the
United States in 1973, well before even the first hearing in
OAR on this matter.
65. Assuming arguendo that Col. Grey should not
have referenced specifically to those cases, Col. Glover had
considered the impact of findings of untruthfulness with
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Opinion of the Court
Highway Patrol Troopers as reflected in his testimony.
Further, in upholding Col. Glover’s decision to terminate
Petitioner, Secretary Reuben Young referenced the effect
of a Trooper having his honesty, integrity and truthfulness
questioned, especially from the witness stand. Thus, Col.
Grey’s reliance on the impact of loss of credibility for
untruthfulness would have been in keeping with the initial
determinations in this case, including Col. Glover’s
testimony in the first hearing before OAR.
66. Col. Grey’s reliance on the Brady/Giglio factors
was directly related to Petitioner’s actions which were the
cause of his termination, and referenced in Col. Glover’s
very abbreviated dismissal letter and the original Charge
Sheet.
(Citations and parentheticals omitted) (alterations in finding 26 in original.)
IV. Just Cause
Petitioner first argues on appeal that DPS did not follow the instructions from
the North Carolina Supreme Court regarding factors to consider on remand.
Respondent contends that “[d]espite the numerous argument headings in Petitioner’s
brief, there is solely one issue before this Court: the existence of just cause to affirm
Petitioner’s dismissal.” We review whether just cause existed to terminate Petitioner
de novo. See Peterson, ___ N.C. App. at ___, 814 S.E.2d at 593.
As this Court noted in Warren v. North Carolina Department of Crime Control:
We conclude that the best way to accommodate the
Supreme Court’s flexibility and fairness requirements for
just cause is to balance the equities after the unacceptable
personal conduct analysis. This avoids contorting the
language of the Administrative Code defining unacceptable
personal conduct. The proper analytical approach is to first
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Opinion of the Court
determine whether the employee engaged in the conduct
the employer alleges. The second inquiry is whether the
employee’s conduct falls within one of the categories of
unacceptable personal conduct provided by the
Administrative Code. Unacceptable personal conduct does
not necessarily establish just cause for all types of
discipline. If the employee’s act qualifies as a type of
unacceptable conduct, the tribunal proceeds to the third
inquiry: whether that misconduct amounted to just cause
for the disciplinary action taken. Just cause must be
determined based “upon an examination of the facts and
circumstances of each individual case.”
221 N.C. App. 376, 382-83, 726 S.E.2d 920, 925 (2012) (footnote omitted) (quoting
Carroll, 358 N.C. at 669, 599 S.E.2d at 900).
In Wetherington I, the Supreme Court noted Col. Glover’s testimony 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.
368 N.C. at 592, 780 S.E.2d at 548 (alterations in original). The Supreme Court then
noted that the “truthfulness policy” applies to a wide range of communications,
whether related to the trooper’s duties or not, but as Col. Glover described his
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Opinion of the Court
application of that policy, any untruthful or inaccurate statement, in any context,
required termination:
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
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.
Id.
The Supreme Court rejected the “per se” rule of dismissal for any violation of
the truthfulness policy. Id. at 593, 780 S.E.2d at 548. Although Respondent had
discretion in choosing an appropriate punishment for violation of the policy, that
discretion was to be guided by consideration of certain factors outlined by the
Supreme Court. Specifically, on remand, DPS was required to consider
the severity of the violation, the subject matter involved,
the resulting harm, the trooper’s work 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
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Opinion of the Court
unacceptable personal conduct.
Id. at 592, 780 S.E.2d at 548. The Supreme Court also noted that Respondent should
consider a “range of disciplinary actions” and not just termination:
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.
Id. at 593, 780 S.E.2d at 548 (emphasis added).
On remand, the Supreme Court did not limit DPS to relying on the existing
record. Id. The ALJ found that “[t]he Supreme Court’s directive is specifically
sending this matter back to the agency to make a determination based on the facts
and circumstances of this case. The directive does not indicate that an entirely new
investigation should be undertaken.” We agree the Supreme Court did not direct “an
entirely new investigation” but it also did not preclude Respondent from conducting
further investigation or from developing additional evidence as needed to address the
factors as directed by the Supreme Court.9 In any event, Respondent elected to rely
9 Since the Supreme Court was reviewing “just cause” de novo, it could have performed that review
based upon the existing record in Wetherington I without remand, but because Respondent had
erroneously applied a “per se” rule of dismissal, the Supreme Court gave Respondent the opportunity
on remand to develop the record as to the additional factors it had directed Respondent to consider
and to exercise its discretion accordingly. We also agree with the ALJ that if Respondent had
considered new evidence, “then such new allegations would have necessitated procedural due process,
including, among other things, written notice and an opportunity to be heard in a pre-dismissal
conference.” But Respondent elected to rely on the existing record, so another pre-dismissal conference
was not required.
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Opinion of the Court
only on the existing record, so all the evidence and facts as to the events in 2009 are
exactly the same as considered by this Court and the Supreme Court in Wetherington
I. Only the findings on remand as to Col. Grey’s decision are new, and many of these
findings are actually reiterations of the 2009 “adjudicated facts” or conclusions of law,
which we will review as such.
Petitioner argues, and ALJ Overby found, that Col. Grey did not read either
the opinions issued by the Court of Appeals or Supreme Court in Wetherington I:
28. Col. Grey received this case after the Supreme
Court ruled to remand the matter for decision. Col. Grey
never read the Supreme Court decision in this contested
case; however, it was explained to him. As he understood
the Supreme Court ruling, he was to review the case as if
for the first time and make his decision from the evidence
presented.
29. Col. Grey did not have to read the Supreme Court
decision to understand the full import of all of its holdings.
The provisions of the decision were explained to him in
sufficient detail for him to properly consider the provisions
of the Supreme Court decision in conducting the review
and making his decision in this contested case.
(Parenthetical omitted.)
Based upon Col. Grey’s letter, his testimony, and the above findings, it is
apparent that Col. Grey “review[ed] the case as if for the first time and ma[de] his
decision from the evidence presented.” It is not apparent that he considered the
factors as directed by the Supreme Court, as we discuss in more detail below. We
acknowledge that it is possible for an opinion to be “explained to” someone, but we
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cannot discern from Col. Grey’s letter and testimony he “understood the full import
of all of its holdings,” since he did not address the factors as directed by the Supreme
Court.
The ALJ interpreted the Supreme Court’s opinion as requiring consideration
of as few as one of the listed factors, based upon the word “or” in one sentence. Those
factors, sometimes referred to as the “Wetherington factors,” as articulated by the
Supreme Court are “the severity of the violation, the subject matter involved, the
resulting harm, the trooper’s work history, or discipline imposed in other cases
involving similar violations.” Id. at 592, 780 S.E.2d at 548 (emphasis added).
26. It is important to note that the Supreme Court
uses the word “or.” The usual and customary use of “or”
indicates an alternative and oftentimes, as here,
alternatives in a listing. If there is a choice between two
items, then “or” would mean an alternative choice for
either item. While the Supreme Court notes that it is
appropriate and necessary to consider those factors, the
use of “or” negates any mandatory findings or conclusions
based on all of those factors.
27. Assuming arguendo that there is a requirement
to give consideration to all of those factors, Col. Grey did,
in fact, consider each of the Wetherington factors in
reaching his decision to terminate Petitioner.
This interpretation of the “Wetherington factors” is not supported the text of
Wetherington I or by later cases applying it. Although the factors as quoted in ALJ
Overby’s order are accurate, they are taken out of the context of the sentence in the
case. Reading the Supreme Court’s instruction in context, the “or” in this sentence
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Opinion of the Court
must be read as “and” when applied to the factors which should be considered. The
Supreme Court stated:
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 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.
Id. (emphases added). The Supreme Court explained that Col. Glover could not
“impose a punishment other than dismissal for any violation” without regard for
these factors. Id. The Court then directed 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.” Id. (emphasis added). Other
cases from this Court have interpreted Wetherinton I as requiring consideration of
any factors for which evidence is presented. See Brewington, 254 N.C. App. at 25,
802 S.E.2d at 131 (“Although the primary holding in Wetherington was that public
agency decision-makers must use discretion in determining what disciplinary action
to impose in situations involving alleged unacceptable personal conduct, the Court
did identify factors that are ‘appropriate and necessary component[s]’ of that
discretionary exercise.” (alterations in original)); accord Blackburn v. N.C. Dep’t of
Pub. Safety, 246 N.C. App. 196, 784 S.E.2d 509 (2016). Thus, Respondent was
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directed to consider all of these factors, at least to the extent there was any evidence
to support them. Respondent could not rely on one factor while ignoring the others.
ALJ Overby determined that “Col. Grey did, in fact, consider each of the
Wetherington factors in reaching his decision to terminate Petitioner.” But upon
examination of his letter, we can find consideration of only two factors. We will
address each factor as directed by the Supreme Court. Since we are to review “just
cause” for dismissal de novo, we will review the factors based upon the “adjudicated
fact” and the “remand facts.”10
A. The Severity of the Violation
Although Col. Grey’s letter uses more words than Col. Glover’s did to describe
Petitioner’s untruthfulness regarding losing his hat, the basic facts have not changed
and were established in 2009, as quoted above. But Petitioner’s untruthful statement
regarding losing his hat was not a severe violation of the truthfulness policy. It did
not occur in court and it did not affect any investigation, prosecution, or the function
of the Highway Patrol. It was about a matter—exactly how Petitioner lost his hat—
all parties concede was not very important.
Col. Grey considered the very insignificance of the subject matter an indication
of the severity of the violation, indicating Petitioner could not be trusted in any
10 By relying on the existing findings, we are essentially viewing the facts in the light most favorable
to Respondent. Petitioner has challenged some of the findings on appeal, but we need not consider
those challenges based upon our holding.
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context. His letter to Petitioner stated, “Based upon the facts and circumstances of
this case, as described above, I have no confidence that you can be trusted to be
truthful to your supervisors or even to testify truthfully in court or at administrative
hearings.” ALJ Overby agreed that “Petitioner’s lie was neither insignificant nor
immaterial. Because the Petitioner chose to continue to lie about an insignificant
event, his credibility is called into question all the more.” This reading of the
truthfulness policy sounds exactly like Col. Glover’s “per se” rule—rejected by the
Supreme Court—that any untruthful statement, even if the subject matter does not
involve an investigation or official business, and no matter how insignificant the
subject, requires dismissal, and no discipline short of dismissal will suffice. In fact,
based on ALJ Overby’s logic, the more “insignificant” the subject matter of the lie, the
more Petitioner’s credibility is called into question. Thus, a lie about a significant
matter, such as untruthful testimony about a criminal investigation in court, would
be a severe violation requiring dismissal because untruthfulness in that context
obviously undermines the very mission of the Highway Patrol, while a lie about an
insignificant matter must also result in dismissal because a trooper who would lie
about something so insignificant cannot be trusted in any context, according to Col.
Grey. This interpretation of the truthfulness policy is functionally indistinguishable
from the “per se” dismissal rule applied by Col. Glover in Wetherington I and rejected
by the Supreme Court.
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Respondent made a similar argument seeking to embellish the severity of
Petitioner’s untruthfulness in Wetherington I, and this Court noted:
Respondent contends in its brief that Petitioner
“made up an elaborate lie full of fabricated details”
regarding the “specific direction of the wind, the specific
color of the truck and the noise he heard when the truck
ran over his hat.” However, neither the ALJ nor the SPC
made findings indicating that the wind, truck’s color, or
“crunch noise” were untruthful. Rather, the lie or
“untruth” lay only in the hat’s location when Petitioner
misplaced it. The ALJ found that Petitioner “didn’t know
if it was on the trunk lid of the truck, the boat, or behind
the light bar, and blew off.” The findings do not support
Respondent’s characterization of Petitioner’s statements as
an “elaborate lie full of fabricated details[.]”
Wetherington I, 231 N.C. App. at 511, 752 S.E.2d at 516 (alteration in original)
(emphasis added).
On remand, there are no new facts and no new evidence which would allow us
to come to any new conclusion regarding the severity of Petitioner’s lie than this
Court did in Wetherington I. Col. Grey relied only on the existing record. This Court
has previously determined “the lie or ‘untruth’ lay only in the hat’s location when
Petitioner misplaced it,” id., and the Supreme Court did not modify this portion of
this Court’s opinion but instead affirmed it. See Wetherington I, 368 N.C. at 593, 780
S.E.2d at 509.
B. The Subject Matter Involved
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Col. Grey’s letter notes the subject matter involved, the loss of the hat, but
gives no consideration to this particular factor other than the fact that Petitioner lied
about the location of the hat. He characterizes the subject matter of the
untruthfulness appropriately as “over a trivial matter.” Again, this particular
violation of the truthfulness policy had no potential effect on any investigation or
prosecution. Nor would the subject matter—or even Petitioner’s untruthfulness
about it—bring the Highway Patrol into disrepute, as some violations may. For
example, in Poarch v. North Carolina Department of Crime Control & Public Safety,
this Court affirmed a trooper’s termination for just cause based on unacceptable
personal conduct where the trooper was engaged in an extra-marital affair and
“admitted to specific instances of sexual relations with Ms. Kirby, including sex in a
Patrol car, sex behind a Patrol car, and sex in a Patrol office.” 223 N.C. App. 125,
131, 741 S.E.2d 315, 319 (2012). This Court noted the trooper’s misconduct, even
committed when he was off duty, may harm the Patrol’s reputation:
After reviewing the record, we find the distinction
between on duty and off duty based on the Patrol’s radio
codes to be of little significance in this case where
petitioner was in uniform and the use of patrol facilities is
so intertwined with the acts of misconduct. Furthermore,
we find respondent’s argument persuasive that if any
member of the public would have witnessed petitioner’s
misconduct, where petitioner was in uniform and using
patrol facilities, they would assume that petitioner was on
duty to the detriment of the Patrol’s reputation.
Id.
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ALJ Overby appropriately noted the importance of truthfulness by law
enforcement officers:
36. The world in which we live has become more
tolerant and accepting of untruthfulness and outright lies.
While it may be acceptable in some comers, it is not
acceptable for everyone. With some occupations, there is a
higher expectation for honesty and integrity, e.g., the
judiciary and law enforcement officers. Those with power
and authority have a greater responsibility.
37. The citizens of North Carolina and the public at
large, including anyone visiting our state, deserve and
expect honesty from the State Highway Patrol and law
enforcement officers in general. It does not require any
imagination at all to understand how devastating it would
be if the Patrol tolerated and fostered a reputation for lack
of honesty among its personnel. Yet it remains of
paramount consideration that each case rises and falls on
the particular facts and circumstances of this particular
case. Not every case of untruthfulness merits termination.
We agree, and our Supreme Court was also well aware in Wetherington I that
Petitioner had lied and of the importance of truthfulness by law enforcement officers.
It was established in Wetherington I that (1) “the employee engaged in the conduct
the employer alleges,” and (2) “the employee’s conduct falls within one of the
categories of unacceptable personal conduct provided by the Administrative Code.”
Warren, 221 N.C. App. at 383, 726 S.E.2d at 925. Tonly issue left on remand in this
case was whether Petitioner’s lie, which is unacceptable personal conduct, “amounted
to just cause for the disciplinary action taken. Just cause must be determined based
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Opinion of the Court
‘upon an examination of the facts and circumstances of each individual case.’” Id.
(quoting Carroll, 358 N.C. at 669, 599 S.E.2d at 900).
The facts as to the unacceptable personal conduct—the lie about the hat—are
the same now as in Wetherington I. The Supreme Court could have rejected prior
cases requiring consideration of various factors and a balancing of equities and
adopted the “per se” rule for truthfulness for Troopers with the Highway Patrol as
applied by Col. Glover, but it did not. Neither this Court nor the Supreme Court
endorses untruthfulness of any sort by a law enforcement officer, but that is not the
question presented here. The Supreme Court did not suggest that the Highway
Patrol should “tolerate[] and foster[] a reputation for lack of honesty among its
personnel” but only that some instances of untruthfulness may call for some
discipline short of dismissal. The question is whether this lie, in this context, justifies
dismissal, without consideration of any lesser discipline, upon consideration of all of
the applicable factors. Neither Col. Glover nor Col. Grey actually conducted this full
analysis. Col. Grey applied essentially the same “per se” rule as to truthfulness as
did Col. Glover; he just used different words to describe it.
C. The Resulting Harm
The third factor is “the resulting harm” from the violation. Col. Grey spends
most of his letter discussing the potential harm to the agency from any untruthfulness
by an officer, including a discussion of the requirements of Brady v. Maryland, 373
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U.S. 83, 10 L. Ed. 2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 31 L. Ed.
2d 104 (1972). We agree, as noted above, that law enforcement officers must uphold
the highest standards of truthfulness, particularly in the course of their official
duties, and we appreciate the legal requirements for law enforcement agencies to
disclose exculpatory evidence to defendants. Yet our Supreme Court was also well-
aware of the requirements of Brady and Giglio when it decided Wetherington I. In
support of its position, which the Supreme Court accurately characterized as a “per
se” rule of dismissal for any violation of the truthfulness policy, Respondent made the
same argument to the Supreme Court in Wetherington I.11 But even considering the
requirements of Brady and Giglio, our Supreme Court still rejected a “per se” rule of
termination for untruthfulness. Although Col. Grey states he was not applying a per
se rule, it is difficult to discern what sort of untruthfulness, in any context, by a
trooper would not lead to termination, without even any consideration of lesser
discipline. Respondent’s counsel at oral argument agreed that a statement of this
11 Respondent argued in its brief to this Court in Wetherington I, “From this point forward, in every
criminal case in which Petitioner is associated, the judicial finding of untruthfulness here and the facts
supporting that conclusion must be disclosed to the defendant. The United States Supreme Court in
Brady v. Maryland, held that the prosecution must turn over all evidence which may favor the
defendant.” Before the Supreme Court, Respondent argued, “The Court of Appeals next dismissed
concerns that in the future every district attorney would have to produce the record of Wetherington’s
falsehoods in response to any defendants’ demands for exculpatory evidence in accordance with their
rights under Brady v. Maryland. The Court of Appeals did not find that the Patrol’s concerns were not
legitimate. In fact, there are reported cases in which courts have order[ed] the prosecution to produce
officer personnel files in response to Brady. However, the Court of Appeals found that Petitioner’s
history of untruthfulness would not bar him from testifying in court and SPC had not presented any
argument that it was likely that defense counsel would use the information to impeach Wetherington
or that the impeachment would cause a jury to disregard his testimony.” (Citations omitted.)
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sort regarding a missing hat does not compare to perjury while testifying in court or
dishonesty in the investigation of a crime—the actual issues addressed by Brady and
Giglio. It is easy to understand the resulting harm to the agency from a trooper’s
intentional lie about substantive facts in sworn testimony or in the course of his
official duties. But Respondent has never been able to articulate how this particular
lie was so harmful. Respondent failed to develop or present any additional facts on
remand which could lead to a different determination.
D. The Trooper’s Work History
According to the letter, Col. Grey did give cursory consideration to Petitioner’s
work history. He stated:
I have taken into consideration the fact that you had been
employed by the Highway Patrol as a Cadet and as a State
Trooper from June 2007 until the time of your dismissal on
August 4, 2009 that you did not have any disciplinary
actions prior to the time of your dismissal and that your
overall performance rating and work history since being
sworn as a Trooper in November 2007 was “Good.”
The ALJ made these findings regarding Petitioner’s work history:
53. According to that transcript, Wetherington was
not previously disciplined by SHP. Wetherington was
rated as one of the highest producers while in the field
training program. His work and conduct history revealed
exemplary service and conduct. In his 2008-2009
evaluation, Trooper Wetherington was rated as good or
very good in every rating category. Judge Gray found that
Wetherington’s overall performance rating in 2008 was “3,”
which was average. Colonel Grey was aware of
Wetherington’s work history.
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54. The Employee Advisory Committee report found
that Wetherington was a very “devoted, dedicated”
Trooper, and unanimously recommended reinstatement.
Colonel Grey was aware of the Committee report.
55. The record of this contested case reflects that
several laypersons and some of Wetherington’s supervisors
testified before Judge Gray in the first hearing at OAH.
They testified to Wetherington’s excellent work
performance, character, and conduct. This Tribunal did
not hear their testimony and therefore is unable to assess
the credibility of their individual testimonies by taking into
account the appropriate factors generally used for
determining credibility. Their testimony is considered and
given the appropriate weight.
(Parentheticals omitted.)
ALJ Overby goes into more detail than did Col. Grey, but nothing in
Petitioner’s work history would support termination. He had no prior disciplinary
actions and a “good” performance rating and work history. This factor could only
favor some disciplinary action short of termination. See Whitehurst v. E. Carolina
Univ., 257 N.C. App. 938, 947-48, 811 S.E.2d 626, 634 (2018) (“Whitehurst’s
discipline-free work history is also relevant to this just cause analysis. . . . .
Whitehurst was subject to regular performance reviews by ECU and generally
received above average ratings. Jimmy Cannon, an ECU police sergeant who worked
with Whitehurst for roughly twelve years, testified that ‘He’s been an outstanding
peer to work with especially when it comes to his knowledge of police procedures and
police work in general. He’s one of the best . . . that I’ve worked with[.]’ Whitehurst
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had worked for ECU for twelve years, with no disciplinary action. This factor also
mitigates against a finding that just cause existed to dismiss Whitehurst from
employment based on his conduct the night of 17 March 2016.” (second and third
alterations in original)).
E. Discipline Imposed in Other Cases Involving Similar Violations
Col. Grey’s letter did not mention any consideration of discipline imposed in
other cases for similar violations. In his testimony, he stated he considered only
violations occurring during his tenure as Commander, which began in March 2013.
ALJ’s Overby’s order includes several findings regarding disparate treatment:
58. Disparate treatment is a factor which may be
considered in assessing discipline.
59. The issue of disparate treatment was raised in
the OAH hearing before Judge Gray in 2009. Judge Gray
made specific Findings of Fact concerning disparate
treatment.
60. In 2009, Judge Gray, in Finding No. 43, found
that substantial evidence existed that “since at least 2002
all members of the Patrol with substantiated violations of
truthfulness have been dismissed.”
61. Judge Gray concluded then that it was not
incumbent on the Highway Patrol to look back through
history to find a lowest common denominator for assessing
punishment from the historical point forward. There is no
evidence of cases of disparate treatment more recent in
time before this Tribunal for determining the most recent
punishment by the Patrol for violation of the truthfulness
policy; however, this Tribunal is not going to reach back
into history in order to compare Petitioner’s case with
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similar cases from several years ago, without any recent
cases for comparison, and especially cases decided by Col.
Grey.
62. This current case was decided by Col. Grey in
2016. It is not fair or reasonable to hold the Highway
Patrol to a standard set by disposition of its worse cases
from many years before. Col. Grey decided the case based
upon his thorough review of the totality of facts and
circumstances of this case, including how he had disposed
of cases during his tenure as Colonel. Col. Grey
acknowledged that he reviewed only cases decided during
his tenure.
(Parenthetical omitted.)
We first note that the finding as to discipline since 2002 is not relevant to Col.
Grey’s decision, as he testified, and the ALJ found, he did not consider any
disciplinary actions prior to his tenure which began in 2013. In addition, the findings
from the 2009 hearing seem to reflect a per se rule of dismissal for any
untruthfulness. ALJ Gray found that “since at least 2002 all members of the Patrol
with substantiated violations of truthfulness have been dismissed.” This finding is
consistent with application of the “per se” dismissal rule Col. Glover applied, and our
Supreme Court rejected in Wetherington I. On remand, Col. Grey did not consider
this history but acknowledged that he reviewed only cases decided during his tenure,
which began in 2013, four years after Petitioner’s termination. He did not describe
the “untruthfulness” in any of those instances or the discipline imposed. Our record
reveals no instances of disciplinary actions for untruthfulness which arose during
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Col. Grey’s tenure before his decision regarding Petitioner in 2016. Col. Grey did not
identify any other violations during his tenure he may have compared to Petitioner’s
situation, and certainly did not identify any similar violations of the truthfulness
policy.
Based upon the same evidence and facts, this Court analyzed this issue in
Wetherington I. Regarding discipline imposed in other cases, the unanimous panel of
this Court held:
As the superior court observed in its order, the
dissenting member of the SPC concluded that “the
dismissal of Petitioner did not fit the violation and was not
necessary to uphold the integrity of the truthfulness policy.
In short, the punishment did not fit the offense.” In view
of the commensurate discipline approach described in
Warren and applied in Carroll, we agree. Petitioner’s
conduct in this case did not rise to the level described in
Kea and Davis. Rather, Petitioner’s conduct and the
existence of extenuating circumstances surrounding the
conduct make this case comparable to Carroll, in which our
Supreme Court concluded that the Commission lacked just
cause to discipline the petitioner.
Wetherington I, 231 N.C. App. at 513, 752 S.E.2d at 517 (citation omitted).
This Court recently affirmed reversal of the Highway Patrol’s dismissal of a
trooper for unacceptable personal conduct. Warren v. N.C. Dep’t of Crime Control,
___ N.C. App. ___, 833 S.E.2d 633 (2019). The trooper drove “his Patrol-issued
vehicle” to a party at a private residence after consuming alcohol and with an open
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bottle of vodka in the trunk of his vehicle. Id. at ___, 833 S.E.2d at 635. This Court
noted this dismissal was based upon disparate treatment.
Respondent contends that petitioner’s conduct was
especially egregious so as to warrant termination.
However, our review of the disciplinary actions respondent
has taken for unbecoming conduct typically resulted in
either: a temporary suspension without pay, a reduction
in pay, or a demotion of title. In fact, where the conduct
was equally or more egregious than that of petitioner (i.e.,
threats to kill another person, sexual harassment, assault),
the employee was generally subjected to disciplinary
measures other than termination.
While petitioner certainly engaged in unacceptable
personal conduct, termination is inconsistent with
respondent’s treatment of similar conduct and, other
factors mitigate just cause for the punishment. Petitioner
had an excellent work history and tenure of service, and
there was no evidence that petitioner’s actions resulted in
harm. Thus, taking into consideration all of the factors and
circumstances in this case as suggested by Wetherington,
we conclude the superior court properly determined there
is no just cause for petitioner’s termination based on his
conduct.
Id. at ___, 833 S.E.2d at 638.
Again, Respondent had the opportunity on remand to address disciplinary
actions of other employees who violated the truthfulness policy, since Col. Glover did
not consider this factor in applying the “per se” rule in Petitioner’s initial termination.
Col. Grey had the opportunity to note factors in other disciplinary cases which
support dismissal for Petitioner’s violation, but he did not. Wetherington I, 368 N.C.
at 592, 780 S.E.2d at 548. We agree that Col. Grey need not “look back through
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history to find a lowest common denominator for assessing punishment” but he must
consider if there is some relevant denominator in the Highway Patrol’s prior history
for comparison. Although there is no particular time period set for this factor, we
find no legal basis for relying only upon disciplinary actions during a particular
commander’s tenure. If this were the rule, during the first week, or month, or any
time period of a new colonel’s tenure until a disciplinary action based upon a
particular violation has occurred, there would be no history at all, and the disparate
treatment factor would have no meaning. For a new commander, disparate
treatment would by definition be impossible, if he can ignore all relevant prior history
for the agency in imposing discipline.
Thus, Col. Grey failed to consider most of the factors our Supreme Court
directed were “necessary” in this case. The only factor he clearly addressed was
Petitioner’s work history, which would favor discipline short of dismissal. The
Supreme Court stated: “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. Wetherington I, 368 N.C. at 592,
780 S.E.2d at 548 (emphasis added). Instead, he considered only his personal
assessment of the importance of Petitioner’s untruthful statements, and although his
letter was longer, his consideration was substantively no different from Col Glover’s.
As this Court noted in Wetherington I: “The findings do not support Respondent’s
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characterization of Petitioner’s statements as an ‘elaborate lie full of fabricated
details[.]’” Wetherington I, 231 N.C. App. at 511, 752 S.E.2d at 516 (alteration in
original).
V. Disposition
Our Courts rarely grant parties in cases two bites at the apple, but Respondent
here has already had the opportunity for two bites. There is no basis for further
remand other than for the appropriate remedy. Upon our de novo review of the
existence of just cause, we reverse ALJ Overby’s conclusion that “Respondent met its
burden of proof and established by substantial evidence that it had just cause to
dismiss Petitioner from employment with the State Highway Patrol for unacceptable
personal conduct.” However, Respondent has established that some disciplinary
action short of dismissal should be imposed. We also reverse the ALJ’s conclusion
that “Respondent has not exceeded its authority or jurisdiction; acted erroneously;
failed to use proper procedure; acted arbitrarily or capriciously; and has not failed to
act as required by law or rule.” We hold that Respondent failed to use proper
procedure on remand and failed to act as required by law or rule in that it should
have considered the factors as directed by the Supreme Court. We therefore remand
for the ALJ to enter an order granting Petitioner relief under North Carolina General
Statute § 126-34.02. Specifically, the ALJ shall order an appropriate level of
discipline, in accord with the law regarding disparate treatment, followed by
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reinstatement and “other suitable action to correct the abuse which may include the
requirement of payment for any loss of salary which has resulted from the improper
action of the appointing authority.” N.C. Gen. Stat. § 126-34.02(a) (2017).
Under subsection (a)(3) of the statute, the ALJ has
express statutory authority to “[d]irect other suitable
action” upon a finding that just cause does not exist for the
particular action taken by the agency. Under the ALJ’s de
novo review, the authority to “[d]irect other suitable action”
includes the authority to impose a less severe sanction as
“relief.”
Because the ALJ hears the evidence, determines the
weight and credibility of the evidence, makes findings of
fact, and “balanc[es] the equities,” the ALJ has the
authority under de novo review to impose an alternative
discipline. Upon the ALJ’s determination that the agency
met the first two prongs of the Warren standard, but just
cause does not exist for the particular disciplinary
alternative imposed by the agency, the ALJ may impose an
alternative sanction within the range of allowed
dispositions.
Harris, 252 N.C. App. at 109, 798 S.E.2d at 138 (alterations in original) (citation
omitted).
VI. Conclusion
Upon de novo review of the existence of just cause, the ALJ’s order affirming
Petitioner’s dismissal is reversed and we remand to the ALJ for further proceedings
consistent with our directive above.
Reversed and Remanded.
Judges BRYANT and DIETZ concur.
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