North Carolina



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF COLUMBUS 06 OSP 2206

| |) | |

|Cheryl Best |)) | |

|Petitioner |) | |

| |))))| |

|vs. |) |DECISION |

| |) | |

|Columbus County Department of Social Services, | | |

|Respondent | | |

Administrative Law Judge Melissa Owens Lassiter heard this contested case on May 2, 2008 in Brunswick County, North Carolina and July 22, 2008 in Columbus County, North Carolina. Pursuant to the undersigned’s request, Petitioner filed its proposed Decision on August 11, 2008. Respondent faxed its proposed Decision to the Office of Administrative Hearings on August 12, 2008. On August 14, 2008, the Office of Administrative Hearings received Respondent’s original proposed Decision, accepting such Decision as filed on that date.

APPEARANCES

For Petitioner: K. Robert Davis

P.O. Box 3129

Elizabethtown, North Carolina 28337

For Respondent: Terri Martin

Assistant County Attorney

111 Washington St., 2nd Floor

Whiteville, North Carolina 27602

ISSUE

Whether Respondent had just cause to terminate Petitioner from employment for unacceptable personal conduct?

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. § 126, et seq.

N.C. Gen. Stat. § 150B-23, et seq.

25 N.C.A.C. 01, et seq.

N.C. State Personnel Manual

Columbus County Department of Social Services Grievance Procedure Columbus County DSS Personnel Policy Handbook

WITNESSES

For Petitioner: Cheryl Best

Bill Memory

Larry Moore

Linda Fry

For Respondent: Alfredia Godwin

Karen Garrell

Jim Warlick

EXHIBITS ADMITTED INTO EVIDENCE

For Petitioner: Exh. 1

For Respondent: Exhs. 1-7

FINDINGS OF FACT

After considering all of the evidence presented, the credibility of witnesses, arguments of counsel and applicable statutes, laws, regulations and policies, this Court finds as follows:

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

2. Petitioner was employed by Respondent from approximately February 2002 until Respondent terminated Petitioner from employment on March 21, 2005.

3. At the time of her termination, Petitioner was employed as Child Support Agent II with Respondent.

4. During all relevant times of Petitioner’s employment, Respondent maintained a written policy establishing the proper procedure an employee should follow should the employee or a member of the employee’s immediate family member desire to apply for services from the Respondent. (Petitioner’s Exhibit 1)

5. That written policy is entitled “EMPLOYEES OR SPOUSES OF EMPLOYEES APPLYING FOR ASSISTANCE”. Such written policy states that any employee of Respondent applying for assistance for himself or herself, for any dependent child or children, for grandparents, grandchildren, nieces, nephews, siblings, or parents, to follow the following procedure:

The employee or spouse will contact the supervisor of the program for which he/she wants to apply and make an appointment with the supervisor for the application to be taken. The supervisor will be responsible for taking, processing and any on-going maintenance of the case. The case record is to be kept in the supervisor’s office.

6. The purpose of such policy is to avoid even the appearance of impropriety in the administration and distribution of public assistance funds.

7. During all relevant times of Petitioner’s employment, Petitioner was aware of the policy.

8. In January of 2005, Petitioner allowed a minor child to reside with her, and became the full-time, permanent caretaker of the minor child even though Petitioner did not have legal custody of the minor child.

9. Before the minor child began residing with Petitioner, Respondent had established a child support obligation for support of the minor child on behalf of the biological mother of the minor child, and Respondent was enforcing and monitoring such support obligation.

10. The biological mother of the minor child was listed as the recipient of services from Respondent, and the child support paid by the biological father of the minor child partially reimbursed the state for services and public assistance received by the biological mother.

11. When the minor child began to reside with Petitioner, the biological mother of the minor child was receiving public assistance funds from the Columbus County Department of Social Services.

12. In March of 2005, Petitioner instructed a clerical worker, Karen Garrell, to open a child support case naming Petitioner as the recipient for child support for the minor child. Petitioner did not provide Ms. Garrell information that the biological mother was already receiving benefits and public assistance for the minor child nor did Petitioner inform Ms. Garrell that a child support case was already established on behalf of the biological mother for the minor child.

13. Once Ms. Garrell opened the case, she returned to Petitioner and asked Petitioner should she, Ms. Garrell, not give the file to Petitioner’s supervisor.

14. Ms. Garrell did this as she was aware of the written policy that cases should be opened by employees thru their supervisors.

15. Petitioner responded negatively to Ms. Garrell. Ms. Garrell returned the paper file to the Petitioner.

16. It was a normal part of Ms. Garrell’s job duties to follow the instruction of Petitioner in the opening of a child support case.

17. Once Petitioner received the paper file from Ms. Garrell, Petitioner turned the case over to Nateka Ballard, a new child support worker.

18. Petitioner directed Ms. Ballard to “switch the financials” for the child support case established for the biological mother to the child support case opened for Petitioner.

19. In changing the financials of the two cases, Ms. Ballard entered information into Respondent’s computer system sufficient to stop the child support paid by the biological father from going to reimbursement to the state. As a result, the child support payment was redirected as non-public assistance child support and directly paid to Petitioner.

20. The public assistance received by the biological mother on behalf of the minor child was never terminated. As a result, the biological mother continued to receive public assistance on behalf of the minor child even though the minor child was permanently residing with Petitioner, and the “financials” were changed so Petitioner would receive the child support payment.

21. The biological father’s child support payment should have continued to reimburse the State for public assistance until all support and reimbursement was repaid.

22. One of the purposes of the subject written policy is to ensure that public assistance is appropriately distributed, and that employees do not intentionally or unintentionally allow friends or relatives to receive public assistance for which those friends or relatives are not entitled.

23. Petitioner did not notify her direct supervisor, any other supervisor or manager or the Director of Columbus County Department of Social Services about the child support case for which Petitioner requested Ms. Garrell to open and Ms. Ballard to change the “financials”.

24. Petitioner acknowledged that she knew of the written policy, but chose not adhere to the policy as she did not see the need.

25. Jim Warlick, at all relevant times, was employed by Respondent as a Child Protection Services Case Worker. Mr. Warlick knew the minor child was residing in the Petitioner’s home. However, it was not Mr. Warlick’s job responsibility to notify other employees of Respondent to terminate the public assistance benefits received by the biological mother of the minor child who was then residing with Petitioner.

26. On March 15, 2008 Jackie Bellamy, Petitioner’s direct supervisor, became aware of Petitioner’s child support case.

27. Jackie Bellamy checked the child support state database and determined that the child support had been set up in Petitioner’s name, the public assistance for the minor child continued to be distributed to the biological mother of the minor child, and Petitioner had not notified any supervisor of seeking assistance for child support. (Respondent’s Exhibit 2).

28. On March 17, 2005 a letter was delivered to Petitioner notifying her that Respondent would hold a Pre-disciplinary Conference on March 18, 2005 at 9:00 a.m., and that Respondent was considering the Disciplinary Action of Dismissal for Petitioner’s alleged unacceptable personal conduct. (Respondent’s Exhibit 2).

29. On March 21, 2005, Respondent’s then Director Marva Scott terminated Petitioner from employment for engaging in the unacceptable personal conduct of “establishing a Child Support case in your name and receiving benefits you were not entitled to.” (Respondent’s Exhibit 3)

30. By letter dated March 23, 2005, Petitioner appealed Ms. Scott’s termination of Petitioner’s employment. (Respondent’s Exhibit 4)

31. On April 12, 2005, Petitioner submitted additional information to Scott for reconsideration of Scott’s decision to terminate Petitioner’s employment. (Respondent’s Exhibit 5)

32. However, Respondent did not hold any further hearings on this matter, because after April 12, 2005, Marva Scott was no longer Respondent’s Director.

33. Larry Moore was named Interim Director of Respondent. Mr. Moore was unsure how to handle the situation with Petitioner. By letter dated April 20, 2005, Moore advised Petitioner that he could not make a decision on her appeal since he was not Director when she was dismissed from employment. He advised Petitioner to follow the proper process and if she chose, meet with Respondent’s Board at their next meeting. (Respondent’s Exhibit 6)

34. After Respondent’s Board refused to hear Petitioner’s internal appeal, Moore advised Petitioner to file a contested case hearing with the Office of Administrative Hearings regarding her termination.

35. At the administrative hearing, Moore explained that other employees had engaged in actions similar to Petitioner’s actions, but none of them were terminated from employment. Moore did not think that Petitioner’s actions justified termination, but instead, would have been grounds for an informal discussion regarding policy compliance.

36. There was no evidence presented showing that Petitioner had ever been reprimanded or disciplined in any way prior to termination. The evidence showed that Petitioner was a good employee.

37. At all times subsequent to the March 17, 2007 letter, Petitioner has admitted that she did not follow Respondent’s known and written rule for opening a file when she opened a case in her office without a supervisor’s permission or knowledge. She explained that she did not inform her supervisor, Jackie Bellamy, of her actions, because of the friction between her and Bellamy. However, Petitioner did not have a frictional relationship with the other supervisor, Ms. Godwin, yet Petitioner failed to explain why she did not ask Ms. Godwin to open a case file in Petitioner’s name.

38. Petitioner knew of the written work rule requiring a Supervisor to open any child support case on behalf of any employee of the Department or their spouse. Nevertheless, she asked staff to open a case file in her name without a supervisor’s permission or knowledge in violation of that policy.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, the undersigned Administrative Law Judge concludes as follows:

1. Pursuant to Chapters 126 and 150B of the North Carolina General Statutes, the Office of Administrative Hearings has jurisdiction over the parties and the subject matter of this case, and has the authority to issue a Decision to the State Personnel Commission (“SPC”).

2. “No career State employee subject to the State Personnel Act shall be discharged. . . for disciplinary reasons, except for just cause.” N.C. Gen. Stat. § 126-35(a).

3. N.C. Gen. Stat. § 126-35(d) allocates the burden of proving just cause to dismiss a career State employee, who is subject to the State Personnel Act, to the agency employer.

4. In North Carolina Department of Environment and Natural Resources, Division of Parks and Recreation v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004), the North Carolina Supreme Court stated that:

. . . determining whether a public employer had just cause to discipline its employee requires two separate inquires: first, whether the employee engaged in the conduct the employer alleges, and second, whether that conduct constitutes just cause for [the disciplinary action taken]. (citing Sanders v. Parker Drilling Co., 911 F.2d 191, 194 (9th Cir. 1990), cert. denied, 500 U.S. 917, 114 L. Ed. 2d 101 (1991)).

5. N.C. Gen. Stat. § 126-35(b) states that:

Disciplinary actions . . . are those actions taken in accordance with the disciplinary procedures adopted by the State Personnel Commission and specifically based on unsatisfactory job performance, unacceptable personal conduct or a combination of the two.

6. 25 N.C.A.C. 1J .0604(a) provides:

Any employee, regardless of occupation, position or profession may be warned, demoted, suspended or dismissed by the appointing authority. Such actions may be taken against career employees as defined by the State Personnel Act, only for just cause. The provisions of this section apply only to employees who have attained career status. The degree and type of action taken shall be based upon the sound and considered judgment of the appointing authority in accordance with the provisions of this Rule. When just cause exists the only disciplinary actions provided for under this Section are: . . .

(4) Dismissal.

7. According to 25 N.C.A.C. 1J .0604, an agency employer may discipline or dismiss an employee under the statutory standard for "just cause" set out in N.C. Gen. Stat. § 126-35 based upon: (1) unsatisfactory job performance, including grossly inefficient job performance, and (2) unacceptable personal conduct.

8. An employer may dismiss an employee for just cause based upon “unacceptable personal conduct.” 25 NCAC 1J .0604(a)(4), 25 NCAC 1J .0604(b)(2)

9. According to 25 N.C.A.C. 1J .0614(I), “unacceptable personal conduct” is defined to include:

(1) conduct for which no reasonable person should expect to receive prior warning; or . . .

4) the willful violation of known or written work rules; or

5) conduct unbecoming a state employee that is detrimental to state service.

10. In Hilliard v North Carolina Department of Correction, 173 N.C. App. 594, 620 S.E. 2d 14 (2005) the North Carolina Court of Appeals held that in order for conduct to be considered conduct unbecoming a state employee that is detrimental to state service, there need not be a showing of actual harm to the employer. It need only be shown conduct like the Petitioner’s could potentially adversely affect the mission or legitimate interests of the employer.

11. “Employees may be dismissed for a current incident of unacceptable personal conduct, without any prior disciplinary action.” 25 N.C.A.C. 1J. 0608(a).

12. In this case, Respondent maintained a written work policy that any assistance to be received by any employee should only be applied for through a supervisor and the supervisor would be solely responsible for the maintenance of the employee’s case. Petitioner knew that this was the policy of the Respondent and chose not to adhere to such policy.

13. Respondent has such policy in place to avoid even the appearance of impropriety in the administration and distribution of public assistance funds.

14. Petitioner’s actions constituted unacceptable personal conduct. A preponderance of the evidence showed that Petitioner knowingly and willfully violated the written work rule of the Respondent and her intent, whether to defraud the agency or not, is irrelevant.

15. Petitioner engaged in unacceptable personal conduct by failing to follow a known and written work rule in violation of 25 N.C.A.C. 1J .0614(i).

16. Petitioner engaged in unacceptable personal conduct by engaging in conduct for which no reasonable person should expect a prior warning in violation of 25 N.C.A.C. 1J .0614(i).

17. Petitioner engaged in unacceptable personal conduct by engaging in conduct unbecoming a state employee that is detrimental to state service.

18. Petitioner’s conduct created not only the appearance of impropriety, but also allowed the biological mother to continue to receive public assistance funds for which the biological mother was not entitled.

19. No prior warning was required for Petitioner’s dismissal. 25 N.C.A.C. 1I .2303(a); 25 N.C.A.C. 1J. 0606(a).

20. Petitioner admits the conduct and the violation, but only offers explanations for why Petitioner violated the Respondent’s rules.

21. As a result, Petitioner’s dismissal was proper for unacceptable personal conduct.

22. Respondent met its burden of proving by a preponderance of the evidence that it had just cause to dismiss Petitioner. Accordingly, Respondent did not act erroneously, arbitrarily, capriciously or otherwise prejudice Petitioner’s rights.

23. Petitioner failed to present sufficient evidence to rebut Respondent’s evidence of just cause.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned determines that Respondent’s decision to dismiss Petitioner from employment should be UPHELD.

ORDER AND NOTICE

Pursuant to N.C. Gen. Stat. § 150B-36(a), before the agency makes a Final Decision in this case, it is required to give each party an opportunity to file exceptions to this decision, and to present written arguments to those in the agency who will make the Final Decision. N.C. Gen. Stat. 150B-36(b)(3) requires the agency to serve a copy of its Final Decision on each party, and furnish a copy of its Final Decision to each party’s attorney of record and to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714.

In so far as this matter involves a local government employee subject to Chapter 126 pursuant to North Carolina General Statute § 126-5(a)(2), the decision of the State Personnel Commission, absent a finding of discrimination, shall be advisory to the local appointing authority which shall render a Final Agency Decision. Further requirements of rights, notices and timelines to the Parties shall be forthcoming from the State Personnel Commission and/or the local appointing authority as the circumstances and stage of the process may dictate.

This the 10th day of September, 2008.

_________________________________

Melissa Owens Lassiter

Administrative Law Judge

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