STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF MITCHELL 06 OSP 1757

PAUL MICHAEL DALE Petitioner,

v.

N. C. DEPARTMENT OF CORRECTION

Respondent.

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DECISION

This matter was heard before the Honorable Donald W. Overby, Administrative Law Judge, on April 24, 2007 at the courtroom on the Broughton Hospital campus in Morganton, North Carolina.

APPEARANCES

For Petitioner: Leonard Poe, Esquire

93 South Main Street

Marion, NC 28752

For Respondent: Thomas H. Moore

Assistant Attorney General

N.C. Department of Justice

Post Office Box 629

Raleigh NC 27602

WITNESSES

The Respondent, North Carolina Department of Correction (hereinafter the “Respondent”) presented testimony from the following nine (9) witnesses: the Petitioner, Paul M. Dale (hereinafter the “Petitioner”); Haroldus Walton; Avery-Mitchell Correctional Institution Watauga Unit Manager Bryan Johnson; Correctional Captain Gregory P. Taylor; Correctional Sergeant Joey Hylemon; Correctional Sergeant William McCurry; Correctional Lieutenant Jeffery Daniels; former Avery-Mitchell Correctional Institution Superintendent Willard Jobe; and Avery-Mitchell Correctional Institution Assistant Superintendent Robert Cooper.

The Petitioner presented testimony from the following three (3) witnesses: Correctional Officer David Anthony, Correctional Officer William Denver Caterson; and the Petitioner.

EXHIBITS

The Respondent offered into evidence the following twenty-three (23) exhibits, all of which were admitted into evidence:

R. Ex. 3 (June 5, 2006 report from Lieutenant. Jeffrey Daniels to Robert Cooper regarding Petitioner);

R. Ex. 4 (Photocopy of $100 bill with serial number CA 0051413 A);

R. Ex. 5 (Photocopy of exterior of CD-ROM from Pennsylvania Culinary Institute “Learn the Art of Le Cordon Bleu”);

R. Ex. 6 (Memorandum from Division of Prisons Director Boyd Bennett dated February 14, 2005 regarding banning of employee pocket knives);

R. Ex. 7 (Avery-Mitchell Correctional Institution Shift Narrative for June 3, 2006);

R. Ex. 8 (N.C. Department of Correction Personal Dealings With Offenders policy);

R. Ex. 9A (Department of Correction Employment Statements signed by the Petitioner on April 18, 2003);

R. Ex. 9B (N.C. Department of Correction training history printout for the Petitioner);

R. Ex. 9C (Attendance roster for staff/inmate relations signed by the Petitioner on April 30, 2003);

R. Ex. 10 (June 3, 2006 Internal Investigation written statement from Bryan Johnson);

R. Ex. 11 (June 10, 2006 Internal Investigation written statement from Haroldus Walton);

R. Ex. 12 (June 3, 2006 Internal Investigation written statement from the Petitioner);

R. Ex. 13 (June 3, 2006 Internal Investigation written statement from Correctional Captain Gregory P. Taylor);

R. Ex. 14 (June 4, 9 and 16, 2006 Internal Investigation written statements from Correctional Sergeant William McCurry);

R. Ex. 15 (June 3, 2006 letter from Superintendent Willard Jobe placing the Petitioner on investigatory status);

R. Ex. 16 (June 5, 2006 letter from Nancy Wilder to Superintendent Willard Jobe and Steve Bailey);

R. Ex. 17 (June 13, 2006 letter from Superintendent Willard Jobe notifying the Petitioner of his scheduled pre-disciplinary conference);

R. Ex. 18 (June 15, 2006 pre-disciplinary conference acknowledgment form signed by the Petitioner);

R. Ex. 19 (June 23, 2006 letter from Superintendent Willard Jobe notifying the Petitioner of his employment termination);

R. Ex. 20 (Section 6 of the Department of Correction Personnel Manual regarding personal conduct issues);

R. Ex. 21 (June 4, 2006 Internal Investigation written statement from Correctional Sergeant Joey Hylemon); R. Ex. 23 (Copy of June 30, 2006 log from Watauga Unit Control Room at Avery-Mitchell Correctional Institution);

R. Ex. 24 (Photographs of Watauga Unit Control Room).

The Petitioner offered into evidence the following five (5) exhibits, all of which were admitted into evidence:

P. Ex. 1 (Petitioner’s April 21, 2003 “TAP” job performance evaluation);

P. Ex. 2 (Petitioner’s 2004-2005 “TAP” job performance evaluation);

P. Ex. 3 (Petitioner’s 2005-2006 “TAP” job performance evaluation);

P. Ex. 4 (Petitioner’s 2006-2007 “TAP” job performance evaluation); and

P. Ex. 5 (Department of Correction’s May 31, 2006 notice of paycheck deposit for the Petitioner).

ISSUE

Did the Respondent have just cause for terminating its employment of Petitioner for one or more acts of unacceptable personal conduct?

Based upon the pleadings, sworn testimony of the witnesses, exhibits presented at the hearing and other competent and admissible evidence, the undersigned makes the following:

FINDINGS OF FACT

1. The Petitioner was first employed in April 2003 by the Respondent’s Division of Prisons (hereinafter “DCC”) as a correctional officer stationed at Avery-Mitchell Correction Institution (hereinafter “Avery-Mitchell”), a prison facility located in Spruce Pine, North Carolina. (R. Exs. 9A, 9B, 9C; Tr. pp. 14-15, pp. 322-324).

2. As a correctional officer, the Petitioner was responsible for the custody and supervision of inmates at Avery-Mitchell, a medium custody prison housing approximately 856 inmates. The Petitioner’s specific post assignments at the facility varied, according to his assignments by Avery-Mitchell management. During June 2006, the Petitioner was assigned to work the second shift at Avery-Mitchell, running from 6 p.m. to 6 a.m. (Tr. pp. 14-16, p. 24).

3. The Petitioner was made aware of his official job duties as a correctional officer and various policies of the Respondent, including the Respondent’s policy governing “Personal Dealings with Offenders,” when hired for the position in April 2003. At the time of his hiring, the Petitioner signed a form acknowledging that he had been furnished a copy of the “Personal Dealings with Offenders” policy and that it was his responsibility to read and comply with the terms of this policy. (R. Ex. 9A, 9B, 9C; Tr. pp. 16-20).

4. In addition to being furnished a copy of the “Personal Dealings with Offenders,” the Petitioner underwent specialized training in the policy in a session held by the Respondent on April 30, 2003. (R. Exs. 9B, 9C; Tr. pp.17-20).

5. The Respondent’s “Personal Dealings with Offenders” policy prohibits employee fraternization with criminal offenders under supervision of the Respondent. It is included in the Respondent’s Personnel Manual and notes that it is “the policy of the Department of Correction to require all employees to maintain professional relationships with offenders in accordance with the laws, regulations, and general statutes governing such relationships.” (R. Ex. 8; Tr. pp. 15-20). The policy further states that “[a]ll employees of the Department of Correction ... shall treat offenders in a quiet, but firm manner and shall refrain from inappropriate and improper contact with them. The policy includes a list of specific prohibited activities, noting that

“Employees of the Department of Correction shall not ... Lend anything to an offender, ... Accept any gift or personal service from an offender, except as specifically authorized by law, regulation, or directive, ... Make gifts to or perform personal services for an offender, ... Sell to an offender any article forbidden by Division of Prison [or] Division of Adult Probation and Parole rules, ... Knowingly enter into a business relationship with an offender or their family member or close associate.” (R. Ex. 8; Tr. pp. 15-20).

6. The “Personal Dealings with Offenders” policy states that this list is not exclusive, specifying that: “Any time an employee is in doubt about an issue regarding dealings with a offender(s), the employee has an obligation to ask questions of his/her supervisor or other appropriate manager for clarification.” (sic) The policy further notes that: “Violations of this policy may result in disciplinary action up to and including dismissal in accordance with the Department of Correction Disciplinary Policy and may result in criminal charges against the employee.” (R. Ex.8; Tr. pp.15-20).

7. On June 2, 2006, Bryan Dale Johnson, the manager of the Watauga Unit or Dormitory at Avery-Mitchell, met with inmate Haroldus Walton (hereinafter referred to as Walton) concerning possible disciplinary action against inmate Walton. During that meeting, Walton reported allegations of misconduct by the Petitioner to Mr. Johnson in that the Petitioner was selling various items to inmates, including pills, food, and music. Walton also stated that the Petitioner would exchange money for inmates, charging a fee for breaking large denomination bills into smaller bills. (R. Exs. 3, 10, 11; Tr. pp. 88-90, pp. 98-100, pp.131-134).

8. Walton informed Mr. Johnson that he had first-hand experience in purchasing items from the Petitioner. He stated that the Petitioner had given him garlic and that the Petitioner provided him an information packet and CD-Rom from the Pennsylvania Culinary Institute on payment of $20.00. Walton could not remember the exact dates of those transactions but believed them to have been in the spring of 2006. At Mr. Johnson’s request, Walton retrieved the CD-Rom from the Pennsylvania Culinary Institute from his cell locker and provided it to Mr. Johnson. (R. Exs. 3, 10, 11; Tr. pp. 88-90, pp.131-134).

9. During the session, Mr. Johnson asked Walton if he thought the Petitioner might exchange money for him, and Walton responded that he thought the Petitioner would be willing to do so. Mr. Johnson also asked Walton if he would be willing to be involved in an undercover operation in an attempt to catch the Petitioner making change for inmates. Walton replied that he was agreeable to participation in such an operation. Walton said he thought he would need a $100 bill in order to attract the Petitioner’s attention. He estimated that the Petitioner would charge at least $20 for making change for Walton. (R. Exs. 3, 10, 11; Tr. pp. 88-90, pp. 131-134).

10. Avery-Mitchell is a cashless prison. Inmates are forbidden possession of any script or coin money. If an inmate at Avery-Mitchell is in possession of any amount of cash, he may be subjected to disciplinary action. (Tr. p. 41, pp. 250-254).

11. Walton was in possession of contraband, the CD-Rom. Since Walton was able to produce the contraband, Mr. Johnson considered his allegations about the Petitioner to be credible. After meeting with Walton, Mr. Johnson immediately reported Walton’s allegations to Avery-Mitchell Assistant Superintendent Robert Cooper. (R. Exs. 3, 10; Tr. pp. 134-141).

12. Assistant Superintendent Cooper during the afternoon of June 2, 2006 contacted Avery-Mitchell Superintendent Willard Jobe to discuss Walton’s allegations and whether an undercover operation should be launched to determine if the Petitioner would accept money from Walton. Superintendent Jobe gave his approval for an undercover operation after conferring by telephone with Roger Moon, Western Region Operations Manager for the Respondent’s DOP and one of Superintendent Jobe’s supervisors. (Tr. pp. 227-230, pp. 249-252).

13. Mr. Cooper had previously been involved in similar undercover probes using inmates to attempt to pass money to employees suspected of wrongdoing, and it was his decision as to how to conduct the undercover operation involving the Petitioner. (R. Exs. 3, 10, 13; Tr. pp. 134-136, pp. 249-250).

14. The plan devised by Mr. Cooper is as follows: Walton would be instructed to inform the Petitioner that he expected to receive some money during visitation on June 3, 2006 and that he needed the Petitioner to exchange for smaller bills. A $100.00 bill would be used. Walton would be given the $100 bill on June 3, 2006 by Captain Gregory Taylor. Walton would wait for a convenient time to pass the money to the Petitioner on June 3, 2006. Walton would wait approximately thirty (30) minutes after passing the $100 bill to the Petitioner before declaring a medical emergency so that he could be escorted out of the prison dormitory without attracting attention to himself. The declaration of a medical emergency by Walton would be the signal that Walton had passed the $100 bill. Once this signal was given, Captain Taylor was to contact Mr. Johnson, Avery-Mitchell Special Affairs Lieutenant Jeffrey Daniels, and Assistant Superintendent Cooper at home to come to the prison to question the Petitioner. Captain Taylor was to relieve the Petitioner from his post and take him to the Avery-Mitchell administrative offices for questioning. (R. Exs. 3, 10, 13; Tr. pp.134-136, pp. 249-250).

15. The thirty-minute waiting period before Walton was to declare a medical emergency was intended in part to give the Petitioner a chance to properly report to his supervisors that he had been handed money by Walton. According to Assistant Superintendent Cooper’s plan, if the Petitioner reported this action to his supervisors in a prompt and proper manner, he would not be relieved from his post and brought in for questioning. Assistant Superintendent Cooper informed Mr. Johnson, Lt. Daniels, and Captain Taylor of his plans for the undercover operation on June 2, 2006. (R. Exs. 3, 10, 13; Tr. pp.134-136, pp. 249-250).

16. Assistant Superintendent Cooper personally provided a $100 bill for use in the undercover operation involving Walton. The bill bore serial number CA 00051413A. On June 2, 2006, Mr. Cooper made copies of the front and back of the bill before giving it to Captain Taylor, who was to provide the $100 bill to Walton on June 3, 2006. (R. Ex. 4; Tr. p.136, pp. 251-254).

17. On instruction from Assistant Superintendent Cooper, Mr. Johnson met again with inmate Walton on June 2, 2006 and informed Walton of Mr. Cooper’s plan for the undercover operation. He told Walton that Captain Taylor would provide him with the $100 bill the following day. (Tr. pp. 89-90, pp.134-136).

18. Avery-Mitchell management received permission on June 2, 2006 from Mr. Moon, the Respondent’s DOP Western Region Operations Manager, and Nancy Wilder, the Respondent’s Employee Relations Manager, to place the Petitioner on investigatory leave status if the undercover operation resulted in the Petitioner accepting money from inmate Walton and not properly reporting this action to Avery-Mitchell management. Pre-approval of the investigatory placement was given because the undercover operation was scheduled to be conducted late on June 3, 2006, a Saturday. Superintendent Jobe prepared a letter dated June 3, 2006 which informed the Petitioner that he was placed on investigatory placement and that he was to remain out-of-work with pay while allegations that he engaged in undue familiarity with an inmate were investigated by Avery-Mitchell management. Assistant Superintendent Cooper took possession of the letter on June 2, 2006, with the intention of presenting it to the Petitioner only if the undercover operation resulted in his apparent acceptance of money from Walton. (R. Exs. 15, 16; Tr. pp. 231-233, pp. 250-252).

19. Captain Taylor presented Walton with the $100.00 bill from Assistant Superintendent Cooper at approximately 5:15 p.m. on June 3, 2006. (R. Exs. 3, 13; Tr. pp. 165-166).

20. For part of the day on June 3, 2006, the Petitioner was assigned to work in the control booth for Watuaga dormitory. The control booth is a secure, enclosed area, with thick glass windows on all sides. It is staffed with one correctional officer at a time whom is primarily responsible for opening and closing the secure doors to the dormitory so that Avery-Mitchell staff and inmates can enter and exit the dormitory. The booth contains a stationary control board, where the correctional officer primarily sits. The control booth has a stationary metal pass box, located on its exterior to the right of the control board, which is used by staff and inmates to pass or receive items from the inside. The booth is well lighted, with several lights located above the drop box area. There is a live video camera in the control booth. The control booth also has a closed toilet facility, located at its rear. The enclosed toilet area is not within the range of the video camera. (R. Exs. 24A, 24B, 24C, 24D, 24E; Tr. pp. 25-53, pp. 311-316).

21. There is a telephone on the control board in the control booth. While working in the control booth on June 3, 2006, the Petitioner had access to the booth’s telephone set. He also had a radio set for communication with other staff. (R. Exs. 24A, 24B, 24C, 24D, 24E; Tr. pp. 25-53, pp. 311-316).

22. After the shift lineup on June 3, 2006, the Petitioner was approached by fellow Correctional Officer Marty Singleton, who informed the Petitioner at the request of Sergeant William McCurry, the Petitioner’s immediate supervisor that he needed to mind his “Ps and Qs” while at work that day. Sergeant McCurry had asked Officer Singleton to pass on this advice because he had heard reports that the Petitioner occasionally was falling asleep at his post. Sergeant McCurry had no knowledge of the undercover operation at the time he asked Officer Singleton to relay this advice, and it was merely a coincidence that this advice was rendered the same day that the undercover operation occurred. (R. Ex. 14; Tr. pp.196-198).

23. Walton received a $100 bill from Captain Taylor on June 3, 2006. He was given instructions from Mr. Johnson and Captain Taylor regarding waiting approximately 30 minutes after passing the money to the Petitioner before declaring a medical emergency, but it was left to his discretion as to how and when to give the $100 bill to the Petitioner. (Tr. pp. 90-95).

24. Walton passed the $100 bill to the Petitioner in the Watauga dormitory control booth at approximately 8:30 p.m. on June 3, 2006. Walton declared a medical emergency at 9:05 p.m., as documented in the June 3, 2006 shift narrative for Avery-Mitchell. Walton went from Watauga dormitory to the medical area at the prison. (R. Exs. 3, 7, 11, 12, 23; Tr. pp. 27-53, pp. 90-96). When he arrived at the medical area, Walton met with Captain Taylor and informed him that he had given the $100 bill to the Petitioner. (R. Exs. 3, 11; Tr. pp. 90-96, pp. 165-167). Captain Taylor waited almost one hour before heading to the control booth to relieve the Petitioner from his post. (R. Exs. 3, 13, 21; Tr. pp. 27-50, pp. 166-169, pp. 187-191). At some point prior to Captain Taylor’s arrival, the Petitioner went to the toilet inside the control booth and inspected the $100 bill. The Petitioner did not attempt to report to anyone within his chain of command at Avery-Mitchell that Walton had passed the $100 bill to him at any point prior to Captain Taylor’s arrival. (R. Exs. 3, 7, 11, 12, 13, 21, 23; Tr. pp. 27-53, pp. 165-169, pp. 187-191, pp. 194-203).

25. Although there is a discrepancy between the accounts given by Walton and the Petitioner, there is no question that Walton passed the $100.00 bill into the control booth and that the Petitioner received it.

26. At some point after Walton’s return from the “medical emergency”, the Petitioner spoke to him from the control booth, inquiring about the nature of his medical emergency. Walton told him that he just wasn’t feeling well. Walton had no other interaction with the Petitioner on June 3, 2006 after this short conversation. (Tr. pp. 95-96).

27. The Petitioner denies that he sold items and made gifts to any inmate at Avery-Mitchell. He denies that he knew the name of Walton prior to being investigated by Avery-Mitchell management in June 2006. (Tr. pp. 27-42). He denied providing inmate Walton with garlic and he denied selling the information packet about the Pennsylvania Culinary Institute to Walton. (Tr. pp. 21-30). His denials are not credible.

28. The Petitioner’s account of the transaction between he and Walton regarding the events of June 3, 2006, is that while he worked in the control booth Walton walked by, reached into the pass box, and threw a balled up piece of paper into the control booth, flipping the paper in as if he were shooting a marble saying something to the effect, “You could give this to my sister, you can keep it, or you can let me have it back.” (Tr. p. 31). The Petitioner’s account of the transaction is not credible. (Tr. pp. 27-36)

29. The Petitioner states that he did not report the incident immediately to his supervisor because he did not know what item Walton had thrown into the booth, but the Petitioner acknowledges that it was a security breach for an inmate to throw any item into the control booth (Tr. pp. 31-53).

30. By any account, the Petitioner discovered with certainty that it was a $100 bill when he went to the toilet some minutes after Walton passed the money into the control booth. The Petitioner recalled the comment Officer Singleton had made to him earlier that day that he needed to mind “his Ps and Qs” (Tr. pp. 37-44), and he thought this was some conspiracy or “set up” to get him. There was no “conspiracy” and Officer Singleton’s comment was purely coincidental. (R. Ex. 23; Tr. pp. 37-50).

31. The Petitioner’s testimony regarding these incidents contradicted his statements made during the Respondent’s June 2006 internal investigation of the Petitioner and pre-disciplinary conference for the Petitioner. (R. Exs. 3, 12; Tr. pp. 138-139, pp.168-169).

32. The Petitioner did not attempt to contact anyone by telephone or radio about the incident with Walton prior to being relieved from his post by Captain Taylor and Sergeant Joey Hylemon. (Tr. pp. 27-50).

33. Shortly before 10 p.m. on June 3, 2006, Captain Taylor and Sergeant Hylemon went to relieve the Petitioner from his post at the Watauga Dormitory control booth. When they arrived, Captain Taylor asked the Petitioner to gather his belongings and come with him and Sergeant Hylemon to the Avery-Mitchell administrative offices. The Petitioner complied with this request. (R. Exs. 3, 13, 21; Tr. pp. 168-169, pp.187-191).

34. While walking to the administrative offices, the Petitioner asked Captain Taylor why he was being escorted there. Captain Taylor responded that he was being taken for questioning about whether he had been exchanging money for inmates. The Petitioner denied that he was engaged in such activities. He asked Captain Taylor if he could talk with him. The Petitioner stated that an inmate had passed a piece of paper to him earlier in the evening through the control booth pass box. The Petitioner also said he could not see what the piece of paper was when it was passed through and that he had placed it in his one of his pants pockets without looking at it. The Petitioner added that he later examined the piece of paper in the toilet and saw that it was a $100 bill. Captain Taylor asked the Petitioner why he had not reported the incident to his supervisor and the Petitioner responded by saying that he had made a “bad judgment call” by not doing so. Captain Taylor asked the Petitioner if he still had the $100 bill. The Petitioner responded that he did, reached in his pants pocket, produced the $100 bill and gave it to Captain Taylor. Captain Taylor took possession of the $100 bill, noticing that it was the same bill he had provided to inmate Walton earlier in the day. (R. Exs. 3, 13, 21; Tr. pp. 169-172, pp. 174-177, pp.187-189).

35. When they arrived at the administrative officers, Lieutenant Daniels and Mr. Johnson were already present. Assistant Superintendent Cooper arrived some time later. (Tr. p. 170). At the request of Assistant Superintendent Cooper, Captain Taylor and Lieutenant Daniels asked the Petitioner if they could search his person and his lunch box. The Petitioner consented. The Petitioner emptied his pants pockets, producing a lock-blade pocketknife, a small pair of box cutters, and several hundred dollars. He then opened up his lunch box. Inside were numerous pills wrapped in aluminum foil, several rusted tin cans of food, and a photograph of a partially nude woman. Assistant Superintendent Cooper took possession of the pocketknife and box cutters and the $100 bill. When Assistant Cooper inspected the $100 bill and compared the serial number CA 00051413A, he determined that it was the same one he had provided to Captain Taylor on June 2, 2006. (Tr. pp. 253-257) The pocketknife, manufactured by Gerber, was approximately two inches long, with a lock blade, while the box cutters were approximately two inches long, with a standard old-style replaceable razor blade in the middle. (Tr. p. 322). The knife and box cutters were returned to the Petitioner after his employment was terminated, and he produced them for inspection at trial. (R. Ex. 3; Tr. pp.172-173, pp.212-214).

36. The $100 bill was produced by Assistant Superintendent Cooper at the Petitioner’s contested case hearing. An inspection of the bill produced by Assistant Superintendent Cooper established that it bore serial number CA 00051413A, which is the same serial number of the bill copied by Assistant Superintendent Cooper prior to his giving it to Captain Taylor on June 2, 2006. Assistant Superintendent Cooper has had the $100 bill continuously in his possession since receiving it back on the night of June 3, 2006. (Tr. pp. 253-255).

37. After the Petitioner was searched, Captain Taylor and Sergeant Hylemon left the administrative offices to return to their regular duties. (Tr. p.173, pp.187-191). The Petitioner then was questioned by Assistant Superintendent Cooper, Lieutenant Daniels and Mr. Johnson about his possession of the $100 bill. The Petitioner reiterated the version of events that he had given Captain Taylor and Sergeant Hylemon earlier, adding that until he inspected the piece of paper he thought it might be a phone number or address from the inmate. The Petitioner stated a number of times when giving his account that he had made a mistake in judgment by not immediately reporting the incident to his supervisor. (R. Ex. 3; Tr. pp.138-140, pp.210-214, pp.259-261).

38. Assistant Superintendent Cooper, Lieutenant Daniels and Mr. Johnson also questioned the Petitioner about why he was in possession of a pocketknife and box cutters inside Avery-Mitchell. The Petitioner stated in response that he had accidentally brought both items into the prison, not realizing until he was searched that he had the knife and box cutters with him. (R. Ex. 3; Tr. pp. 61-63, pp. 138-140, pp. 210-214, pp. 259-261).

39. On or about February 14, 2005, DCC Director Boyd Bennett issued a written policy prohibiting DCC employees from entering the secure confines of state prison facilities “with a pocket knife of any length or type in their possession.” The policy was made effective March 1, 2005. The Petitioner was made aware of the policy during a shift line-up at Avery-Mitchell shortly after its issuance by Mr. Bennett. (R. Ex. 6; Tr. pp. 20-21, pp. 230-231).

40. During his interview session, the Petitioner was asked by Lieutenant Daniels to write a statement about the incident where inmate Walton passed him the $100 bill for use in Respondent’s internal investigation of the incident. Lieutenant Daniels instructed the Petitioner to be accurate in his written statement and take as long as necessary to complete it. (R. Exs. 3, 12; Tr. pp. 67-72, pp. 209-210). In his written statement, the Petitioner made no mention of attempting to contact Sergeant McCurry about inmate Walton. He also made no mention that he was convinced that he was being set up by Avery-Mitchell management. (R. Ex. 12).

41. After completing his written statement, the Petitioner was given the notice of investigatory placement by Assistant Cooper and told not to report back to Avery-Mitchell until further notice. (R. Ex. 15, Tr. p. 263). The Petitioner was escorted from the prison at approximately 12:50 a.m. on June 4, 2006, according to the Avery-Mitchell shift narrative. (R. Ex. 7).

42. Following the June 3, 2006 undercover operation, inmate Walton was transferred to another prison facility operated by the Respondent in order to protect him against any retaliation from Avery-Mitchell staff or inmates. If the pending disciplinary charge against him had been substantiated, Walton would have been kept at Avery-Mitchell. The disciplinary action against Walton was dismissed by Mr. Johnson. (Tr. pp. 143-145).

43. Lieutenant Daniels was assigned by Assistant Superintendent Cooper to conduct the internal investigation of the Petitioner. In addition to the written statement he received from the Petitioner, Lieutenant Daniels obtained written statements for his investigation from inmate Walton, Mr. Johnson, Captain Taylor, Sergeant Hylemon, Sergeant McCurry, and Correctional Officer Marty Singleton. (R. Ex. 3; Tr. pp. 205-210)

44. On June 5, 2006, Lieutenant Daniels issued a report, based upon the various witness statements and personal observation of events. This report concluded that the Petitioner on June 3, 2006 “did accept the same $100.00 dollar bill that was copied and given to inmate Walton on Saturday prior to second shift,” that the Petitioner “had the money at least one hour prior to Captain Taylor’s arrival,” and that “[a]t no time did” the Petitioner “make any attempt to report the money that was passed, other than when confronted by Captain Taylor.” The report also concluded that the Petitioner on June 3, 2006 was in possession of a pocketknife and box cutters inside Avery-Mitchell, although he knew such possession was “in violation of policy.” (R. Ex. 3; Tr. pp. 214-215).

45. Lieutenant Daniels’ report was forwarded to Assistant Superintendent Cooper for review. After reviewing the report, Assistant Superintendent Cooper recommended to Superintendent Jobe that the Respondent take disciplinary action against the Petitioner. Superintendent Jobe concurred in the recommendation and gave his approval for the Respondent to initiate disciplinary proceedings against the Petitioner. (R. Exs. 3, 18; Tr. pp 204-215, pp. 234-235).

46. On June 13, 2006, the Respondent notified the Petitioner orally and by written memorandum signed by Superintendent Jobe that it was considering terminating his employment for reasons of unacceptable personal conduct and that a pre-disciplinary conference to discuss the proposal was set for June 15, 2006. The written memorandum cited Petitioner’s acceptance of money from inmate Walton and his carrying the pocketknife and box cutters inside Avery-Mitchell as the acts of unacceptable personal conduct justifying disciplinary action. (R. Ex. 18; Tr. pp. 234-235, pp. 264-267).

47. The pre-disciplinary conference occurred as scheduled on June 15, 2006. It was conducted by Assistant Superintendent Cooper, and Lieutenant Daniels and Avery-Mitchell Administrative Officer Doug Garner were also present. At the conference, the Petitioner was presented with a written recommendation to dismiss, which cited the same two acts of misconduct cited in the memorandum presented to the Petitioner on June 13, 2006. (R. Exs. 17, 18, 19; Tr. pp. 216-217, pp. 264-267).

48. When asked at the June 15, 2006 pre-disciplinary conference why he did not immediately report the fact that inmate Walton had passed the $100 bill into the control booth, the Petitioner stated that he was simply too busy to make such a report. The Petitioner’s contention that he had contacted his supervising sergeant, William McCurry, by telephone on June 3, 2006 and informed Sergeant McCurry that he wished to talk with him about inmate Walton is not supported nor corroborated by the credible evidence and is not consistent with the Petitioner’s prior statements. Sergeant McCurry was contacted by a correctional officer on June 3, 2006 to report that inmate Walton had declared a medical emergency, and that was the only contact he had on that date regarding inmate Walton from any Avery-Mitchell employee. (R. Ex. 19; Tr. pp. 216-217, pp. 264-267)

49. During the conference, the Petitioner asked if he could speak with Assistant Superintendent Cooper in private and Assistant Superintendent Cooper agreed with this request. Once Lieutenant Daniels and Mr. Garner left the room, the Petitioner did not make any substantive comments about the events of June 3, 2006. (Tr. pp. 78-81, pp. 265-267).

50. Following the pre-dismissal conference, Assistant Superintendent Cooper asked Lieutenant Daniels to question Sergeant McCurry about whether the Petitioner attempted to contact him about inmate Walton on June 3, 2006. Sergeant McCurry could not recall which officer contacted him to notify him of the medical emergency declared by inmate Walton. Based on the inquiry of Lieutenant Daniels concerning contact by the Petitioner on June 3, 2006 concerning Walton, Sergeant McCurry provided an additional written statement. The additional statement from Sergeant McCurry was reviewed by Assistant Superintendent Cooper and Superintendent Jobe, who decided not to alter their recommendations concerning disciplinary action. (R. Ex.14, 19; Tr. pp. 195-201, pp. 266-267).

51. Superintendent Jobe recommended to his chain of command that the Respondent terminate its employment of the Petitioner. Superintendent Jobe’s recommendation was approved. (R. Ex. 19; Tr. pp. 233-236).

52. On June 23, 2006, the Respondent notified the Petitioner in person and by letter that the Respondent had terminated its employment of him for acts of unacceptable personal conduct. The June 23, 2006 letter signed by Superintendent Jobe cited the same incidents listed in the pre-disciplinary conference notice and the recommendation to dismiss. (R. Exs. 18, 19).

53. The Petitioner timely appealed his termination through the Respondent’s internal grievance process. Following a hearing before the Respondent’s Employee Relations Committee on August 7, 2006, the Respondent decided to uphold its firing of the Petitioner. The Petitioner was notified of this decision in writing.

54. After receiving written notification that the Respondent had affirmed its decision to terminate his employment, the Petitioner on or about October 10, 2006 timely filed a contested case petition with the Office of Administrative Hearings alleging that the Respondent lacked “just cause” to terminate his employment on grounds of unacceptable personal conduct. (See Petitioner’s Contested Case Petition, filed October 10, 2006).

55. The Petitioner contended, among other things, at the contested case hearing that he was the victim of entrapment by the Respondent, attempting to apply a criminal law defense to his case. The Respondent’s undercover operation involving inmate Walton did not constitute entrapment, but rather was a legitimate use of its staff and an inmate willing to cooperate in order to investigate allegations of wrongdoing by the Petitioner. (Tr. pp. 297-322, pp. 325-334). At the hearing on the Petitioner’s contested case petition, the Respondent established through substantial evidence in the record that there was sufficient cause to launch the undercover operation because of credible allegations reported by inmate Walton. (R. Exs. 3, 10, 11; Tr. pp. 90-98, pp. 134-141).

56. The Petitioner’s testimony at the hearing was not consistent with his earlier statements given during the Respondent’s June 2006 internal investigation of him on several major points. (R. Exs. 3, 12; Tr. pp. 37-44).

57. The Respondent established through substantial evidence in the record that the Petitioner’s possession of a pocketknife and box cutters inside Avery-Mitchell on June 3, 2007 was in violation of a written rule known to the Petitioner. (R. Ex. 3; Tr. pp. 172-173; pp. 212-214, pp. 321-322).

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

CONCLUSIONS OF LAW

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

2. The State Personnel Manual allows dismissal or demotion or a written warning for an employee for a single incident of unacceptable personal conduct without any prior warning or other disciplinary action against the employee. State Personnel Manual, Section 7, Page 8; 25 N.C.A.C. 1J.0608-0612. Among other things, the State Personnel Manual notes that the willful violation of known or written work rules constitutes unacceptable personal conduct. Id.

3. The Respondent has its own Personnel Manual which outlines specific types of conduct that constitutes unacceptable personal conduct for which an employee can be disciplined.

4. The Department of Correction’s Personnel Manual states that violation of the department’s policy barring personal dealings with criminal offenders constitutes unacceptable personal conduct for which an employee can be disciplined.

5. The Department of Correction Personnel Manual also states that violation of a known or written work constitutes unacceptable personal conduct for which an employee can be disciplined.

6. The Respondent established through substantial evidence in the record that there was sufficient cause to conduct an internal investigation of the Petitioner to determine if disciplinary action was warranted for the June 3, 2006 incidents involving him.

7. Pursuant to N.C. GEN. STAT. § 126-35(a) (2005), the Respondent could only terminate its employment of the Petitioner for reasons of just cause since the Petitioner had achieved career state employee status as defined by N.C. GEN. STAT. § 126-1.1 (2005).

8. Pursuant to N.C. GEN. STAT. § 126-35(d) (2005), the Respondent bears the burden of proof for establishing that there was just cause for the termination of its employment of the Petitioner.

9. The Respondent met its burden of proof and established by substantial evidence that it had just cause to terminate its employment of the Petitioner for reasons of unacceptable personal conduct because on June 3, 2006 he received a $100 bill from inmate Walton and did not report the incident to his supervisors at Avery-Mitchell, acts which violated the Respondent’s “Personal Dealings With Offenders” policy.

10. The Respondent also met its burden of proof and established by substantial evidence in the record that it had just cause to terminate its employment of the Petitioner for reasons of unacceptable personal conduct because the Petitioner on June 3, 2006 brought a pocketknife and box cutters inside the secure gated area of Avery-Mitchell in violation of the written rule prohibiting NCDOC employees from taking knives inside prison facilities.

11. The Respondent’s undercover operation, where inmate Walton was used to pass the $100 bill to the Petitioner, did not constitute entrapment and was not conducted for any improper purpose. Under North Carolina law, entrapment is defined as the inducement of one to commit a crime not contemplated by him, for the mere purpose of instituting a criminal prosecution against him. State v. Stanley, 288 N.C. 19, 27, 215 S.E.2d 589, 594 (1975). To establish entrapment, a criminal defendant must show a) acts of persuasion, trickery, or fraud carried out by law enforcement officials or their agents to induce a defendant to commit a crime, and b) a criminal design that originated in the minds of the government officials, rather than the defendant, such that the crime is the product of the creative activity of the law enforcement officials. State v. Walker, 295 N.C. 510, 513, 246 S.E.2d 748, 750 (1978). In this case, there were no criminal charges levied against the Petitioner for his acceptance of money from inmate Walton so he is not entitled to the criminal law affirmative defense of entrapment. Moreover, the undercover operation was lodged only after the Respondent had received credible allegations of wrongdoing by the Petitioner from inmate Walton, a fact that would render the Petitioner unable to establish an essential element of entrapment if that defense were available to him in this case.

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

DECISION

That the State Personnel Commission affirm the Respondent’s decision to terminate its employment of the Petitioner in the job of correctional officer.

ORDER AND NOTICE

The North Carolina State Personnel Commission will make the Final Decision in this contested case. N.C. Gen. Stat. § 150B-36(b), (b1), (b2), and (b3) enumerate the standard of review and procedures the agency must follow in making its Final Decision, and adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge.

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.

This is the _____ day of July, 2007.

_________________________________

Donald W. Overby

Administrative Law Judge

A copy of the foregoing was mailed to:

Leonard Poe

93 South Main Street

Marion, NC 28752

ATTORNEY FOR PETITIONER

Thomas H. Moore

Assistant Attorney General

N. C. Department of Justice

Post Office Box 629

Raleigh, NC 27602-0629

ATTORNEY FOR RESPONDENT

This the ____ day of June, 2007.

_____________________________

Office of Administrative Hearings

6714 Mail Service Center

Raleigh, NC 27699-6714

(919)733-2698

Fax: (919)733-3407

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