STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA

COUNTY OF COLUMBUS |IN THE OFFICE OF

ADMINSTRATIVE HEARINGS

07 OSP 0699 | |

| | | |

|MICHAEL CURTIS DIPPEL, |) | |

| |) | |

|Petitioner, |) | |

| |) | |

|v. |) |DECISION |

| |) | |

|N. C. DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY; |) | |

|N. C. HIGHWAY PATROL |) | |

| |) | |

|Respondent. |) | |

| |) | |

THIS MATTER comes on for hearing on March 24, 2008, before the Honorable Donald W. Overby, Administrative Law Judge presiding.

APPEARANCES

PETITIONER: Gregory Bullard

Attorney for Petitioner

Bullard & Bullard, PLLC

Post Office Box 1182

Pembroke, NC 28372

RESPONDENT: Ashby T. Ray

Assistant Attorney General

N.C. Department of Justice

9001 Mail Service Center

Raleigh, NC 27609

ISSUE

Whether the Respondent had “just cause” to terminate Petitioner’s employment with the North Carolina State Highway Patrol for Petitioner’s violation of Highway Patrol Directive H.1 Section VII, which requires all members to be truthful in all oral and written communications.

In making the following Findings of Fact, the undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case. The submissions of both parties post hearing have been considered, including the submissions of the Petitioner pro se which are in the nature of a written “final argument” which are not evidentiary but summation in nature and accorded appropriate weight.

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing and the documents and exhibits received and admitted into evidence during the course of this hearing, and upon the preponderance or greater weight of the evidence presented, the undersigned makes the following:

FINDINGS OF FACT

1. All parties have been correctly designated and jurisdiction and venue are proper.

2. Petitioner was employed with the Department of Crime Control and Public Safety, North Carolina State Highway Patrol (NCSHP) from 1999 until he was terminated from employment on February 12, 2007.

3. Prior to becoming a North Carolina State Highway Patrol Trooper, the Petitioner served in the United States Navy for eight and one-half years until he was honorably discharged. Thereafter, the Petitioner was employed by the North Carolina Department of Corrections for approximately five and one-half years.

4. On or about September 25, 2006, Petitioner’s confronted his wife, Michelle Dippel, concerning an extramarital affair she was having with Paul Jones (Mr. Jones), who was an acquaintance of both Petitioner and Michelle Dippel, to which she admitted.

5. Upon hearing this information, Petitioner became upset and drove to the residence of Paul and Kathryn Jones (Mrs. Jones). When he arrived the Petitioner confronted Mr. Jones. In a conversation that was heard by Mrs. Jones, Petitioner told Mr. Jones that Petitioner would kill him if he didn’t stay away from Petitioner’s wife. Mrs. Jones’ brother is Trooper Jeremy B. Baxley.

6. On or about October 31, 2006, Mrs. Jones contacted First Sergeant (1SG) H. J. Stephens and informed him of Petitioner’s actions and statements at her residence on the night of September 25, 2006.

7. On November 2, 2006, Mrs. Jones met with 1SG Stephens and Sgt. D. L. Hewitt to discuss Petitioner’s actions. At Mrs. Jones request, Trooper Baxley was present because she felt more comfortable discussing the matter with her brother in the room.

8. Rumors concerning the incident between Mr. Jones and the Petitioner had begun to circulate around the community almost immediately.

9. After speaking with Mrs. Jones, 1SG Stephens completed a “PERSONNEL COMPLAINT” form HP-307, which contained information concerning Petitioner’s threat to Mr. Jones. The HP-307 does not indicate when it was completed but shows that the complaint was received on October 31, 2006.

10. During sometime apparently in October or November, 2006, Sgt. Hewitt was approached by Ivan Stroud about Petitioner. Mr. Stroud is a retired Capt. with the North Carolina State Highway Patrol who lives and works in the same community as Petitioner. It is not clear when this conversation took place, but it was at a time relatively soon after the incident of September 25, 2006. It is not clear whether or not this conversation had taken place by November 2, 2006.

11. Mr. Stroud told Sgt. Hewitt that he had heard a rumor at his place of employment that Petitioner and his wife where having trouble because Petitioner had had an affair and his wife found out about it and had an affair in retaliation.

12. During the course of the investigation, rumors surfaced about Petitioner having affairs with at least two women. Other than the relationship with Susan Creech, no other sexual relationship outside of the marriage by the Petitioner has been substantiated. The assertion that Mrs. Dippel’s sexual relationship outside the marriage is without substance.

13. The HP-307 prepared by 1SG Stephens was sent to the Internal Affairs Division of the Highway Patrol. The HP 307 referred to the threat to Mr. Jones only and did not contain any assertion of wrong-doing by Petitioner concerning extramarital affairs.

14. Capt. K. M. Castelloe, who was the Director of the Internal Affairs Division at the time, classified the complaint as a Serious Personal Conduct violation of HP Directive H.1, Section V (Unbecoming Conduct). Capt. Castelloe completed a Memorandum to Capt. Hammonds on 13 November 2006 with the HP-307 attached. The purpose of this memo was to give notice to Petitioner that he was the subject of an investigation and the nature of the allegations against him.

15. The investigation was assigned to Lt. David Langley and 1SG Allen Hook, both of whom were assigned to the Internal Affairs Division.

16. Lt. Langley has been a member of the Highway Patrol since 1992 and was assigned as a lead investigator in the fall and winter of 2006 and 2007.

17. Lt. Langley and 1SG Hook interviewed several people during the course of their investigation, including 1SG Stephens and Sgt. Hewitt. (Resp. Ex. 7)

18. During the interview, Sgt. Hewitt told the investigators that he had been told that Petitioner had had an extramarital affair and that Petitioner’s wife had her affair in retaliation, the information he had received from Mr. Stroud.

19. It is standard procedure for supervisors and Internal Affairs to investigate allegations of extramarital affairs by members of the Highway Patrol.

20. The November 13, 2006 memo from Capt. Castelloe to Capt. Hammonds, with the attached HP-307 was not served on Petitioner until immediately prior to his interview with Lt. Langley and 1SG Hook on November 28, 2006. It is not uncommon to serve the HP-307 immediately prior to an interview.

21. Both Lt. Langley and 1SG Hook testified, and it is found as fact, that they did not notify Petitioner of the allegations against him until immediately before their interview with him because they were concerned he may try to contact the Jones family again. The substance of the complaint was a threat of physical harm to another person, and, therefore, the decision to not reveal the allegations to the Petitioner before hand was reasonable under the circumstances.

22. Highway Patrol Directive H.2, Section III states that members of Internal Affairs may, in their discretion, withhold service of the HP-307 if they believe that advanced notice would compromise an investigation.

23. Once the HP-307 is issued, there is no requirement and it is not the Respondent’s practice or policy to revise, amend or re-issue a new HP-307 when allegations of other potential misdeeds arise during the course of the investigation.

24. On November 27, 2006, Capt. Castelloe received a telephone call from Mrs. Jones. During this telephone conversation Mrs. Jones told Capt. Castelloe that she had received a call from Petitioner and that she was afraid of Petitioner and of his family because their kids went to school together and they lived in close proximity.

25. On November 27, 2006, as a result of his telephone call with Mrs. Jones, Capt. Castelloe called Petitioner and instructed him not to contact the Jones family again.

26. At that time Petitioner had been informed that he was to be interviewed by Internal Affairs the following day, November 28, 2006. During Capt. Castelloe’s conversation with Petitioner, Capt. Castelloe became concerned for Petitioner’s safety. Petitioner was very excited and talking fast and told Capt. Castelloe, “I don’t know how much more of this I can take.”

27. Out of concern for Petitioner’s well being, Capt. Castelloe contacted Dr. Thomas Griggs, who serves as the Medical Director for the North Carolina Highway Patrol. Capt. Castelloe told Dr. Griggs that Petitioner was to be interviewed by Internal Affairs the next day and about the conversation he had just had with Petitioner.

28. Dr. Griggs has served as the Medical Director for the Highway Patrol since the fall of 1996. He attended UNC-Chapel Hill for his undergraduate degree and for Medical School, graduating in 1969. After graduating from UNC Medical School he completed an internship and residency at Johns Hopkins. Dr. Griggs returned to UNC in 1975 and joined the Cardiology Department at UNC Hospitals. He remains employed with UNC Hospitals in their Cardiology Department. In his role as Medical Director for the Patrol he conducts physical exams, fitness for duty exams, runs an urgent care for members of the Patrol. He also assists members who are having personal or job related stress.

29. After being contacted by Captain Castelloe, Dr. Griggs spoke with Petitioner over the telephone on November 27, 2006. Based on this telephone conversation, Dr. Griggs determined that Petitioner was not unstable, but that Petitioner was oriented and showed no hint of delusional ideation. He further concluded that there was no evidence of psychosis and that Petitioner was having an emotional response to the Internal Affairs investigation.

30. The North Carolina State Highway Patrol Manual defines Not Fit for Duty as: “. . . any member who, in the judgment of the Medical Director, has a physical or emotional condition that precludes the member from performing even non-sworn administrative duties in a safe, effective manner.”

31. Dr. Griggs agreed with Petitioner’s assessment and determined that Petitioner “should not be working in a law enforcement capacity” and placed him on sick leave. Dr. Griggs was very specifically aware that Petitioner was appearing before the Internal Affairs interview on the next day, November 28, 2006. Even with that knowledge and knowing Petitioner’s emotional and mental state, Dr. Griggs did not advise Petitioner or Respondent that the interview should not be conducted. To the contrary, Petitioner was asked to come see Dr. Griggs after the interview was concluded.

32. There is a contradiction between the Respondent’s manual definition of “not fit for duty” and Dr. Griggs’ application to the Petitioner; however, all credible evidence indicates that Dr. Griggs was aware of the Internal Affairs investigation and in Dr. Griggs opinion there was no problem at all with the Petitioner participating in that interview.

33. Dr. Griggs’ concern was that Petitioner might be distracted and unable to safely perform law enforcement duties. Specifically, Dr. Griggs believed that, “He was describing…a level of distress and anxiety that made me think that if he were on the road dealing with violators, he might be distracted….I don’t consider an interview with IA that kind of dangerous –you know, a law enforcement activity.”

34. Although at hearing, Dr. Griggs has no specific memory of notifying Capt. Castelloe that Petitioner was being placed on “sick leave”, his notes made contemporaneously indicate that he called Captain Castelloe on November 27, 2006 and informed Captain Castelloe that he was placing Petitioner on sick leave.

35. The State Personnel Manual states in pertinent part at 25 NCAC 01E .0305 that “Sick leave may be used for: (1) illness or injury which prevents an employee from performing usual duties; . . .” (Emphasis added). There is a definite and distinct difference from this definition and the standard applied by the Respondent’s definition of being “not fit for duty.”

36. Petitioner’s usual duties were as a law enforcement officer, and Dr. Griggs concluded that he was not capable of performing his “usual” duties in a safe and appropriate manner, but that does not equate to the Petitioner being incapable of participating in the Internal Investigations interview.

37. Capt. Castelloe has no specific memory of whether or not Dr. Griggs communicated to him on November 27, 2006 that Petitioner was placed on sick leave.

38. Capt. Castelloe was not provided copies of Dr. Griggs’ evaluations of Petitioner. Although at some point Capt. Castelloe became aware that Petitioner was on sick leave, he was not made aware of the reasons for placing Petitioner on sick leave. There is no evidence that Capt. Castelloe was told that Petitioner was “not fit for duty.”

39. Respondent made arrangements for Petitioner’s supervisor, Sgt. Hewitt, to pick up and transport Respondent to Raleigh for his interview on November 28, 2006. Petitioner would be considered on duty during transport to and from and during the interview.

40. On November 28, 2006, prior to beginning the interview, Petitioner was made aware of the departmental policy on truthfulness. NCSHP’s truthfulness policy states that Petitioner is to be truthful in all written and oral communications in the performance of his duties or when he is asked questions.

41. In the interview, Petitioner was informed that:

a. He was the subject of an investigation;

b. He should read and initial the HP-307;

c. He should be thoroughly familiar with Directive H. 1, Section XXXV and Directive H. 2;

d. He should not discuss this complaint or any aspects of the investigation with the complainant, the complainant’s witnesses or persons not involved with this investigation; and

e. His investigation was not limited to the specific allegations in HP-307 but may extend to other sections of NCSHP Code of Conduct revealed by the investigation.

42. Petitioner acknowledged understanding of all of these policies.

43. Prior to the interview Petitioner completed a written statement addressing the charges contained in the HP-307, specifically the incident with Mr. Jones concerning the extramarital affair with Petitioner’s wife.

44. During the November 28, 2006 interview with Lt. Langley and 1SG Hook, which was recorded and transcribed, Petitioner admitted the allegation contained in the HP-307. Specifically, Petitioner admitted that he had threatened to kill Paul Jones on or about September 25, 2006. Lt. Langley and 1SG Hook gave the Petitioner the opportunity to explain his actions.

45. During the course of the November 28, 2006 interview, Lt. Langley and 1SG Hook told Petitioner that, during their investigation, they had heard that he had had an extramarital affair and that the affair by his wife was in retaliation.

46. Lt. Langley and 1SG Hook asked the Petitioner if he had ever had an affair on his wife. The Petitioner admitted that he had, but stated that it had been many years before, even before he joined the Highway Patrol.

47. Lt. Langley and F. Sgt. Hook asked Petitioner about his relationship with a woman named Susan Creech. Petitioner responded that it had been several years since he had even talked with her, alternating from four or five years to three or four years ago. There was no consistency at all in the recitation by Petitioner of the relationship he had with Ms. Creech, including but not limited to the length of time since he had last talked to her or seen her.

48. Petitioner later admitted during the interview that it had been a year since he had last seen Susan Creech. He further admitted that he had had telephone conversations with her a couple of months prior.

49. Petitioner initially denied that he had ever been to Susan Creech’s house while on duty. Later during the interview, Petitioner admitted that he had been to Susan Creech’s house while he was on duty, and in fact that he had never been to Susan Creech’s house except when he was working and in uniform.

50. During the November 28, 2006 interview Petitioner asserted multiple times that he and Susan Creech were merely friends. During that interview, Petitioner specifically denied on numerous occasions any sort of physical or sexual relationship with Susan Creech.

51. The extreme inconsistency and repeated changing of the story by the Petitioner of his relationship with Ms. Creech gave the appearance of untruthfulness during the interview.

52. In addition to being advised of the Patrol’s Truthfulness Policy prior to the beginning of the interview, the investigators stopped numerous times during the course of the interview to caution Petitioner about the Truthfulness policy.

53. When specifically asked, Petitioner told investigators that he did not have Susan Creech’s number in his cell phone and that he did not know her number.

54. At the conclusion of the interview Petitioner was ordered not to contact Susan Creech or the Jones family.

55. After the interview Petitioner was transported to the office of Dr. Thomas Griggs.

56. Dr. Griggs met with Petitioner on November 28, 2006 after Petitioner’s interview with Internal Affairs. Dr. Griggs determined that Petitioner was experiencing a “severe adjustment reaction” to the stress of his personal life and the Internal Affairs investigation. Dr. Griggs further determined that Petitioner showed no evidence of psychosis or suicidal ideation but was in no shape to “work on the road”. Dr. Griggs believed that Petitioner needed to be with his family and free from work distractions once the Internal Affairs issue was over.

57. Dr. Griggs knew about the Internal Affairs interview scheduled for November 28, 2006 and did not think it was a problem or inappropriate for Petitioner to participate in the interview. Dr. Griggs had no concerns or reservations about Petitioner’s ability to participate in the Internal Affairs interview. There was no indication that Petitioner could not understand the questions he was being asked.

58. Dr. Griggs did not believe Petitioner was incompetent or in any manner incapable of appearing at the interview. Dr. Griggs’ immediate concern was getting Petitioner “off the road” and to allow Petitioner time with his family.

59. The type of anxiety exhibited by Petitioner is common in members who are subjects of an Internal Affairs investigation. Although appearing before the Internal Affairs investigation was stressful to the Petitioner, there was nothing about his medical, emotional or physical condition which was in any manner impaired so that he could not participate in the interview in a meaningful and appropriate manner.

60. Being “unfit for duty” does not in and of itself equate to or render the Petitioner being incapable of attending and participating in the Internal Affairs interview and answering questions truthfully.

61. After his meeting with Dr. Griggs, Petitioner called Susan Creech on his cell phone and spoke with her for approximately four (4) minutes, despite being ordered not to contact her by Internal Affairs and after telling Internal Affairs earlier the same day that he did not have her cell phone number.

62. Petitioner returned to Internal Affairs in Raleigh for a follow up interview on December 28, 2006. From the evidence, it is not clear as to what prompted this follow-up interview and whether or not it was a matter of routine. No interim report was generated or produced from the November, 2006 interview.

63. Prior to the start of the December 28, 2006 interview Petitioner told 1SG Hook that he had something he wanted to say. 1SG Hook asked him to wait until the interview started and was being recorded in order to make sure that whatever was being said would become part of the record.

64. In the second interview, Petitioner made a statement in which he admitted that he had sexual relations with Susan Creech on more than one occasion in 2002 and 2003. Petitioner made this admission even though he had previously told investigators that he had not had sexual intercourse with her.

65. Petitioner also admitted having called Ms. Creech on November 28, 2006, after leaving the first interview with Internal Affairs.

66. There was no evidence produced at trial to substantiate the Petitioner’s extramarital affair with Ms. Creech. But for the Petitioner’s self reporting Respondent would not have known of his untruthfulness.

67. Petitioner told Lt. Langley and 1SG Hook that he told his wife about his affair with Susan Creech on November 27, 2006, the night before his interview with Internal Affairs on November 28, 2006.

68. Lt. Langley and 1SG Hook completed their investigation and submitted a Report of Investigation to Capt. Castelloe.

69. Capt. Castelloe reviewed the Report of Investigation and the Initial HP-307 and concluded that the initial allegation concerning the incident with Mr. Jones alleging a Serious Personal Conduct violation of Directive H.1 Section V (Unbecoming conduct) was substantiated as a Less Serious Personal Conduct Violation.

70. On January 19, 2007 Capt. Castelloe also determined that during the course of the investigation Petitioner violated Directive H.1, Section VII (Truthfulness) and recommended discipline in the form of termination.

71. On January 19, 2007, Colonel W. Fletcher Clay, the Commander of the Highway Patrol, concurred with Capt. Castelloe’s recommendation and ordered him to schedule a Pre Dismissal Conference.

72. On January 29, 2007, Capt. Castelloe prepared a memo to Petitioner informing him that the Patrol Commander had directed a Pre-Dismissal Conference be conducted on February 6, 2007. Petitioner was told he would be provided an opportunity to present information and arguments to support his position. Petitioner signed for this notice on January 31, 2007.

73. On January 29, 2007, Capt. Castelloe directed that Petitioner be placed on Investigatory Placement. Petitioner was served with this memo on January 31, 2007. At the time the notice of Investigatory Placement was served, Petitioner’s firearms, badge, ID and vehicle were taken from him.

74. Capt. Castelloe conducted the Pre Dismissal Conference with Petitioner on February 8, 2007. During this Pre Dismissal Conference Petitioner was provided opportunity to respond to the allegations against him. Capt. Castelloe prepared a memo to Colonel Clay with his attached notes from the Pre Dismissal Conference. Also attached for Colonel Clay’s review was a four (4) page typed document prepared by Petitioner, and a three (3) page typed letter prepared by Michelle Dippel, Petitioner’s wife.

75. On February 12, 2007, after receiving the information from the Pre Dismissal Conference, Colonel Clay ordered the termination of Petitioner. Notice of the grounds for his termination was served on Petitioner, along with his appeal rights February 12, 2007.

76. Petitioner was not dismissed from the Highway Patrol solely for the threat he communicated to Mr. Jones. However, this Court finds that conduct to have been “unacceptable personal conduct” for which no reasonable person should expect to receive prior warning and it is conduct unbecoming a State employee that is detrimental to State service such that Petitioner could have and perhaps should have been dismissed for that reason alone. Respondent chose to treat that incident as Less Serious Personal Conduct.

77. Petitioner was not dismissed from the Highway Patrol for having an extra- marital affair.

78. Petitioner was primarily dismissed from the Highway Patrol for violating the truthfulness policy of the State Highway Patrol Directive, H.1, Section VII, although the Less Serious Personal Conduct was substantiated and considered in making the decision.

79. Highway Patrol Directive H.1, Section VII states that: “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.

80. Petitioner knowingly, intentionally, repeatedly and willfully made statements to Lt. Langley and 1SG Hook during his November 28, 2006 interview that he knew were not true. The fact that Petitioner self-reported his untruthfulness does not in any manner change the fact that the statements were untrue at the time they were made, that the Petitioner knew they were false, he intentionally made false statements repeatedly, and did so willfully.

81. Petitioner offered no evidence of disparate treatment between his consideration by the Respondent and others similarly situated, and, therefore, Petitioner’s assertion of such an issue is without merit.

82. Petitioner questions the admission of evidence concerning an incident with Capt. Castelloe and Lt. Langley which might impugn their integrity; however that issue was resolved during the course of the trial to the satisfaction of Petitioner’s counsel, and is, therefore, not an issue.

CONCLUSIONS OF LAW

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

2. As Petitioner was continuously employed as a State Trooper for over eight (8) years at the time of his dismissal, he was a Career State Employee entitled to the protections of the North Carolina State Personnel Act (N.C. Gen. Stat. § 126-1 et seq.), and specifically the “just cause” provision of N.C. Gen. Stat. §126-35.

3. N.C.G.S. § 126-35(a) provides, in pertinent part, that “No career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.” Although the statute does not define “just cause,” the words are to be accorded their ordinary meaning. Amanini v. Dep’t of Human Resources, 114 N.C. App. 668, 443 S.E.2d 114 (1994) (defining “just cause” as, among other things, good or adequate reason).

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

5. 25 NCAC 1J .0614(i) defines “unacceptable personal conduct” as including:

1) conduct for which no reasonable person should expect to receive a written warning; or

(4) the willful violation of known or written work rules.

6. The threat the Petitioner communicated to Mr. Jones is “unacceptable personal conduct” for which no reasonable person should expect to receive prior warning and it is conduct unbecoming a State employee that is detrimental to State service such that Petitioner should have been dismissed for that reason alone.

7. All procedural requirements for terminating Petitioner were followed pursuant to the North Carolina General Statutes, North Carolina State Personnel Manual, and the rules and policies of the North Carolina Department of Crime Control and Public Safety.

8. Petitioner’s Due Process rights were not violated by Respondent in any regard during the investigation and/or during the dismissal process and up to the hearing of this matter.

9. The State Highway Patrol’s Directive H.1, Section VI “Truthfulness” provides as follows:

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.

10. Untruthfulness to a supervisor is conduct for which no reasonable person should expect to receive prior warnings, and is conduct that is unbecoming and detrimental to State service. Untruthfulness is unacceptable personal conduct which provides just cause for dismissal.

11. Petitioner was untruthful in his oral communication during his November 28, 2006 interview with Internal Affairs investigators in that he denied ever having had sexual relations with Susan Creech while he was married and a member of the Highway Patrol.

12. Additionally, Petitioner was untruthful in his oral communication during his November 28, 2006 interview with Internal Affairs Investigators when he stated that he did not know how to contact Susan Creech.

13. Respondent had no other evidence to substantiate Petitioner’s untruthfulness other than Petitioner’s self-reporting.

14. The Highway Patrol is a law enforcement agency and its sworn members have a duty to be truthful and honest at all times, as reflected by Highway Patrol Directive H.1, Section VI. Honesty and integrity, while important and necessary for all State employees, is of paramount importance for a law enforcement officer.

15. Untruthfulness during a formal Internal Affairs investigation to members of the Internal Affairs division constitutes just cause for dismissal. Respondent had just cause to dismiss Petitioner.

16. Petitioner was not prejudiced or harmed by his November 28, 2006 Internal Affairs interview, even in light of Dr. Griggs’ determination that he was “unfit for duty.”

17. Dr. Griggs’ determination that Petitioner was unfit for duty was intended to prevent the Petitioner from acting in a law enforcement capacity and was in no way a determination that Petitioner was unfit to participate in the November 28, 2006, Internal Affairs Interview.

18. Being on sick leave did not preclude Petitioner from participating in the November 28, 2006 interview, and he was in all manner capable and competent to participate in the interview.

19. Respondent was not required by its policy to give Petitioner written notice of the additional allegations they intended to question him about. They were merely required to give him notice and an opportunity to respond.

20. Highway Patrol Directive H.2, Section IV states, in pertinent part:

If an investigator uncovers evidence of additional violations of policy, an additional HP-307 need not be completed. The member must be informed of the allegations and must be given the opportunity to respond to the potential new charges.

21. Respondent gave Petitioner notice of the new potential charges and gave Petitioner an opportunity to respond. Petitioner was given an opportunity to respond during the November 28, 2006 interview, during the December 28, 2006 interview, as well as at his Pre-Dismissal Conference.

22. Respondent has met its burden of proof in this matter.

23. Respondent had just cause to terminate Petitioner from employment based the untruthful oral statements made by Petitioner to Internal Affairs Investigators during his November 28, 2006 interview, as set forth in the above Findings of Fact and Conclusions of Law.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Respondent’s determination to terminate Petitioner’s employment be AFFIRMED.

Any request by Petitioner to recover reasonable attorney’s fee and costs associated with the filing and prosecution of this contested case is hereby DENIED.

NOTICE AND ORDER

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 the 5th day of June, 2008.

_____________________

Donald Overby

Administrative Law Judge

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