STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA

COUNTY OF DURHAM |IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

10 OSP 09086 | |

| |) | |

|MiCHAEL SHAW. |) | |

| |) | |

|Petitioner, |) | |

| |) |DECISION |

|v. |) | |

| |) | |

|NORTH CAROLINA CENTRAL UNIVERSITY, |) | |

| |) | |

|Respondent. |) | |

| |) | |

This matter came on for hearing before Senior Administrative Law Judge Fred G. Morrison Jr. on August 29-30, 2011, in Raleigh, North Carolina.

Prior to a hearing on the merits, Respondent North Carolina Central University (NCCU) moved for summary judgment. Following consideration of the briefs and materials submitted, the Respondent’s motion was denied.

APPEARANCES

PETITIONER: Mark A. Key

Attorney for Petitioner

The Key Law Firm Post Office Box 2481

Lillington, N.C. 27546

RESPONDENT: Kimberly D. Potter

Assistant Attorney General

N.C. Department of Justice

P.O. Box 629

Raleigh, NC 27602

EXHIBITS

Admitted for Petitioner

None

Admitted for Respondent

|Exhibit |Description |

|1 |Position Description |

|2 |NCCU Public Safety General Order 100-01 |

|3 |State Personnel Manual, section 7 |

|4 |June 14, 2010 Letter from Chief Williams to Petitioner |

|5 |June 18, 2010 Letter from Petitioner to Chief Williams |

|6 |Captain Carter’s investigatory notes |

|7 |Receipt for Officer Geiger from Shaw and Sons, dated 5/27/10 |

|8 |Receipt for Officer Bunch from Shaw and Sons, dated 5/21/10 |

|9 |Email 5/19/10 from Petitioner advertising Magic Coffee |

|10 |Magic Coffee packaging |

|11 |Pictures of products purchased by Officer Geiger |

|12 |Statement 5/28/10 of Officer Cheryl Geiger |

|13 |Statement of 6/1/10 of Officer Cheryl Geiger |

|14 |Pre-disciplinary conference notice dated August 3, 2010 |

|15 |Discharge letter from Chief Williams to Petitioner dated August 9, 2010 |

|16 |Letter to Petitioner from Chancellor Nelms dated November 17, 2010 affirming dismissal |

|17 |2/16/09 written warning to Petitioner regarding car accident |

|18 |5/6/09 written reprimand to Petitioner for unsatisfactory job performance |

|19 |2/9/10 written warning to Petitioner for unsatisfactory job performance |

|20 |Memo dated 10/29/01 Memo to Petitioner from Chief Williams regarding Petitioner’s failure to pass firearms |

| |certification |

|21 |Timesheet for Petitioner for 5/17/10 through 6/13/10 |

|22 |4/7/08 Coaching and counseling session with Petitioner |

|23 |7/24/08 Coaching and counseling session with Petitioner |

WITNESSES

Called by Petitioner:

1. Petitioner, Michael Shaw

2. Beverly Parrish

3. Robert Wayne Beasley

4. Edward House

Called by Respondent:

1. Cheryl Ann Geiger

2. Myron Wade Bigelow

3. Alvin Jerome Carter

4. Willie Russell Williams

ISSUE

Whether Respondent had just cause to terminate Petitioner’s employment as a lieutenant with the North Carolina Central University Police Department?

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing; the documents and exhibits received and admitted into evidence; and the entire record in this proceeding, the Undersigned makes the following Findings of Fact. In making the 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.

BASED UPON the foregoing and upon the preponderance or greater weight of the evidence in the whole record, the Undersigned makes the following:

FINDINGS OF FACT

1. Prior to his termination, Petitioner Michael Shaw was employed as a lieutenant with the North Carolina Central University Police Department (“Police Department”) and supervised the members of Squad D, which included Officer Myron Bigelow. At the time of his discharge, Petitioner had been employed at NCCU for six years.

2. When Petitioner was the lieutenant on duty for a shift, he would also supervise the other police officers who were working the same shift. As a result, Petitioner also supervised Officer Cheryl Geiger and Officer Bobby Bunch at different times when he was the lieutenant on duty for the shifts these officers were working.

3. While on duty, a lieutenant within the NCCU Police Department is responsible for oversight of all personnel working that shift, including the officers on his/her squad, other officers on duty, and security staff. As a result, during a shift where Petitioner was working, he had the authority to issue discipline to anyone also working during those time periods.

4. In May 2010, the incidents transpired that directly caused the termination of Petitioner’s employment with NCCU. On May 19, 2010, Officer Shaw sent an e-mail from his business e-mail address, “Shaw & Son’s Enterprises,” advertising a sexually oriented product called “Magic Power Coffee” and claiming that the product would “improve overall sexual experience.” This e-mail was sent to some NCCU Police Department employees at their university e-mail address. Petitioner also provided to other employees within the NCCU Police Department a brochure advertising the sexual benefits of Magic Power Coffee.

5. Two days later, on May 21, 2010, Lieutenant Shaw engaged in the solicitation and sale of “Magic Power Coffee” to a subordinate NCCU police officer, Bobby Bunch, while on campus in the parking lot of the Police Department. Lieutenant Shaw stored the sexually oriented item, titled “Magic Power Coffee”, in his car. He issued a sales invoice to “Bobby bunch (sic), NCCU PD” for $10.00 from “Shaw and Son’s Enterprises” for the sale of the “Magic Power Coffee.”

6. Also, on or about May 21, 2010, Lieutenant Shaw sold sexually oriented merchandise to Myron Wade Bigelow, an officer directly supervised by Petitioner on Squad D. This sale was for $10.00 for the “Magic Power Coffee” product and was conducted on campus in the NCCU Police Department parking lot. Petitioner provided Officer Bigelow a receipt for his purchase of the “Magic Power Coffee”.

7. Less than one week later, on May 27, 2010, while on duty, in uniform on campus grounds as a lieutenant with the NCCU University Police Department, Petitioner again solicited and sold sexually oriented materials to Cheryl Geiger another subordinate NCCU police officer. That morning, Officer Geiger and Petitioner had engaged in a conversation regarding the sexually oriented items that Shaw had for sale in the trunk of his car.

8. Later that afternoon Officer Geiger accompanied Petitioner to his car, which was parked in the Department parking lot, so that she could see the items that he had for sale. Both Officer Geiger and Lieutenant Shaw were in uniform and on duty when they went to see the items in Petitioner’s car.

9. Petitioner retrieved several bags from his trunk, which contained sex toys including dildos, handcuffs, oils, and whips. He then asked Geiger what she wanted. After reviewing the items that Petitioner had for sale, Officer Geiger selected a “Beaver Bob massager” vibrator and an “extra long phallus” dildo for purchase from Petitioner.

10. While at his vehicle, Petitioner asked Officer Geiger not to tell anyone what he was doing. He indicated to her that he knew it was not illegal but he did not want her to spread the word regarding what he was doing. He had not sought or received approval from his superiors to engage in the business (secondary employment—Shaw & Son’s Enterprises) of selling sexually related items, stimulators and toys. Such prior approval is required by the General Orders and the North Carolina State Personnel Manual. Approval may be denied when it appears that the outside employment might bring the department into disrepute.

11. Petitioner told Officer Geiger that the dildo and vibrator she selected would cost $65.00. Geiger willingly entered into this transaction with Petitioner.

12. She did not have the money with her and asked Petitioner to hold the items until she could pay him the next day. Petitioner told her that she could take possession of the items that same day and pay him later. He loaned her a green towel to conceal the items while she carried them from his vehicle to hers.

13. Officer Geiger later contacted Detective Scott of the NCCU Police Department and informed him that Petitioner was on campus selling sex items and that she felt it was inappropriate. She made this report to Detective Scott as she believed that an administrator within the Police Department should be made aware. Based on Detective Scott’s instructions, Officer Geiger wrote a detailed statement regarding her interactions with Petitioner on or about May 27, 2010.

14. Earlier in 2010, Officer Geiger learned from Petitioner that he also sold a product called Magic Power Coffee. Specifically, Petitioner, Officer Geiger, and several other officers were at the Durham County Courthouse waiting for their cases to be heard. Petitioner showed the NCCU officers a flyer which marketed Magic Power Coffee. He also informed them that the coffee would make a man’s penis hard and made corresponding hand gestures. In response to Petitioner’s statements explaining the sexual benefits of Magic Power Coffee, Officer Geiger felt uncomfortable and left the room.

15. On June 1, 2010, Petitioner provided Officer Geiger with an invoice from his business, Shaw and Son’s Enterprises, for the dildo and vibrator that she selected on May 27, 2010. The invoice was issued to “Cheryl Geiger, NCCU PD” for the purchase of an “Extra Long Phallus” for $45.00 and a “Beaver Vibe Massager” for $20.00.

16. Subsequently, Officer Geiger informed Petitioner that she did not have enough money to pay for the items and returned the dildo and vibrator to him on June 4, 2010. Petitioner accepted her decision.

17. Chief Willie R. Williams became aware of these incidents and requested that Captain A.J. Carter conduct an investigation into Petitioner’s conduct to determine whether Petitioner had engaged in conduct unbecoming an officer in violation of NCCU Police Department General Orders or whether Petitioner’s conduct constituted unacceptable personal conduct.

18. Captain Carter had more than 25 years of investigatory law enforcement experience and was highly qualified to conduct an internal investigation within the NCCU Police Department.

19. Petitioner was notified by Chief Williams that he was being investigated and was informed of the basis of the investigation. Thereafter, Captain A. J. Carter investigated whether Petitioner in fact sold sexual novelty items to individuals he supervised while on duty and on campus.

20. As part of his investigation, Captain Carter interviewed a number of individuals within the NCCU Police Department and also obtained written statements from Officer Geiger.

21. Petitioner also provided a written statement in which he detailed the sales transaction between himself and Officer Geiger. Moreover, he specifically admitted to selling to Officer Geiger, during work hours, a dildo and a vibrator and admitted that “[m]orally, this transaction could be construed as wrong.”

22. Similarly, at the hearing in the present case, Petitioner admitted that selling the dildo and vibrator to Officer Geiger “was an improper decision at that time.”

23. In Captain Carter’s interview with him, while Petitioner admitted to selling the dildo and vibrator to Officer Geiger, he argued that the items were not pornographic so the products were not inappropriate for him to sell.

24. Petitioner also admitted to Captain Carter that he may have sent out an email to NCCU employees at their NCCU email addresses advertising Magic Power Coffee and soliciting purchasers.

25. Captain Carter concluded from his investigation that Petitioner sold sexually oriented adult products to a subordinate female Police Department employee while on duty at NCCU, while Petitioner was in his NCCU uniform and on the NCCU campus. Captain Carter further determined that Petitioner sent sexually oriented information to several members of the Police Department advertising a sexually enhancing Magic Power Coffee.

26. At the conclusion of his investigation, Captain Carter provided to Chief Williams a report which summarized his investigation and the interviews that he conducted. He detailed his conclusions and provided to Chief Williams the documents he was able to obtain during his investigation.

27. By letter dated August 3, 2010, Petitioner was notified to attend a pre-disciplinary conference on August 5, 2010, to discuss potential disciplinary action. The notice also detailed the specific conduct which gave rise to the conference and stated that Petitioner would have an opportunity to make any statements he desired in response to the allegations.

28. NCCU Police Department General Order 100-01, among other things, requires employees to “conduct themselves at all times, both on and off duty, in such a manner as to reflect most favorably on the Department.” The General Order defines “conduct unbecoming an employee” as conduct “which brings the Department into disrepute or reflects discredit upon the employee as a member of the Department, or that which impairs the operation, efficiency, or integrity of the Department or employee.”

29. Additionally, pursuant to General Order 100-01, officers are expected to “maintain a level of moral conduct in their personal and business affairs, which is in keeping with the highest standards of the law enforcement profession”, and are not allowed to “participate in any incident involving moral turpitude which impairs their ability to perform as law enforcement officers or causes the Department to be brought into disrepute.”

30. The Law Enforcement Code of Ethics also requires that officers “behave in a manner that does not bring discredit to [themselves] or [their] agency.”

31. Petitioner testified that he understood as a supervisor he had to be an example to his officers and he understood he was subject to General Order 100-01 and the Law Enforcement Code of Ethics. Petitioner’s position description form provides that 10% of his responsibilities and duties is to demonstrate the ability to direct and ensure the compliance of department practices and university policies and procedures. The form also provides that he is governed by the NC State Personnel Manual.

32. Petitioner also maintained at the hearing that the transaction with Officer Geiger occurred during a break. Officers in the NCCU Police Department are paid for their breaks, including meal breaks, as they are subject to being called back to duty at any time.

33. Petitioner attended the pre-disciplinary conference held by Chief Williams and also attended by Captain Carter. During the conference, Petitioner had an opportunity to respond to the conduct detailed in the pre-disciplinary conference notice. He admitted to Chief Williams that he did send out information regarding Magic Power Coffee, a sexually enhancement product, to some of his friends and that some of the advertisements were sent to the individuals on their university email accounts. At no point has Petitioner denied that he sold sexual novelty products to fellow officers Geiger, Bunch and Bigelow while on campus. Instead, Petitioner has consistently attempted to justify his actions.

34. Specifically, in the pre-disciplinary conference, Petitioner did not accept responsibility for his conduct. He argued with Chief Williams and Captain Carter that the material was not pornographic, his conduct was not illegal, and disciplinary action, particularly dismissal, was not merited.

35. Prior to the events of May 2010, Petitioner had been disciplined and counseled several times throughout his years of employment with the NCCU Police Department. At the times he was disciplined, Petitioner typically refused to accept responsibility for his actions and would provide an excuse or attempt to minimize his conduct.

36. In April 2008, Petitioner received a coaching and counseling session memorandum for unsatisfactory job performance. The memorandum stressed the importance of following general orders and the expected procedural standards of performance. In particular, Petitioner’s behavior of leaving work early without receiving approval from his supervisor to do so had resulted in failure to send proper notification regarding a major crime that occurred on campus.

37. On July 24, 2008, Petitioner was again recommended for a coaching and counseling session concerning his unsatisfactory job performance. This recommendation was a result of Petitioner’s failure to meet expectations and procedural standards of performance which resulted in an illegal search.

38. In October 2008, despite the university providing him numerous hours of practice time and ammunition, Petitioner failed to pass the firearms certification which was necessary for him to continue to be certified as a law enforcement officer.

39. Petitioner’s unsatisfactory performance on the job also resulted in an automobile accident which resulted in his receiving a written reprimand from NCCU’s Accident Review Board in February 2009.

40. After the automobile accident, Petitioner continued to have issues handling his job responsibilities in the NCCU Police Department. First, in May 2009, Petitioner received a written reprimand for unsatisfactory job performance. In his warning to Petitioner, Captain A.J. Carter noted several instances where Petitioner failed to handle management responsibilities. This warning also addressed Petitioner’s shortcomings on a specific project that he was assigned as part of the accreditation requirement of the NCCU Police Department.

41. In February 2010, Petitioner received another written warning which stated that he had deficient work product and failed to adhere to established policies regarding police procedure and work hours. Specifically, he had failed to contact the NCCU counseling program, as is protocol, after responding to an attempted suicide. The warning also stated that Petitioner continued to turn in reports with misspelled words and mistakes despite the numerous conversations that his supervisor had had with him regarding his work product. Lastly, the warning stated that an internal audit conducted by the Police Department revealed that Petitioner violated the General Order by working off duty in excess of fifteen hours per week.

42. Petitioner admitted that during his employment at NCCU he was aware of NCCU’s policy on conduct unbecoming an employee

43. Chief Williams concluded that Petitioner had violated General Order 100-01 and the Law Enforcement Code of Ethics based on his conduct as detailed in the pre-disciplinary conference notice. Chief Williams determined that Petitioner’s conduct in selling sexually enhancing coffee, a dildo, and a vibrator to officers he supervised, while on campus and at times while on duty, and distributing information regarding sexually oriented items through the university email system justified discharge from employment.

44. In determining what level of discipline was appropriate, Chief Williams considered the fact that Petitioner refused or failed to understand that selling sexually explicit materials to officers he supervised was at a minimum inappropriate. Chief Williams also considered Petitioner’s history of performance and his repeated pattern of not accepting responsibility for his actions.

45. While Captain Carter had recommended that Petitioner be demoted, the final decision regarding what level of discipline was appropriate was within the discretion of Chief Williams.

46. At the hearing, Petitioner admitted that some discipline was appropriate for his conduct in selling the dildo, vibrator, and Magic Power Coffee (and advertising the product). He disagreed with the level of discipline.

47. On or about August 15, 2010, Petitioner received notice of dismissal for unacceptable personal conduct based on his sale of sexually oriented products to officers he supervised and for distributing information regarding sexually oriented items through the university email system.

CONCLUSIONS OF LAW

1. All parties are properly before this Administrative Law Judge and jurisdiction and venue are proper on the issue of whether the Respondent had just cause to dismiss Petitioner. 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. N.C. Gen. Stat. § 126-35(a) provides, in pertinent part, that “[n]o career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.” 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).

3. While just cause is not susceptible of precise definition, our courts have held that it is “a flexible concept, embodying notions of equity and fairness, that can only be determined upon an examination of the facts and circumstances of each individual case.” NC DENR v. Carroll, 358 N.C. 649, 669 (2004).

4. The North Carolina Supreme Court has held 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.” NC DENR v. Carroll, 358 N.C. 649, 665, 599 S.E.2d 888, 898 (2004).

5. Because Petitioner has alleged that Respondent lacked just cause for his dismissal, the Office of Administrative Hearings has jurisdiction to hear his appeal and issue a decision to the State Personnel Commission, which will make the final agency decision in this contested case.

6. 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 against the employee.

7. 25 N.C.A.C. 1J. 0608, states that an employer can dismiss an employee for unacceptable personal conduct, without any prior disciplinary action.

8. 25 N.C.A.C. 1J .0614(8), defines “unacceptable personal conduct” as an act that is:

• conduct for which no reasonable person should expect to receive prior warning; or

…

• the willful violation of known or written work rules; or

• conduct unbecoming a State employee that is detrimental to State service.

…

9. 25 N.C.A.C. 1J .0604, provides that disciplinary action (demotion, suspension, dismissal) can be taken by the appointing authority, when just cause exists, against any career state employee, regardless of occupation, position or profession. This section further provides that the degree and type of action taken shall be based upon the sound and considered judgment of the employing agency, according to this Rule.

10. All procedural requirements for terminating Petitioner were followed pursuant to the North Carolina General Statutes, the North Carolina Administrative Code, and the rules and policies of NCCU.

11. Respondent has met its burden of proof in establishing just cause for Petitioner’s termination of employment. Petitioner’s conduct of, without prior approval, engaging in and carrying on his private business of selling sexual products to subordinate police officers while on campus and at times when he was on duty constituted unacceptable personal conduct for which no prior warning is required. Petitioner’s conduct constituted a violation of the NCCU Police Department General Order 100-01, the Law Enforcement Code of Ethics, the State Personnel Manual, and the responsibilities and duties listed in his position description.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby decided that Respondent’s dismissal of Petitioner be upheld as being for just cause.

ORDER

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance with North Carolina General Statute § 150B-36(b).

NOTICE

Before the agency makes its FINAL DECISION, it is required by N.C.G.S. § 150B-36(a) 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.

The agency that will make the final decision in this contested case is the State Personnel Commission.

The agency is required by N.C.G.S. § 150B-36(b) to serve a copy of the Final Decision to all parties and to furnish a copy to the Parties’ attorney of record.

This the ___ day of December, 2011.

_____________________

Fred G. Morrison Jr.

Senior Administrative Law

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