STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF GUILFORD 04 DOJ 0063

| | | | | |

|BERNARD COTTON, | |) | | |

|Petitioner, | |) | |ORDER |

| | |) | | |

|v. | |) | | |

| | |) | | |

|N.C. DEPARTMENT OF JUSTICE, | |) | | |

|Respondent. | |) | | |

The above captioned matter was heard before Sammie Chess, Jr. Administrative Law Judge, on 24 May 2004 at the Guilford County Courthouse, High Point, North Carolina.

APPEARANCES

For Petitioner: Nancy P. Quinn

416 Eugene Court

Greensboro, NC 27401

For Respondent: David Roy Blackwell

Special Deputy Attorney General

North Carolina Department of Justice

Post Office Box 629

Raleigh, NC 27602-0629

EXHIBITS

Admitted for Petitioner:

Ex. 1 Affidavit of Major D.E. Lindsay dated 23 January 2002

Ex. 2 Complaint 03 CVS 7895 Alston v. NC A&T and Bernard Cotten

Ex. 3 Petitioner’s letter to Tom Ziko dated 6 October 2003

Ex. 4 Answer of Bernard Cotton in Alston v. NC A&T

WITNESSES

Called by Petitioner:

Bernard Cotton

Called by Respondent:

None

QUESTION PRESENTED

Was the Attorney General’s decision to decline to provide a defense for Petitioner in a civil action arbitrary or capricious when, after the Attorney General had defended NC A&T on Petitioner’s appeal of the decision to terminate his employment, Petitioner requested the State to provide for his defense sought in a civil action in which he was named a defendant arising out of the same allegations of sexual harassment which provided the basis for the decision to terminate him?

Did the Attorney General improperly decline to provide a defense for Petitioner in the civil action where the State provided a defense for the other state agency employees (Donald Lindsay and Richetta Slade) named in the suit?

FINDINGS OF FACT

On the basis of careful consideration of the testimony presented at the hearing, the documents and exhibits received into evidence, and the entire record in this proceeding, the undersigned finds the following:

1. The Office of Administrative Hearings has personal and subject matter jurisdiction of this contested case pursuant to Chapters 143 and 150B of the North Carolina General Statutes.

2. Petitioner Bernard Cotton (Petitioner) was employed by North Carolina A&T State University (NC A&T) as an officer with the Police and Public Safety Department.

3. By letter dated 24 June 2002, NC A&T Police Chief Marlon C. Lynch terminated Petitioner’s employment. Chief Lynch based that decision, in part, upon finding that Petitioner had sexually harassed Valerie Alston, a fellow employee of the Police and Public Safety Department. Following an internal appeal, Petitioner filed a contested case in the Office of Administrative Hearings in which he claimed NC A&T lacked just cause to dismiss him. The Attorney General defended NC A&T in that contested case. Following preliminary proceedings, and prior to hearing, Petitioner agreed to resign from NC A&T and to dismiss his contested case.

4. On 31 July 2003, Valerie Alston filed a civil action in Guilford County Superior Court asserting that Petitioner sexually harassed, assaulted and battered her while both were employed at NC A&T. The action was subsequently removed to United States District Court for the Middle District of North Carolina. See Alston v. NC A&T and Bernard Cotton, et al., No. 1:03CV819 The complaint also names as defendants NC A&T, and Donald Lindsay and Richetta Slade, Petitioner’s supervisors, based upon Lindsay and Slade’s alleged knowledge of Petitioner’s wrongful conduct and their alleged failure to take appropriate action to halt it.

5. Alston’s complaint specifically alleges:

During Plaintiff’s tenure as a campus police officer at A&T, Plaintiff was subjected to and victimized by a long-standing and continuing course of sexually hostile and harassing, abusive and humiliating conduct by Defendant Cotten (sic) while Plaintiff was engaged in her work at the workplace, which included, among other things, implied demands that Plaintiff repeatedly subject herself to the sexual advances of Defendant Cotten (sic) in order to retain her job status, privileges, and/or other employment benefits, the repeated making of lewd, offensive and sexually discriminatory remarks to Plaintiff and in her presence, including solicitations to engage in sexual intercourse, the intentional exposure of his genitalia to her, and unwanted and improper touching of the Plaintiff, sometimes in the presence of others. This ongoing course of sexually harassing conduct by Defendant Cotten (sic) persisted despite the objections and complaints of Plaintiff and other female employees to Defendants Lindsay and Slade.

Complaint, ¶ 9.

On or about October 1, 2001, following Plaintiff’s prior complaints about Cotten’s (sic) sexual harassment of her, Defendant Cotten (sic) accosted Plaintiff in the parking lot adjacent to the offices of the A&T campus police department, placed his hands on Plaintiff’s person against her will and without her consent, pulled the front of her shirt open, looked down the front of her shirt and stated “what do you have under there.” Plaintiff proceeded away from the Defendant, entered the building, and went into the women’s bathroom to change into her working clothes. Defendant Cotten (sic) followed Plaintiff into the women’s bathroom, approached her, placed his hand on the butt of the pistol he was wearing, and stated to the Plaintiff “I am going to watch you get dressed.” Defendant Cotten (sic) then proceeded to inform Plaintiff that she had been the subject of discussion in management meetings and that she needed to become motivated about her job. Defendant Cotten (sic) then exited the bathroom, stating that he needed to leave before he was accused of attacking Plaintiff. Plaintiff was placed in fear of her physical safety by this incident.

Complaint, ¶ 16.

Defendant Donald Lindsay (“Lindsay”), is, upon information and belief, a citizen of and resides in Guilford County, North Carolina. Upon information and belief, at all times referred to herein, Defendant Lindsay was employed by A&T as a supervisory officer within the A&T Campous (sic) Police Department and was acting within the scope and authority of such employment and position. Furthermore, on information and belief, at all times relevant hereto, Lindsay was an A&T official with the authority to institute and accomplish corrective measures on A&T’s behalf with respect to matters of harassment of, and retaliation against, employees of A&T by A&T employees on the basis of sex and, in particular, employees of A&T within the A&T Campus Police Department.

Complaint, ¶ 6

Defendant Richetta Slade (“Slade”), is, upon information and belief, a citizen of and resides in Guilford County, North Carolina. Upon further information and belief, at all times referred to herein, Defendant Slade was employed by A&T as a supervisory officer within the &T Campous (sic) Police Department and was acting within the scope and authority of such employment and position. Furthermore, on information and belief, at all times relevant hereto, Slade was an A&T official with the authority to institute and accomplish corrective measures on A&T’s behalf with respect to matters of harassment of, and retaliation against, employees of A&T by A&T employees on the basis of sex and, in particular, employees of A&T within the A&T Campus Police Department.

Complaint, ¶ 7

6. Petitioner filed answer denying Alston’s allegations. Pet. Ex. 4.

7. NC A&T had previously investigated some of Alston’s allegations of sexual harassment. Specifically, Alston initially complained that Petitioner attempted to kiss her and that he exposed his penis to her. In that investigation, NC A&T found no evidence to support the claims, as Alston refused to provide NC A&T with a written statement and indicated that she had taken care of it. Pet. Ex. 1. Subsequently, NC A&T received a report of the 1 October 2001 incident described in paragraph 16 of Alston’s complaint. The 1 October 2001 incident formed part of the basis for NC A&T’s determination to dismiss Petitioner and is alleged in the civil action Alston filed against Petitioner as a factual basis for her damage claims.

8. On 6 October 2003, Petitioner wrote a letter to Special Deputy Attorney General Tom Ziko requesting that the State provide for his defense against Alston’s claims in Alston v. NC A&T, et al. See Petitioner’s Ex. 3.

9. Petitioner received a letter in response which recited the statutory basis for denying Petitioner’s request to provide for his defense.

10. N.C.G.S. § 143-300.3 provides:

Except as otherwise provided in G.S. 143-200.4, upon request of an employee or former employee, the State may provide for the defense of any civil or criminal action or proceeding brought against him in his official or individual capacity, or both, on account of an act done or omission made in the scope and course of his employment as a State employee.

(Emphasis added)

11. N.C.G.S. § 143-300.4 provides, in relevant part :

(a) The State shall refuse to provide for the defense of a civil or criminal action or proceeding brought against an employee or former employee if the State determines that:

(1) The act or omission was not within the scope and course of his employment as a State employee: or

(2) The employee or former employee acted or failed to act because of actual fraud, corruption or actual malice on his part; or

(3) Defense of the action or proceeding by the State would create a conflict of interest between the State and the employee or former employee; or

(4) Defense of the action or proceeding would not be in the best interests of the State.

(Emphasis added).

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case pursuant to Chapter 143 and 150B of the North Carolina General Statutes.

2. The standard of review in this matter is whether the Attorney General’s decision not to provide for Petitioner’s defense, while providing for the defense of Lindsay and Slade, was arbitrary or capricious. See Cates v. North Carolina Dept. of Justice, 121 N.C. App. 243, 465 S.E.2d 64 (1996), modified and aff’d, 436 N.C. 781, 487 S.E.2d 723 (1997).

3. N.C.G.S. § 143-300.3 provides that the State may provide for the defense of an employee in a civil action arising out of the course and scope of his employment. The statute does not obligate the State to provide Petitioner with a defense in the civil action, but makes provision of a defense discretionary.

4. N.C.G.S. § 143-300.4 utilizes the term shall, and thus requires the State not to provide for a defense of the employee if the Attorney General finds one of the four statutory factors.

5. Petitioner’s actions as alleged in Alston’s complaint were not done in the course and scope of his employment as an employee with the NC A&T Police and Public Safety Department.

6. Petitioner’s actions as alleged in Alston’s complaint evidence actual malice.

7. A conflict of interest clearly exists in Alston’s civil action between the State and the Petitioner.

8. Provision of a defense for Petitioner in Alston’s civil action would not be in the best interests of the State.

9. Alston’s allegations against Lindsay and Slade concern matters which occurred in the course and scope of their employment with NC A&T.

10. Neither Alston’s allegations against Lindsay or Slade, nor any other evidence in this record, indicates that either Lindsay or Slade acted because of actual fraud, corruption or actual malice.

11. Petitioner has produced no evidence showing that the Attorney General improperly determined that no conflict of interest exists between the defense of Lindsay and Slade and the interests of the State.

12. Petitioner has produced no evidence showing that the defense of the allegations against Lindsay or Slade would not be in the best interests of the State.

13. Petitioner has produced no evidence showing that, in the Attorney General’s decision not to provide a defense for him, the Attorney General improperly treated Petitioner differently from Lindsay or Slade.

14. Petitioner has produced no evidence showing that the Attorney General acted arbitrarily or capriciously in making the determination that the State would not provide Petitioner a defense in Alston’s civil action and in determining to provide a defense to Lindsay and Slade.

15. As a matter of statutory law, the State was precluded from providing Petitioner a defense in Alston’s civil action against him and the Attorney General’s determinations are in accord with the statutory mandates. The Attorney General did not abuse his discretion nor did he act arbitrarily or capriciously in declining to provide Petitioner a defense and in providing a defense for Lindsay and Slade.

On the basis of the above Conclusions of Law, the undersigned issues the following:

DECISION

It is hereby Ordered that Respondent’s decision not to provide Petitioner a defense in Alston’s civil action is AFFIRMED.

ORDER

The North Carolina Department of Justice is hereby ordered to serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Services Center, Raleigh, N.C. 27699-6714, in accordance with N.C.G.S. § 150B-36(b).

NOTICE

The North Carolina Department of Justice, as the agency making the final decision in this contested case, must give each party an opportunity to file exceptions to this DECISION and an opportunity to present written arguments to those in the agency who will consider this Decision. N.C.G.S. § 150B-36(a).

The North Carolina Department of Justice is required by N.C.G.S. § 150B-36(b) to serve a copy of the final agency decision on all parties and to furnish a copy to the parties’ attorney of

record and to the Office of Administrative Hearings.

The North Carolina Department of Justice will make the final decision in this contested case.

This, the 2nd day of June, 2004.

__________________________________

Sammie Chess

Administrative Law Judge

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