North Carolina



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 11 OSP 12479

|WILLIAM C. SPENDER, |) | |

|Petitioner, |)) | |

| |))))| |

|vs. |) |DECISION |

| | | |

|N.C. Department of Agriculture & Consumer | | |

|Services, Veterinary Division, | | |

|Respondent. | | |

The Contested Case Petition commencing this matter was filed in the Office of Administrative Hearings on August 9, 2011. The hearing was held on April 2, 2012, before Joe L. Webster, Administrative Law Judge. The petition alleged discharge without just cause.

APPEARANCES

For Petitioner: William C. Spender, appearing pro se

469 Berea Church Road

Hendersonville, NC 28739

For Respondent: Barry H. Bloch

Assistant Attorney General

North Carolina Department of Justice

P.O. Box 629

Raleigh, NC 27602-0629

Attorney for Respondent

ISSUE

1. Whether Respondent had just cause to dismiss the Petitioner from his position for unacceptable personal conduct.

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 Administrative Law Judge makes the following FINDINGS OF FACT.

In making the FINDINGS OF FACT, the undersigned Administrative Law Judge 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 other believable evidence in the case.

FINDINGS OF FACT

1. The parties received notice of hearing more than 15 days prior to the hearing and each stipulated on the record that notice was proper.

2. The Respondent’s Forest Service is established to protect, manage and develop the forest resources of the state and to ensure adequate and quality forest resources for the state to meet present and future needs.

3. The Respondent’s Forest Service conducts programs that include reforestation services, forest fire prevention and suppression, and insect and disease control.

4. The Respondent’s Forest Service also is involved in the genetic improvement of forest trees, seedling production at state nurseries, long range forestry planning and technical development, water quality controls, urban forestry assistance, training, and providing support to volunteer fire departments and forestry education.

5. The Respondent employed the Petitioner as an Educational State Forest Ranger at Holmes Educational State Forest, 1299 Crab Creek Road, Hendersonville, North Carolina.

6. The mission of the Holmes Education State Forest is to teach children and adults about the complex, interdependent ecosystems which make up a forest and which can be managed for a multitude of uses.

7. The Petitioner’s supervisor was Bruce Macdonald, Assistant Forest Supervisor, Dupont State Recreational Forest.

8. On September 26, 2011, Assistant Forest Supervisor Bruce Macdonald and Regional Forester Greg Yates met with the Petitioner at the Holmes Educational State Forest office in Hendersonville, N.C., to conduct a pre-dismissal conference regarding incidents in which the Petitioner was involved on September 17 and 19, 2011.

9. During the pre-dismissal interview Mr. MacDonald and Mr. Yates questioned the Petitioner concerning a report from the Petitioner’s spouse that the Petitioner had possession of a firearm on state property and had discharged that firearm on state property.

10. Mr. MacDonald and Mr. Yates also questioned the Petitioner about a report they had received from a Henderson County deputy sheriff that approximately six shots were heard in the vicinity of the Holmes Educational State Forest picnic area and that the deputy found the Petitioner in a state vehicle in possession of a pistol and one empty shell casing in the state vehicle.

11. Mr. MacDonald and Mr. Yates discussed with the Petitioner the portion of the deputy’s report that the Petitioner had a strong smell of alcohol on his person and behaved in a fashion consistent with being under the influence of alcohol.

12. Mr. MacDonald and Mr. Yates also discussed a report with the Petitioner that the Petitioner had been arrested on Saturday, September 17, 2011, and charged with DUI; possession of drug paraphernalia and possession of marijuana and that Petitioner’s driver’s license was automatically suspended that day for a term of thirty days.

13. Mr. MacDonald and Mr. Yates discussed with the Petitioner a report they had received that the Petitioner had driven a state vehicle from his home to the parking lot at the Holmes Educational State Forest while his driver’s license was suspended on September 19, 2011.

14. During the pre-dismissal conference with Mr. MacDonald and Mr. Yates the Petitioner admitted to firing a gun on state property at 1309 Crab Creek Road, Hendersonville, North Carolina, which was the state-owned residence the Petitioner leased from the Respondent for fifty dollars monthly to occupy with his family as a benefit of his employment as Educational State Forest Ranger.

15. During the pre-dismissal conference with Mr. MacDonald and Mr. Yates the Petitioner admitted to operating a state vehicle without a valid driver’s license on September 19, 2011.

16. During the pre-dismissal conference with Mr. MacDonald and Mr. Yates the Petitioner admitted to operating his assigned state vehicle after consuming alcohol on September 19, 2011.

17. During the pre-dismissal conference with Mr. MacDonald and Mr. Yates the Petitioner stated that he understood that he was on state property when he had done these things and he apologized for his actions.

18. Mr. Yates concluded that the Petitioner’s actions had the potential for loss of life or serious injury to the Petitioner himself, his family, Respondent’s employees, and the public and stated that conclusion in the Notice of Dismissal letter issued to the Petitioner.

19. On September 27, 2011, Petitioner received a letter by hand delivery informing him of Regional Forester Yates’ decision to dismiss the Petitioner for unacceptable personal conduct.

20. Up to and including the date of the pre-dismissal conference, September 26, 2011, the Petitioner had not provided the Respondent with any notice or information of any type tending to indicate that the Petitioner had been found to have any physically or mentally impairing illness or injury that had caused or contributed to the misconduct that was the subject of the pre-dismissal conference.

21. Petitioner joined Alcoholics Anonymous in March, 2011.

22. Petitioner sought medical treatment on September 19, 2011, at Pardee Hospital, Hendersonville, North Carolina.

23. Following an examination by Olgierd A. Pucilowski, M.D., and an in-patient stay in Pardee Hospital from September 19, 2011, to September 23, 2011, Petitioner was diagnosed with mood disorder.

24. Starting on September 23, 2011, Petitioner started a course of out-patient treatment under the supervision of the Patricia Cunningham, Psychiatric & Mental Health Nurse Practitioner, and Kim Skelton, Licensed Professional Counselor and Licensed Professional Addictions Specialist of Blue Ridge Community Health Services in Hendersonville, North Carolina.

25. Petitioner’s original course of treatment included monthly counseling sessions with Ms. Cunningham and sessions with Ms. Skelton when she available. Petitioner was taking Neurontin 300 mg. three times daily, Celexa 40 mg. daily, and Trazodone when needed for sleep.

26. Petitioner received a “Summary of Evaluation and Plan” from Ms. Skelton dated October 17, 2011. That document lists three diagnoses based on DSM-IV criteria:

a) Alcohol Dependence, Early Full Remission;

b) Cannabis Dependence, Early Full Remission; and

c) Alcohol Induced Mood Disorder.

27. Petitioner’s care and treatment was transferred to a healthcare provider in Jacksonville, North Carolina, on March 28, 2012.

28. Petitioner’s daily activities currently include part-time employment at Burt’s Surf Shop, Surf City, N.C., and recreational bicycling.

29. Petitioner resolved his DUI charges by entering a plea of guilty. The Court gave Petitioner six months of confinement, suspended, a fine of $400.00, a $100.00 license reinstatement fee and court costs. Petitioner agreed to the installation of a breathalyzer device in his personal vehicle for one year. The drug possession charge was dismissed.

30. Petitioner did not present any evidence to support a claim that his dismissal was based on discrimination because of sex or race.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter of this action under N.C.G.S. §150B-23. The parties received proper notice of the hearing. 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 considered without regard to the labels given.

2. Under N.C.G.S. §126-5(A)(2), Petitioner was covered by and is subject to the State Personnel Act, as an employee of a state government agency. Petitioner was a career State employee, as that term is defined in G.S. Chapter 126, at the time of his dismissal.

3. Under N.C.G.S.§126-35, no career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.

4. 25 NCAC 1J.0614(1) defines "unacceptable personal conduct" as:

a. Conduct for which no reasonable person should expect to receive prior warning;

b. Job - related conduct which constitutes a violation of state or federal law;

c. Conviction of a felony or offense involving moral turpitude;

d. The willful violation of known or, written work rules;

e. Conduct unbecoming a state employee that is detrimental to state service;

f. Abuse of a client;

g. Absence from work after all authorized leave credits or benefits are

i. exhausted; or

h. Falsification of a state application or in other employment documentation.

6. N.C.G.S. §126-35(d) states that, in a contested case under Chapter 150B of the General Statutes, the burden of showing that a career State employee subject to the State Personnel Act was discharged, suspended or demoted for just cause rests with the department or agency employer.

7. Respondent has the burden of proof in just cause terminations under N.C.G.S. Chapter 126. The responsible party for the burden of proof must carry that burden by a greater weight or preponderance of the evidence. Black's Law Dictionary cites that "preponderance means something more than weight; it denotes a superiority of weight, or outweighing." The finder of fact cannot properly act upon the weight of evidence, in favor of the one having the onus, unless it overbears, in some degree, the weight upon the other side.

8. The North Carolina Supreme Court held in N.C. D.E.N.R. v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004), that "determining whether a public employer had just cause to discipline its employee requires two separate inquiries: first, whether the employee engaged in the conduct the employer alleges, and second, whether that conduct constitutes just cause for the disciplinary action taken." The first of these inquiries is a question of fact, while the second inquiry is a question of law.

9. As to the first inquiry, Respondent has established by a preponderance of the evidence that Petitioner engaged in unacceptable personal conduct by operating his state vehicle after consuming alcohol, by having a firearm in his state vehicle, by discharging his firearm on state property and by operating his state vehicle while his driver’s license was suspended. Thus Respondent has met its burden of proof establishing that Petitioner’s personal conduct was unacceptable.

10. Respondent has satisfied its burden of proof for its dismissal of Petitioner for just cause.

Based upon the foregoing Findings of Fact and Conclusions of Law, the Undersigned makes the following decision:

DECISION

Based upon the above findings of fact and conclusions of law, I find that Respondent has met its burden of proof in showing that Petitioner was dismissed for just cause. Petitioner was dismissed for unacceptable personal conduct. Respondent's dismissal of Petitioner for just cause is AFFIRMED.

NOTICE

The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S. 150B-36(b). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written arguments to those in the agency who will make the final decision. G.S. 150B-36(a).

The agency making the final decision is the North Carolina State Personnel Commission.

ORDER

It hereby is ordered that the agency serve a copy of the final decision on all parties and to the Office of Administrative Hearings in Raleigh in accordance with N.C.G.S. § 150B -36.

This the 27th day of April, 2012.

_____________________________________

Joe L. Webster

Administrative Law Judge

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