STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF GUILFORD 07 OSP 0760

|Marcus Guy, | |

|Petitioner, | |

| |DECISION |

|v. | |

| | |

|NC A&T State University, | |

|Respondent. | |

The above-captioned case was heard before the Honorable Joe L. Webster, Administrative Law Judge, on 4 March 2008 and 6 June 2008, in High Point, North Carolina.

APPEARANCES

FOR RESPONDENT: Katherine A. Murphy

Assistant Attorney General

N.C. Department of Justice

P.O. Box 629

Raleigh, N.C. 27602

FOR PETITIONER: Thomas H. Johnson, Jr.

Gray Johnson & Lawson, LLP

Post Office Box 2318

Greensboro, N.C. 27402

EXHIBITS

Admitted for Respondent:

|Exhibit No. |Date |Document |

|1 |06/27/06 |Letter from Chief Bigelow to Marcus Guy |

| |10/03/06 |Letter from Chief Bigelow to Marcus Guy |

|3 |01/02/07 |Letter from Chancellor Lloyd V. Hackley to Marcus Guy |

|4 |01/22/07 |Letter from Major White to Marcus Guy |

|5 |01/24/07 |Letter from Major White to Marcus Guy |

|6 |01/24/07 |Letter from Major White to Marcus Guy (REVISED) |

|7 |01/29/07 |Letter from Major White to Marcus Guy |

|8 |04/01/05 |Police Dep’t General Order No. 4-1R1 |

|9 |03/04/05 |Certification Test Results for MARCUS GUY |

|10 |12/08/06 |EWS Notice Preliminary Review |

|11 |04/01/05 |Police Dep’t General Order No. 3-4 |

WITNESSES

Called by Respondent:

Kelly White

Richetta Slade

Called by Petitioner:

Marcus Legrant Guy

ISSUE

Whether Respondent had just cause to dismiss Petitioner.

ON THE BASIS of careful consideration of the sworn testimony of witnesses presented at the hearing, documents received and admitted into evidence, and the entire record in this proceeding, the undersigned makes the following findings of fact. In making these findings, 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 interest, bias or prejudice the witness may have; the opportunity of the witness to see, hear, know and remember the facts or occurrences about which the witness testified; whether the testimony of the witness is reasonable; and whether such testimony is consistent with all other believable evidence in the case.

FINDINGS OF FACT

1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case pursuant to Chapters 126 and 150B of the North Carolina General Statutes.

2. Petitioner Marcus Guy was a permanent State employee subject to Chapter 126 of the General Statutes of North Carolina (“the State Personnel Act”) and is a resident of Guilford County, North Carolina.

3. Respondent North Carolina Agricultural and Technical State University (“NC A&T State University”) is subject to Chapter 126 and was Petitioner’s employer. Petitioner was employed by Respondent in its Police Department (“the Department”).

4. Petitioner began his employment with NC A&T State University in 2001. Petitioner’s work responsibilities included patrol duties and canine handler duties. T. Vol. I, p. 51

5. Major Kelly White is a Major of Support Services in the Department. At the time Petitioner was terminated, Major White supervised the Patrol Division, in which Petitioner was employed. T. Vol. I, p. 6

6. The chain of command over Petitioner at the time he was terminated was Sergeant, Lieutenant, Major, and the Chief of Police. T. Vol. I, pp. 6-7

7. At the time of Petitioner’s dismissal, Richetta Slade was the Interim Chief of Police. T. Vol. I, p. 7; T. Vol. II, p. 74

8. A mobile data terminal, or “MDT,” is a computer found in all NC A&T State University police cars, which provides access to databases at the State Division of Criminal Information (“DCI”) and the National Criminal Information Center (“NCIC”). T. Vol. I, pp. 7-8 These databases contain criminal histories, driver’s license information, stolen guns information, and other relevant information which is provided to local agencies from state and federal law enforcement agencies. T. Vol. I, p. 8

9. Police officers must be trained in the use of the MDT before they are authorized to use it. T. Vol. I, p. 8 The MDT training cover the mechanics of using the system and the regulations concerning use of the MDT, including confidentiality of the information and the limitation that it is to be used only for work-related reasons. T. Vol. I, pp. 8-9

10. At the time of his termination, Petitioner was certified in the use of the MDT and as such, should have been aware of the policies governing its use. T. Vol. I, pp. 27, 56-57; Resp. Ex. 9

11. All NC A&T State University police officers are expected to be familiar with the police department’s general orders. In particular, all police officers are issued a manual which contains copies of the general orders. T. Vol. I, pp. 10-11

12. Section VIII.A.2 of the Department’s General Order No. 4-1R1 provides that “Personnel will only access DCI for official use; any personal inquiries are expressly prohibited.” Resp. Ex. 8

13. On January 16, 2007, Chief Slade received a call from an FBI agent requesting that she come to his office regarding an urgent matter. Major White accompanied Chief Slade to the meeting with the FBI. T. Vol. I, p. 11; T. Vol. II, p. 76

14. At this meeting, Chief Slade and Major White were told that an inquiry had been made using an MDT belonging to the NC A&T State University police department. The inquiry concerned a person of interest to the FBI. The person making the inquiry was instructed by the information obtained via the MDT to contact the FBI’s 800-number, but the officer failed to do so. T. Vol. I, pp. 12-13; T. Vol. II, pp. 76-77

15. Chief Slade and Major White investigated the incident and discovered that Petitioner had made the inquiry. Petitioner admitted that, at the request of a family member, he used his MDT to check the status of his cousin’s driver’s license, and he admitted that, when the FBI flag came up, he did not call the 800-number. T. Vol. I, pp. 13-15; T. Vol. II, p. 77; T. Vol. I, p. 61

16. Petitioner admitted that he knew his cousin was on an FBI list before he used the MDT to look up his cousin’s information. T. Vol. I, p. 64 Petitioner also admitted that there had been prior occasions when he used the MDT to run information and did not call when the 800-number came up. T. Vol. I, pp. 23, 61, 63

17. Chief Slade and Major White informed the FBI that Petitioner had made the inquiry and immediately scheduled a meeting between the FBI, Petitioner, and themselves. T. Vol. I, p. 13-14; T. Vol. II, p. 77

18. Petitioner’s use of the MDT to look up information about his cousin’s driver’s license, at the request of a family member, was not official use. This was personal use and, as such, it violated General Order No. 4-1R1. Resp. Ex. 8

19. The Department was not sanctioned for Petitioner’s personal use of the MDT, and the Department was put at risk by the misuse. T. Vol. I, p. 28 Furthermore, the incident and the FBI’s involvement was very embarrassing for the Department. T. Vol. I, p. 16; T. Vol. II, p. 77

20. Major White and Chief Slade told Petitioner that what had happened was a serious violation of policy and embarrassing for the Department. T. Vol. I, pp. 16-17; T. Vol. II, pp. 77-78 Petitioner did not appear to take the incident seriously, did not express remorse, and did not take responsibility for what he had done. T. Vol. I, pp. 17, 41; T. Vol. II, pp. 77-78 When discussing this violation with Petitioner stated that he did not violate the department policy. T. Vol. I, pp. 23, 61

21. Following a pre-disciplinary conference, Major White gave Petitioner a letter, dated January 29, 2007, stating that Petitioner was being terminated based on unacceptable personal conduct relating to the incident with the MDT and a review of prior disciplinary actions in Petitioner’s personnel file. T. Vol. I, pp. 25, 29; Resp. Ex. 7

22. As stated in the termination letter, Petitioner admitted to making an inquiry using the MDT at the request of a family member, which was in direct violation of the Department’s General Order No. 4-1R1. Resp. Ex. 7; Resp. Ex. 8

23. At the time of the incident involving the MDT, Petitioner already had two written warnings in his personnel file, both of which Petitioner had received within a period of six months prior to the MDT incident. T. Vol. I, pp. 29-30; Resp. Ex. 1; Resp. Ex. 2

24. Prior to giving Petitioner the termination letter, Major White discussed the situation with Chief Slade and with Human Resources. Major White recommended to Chief Slade that Petitioner be dismissed, and Chief Slade authorized the dismissal. T. Vol. I, pp. 24-25; T. Vol. II, pp. 78-79

25. Prior to authorizing Petitioner’s dismissal, Chief Slade consulted with Human Resources and Vice Chancellor Tommy Ellis, Chief Slade’s supervisor. All were in agreement concerning Petitioner’s dismissal. T. Vol. II, p. 79

26. The Department has a policy providing for an Early Warning System. Resp. Ex. 11

27. Petitioner testified that following his second written warning, he asked to be placed into the Early Warning System, but his request was denied by the Chief at the time, Chief Bigelow. T. Vol. I, p. 58

28. The purpose of the Early Warning System is to help employees involved in disciplinary actions correct and improve their performance, but it does not preclude termination if termination is warranted. T. Vol. II, pp. 81, 88; Resp. Ex. 11

29. Petitioner has not denied that he used the MDT to look up his cousin’s information at the request of another family member, nor has he denied that he failed to call the FBI’s 800-number in response to the flag.

30. Whether Petitioner had been in the Early Warning System or not, he would still have been terminated for his conduct involving the MDT. T. Vol. II, pp. 82, 116 Petitioner presented no evidence that, had he been in the Early Warning System, the result would have been different.

31. Major White and Chief Slade were credible witnesses. Furthermore, crucial parts of their testimony were supported by documentation.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has personal and subject matter jurisdiction over the just cause issue in this contested case pursuant to Chapter 126 and Chapter 150B of the North Carolina General Statutes.

2. On the sole issue to be heard, Respondent met its burden by a preponderance of the evidence to show that it had just cause to dismiss Petitioner.

3. A career State employee may be dismissed only for just cause. N.C. Gen. Stat. § 126-35(a). The State employer has the burden of proving that there was just cause for the dismissal. N.C. Gen. Stat. § 126-35(d).

4. Employees may be dismissed for a current incident of unacceptable personal conduct, without any prior disciplinary action. 25 N.C.A.C. 1J.0608(a).

5. An employee may be dismissed without any prior warning or disciplinary action when the basis for dismissal is unacceptable personal conduct. 25 N.C.A.C. 1J.0608(a). One instance of unacceptable conduct constitutes just cause for dismissal. Hilliard v. North Carolina Dep’t of Corr., 173 N.C. App. 594, 597, 620 S.E.2d 14, 17 (2005).

6. “Unacceptable personal conduct” includes:

• “job-related conduct which constitutes a violation of state or federal law”;

• “the willful violation of known or written work rules”; and

• “conduct unbecoming a state employee that is detrimental to state service.”

25 N.C.A.C. 1J.0614(i).

7. In the case of “conduct unbecoming a state employee that is detrimental to state service,” the State employer is not required to make a showing of actual harm, “only a potential detrimental impact (whether conduct like the employee’s could potentially adversely affect the mission or legitimate interests of the State employer).” Hilliard v. North Carolina Dep’t of Corr., 173 N.C. App. 594, 597, 620 S.E.2d 14, 17 (2005).

8. Unacceptable personal conduct may be work-related and non-work-related conduct and may be intentional or unintentional. 25 N.C.A.C. 1J.0610(a).

9. Petitioner willfully violated a written work rule, namely General Order No. 4-1R1, when he made a personal inquiry using the MDT in his patrol vehicle.

10. Petitioner’s personal use of the MDT violated State law. State regulations governing the use of DCI information provide: “The DCI Communications Network is for appropriate criminal justice and law enforcement purposes only. All traffic generated over the system shall be made in the performance of the employee’s or agency’s official duties as they relate to the administration of criminal justice.” 12 N.C.A.C. 4F.0102(a). With respect to driver’s license information, in particular, the regulations provide that “[d]river history information obtained from or through DCI shall not be disseminated to anyone outside [authorized] agencies,” and “[d]river history information obtained from or through DCI shall not be released to the individual of record.” 12 N.C.A.C. 4F.0701(a), (e). State regulations have the force and effect of statutes. In re Declaratory Ruling by the N.C. Comm’r of Ins., 134 N.C. App. 22, 30, 517 S.E.2d 134, 141 (1999).

11. Petitioner’s failure to contact the FBI in response to the FBI flag when Petitioner already knew that his cousin was a person of interest to the FBI, and Petitioner’s failure to accept responsibility for his conduct and the embarrassment to the Department, constitute conduct unbecoming a state employee that is detrimental to state service.

12. Although the FBI issued no sanctions in this instance, Petitioner’s conduct put the Department at risk of losing its access to the DCI database. See 12 N.C.A.C. 4G.0102.

13. Even if Petitioner was not placed in the Early Warning System, or there was some failure by Respondent to comply with the requirements of the Early Warning System, Petitioner failed to show how this failure on the part of the Department to follow its policy made any difference in the outcome. Therefore, any such failure would not change the fact that Respondent had just cause to dismiss Petitioner. See Leiphart v. North Carolina Sch. of the Arts, 80 N.C. App. 339, 353, 342 S.E.2d 914, 924 (1986) (holding that an employer’s failure to follow its own internal policies merits reversal of the dismissal determination only if petitioner shows “that there was a substantial chance there would have been a different result in his case if the established internal procedures had been followed”); see also Skinner v. North Carolina Dep’t of Corr., 154 N.C. App. 270, 280, 572 S.E.2d 184, 191 (2002) (holding that failure of employer to follow its disciplinary process and procedures did not violate petitioner’s due process rights because petitioner set forth no evidence showing that the outcome would have been different).

14. Petitioner presented no evidence that he suffered prejudice as a result of any failure related to the Early Warning System. The Petitioner failed to prove that the failure of the Respondent to follow its own policy resulted in a substantial chance that there would be a different result from what the result would have been if the policy had been followed. Therefore any such failure has no bearing on the issue of whether Respondent had just cause to terminate Petitioner’s employment.

15. Petitioner’s conduct constituted unacceptable personal conduct, which justified his dismissal.

16. Respondent did not act erroneously, arbitrarily, capriciously or otherwise prejudice Petitioner’s rights.

17. Petitioner failed to present sufficient evidence to rebut Respondent’s evidence of just cause.

DECISION

Based upon the foregoing Findings of Facts and Conclusions of Law, the undersigned determines that Respondent’s decision to dismiss Petitioner from employment should be UPHELD.

ORDER

It is hereby ordered that the agency 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 agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to Decision and to present written arguments to those in the agency who will consider this Decision. N.C.G.S. § 150B-36(a).

The agency is required by N.C.G.S. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings. The agency that will make the final decision in this contested case is the North Carolina State Personnel Commission.

This the 16th day of September, 2008.

___________________________

Joe L. Webster

Administrative Law Judge

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download