STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

COUNTY OF WAKE ADMINISTRATIVE HEARINGS

10 OSP 2915

)

Phyllis Whitaker, )

Petitioner, )

)

v. ) DECISION

)

North Carolina State Board of Elections, )

)

Respondent. )

This contested case was heard before Administrative Law Judge Beecher R. Gray on January 7, 2011 in Raleigh, North Carolina. Respondent filed a motion for summary judgment on September 29, 2010 with supporting documents, including discovery responses, disciplinary-related correspondence, and an affidavit with exhibits. Petitioner filed on December 15, 2010 a response to the motion with discovery responses and Petitioner’s affidavit. In an order entered on January 25, 2011, Summary Judgment in favor of Respondent was allowed on the issue of whether Petitioner had been dismissed for just cause.

APPEARANCES

Petitioner: David G. Schiller, Schiller & Schiller, PLLC

Respondent: Susan K. Nichols, Special Deputy Attorney General

ISSUE

Whether Respondent’s Dismissal of Petitioner, a career employee, was with just cause.

FACTS

While not necessary for the determination of this motion for summary judgment, the following undisputed facts are set forth for the sake of clarity for reviewing tribunals.

Both parties received notice that the hearing would be held on the motion for summary judgment at a time agreed upon by the parties.

Petitioner was employed as an Office Assistant III with Respondent from January 14, 2005 until January 8, 2010.

Petitioner’s work duties required that she have access to a computer and telephone issued by Respondent.

Each employee of Respondent is issued a Policies and Procedures Manual containing its policies on matters such as attendance and leave, use of state property, and secondary employment.

As part of its information technology infrastructure, Respondent has monitoring and filtering software that tracks employee use of Respondent’s email and Internet system. Each State agency is authorized to implement such practices and all employees are notified upon login of their computers that their computer use is monitored. All computers of Respondent’s staff are monitored by an automated system that sends alerts to the information technology staff when certain thresholds set at what management has determined to be an acceptable level of use by an employee are exceeded. Checks are automated, constant and happen every time someone uses the Internet or telephone. These thresholds are set up to alert Respondent’s Chief Information Technology Officer, Marc Burris, when issues arise, such as when the Internet connection is maxed out, there are constant spikes in single user Internet use, or Respondent’s web filter picks up website access that is unauthorized.

It has been Respondent’s experience that when an Internet connection is maxed out or when there are spikes in single user Internet activity, it is usually an indicator of virus activity. If the program generates an alert about a single user, Mr. Burris routinely checks with the employee’s supervisor so someone knowledgeable about the work assignments of that employee can help evaluate the use. If it appears that the use is not work related, Mr. Burris personally speaks with the employee.

All Respondent’s workstations, including Petitioner’s, have an initial notice screen that appears when the computer is turned on. The notice states: “This Workstation is for Official North Carolina State Board of Elections Business only. Any and all activity may be monitored. Only Authorized Personnel may access this Workstation and its resources. . . . “ In order to bring up the login screen to begin using the computer, the user must acknowledge the notice by clicking the “OK” button that appears below the quoted language.

Respondent’s Use of State Property Policy Provides in pertinent part:

State Board of Elections (SBE) employees are obligated to use and protect state resources and property for the benefit of the citizens of North Carolina rather than their private interests. Each employee, or the officer, who authorizes such use, is responsible and accountable for proper use of state resources. Office work areas, files and materials (written or electronic) may be entered, opened or reviewed by authorized personnel. It is expected that proper care shall be taken of state property so that the Agency mission is accomplished.

A SBE employee shall not use state property or resources under his or her control, direction, or custody except for the official use for which they are intended. . . .

. . . .

Personal telephone calls from state telephones must not adversely affect the employee’s job performance or that of the organization and must be of reasonable duration and frequency. Personal telephone calls without additional cost to the state may be made and received by employees on an incidental or emergency basis as long as they are not detrimental or disruptive to the purpose of the State Boar of Elections.

The personal use of state computers and email should be limited to incidental and emergency use only. These technologies may be accessed as public records. Often email messages intended by the author to be humorous or private communications have become public. This could result in embarrassment to the individuals and the SBE and could result in disciplinary action. Your computer and the data that is sent, received, stored or created are at all times property of the State. The SBOE reserves the right to review any messages and/or documents with or without employee consent or advance notice.

On November 12, 2009, Petitioner was given a written warning of unsatisfactory job performance that included the following statement: “This is also a reminder and a warning that personal use of computers, copiers and telephones is prohibited except as described in the [Respondent’s] Policies and Procedures manual provided to each employee earlier this year.” This written warning, and a separate one given on November 13, 2009 for failure to comply with Respondent’s policy on leave, were discussed with Petitioner by Johnnie McLean, Deputy Director of Respondent and Petitioner’s supervisor, in a conference on November 16.

Petitioner admitted in response to Respondent’s requests for admissions that she used State time and/or computers for multiple personal purposes including: reading articles about celebrity gossip, crimes and sports; taking trivia quizzes; reviewing real estate listings; looking up story lines or schedules of soap operas and other television shows; planning vacation or leisure activities; accessing and performing community college homework assignments and related activities; reviewing criminal court calendars; performing tasks for her church; and accessing her work schedule and paychecks at a secondary employer. She acknowledged that there was no work purpose for these activities.

Petitioner similarly admitted using the telephone repeatedly for calls to her mother, to check her personal voicemail, to her secondary employer, H & R Block, to check on schedules, and to Johnston County Community College.

Ms. McLean, as Petitioner’s supervisor, requested Mr. Burris to produce a report on her Internet use from November 30, 2009 to January 5, 2010. This 145-page report showed almost 4800 website visits unrelated to her work during this period – all after Petitioner had received written and oral warnings about excessive personal use of the computers and telephones. Mr. Burris also produced a printout of over 300 outgoing telephone calls made by Petitioner that were unrelated to her work. These calls were made from the telephone to which Petitioner was assigned and made during November 16 – December 23, 2009 and January 4 - 7, 20010.

On January 6, 2010, Ms. McLean presented Petitioner with written notice of a pre-disciplinary conference to be held that day to discuss a recommendation for disciplinary action, up to and including dismissal, for unacceptable personal conduct arising from excessive use of her computer and telephone for personal matters.

Following the conference, on January 8, 2010, Ms. McLean provided Petitioner with written Notice of Termination in which she stated: “This memorandum communicates the decision concerning the recommendation for disciplinary action due to your unacceptable personal conduct. . . . Your continued astounding excess personal use of the computer and telephone has affected your productivity and caused morale problems among other staff. Despite repeated written and verbal warnings you have continued to disregard State Board of Elections policy regarding proper use of State property. This continuing violation of State Board of Elections policy can no longer be tolerated. As of the date of this memorandum, your employment with the State Board of Elections is terminated.”

CONCLUSIONS OF LAW

Both parties properly are before the Office of Administrative Hearings.

The burden of proof in this case is on Respondent (N.C. Gen. Stat. § 126-35) to show that Petitioner was dismissed with just cause for unacceptable personal conduct.

Petitioner, at the time of the events in this case, was a career State employee under Chapter 126 of the General Statutes of North Carolina and therefore held a constitutionally protected property interest in continued employment which could not be removed except for just cause as defined in Chapter 126 and associated case law.

Misuse of State property in willful violation of known or written work rules constitutes unacceptable personal conduct.

Since there is no genuine issue as to any material fact, and Respondent has carried its burden to show just cause for Petitioner’s discharge, Respondent is entitled to summary judgment as a matter of law.

DECISION

Having considered Respondent’s motion for summary judgment together with supporting documents, Petitioner’s response, and arguments of the parties, I find that, based upon the undisputed facts and applicable law, Respondent’s motion should be, and the same hereby is, ALLOWED. Respondent has demonstrated just cause for Petitioner’s discharge as a matter of law. This decision disposes of all issues in this contested case.

ORDER

It hereby is ordered that the agency serve a copy of its FINAL DECISION on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance with N.C. Gen. Stat. § 150B-26(b).

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 N.C. Gen. Stat. § 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. N.C. Gen. Stat. § 150B-36(a).

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

This the 25th day of January, 2011.

______________________________________

Beecher R. Gray

Administrative Law Judge

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