City of Asheville v. Aly

• Decision Date: 06 May 2014
• Docket Number: No. COA13–720.,COA13–720.
• Citation: 757 S.E.2d 494
• Court: North Carolina Court of Appeals
• Parties: CITY OF ASHEVILLE, Petitioner v. Roger S. ALY, Respondent.

757 S.E.2d 494

CITY OF ASHEVILLE, Petitioner

v.Roger S. ALY, Respondent.

No. COA13–720.

Court of Appeals of North Carolina.

May 6, 2014.

Appeal by petitioner from order entered 4 January 2013 by Judge James U. Downs in Buncombe County Superior Court. Heard in the Court of Appeals 20 November 2013.

Ward and Smith, P.A., Asheville, by Rendi L. Mann–Stadt, and Office of the City Attorney, by Kelly Whitlock, for petitioner-appellant.

Adams, Hendon, Carson, Crow and Saenger, P.A., Jacksonville, by Robert C. Carpenter and John C. Hunter, for respondent-appellee.

DAVIS, Judge.

Petitioner City of Asheville (“the City”) appeals from the trial court's order finding that the termination of Respondent Roger S. Aly (“Respondent”) from his employment with the City of Asheville Police Department (“APD”) was not justified. After careful review, we affirm the trial court's order.

Factual Background

In July 2009, while employed by the APD as a police officer, Respondent rented a laptop computer for his personal use from a rental store called Aaron's. The rental agreement stated the computer was “rent to own,” meaning that after a certain number of payments, Respondent would have the option of purchasing the computer. During the rental period, Respondent used the computer to access his personal email, download photographs, and back up his Blackberry cell phone.

In December 2009, Respondent returned the computer to Aaron's. He testified that before doing so, he attempted to remove the files that he had downloaded onto the computer by highlighting the files, moving them into the “recycling bin,” and selecting “empty.” He further testified that, unbeknownst to him, this procedure failed to remove the files that Respondent had imported from his cell phone and downloaded onto the computer. These files contained, in part, various pictures of Respondent's family, friends, pets, and fellow APD officers in uniform. However, other files contained pictures of nude women and racially offensive images.

In March 2010, Janice Farmer (“Ms. Farmer”) went to Aaron's to rent a computer for her son. The computer that Ms. Farmer rented was the computer that had previously been rented by Respondent. While using the computer's webcam to post a picture on a website, Ms. Farmer's son discovered the images that Respondent had downloaded, including the pictures of nude women and the racially offensive images. Ms. Farmer contacted the Buncombe County Sheriff's Office and was referred to Detective Jeff Sluder (“Detective Sluder”). She described to Detective Sluder the offensive images her son had found on the computer and then turned the computer over to him.

Detective Sluder proceeded to extract the images from the computer and recognized some of the pictures as depicting APD officers. Because of this, he notified the APD. Detective Anthony Johnson (“Detective Johnson”), the computer crimes investigator for the APD, retrieved the computer from Detective Sluder and conducted a forensic analysis of the computer's hard drive, discovering approximately 360 images on the computer. Out of these 360 images, Detective Johnson found 16 to be offensive. None of these 16 images depicted officers of the APD. Detective Johnson also determined that none of the images were illegal.

On 9 April 2010, Lieutenant Sean Pound (“Lt. Pound”) of the APD Office of Professional Standards notified Respondent that an employee misconduct complaint had been filed against him and that an internal investigation would ensue. He then provided Respondent with a copy of an APD internal incident report and a letter evidencing the complaint.

At the conclusion of the investigation, Lt. Pound found “no indication that [Respondent] had distributed the [offensive] photos to anyone else” and forwarded the results of the internal investigation to APD Chief William Hogan (“Chief Hogan”). On 1 June 2010, Chief Hogan conducted a pre-disciplinary conference with Respondent. At the conference, Respondent explained that the computer had been solely for personal use and that the inappropriate images were from emails and texts sent to him by friends. At the conclusion of the pre-disciplinary conference, Chief Hogan placed Respondent on suspension with pay.

On 10 June 2010, Chief Hogan terminated Respondent's employment with the APD. Respondent appealed his termination to the Asheville City Manager, who upheld the termination. Respondent then appealed to the Asheville Civil Service Board (“the Board”) pursuant to his rights under the Asheville Civil Service Act, 2009 N.C. Sess. Laws ch. 401, § 8. (“the Civil Service Act”).

On 20 September 2010, the Board held a hearing to determine whether Respondent's termination was justified. Following the hearing, the Board found that Respondent's failure to “prevent the inappropriate images from becoming public through the return of the computer to Aaron's ... violated one or more of the City's policies and the rules of conduct of the APD, but [that] the violations were not so severe as to warrant termination.” Based on this finding, the Board concluded that “the termination of [Respondent] by the City of Asheville was not justified and should be rescinded and the City should take such steps as are necessary for a just conclusion of the matter before the board.”

The City appealed the decision of the Board to Buncombe County Superior Court for a trial de novo as provided for under § 8(g) of the Civil Service Act. In its petition for review of the Board's decision, the City did not request a jury trial, and on 10 December 2012, a bench trial took place before the Honorable James U. Downs.

At the conclusion of the trial, Judge Downs issued an order (1) finding that the termination of Respondent's employment was not justified; and (2) ordering that Respondent “be immediately reinstated as Senior Police Officer of the Asheville Police Department with the restoration of all back pay due and all other rights as if the termination had not occurred.” The City filed a timely notice of appeal to this Court.

Analysis

I. Overview of the Civil Service Act

Originally enacted by the General Assembly in 1953, the Civil Service Act provides a system of civil service protection for employees of the City, establishing the Board and charging it with the duty to make rules for “the appointment, promotion, transfer, layoff, reinstatement, suspension and removal of employees in the qualified service.” 1953 N.C. Sess. Laws ch. 757, § 4. While the Civil Service Act—as originally enacted—did not provide a mechanism for judicial review of the Board's decisions, Jacobs v. City of Asheville, 137 N.C.App. 441, 443–44, 528 S.E.2d 905, 907 (2000), our Supreme Court held in 1964 that:

[i]n view of the provisions of the statute creating the Civil Service Board of the City of Asheville, and the procedure outlined in Section 14 thereof, we hold that a hearing pursuant to the provisions of the Act with respect to the discharge of a classified employee of the City of Asheville by said Civil Service Board, is a quasi-judicial function and is reviewable upon a writ of certiorari issued from the Superior Court.

In re Burris, 261 N.C. 450, 453, 135 S.E.2d 27, 30 (1964). In Act to authorize an appeal of the Board's decisions to superior court for a trial de novo. Jacobs, 137 N.C.App. at 444–45, 528 S.E.2d at 907–08; see also 1977 N.C. Sess. Laws ch. 415, § 8.

Section 8 of the Civil Service Act provides, in pertinent part, as follows:

(a) Whenever any member of the classified service of the City is discharged ... that member shall be entitled to a hearing before the Civil Service Board to determine whether or not the action complained of is justified....

(b) Any member of the classified service of the City who desires a hearing shall file his or her request for hearing with the City Clerk within 10 days after learning of the act or omission of which he or she complains but not before the member shall have exhausted his or her remedy provided by the grievance procedures established by ordinance or policy of the City and the grievance procedure shall be concluded within 30 days.... Upon receipt of notice as required in this section, the City Clerk shall set the matter for hearing before the Civil Service Board at a date not less than five nor more than fifteen days from the Clerk's receipt of such notice....

....

(e) At such hearing, the burden of proving the justification of the act or omission complained of shall be upon the City....

(f) The Civil Service Board shall render its decision in writing within ten days after the conclusion of the hearing. If the Board determines that the act or omission complained of is not justified, the Board shall order to rescind [sic] whatever action the Board has found to be unjustified and may order the City to take such steps as are necessary for a just conclusion of the matter before the Board. Such decision shall contain findings of fact and conclusions, and shall be based on competent, material, and substantial evidence in the record. Upon reaching its decision, the Board shall, in writing, immediately inform the City Clerk and the member requesting the hearing of the Board's decision.

(g) Within ten days of the receipt of notice of the decision of the Board, either party may appeal to the Superior Court Division of the General Court of Justice for Buncombe County for a trial de novo. The appeal shall be effected by filing with the Clerk of the Superior Court of Buncombe County a petition for trial in superior court, setting out the fact[s] upon which the petitioner relies for relief. If the petitioner desires a trial by jury, the petition shall so state. Upon the filing of the petition, the Clerk of the Superior Court shall issue a civil summons as in [a] regular civil action, and the sheriff of Buncombe County shall serve the summons and petition on all parties who did not join in the petition for trial.... Therefore, the matter shall proceed to trial as...