Locklear v. N.C. Dep't of Pub. Safety

• Docket Number: COA22-890
• Decision Date: 06 June 2023
• Parties: JOE T. LOCKLEAR, Petitioner/Appellee, v. N.C. DEPARTMENT OF PUBLIC SAFETY, Respondent/Appellant.
• Court: North Carolina Court of Appeals

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JOE T. LOCKLEAR, Petitioner/Appellee, v. N.C. DEPARTMENT OF PUBLIC SAFETY, Respondent/Appellant.

No. COA22-890

Court of Appeals of North Carolina

June 6, 2023

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Heard in the Court of Appeals 10 May 2023.

Appeal by respondent from a decision entered 9 May 2022 by Administrative Law Judge Michael C. Byrne No. 21OSP01175.

Attorney General Joshua H. Stein, by Assistant Attorney General Bettina J. Roberts, for respondent-appellant.

The McGuinness Law Firm, by J. Michael McGuinness, for petitioner-appellee.

Amicus brief filed by M. Travis Payne, Edelstein &Payne, and Trisha Pande, Patterson Harkavy LLP, for petitioner-appellee.

Amicus brief filed by John W. Gresham, Tin Fulton Walker &Owen PLLC, for petitioner-appellee.

FLOOD JUDGE

The North Carolina Department of Public Safety ("Respondent") appeals from an administrative decision concluding Respondent lacked just cause to terminate Trooper Joe Travis Locklear ("Petitioner") from his position as a career State employee. As explained in further detail below Administrative Law Judge Michael C. Byrne ("ALJ Byrne") did not err.

I. Factual &Procedural Background

Petitioner became employed by Respondent on 31 May 2006. Petitioner served as a highway patrolman with the North Carolina State Highway Patrol (the "SHP") until his termination on 30 October 2020, at which time he was a Master Trooper.

On 20 August 2020, at approximately 2:30 p.m., Petitioner was on a routine patrol traveling east on NC Highway 72. While on patrol, Petitioner noticed a tan vehicle; the vehicle's driver was not wearing a seatbelt, and the passenger appeared to be drinking a beer. Petitioner activated his blue lights and pulled alongside the tan vehicle. Petitioner made contact with the driver of the tan vehicle (the "Driver") but Petitioner did not exit his own vehicle in doing so. Petitioner observed that the Driver had put his seat belt on and that the passenger was drinking a Red Bull rather than a beer. Petitioner gave the Driver a verbal warning and allowed the Driver and his passenger to leave.

After driving away from the vehicle stop, Petitioner noticed a small camouflage bag in the ditch line next to the road. Without activating his blue lights, Petitioner stopped and pulled his patrol vehicle to the shoulder of the road. Petitioner smelled an odor of marijuana coming from the bag, and he opened the bag and saw marijuana. Petitioner believed the bag was associated with the tan vehicle and determined he should take the bag, search for the vehicle, and make inquires of the Driver. Petitioner placed the camouflage bag into his patrol vehicle and attempted to locate the tan vehicle. He failed to do so. He then returned to the scene where he had found the bag hoping that the Driver and his passenger would return to retrieve it. Eventually, near the end of his shift, Petitioner threw the camouflage bag into the woods.

On the same day as the stop, between 7:30 p.m. and 7:45 p.m., the Driver called in a citizen complaint related to Petitioner's stop of the Driver's vehicle. Later that evening, Petitioner received a group text communication from his superior, Sergeant Philip Collins ("Sgt. Collins"). Sgt. Collins inquired about the traffic stop of the Driver's vehicle, and Petitioner responded that nothing unusual had occurred. Sgt. Collins then informed Petitioner that the Driver had alleged Petitioner stole the Driver's bag. Petitioner responded, "[w]ell, that [was not] me. I didn't even get out of the car[.]"

The following morning, on 21 August 2020, at approximately 6:00 a.m., Petitioner and Sgt. Collins went to the scene of the traffic stop, and Petitioner explained to Sgt. Collins what had occurred during the stop. Petitioner and Sgt. Collins found the bag, and Sgt. Collins directed Petitioner to go to the "weigh station" to write his report. That same morning, as Sgt. Collins was logging the bag and its contents into evidence, he received a call from the Director of Professional Standards for the SHP, who ordered Sgt. Collins to bring Petitioner to Raleigh for an interview by Internal Affairs. In his interview with Internal Affairs, Petitioner admitted to being untruthful to Sgt. Collins, admitted to making "several mistakes" involving the incident, and expressed regret as to his actions.

Lieutenant Colonel Gordon of the SHP held a pre-disciplinary conference with Petitioner and wrote the memorandum recommending Petitioner's termination. On 30 October 2020, Respondent terminated Petitioner from his position. On 5 March 2021, Petitioner filed a Petition for a Contested Case Hearing pursuant to N.C. Gen. Stat. § 126. A contested case hearing was heard on 31 January 2022 before ALJ Byrne. On 6 May 2022, ALJ Byrne issued a Final Decision reversing Respondent's termination of Petitioner. On 9 May 2022, ALJ Byrne issued an Amended Final Decision that also reversed Respondent's termination of Petitioner. In his Decision, ALJ Byrne made extensive findings of fact which, inter alia, included:

7. Prior to the incidents in this case, the [SHP] had never charged Petitioner with any untruthfulness.

8. Prior to the incidents in this case, Petitioner never received any disciplinary action from the [SHP].

9. Petitioner received annual performance reviews. Sgt Collins testified that Petitioner had earned a good personnel record and that he (Collins) had found that to be true as Petitioner's supervisor.

10. Petitioner's performance reviews for the three years prior to his dismissal . . . are in evidence. Petitioner has no individual or overall performance rating less than "meets expectations." ....

11. Specific observations in the performance reviews include: Petitioner "exceeds expectations" on ethics and integrity. He is an "asset to the [SHP]. He represents the [SHP] "very well." He sets a good example for others. He has good work ethic. He has commendable "professionalism and leadership."

....

46. In the Internal Affairs investigation, Lt. Snotherly and First Sergeant Thomas Van Dyke ("Sgt. Van Dyke") interviewed Petitioner [and the Driver] ....

47. During his interview with Lt. Snotherly, [the Driver] admitted he threw his bag of marijuana out the window when he realized he had been seen by Petitioner to not be wearing a seat belt.

....

49. During his interview with Lt. Snotherly, [the Driver] admitted "the large amount of marijuana" found in the bag was, in fact, his.... Following this admission, Lt. Snotherly and Sgt. Van Dyke did not arrest [the Driver], nor was there any evidence at the contested case hearing that the admission was turned over to the District Attorney or other law enforcement organizations....

50. At a later point in the interview, [the Driver] again admitted that the marijuana in the bag was his, and that there was "about five ounces" of it.... Neither officer hearing this second admission, concerning marijuana that was in the [SHP's] possession, initiated any enforcement action.

51. [The Driver] then admitted a third time that the marijuana was his, and that "[i]t was a nice bag" of "about four or five ounces." [The Driver] stated that the street value of the marijuana was "about a thousand [dollars]." Once again, neither Highway Patrol officer initiated any law enforcement action. Following [the Driver's] admission as to the value of the marijuana, the interview terminated.

52. Lt. Snotherly knew that [the Driver's] bag contained approximately 207 grams of marijuana, and also knew that possession of more than [forty-two and a half] grams of marijuana "is considered a felony."

53. There is no evidence that Lt. Snotherly's repeated lack of enforcement action on [the Driver's] marijuana, despite [the Driver's] repeated admissions, drew attention from anyone in the Highway Patrol.

....

55. Following the investigation, .... [t]he marijuana and paraphernalia were destroyed. [The Driver] was never arrested or prosecuted.

56. The Internal Affairs investigation resulted in a "personnel charge sheet" alleging that Petitioner violated [SHP] policies involving "neglect of duty," "truthfulness," and "unbecoming conduct."

57. The factual basis of the "neglect of duty" violation involved two issues. First, that Petitioner neglected his duty, in that he "failed to exit his patrol car during a traffic stop he initiated so he could conduct a thorough investigation of the driver and passenger as he was trained to do." Second, that he threw [the Driver's] bag of marijuana into the woods rather than logging it into evidence.

58. The factual basis of the "truthfulness" violation also involved two issues. First, that Petitioner denied to Sgt. Collins that he had picked up [the Driver's] bag or taken any action with it. Second, that he again lied to Sgt. Collins the following morning regarding his actions with [the Driver's] bag. 59. The "unbecoming conduct" violation involve[s] [the] issue[] .... [that] Petitioner failed to tell Sgt. Collins that he had thrown the bag into the woods the previous day and represented to Sgt. Collins the following day that Petitioner had not seen the bag before.

60. The "personnel charge sheet" makes no allegation that [the Driver] not being charged regarding the marijuana and/or paraphernalia either was the fault of Petitioner or stemmed from Petitioner's violation of [SHP] policy.

....

64. Lt. Col. Gordon held the pre-disciplinary conference with Petitioner; nothing in that conference changed his mind that Petitioner should be dismissed.

....

66. . . . . [A]s a part of [the]

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