Warren v. City of Asheville
| Decision Date | 07 May 1985 |
| Docket Number | No. 8428SC507,8428SC507 |
| Parties | Wayne E. WARREN v. CITY OF ASHEVILLE. |
| Court | North Carolina Court of Appeals |
J. Lawrence Smith, Asheville, for plaintiff-appellee.
Victor W. Buchanan, Asheville, for defendant-appellant.
Plaintiff was dismissed from his employment as a police officer by defendant City of Asheville on 25 February 1981. He appealed his dismissal to the Civil Service Board of Asheville which upheld his discharge. Plaintiff instituted this civil action in accordance with the Asheville Civil Service Law. At trial the jury found that the Chief of Police had acted without justification in firing the plaintiff. Defendant appealed, contending that the trial court erred by allowing plaintiff's counsel to read a portion of a deposition to the jury and that, as a matter of law, the evidence was insufficient to support the jury's verdict. We find no prejudicial error. The facts follow.
Plaintiff was employed by Asheville Police Department on 1 March 1975 as a patrolman, and as such, was subject to the Asheville Civil Service Law. He owned his own home and, beginning in 1977, had a business arrangement with another police officer, Robert G. Warlick, whereby Warlick stayed in plaintiff's house, working around the house and the yard instead of paying rent, and payed half of all other general expenses, such as heating oil, groceries, property taxes and electricity.
In the late evening hours of 5 January 1981 or early morning of the next day, plaintiff stated to Warlick that he wanted to perform oral sex on Warlick. Warlick said no. Plaintiff contends that he made the statement, on advice of others, to determine whether Warlick was homosexual. Warlick moved out of plaintiff's home the next day. Plaintiff and Warlick agree that there was no physical contact between them and that plaintiff made no further reference to oral sex to Warlick after this incident.
Warlick reported the incident to his superior officers, and on 23 January 1981, Police Chief F.W. Hensley ordered the Department's office of Internal Affairs to conduct an investigation. Plaintiff defended his statement to Warlick as a test to determine whether Warlick was a homosexual. Plaintiff was ordered to take a polygraph examination on 20 February 1981. On that day, the examination was postponed for four days. On the 24th, plaintiff reported to the Police Department, accompanied by his attorney, Marvin Pope. Pope discussed the tentative polygraph questions with Sergeant Gary Foster, the police officer assigned to administer the polygraph to plaintiff. Pope then advised plaintiff not to take the polygraph. Plaintiff told Chief Hensley he would not take the polygraph. Chief Hensley then suspended plaintiff and terminated his employment the next day. Plaintiff appealed his dismissal to the Civil Service Board of Asheville, which affirmed his firing. In accordance with the Civil Service Law of the City of Asheville, plaintiff appealed the final decision of the City by filing this action in Superior Court in Buncombe County for a trial de novo. The jury found that the Chief of Police acted without justification: (1) in finding that plaintiff violated the rules of conduct of the Department by engaging in unbecoming conduct; (2) in finding that plaintiff violated the rules of conduct by willfully refusing to submit to a polygraph test; and (3) in taking disciplinary action against plaintiff. The trial court ordered the plaintiff reinstated with full back pay and benefits. Defendant City of Asheville appealed.
In three of its assignments of error, the City calls upon this Court to review the sufficiency of the evidence to send the case to the jury and to support the verdict rendered by the jury. The City argues that the trial court erred by denying its Motion for Directed Verdict, Motion for Judgment Notwithstanding the Verdict, and Motion for a New Trial. The City contends that allowing the jury's verdict to stand would allow the jury to substitute its judgment for that of the Chief of Police. We find no error in the trial court's denial of the City's motions.
Chapter 415 of the 1977 N.C. Session Laws, amending the Civil Service Law of the City of Asheville (1953 N.C.Sess.Laws ch. 757), provides, in pertinent part, as follows:
Within 10 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.... If the petitioner desires a trial by jury, the petition shall so state.... Thereafter, the matter shall proceed to trial as any other civil action. (Emphasis ours.)
That law clearly provides for trial de novo in Superior Court. When a law so provides, the scope of the trial is as follows:
"Power to try a case de novo vests a court with full power to determine the issues and rights of all parties involved, and to try the case as if the suit had been filed originally in that court." (Citation omitted.) ... "This means that the court must hear or try the case on its merits from beginning to end as if no trial or hearing had been held by the Board and without any presumption in favor of the Board's decision." (Citation omitted.)
In re Hayes, 261 N.C. 616, 622, 135 S.E.2d 645, 649 (1964).
Thus, the Civil Service Board's affirmance of the Police Chief's dismissal of plaintiff is to be given no presumption of validity, and the jury is to make its own determination, under proper instructions from the trial court, on whether the Police Chief had justification for the actions he took against the plaintiff. If there was evidence when considering it in the light most favorable to the plaintiff, which supported the verdict, then there was no error in the trial court's denial of defendant's motions. Wallace v. Evans, 60 N.C.App. 145, 298 S.E.2d 193 (1982).
There were four "Charges and Specifications" upon which Chief Hensley relied in dismissing plaintiff. Plaintiff was charged with: (1) Unbecoming Conduct by "[o]n January 6, 1981 you actively committed a Common Law Offense by soliciting another officer to commit a felony, namely North Carolina General Statute 14-177"; (2) Insubordination by "[o]n two occasions you refused to follow legal orders to submit to a polygraph examination"; (3) a violation of Department Rule of Conduct Number 36 which directs employees to submit to polygraph examinations "specifically directed and narrowly related to a particular internal investigation being conducted by the Department"; and (4) a violation of Department Rule of Conduct Number 1 which provides that employees shall obey all Rules of Conduct. At the trial below, the court correctly submitted three issues to the jury: (1) Was Chief Hensley justified in finding and concluding that plaintiff had committed an act unbecoming to an officer by soliciting the act of fellatio? (2) Did the Chief of Police act without justification in finding and concluding that plaintiff willfully refused to submit to a polygraph test? and (3) Was the disciplinary action taken by the Chief justified? The trial court properly instructed the jury that the plaintiff had the burden of proof on all issues.
There was sufficient evidence for the trial court to submit to the jury the issue of whether plaintiff committed an act of unbecoming conduct by soliciting fellatio. The plaintiff's testimony, if believed by the jury, established that his question to Warlick was, instead of a true solicitation of fellatio, merely a test to determine whether Warlick was homosexual. Thus, there was evidence to support the jury's verdict on the first issue.
On the issue of refusing to take the polygraph test, the plaintiff's evidence tended to show that he refused to take the polygraph examination upon advice of counsel after his counsel had reviewed the tentative questions with Sergeant Foster. Plaintiff's counsel testified that the three questions he was shown by Foster were:
Plaintiff's counsel further testified:
I explained to Chief Hensley at the second meeting that...
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