Warren v. N.C. Dep't of Crime Control & Pub. Safety

• Decision Date: 19 June 2012
• Docket Number: No. COA11–884.,COA11–884.
• Citation: 726 S.E.2d 920
• Court: North Carolina Court of Appeals
• Parties: John Baker WARREN, Petitioner v. NORTH CAROLINA DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY; NORTH CAROLINA HIGHWAY PATROL, Respondent.

726 S.E.2d 920

John Baker WARREN, Petitioner

v.NORTH CAROLINA DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY; NORTH CAROLINA HIGHWAY PATROL, Respondent.

No. COA11–884.

Court of Appeals of North Carolina.

June 19, 2012.

Appeal by respondent from order entered 20 April 2011 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 25 January 2012.

The McGuinness Law Firm, Elizabethtown, by J. Michael McGuinness, for petitioner.

Attorney General Roy Cooper, by Assistant Attorney General Tamara S. Zmuda, for respondent.

Richard C. Hendrix for Amicus Curiae North Carolina Troopers Association.

Richard E. Mulvaney for Amicus Curiae National Troopers Coalition.

STEELMAN, Judge.

The trial court's order is vacated and remanded for entry of findings of fact and conclusions of law reconciling conflicts in the order. In order to discharge, suspend, or demote a career state employee for disciplinary reasons based on unacceptable personal conduct, the specific misconduct must constitute just cause for the specific disciplinary sanction imposed.

I. Factual and Procedural Background

On 7 October 2007, the North Carolina State Highway Patrol (the “Patrol”), a division of the North Carolina Department of Crime Control and Public Safety (“respondent”), dismissed Sergeant John Baker Warren (“petitioner”). The dismissal was based on the Patrol's determination that petitioner had engaged in unacceptable personal conduct in an alcohol-related incident.

Shortly after midnight on 9 September 2007, petitioner stowed an open bottle of vodka in the trunk of his Patrol-issued vehicle and drove to a party. He could have used his personal vehicle, but he elected not to because he was concerned that he would wake his aunt (with whom he was residing at the time) in an effort to get the keys to his personal vehicle. After petitioner arrived at the party, deputies of the Nash County Sheriff's Office were called because of an altercation between two women. The deputies arrested petitioner, who had consumed a significant amount of alcohol at some point that evening, because they believed he was already impaired before driving to the party.

After an investigation by Internal Affairs, the Patrol dismissed Petitioner for violating the Patrol's written policies on “conformance to laws” and “unbecoming conduct.” Petitioner filed a contested case petition challenging his termination. The administrative law judge (“ALJ”) found that the Patrol failed to prove just cause for termination but acknowledged that some discipline was appropriate. The State Personnel Commission (“SPC”) adopted the ALJ's findings of fact but rejected the ALJ's conclusion of law that termination was inappropriate. Petitioner appealed to Wake County Superior Court.

The trial court reversed the SPC, concluding Petitioner's conduct did not justify termination. The trial court concluded that petitioner violated the Patrol's written conduct unbecoming policy by operating a state-owned vehicle after consuming “some quantity of alcohol.” The trial court also concluded that petitioner did not violate the Patrol's written conformance to laws policy because there was insufficient evidence to establish that he was appreciably impaired at the time he operated a motor vehicle upon the highways of this state. The court held as a matter of law that petitioner's conduct did not justify dismissal. The case was remanded to the SPC for imposition of discipline “consistent with the lesser misconduct proven.”

Respondent appeals.

II. Termination

In its only argument on appeal, respondent contends that the trial court erred in reversing the Patrol's decision to terminate petitioner's employment. We agree that the trial court did not make adequate findings of fact and conclusions of law.

A. Standard of Review

When reviewing a superior court order concerning an agency decision, we examine the order for errors of law. ACT–UP Triangle v. Comm'n for Health Servs. of N.C., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997). “The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.” Id. (quoting Amanini v. N.C. Dep't of Human Res., 114 N.C.App. 668, 675, 443 S.E.2d 114, 118–19 (1994)) (internal quotation mark omitted). When an administrative agency rejects an ALJ's decision in a contested case and a party appeals to the superior court, the superior court is required to review the record de novo and make findings of fact and conclusions of law. N.C. Gen.Stat. § 150B–51(c) (2007).¹ In making its findings of fact and conclusions of law, the superior court “shall not” accord any deference to any prior decision made in the case. Id. Whether conduct constitutes just cause for the disciplinary action taken is a question of law we review de novo. N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 666, 599 S.E.2d 888, 898 (2004).

B. Analysis

1. Findings of Fact Required

In its order of remand, the trial court did not make findings of fact as required by statute. SeeN.C. Gen.Stat. § 150B–51(c). Instead, the court stated that the “facts are not disputed and are before the Court as found by Judge Overby.” The court based its decision on the factual determination that “the evidence and fact findings are sufficient to show that [p]etitioner had consumed some quantity of alcohol before or during the driving in question.” However, the ALJ concluded that the Patrol failed to establish petitioner drove the Patrol vehicle with any alcohol in his system. This determination by the ALJ was categorized as a conclusion of law but was clearly a factual determination. Therefore, we treat it as such. See Peters v. Pennington, ––– N.C.App. ––––, ––––, 707 S.E.2d 724, 735 (2011) (reviewing an incorrectly labeled “conclusion of law” as a finding of fact). Thus, there is a conflict between the ALJ's findings of fact and the trial court's findings of fact, which state that petitioner consumed some amount of alcohol prior to driving. We vacate the trial court's order and remand this case so that the trial court can make findings of fact resolving this issue.

2. The Just Cause Framework

We address the parties' arguments on the subject of commensurate discipline because these issues will arise on remand. Career state employees, like petitioner, may not be discharged, suspended, or demoted for disciplinary reasons without “just cause.” N.C. Gen.Stat. § 126–35(a). This requires the reviewing tribunal to examine two things: (1) “ ‘whether the employee engaged in the conduct the employer alleges' ” and (2) “ ‘whether that conduct constitutes just cause for the disciplinary action taken.’ ” Carroll, 358 N.C. at 665, 599 S.E.2d at 898 (quoting Sanders v. Parker Drilling Co., 911 F.2d 191, 194 (9th Cir.1990)). There are two categories of just cause for discipline: “ ‘unsatisfactory job performance’ ” and “ ‘unacceptable personal conduct.’ ” Id. at 666, 599 S.E.2d at 899 (quoting N.C. Gen.Stat. § 126–35(b) (2003)). This case involves only unacceptable personal conduct. The North Carolina Administrative Code defines unacceptable personal conduct as, among other things, “the willful violation of known or written work rules.” 25 N.C.A.C. 1J.0614(i)(4) (2006).²

Respondent contends that that all forms of unacceptable personal conduct under 25 N.C.A.C. 1J.0614(i) amount to just cause for any disciplinary action authorized by N.C. Gen.Stat. § 126–35, which includes dismissal. Petitioner contends that in making a determination of just cause, the reviewing tribunal must examine the nature of the misconduct and the type of discipline imposed. In other words, the facts of a given case might amount to just cause for discipline but not dismissal. The parties have not cited, and our research has not discovered, any binding precedent that explicitly addresses this issue.

Petitioner contends that this Court adopted a “rational nexus” approach for off-duty misconduct. However, that test applies to off-duty criminal conduct:

[W]here an employee has engaged in off-duty criminal conduct, the agency need not show actual harm to its interests to demonstrate just cause for an employee's dismissal. However, it is well established that administrative agencies may not engage in arbitrary and capricious conduct. Accordingly, we hold that in cases in which an employee has been dismissed based upon an act of off-duty criminal conduct, the agency must demonstrate that the dismissal is supported by the existence of a rational nexus between the type of criminal conduct committed and the potential adverse impact on the employee's future ability to perform for the agency.

Eury v. N.C. Emp't Sec. Comm'n, 115 N.C.App. 590, 611, 446 S.E.2d 383, 395–96 (1994) (citations omitted).³ Our research has not discovered any binding precedent applying the rational-nexus test to non-criminal conduct. The rationale for applying this test is that some off-duty criminal violations may have little bearing on the employee's job. We decline to extend this test to non-criminal conduct based on Eury.

Our Supreme Court's opinion in Carroll suggests that a commensurate discipline approach is appropriate, but it is not entirely clear at which step of the analysis this should be applied. In Carroll, the petitioner was demoted for willfully violating written workplace guidelines. 358 N.C. at 656, 599 S.E.2d at 893. The petitioner, a Department of Environmental and Natural Resources (“DENR”) park ranger, exceeded posted speed limits while activating the blue lights on his patrol vehicle for a personal emergency. Id. The petitioner was demoted, and his salary was reduced. Id. The SPC reversed DENR's decision to discipline the petitioner. Id. at 652, 599 S.E.2d at 890. The trial court reversed, and this Court affirmed. Id. The Supreme Court reversed. Id. at 676, 599 S.E.2d at 905.

The Supreme Court first addressed DENR's...