Wetherington v. N.C. Dep't of Pub. Safety
Decision Date | 18 December 2015 |
Docket Number | No. 22PA14.,22PA14. |
Citation | 368 N.C. 583,780 S.E.2d 543 |
Court | North Carolina Supreme Court |
Parties | Thomas C. WETHERINGTON, Petitioner v. NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY (f/k/a N.C. Department of Crime Control & Public Safety; North Carolina Highway Patrol), Respondent. |
McGuinness Law Firm, Elizabethtown, by J. Michael McGuinness, for petitioner-appellee/appellant.
Roy Cooper, Attorney General, by John F. Maddrey, Solicitor General, and Thomas J. Ziko, Special Counsel, for respondent-appellant/appellee.
George J. Franks IV and Richard C. Hendrix, for National Association of Police Organizations, amicus curiae.
Crabbe, Brown & James, LLP, by Larry H. James, pro hac vice, and Christina L. Corl, pro hac vice, for National Fraternal Order of Police; and Richard Hattendorf, for North Carolina State Lodge of Fraternal Order of Police, amici curiae.
Edelstein and Payne, Raleigh, by M. Travis Payne, for Professional Fire Fighters and Paramedics of North Carolina, amicus curiae.
Bailey & Dixon, LLP, by J. Heydt Philbeck, Raleigh and Sabra J. Faires, for Southern States Police Benevolent Association and North Carolina Police Benevolent Association, amici curiae.
Law Offices of Michael C. Byrne, by Michael C. Byrne, for State Employees Association of North Carolina, amicus curiae.
On 4 August 2009, Thomas Wetherington (petitioner) was dismissed from the North Carolina State Highway Patrol (the Patrol) for alleged violations of the Patrol's truthfulness policy. The State Personnel Commission (SPC) determined that petitioner's dismissal was supported by just cause. Petitioner filed for judicial review in Superior Court, Wake County, and the superior court reversed, concluding that petitioner's "misconduct ... did not amount to just cause for dismissal" and that "the decision to dismiss [petitioner] was arbitrary and capricious." On appeal, the North Carolina Court of Appeals affirmed the superior court's order. Wetherington v. N.C. Dep't of Crime Control & Pub. Safety, 231 N.C.App. 503, 752 S.E.2d 511 (2013). We allowed the petition for discretionary review filed by respondent, the North Carolina Department of Crime Control and Public Safety,1 and the conditional petition for discretionary review filed by petitioner. Because it appears that the official who dismissed petitioner proceeded under a misapprehension of the law, namely that he had no discretion over the range of discipline he could administer, we now modify and affirm the opinion of the Court of Appeals and remand.
Petitioner was employed as a Trooper with the Patrol. On 21 May 2009, a complaint was filed against petitioner with the Patrol's Internal Affairs Section alleging that petitioner had provided contradictory statements about an incident in which he lost his campaign hat and in doing so had violated the Patrol's truthfulness policy. This policy states: After an investigation, the Patrol dismissed petitioner on 4 August 2009.
On 23 October 2009, petitioner filed a petition for a contested case hearing in the Office of Administrative Hearings (OAH), and a hearing was conducted on 17 and 18 March 2010. On 3 September 2010, the administrative law judge (ALJ) filed a recommended decision making findings of fact and concluding that the Patrol's decision to dismiss petitioner was supported by the evidence. The ALJ made extensive findings of fact that included:
(Citations omitted.) The findings also noted that Colonel Randy Glover ultimately was responsible for determining what type of discipline to impose upon petitioner for his conduct. The ALJ observed that Colonel Glover "considers the policy on truthfulness so paramount to the organization that, in his opinion, a member who is untruthful must be terminated"; however, the ALJ found that Colonel Glover "was aware that he had discretion"...
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