Wetherington v. N.C. Dep't of Pub. Safety, No. 22PA14.

Docket NºNo. 22PA14.
Citation368 N.C. 583, 780 S.E.2d 543
Case DateDecember 18, 2015
CourtUnited States State Supreme Court of North Carolina

368 N.C. 583
780 S.E.2d 543

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.

No. 22PA14.

Supreme Court of North Carolina.

Dec. 18, 2015.


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.

780 S.E.2d 544

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.

JACKSON, Justice.

368 N.C. 584

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

368 N.C. 585

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: "Members shall be truthful and complete in all written and oral communications, reports, and testimony. No member shall willfully report any inaccurate, false, improper, or misleading information." 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:

5. On March 29, 2009, Petitioner, while on duty, observed a pickup truck pulling a boat and made a traffic stop of that truck on U.S. 70 at approximately 10:00 pm. During that traffic stop, Petitioner discovered two loaded handguns in the truck and smelled the odor of alcohol coming from the interior of the truck. The two male occupants of the truck were cooperative and not belligerent.
368 N.C. 586
Petitioner took possession of the handguns. At the conclusion of that traffic stop, Petitioner proceeded to a stopped car that had pulled off to the side of the road a short distance in front of the truck and boat trailer.

6. Petitioner testified that he first noticed his hat missing during his approach to the car parked in front of the truck. Petitioner heard a crunch noise in the roadway and saw a burgundy eighteen-wheeler drive by.

7. Petitioner testified that after the conclusion [of] his investigation of the stopped car, he looked for his hat. Petitioner found the gold acorns from his hat in the right hand lane near his patrol vehicle. The acorns were somewhat flattened.
780 S.E.2d 545
....

9. After searching for, but not locating his hat, Petitioner contacted Sergeant Oglesby, his immediate supervisor, and told him that his hat blew off of his head and that he could not find it.

....

11. Trooper Rink met Petitioner on the side of the road of U.S. 70. Trooper Rink asked Petitioner when he last saw his hat. Petitioner said he did not know.... Petitioner said that he was going down the road ... and was putting something in his seat when he realized he did not have his hat. Petitioner then indicated that he turned around and went back to the scene of the traffic stops and that is when he found the acorns from his hat. Petitioner was very upset and Trooper Rink told Petitioner that everybody loses stuff and that if Petitioner did not know what happened to his hat, then he should just tell his Sergeants that he didn't know what happened to it. Petitioner replied that it was a little late for that because he already had told his Sergeant that a truck came by and blew it off of his head.

....

13. The testimony of Trooper Rink provides substantial evidence that Petitioner did not know what happened to his hat, was untruthful to Sergeant Oglesby when he
368 N.C. 587
said it blew off of his head, and that Petitioner's untruthfulness was willful.

....

15. The next day, March 30, 2009, Sergeant Oglesby and several other members of the Patrol looked for Petitioner's hat.

16. Sergeant Oglesby had a detailed conversation with Petitioner on the side of the road regarding how the hat was lost. During the conversation, Petitioner remained consistent with his first statement to Sergeant Oglesby from the night of March 29, 2009 as he explained to Sergeant Oglesby that a gust of wind blew his hat off of his head. Petitioner continued stating that the wind was blowing from the southeast to the northwest. Petitioner said he turned back towards the direction of the roadway and saw a burgundy eighteen [-]wheeler coming down the road so he could not run out in the roadway and retrieve his hat. Petitioner then heard a crunch and did not see his hat anymore.

....

18. Petitioner was not truthful to Sergeant Oglesby on March 30, 2009, when he explained how he lost his hat.

....

20. Petitioner testified that, approximately three to four days after the loss of the hat, he suddenly realized that the hat did not blow off of his head, but that he had placed the hat on the light bar of his Patrol vehicle and it blew off of the light bar. Petitioner never informed any supervisors of this sudden realization.

21. Approximately three weeks after the hat was lost, Petitioner received a telephone call from Melinda Stephens, during which Petitioner was informed that her nephew, the driver of the truck and boat trailer on March 29, 2009, had Petitioner's hat.

22. Petitioner informed
...

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21 practice notes
  • Wetherington v. NC Dep't of Pub. Safety, No. COA18-1018
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • February 18, 2020
    ...based upon the facts and circumstances and without the application of a per se rule." Wetherington v. N.C. Dep't of Pub. Safety , 368 N.C. 583, 593, 780 S.E.2d 543, 548 (2015) (hereinafter Wetherington I ) , aff'd as modified , 231 N.C. App. 503, 752 S.E.2d 511 (2013). In 2015 on remand, ba......
  • Blackburn v. N.C. Dep't of Pub. Safety, No. COA15–556.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • March 15, 2016
    ...omitted)), disc. review denied, 366 N.C. 408, 735 S.E.2d 175 (2012). In Wetherington v. N.C. Dep't of Pub. Safety, –––N.C. ––––, ––––, 780 S.E.2d 543, 548 (2015) our Supreme Court addressed the issue of an agency's discretion to determine the appropriate discipline:Just cause "is a flexible......
  • N.C. Acupuncture Licensing Bd. v. N.C. Bd. of Physical Therapy Examiners, No. 380A17
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 7, 2018
    ...decision, the substantive nature of each assignment of error dictates the standard of review." Wetherington v. N.C. Dep't of Pub. Safety , 368 N.C. 583, 590, 780 S.E.2d 543, 546 (2015) (quoting N.C. Dep't of Env't & Nat. Res. v. Carroll , 358 N.C. 649, 658, 599 S.E.2d 888, 894 (2004) ). In ......
  • Ayers v. Currituck Cnty. Dep't of Soc. Servs., No. COA18-1007
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • October 1, 2019
    ...history, or discipline imposed in other cases involving similar violations." 267 N.C.App. 523 Wetherington v. N.C. Dep't of Pub. Safety , 368 N.C. 583, 592, 780 S.E.2d 543, 548 (2015).In this case, the ALJ concluded DSS failed to meet its burden under the first prong of the Warren analysis ......
  • Request a trial to view additional results
21 cases
  • Wetherington v. NC Dep't of Pub. Safety, No. COA18-1018
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • February 18, 2020
    ...based upon the facts and circumstances and without the application of a per se rule." Wetherington v. N.C. Dep't of Pub. Safety , 368 N.C. 583, 593, 780 S.E.2d 543, 548 (2015) (hereinafter Wetherington I ) , aff'd as modified , 231 N.C. App. 503, 752 S.E.2d 511 (2013). In 2015 on remand, ba......
  • Blackburn v. N.C. Dep't of Pub. Safety, No. COA15–556.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • March 15, 2016
    ...omitted)), disc. review denied, 366 N.C. 408, 735 S.E.2d 175 (2012). In Wetherington v. N.C. Dep't of Pub. Safety, –––N.C. ––––, ––––, 780 S.E.2d 543, 548 (2015) our Supreme Court addressed the issue of an agency's discretion to determine the appropriate discipline:Just cause "is a flexible......
  • N.C. Acupuncture Licensing Bd. v. N.C. Bd. of Physical Therapy Examiners, No. 380A17
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 7, 2018
    ...decision, the substantive nature of each assignment of error dictates the standard of review." Wetherington v. N.C. Dep't of Pub. Safety , 368 N.C. 583, 590, 780 S.E.2d 543, 546 (2015) (quoting N.C. Dep't of Env't & Nat. Res. v. Carroll , 358 N.C. 649, 658, 599 S.E.2d 888, 894 (2004) ). In ......
  • Ayers v. Currituck Cnty. Dep't of Soc. Servs., No. COA18-1007
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • October 1, 2019
    ...history, or discipline imposed in other cases involving similar violations." 267 N.C.App. 523 Wetherington v. N.C. Dep't of Pub. Safety , 368 N.C. 583, 592, 780 S.E.2d 543, 548 (2015).In this case, the ALJ concluded DSS failed to meet its burden under the first prong of the Warren analysis ......
  • Request a trial to view additional results

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