Wetherington v. NC Dep't of Pub. Safety

• Decision Date: 18 February 2020
• Docket Number: No. COA18-1018,COA18-1018
• Citation: 840 S.E.2d 812,270 N.C.App. 161
• Parties: Thomas C. WETHERINGTON, Petitioner, v. NC DEPARTMENT OF PUBLIC SAFETY, NC Highway Patrol, Respondent.
• Court: North Carolina Court of Appeals

270 N.C.App. 161

840 S.E.2d 812

Thomas C. WETHERINGTON, Petitioner,

v.NC DEPARTMENT OF PUBLIC SAFETY, NC Highway Patrol, Respondent.

No. COA18-1018

Court of Appeals of North Carolina.

Filed: February 18, 2020

The McGuinness Law Firm, Elizabethtown, by J. Michael McGuinness ; Law Offices of Michael C. Byrne, by Michael C. Byrne, for petitioner-appellant.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Tammera S. Hill, for respondent-appellee.

Milliken Law, by Megan A. Milliken, for Southern States Police Benevolent Association and North Carolina Police Benevolent Association, amici curiae.

Crabbe, Brown & James, LLP, by Larry H. James and Christopher R. Green, for National Fraternal Order of Police; Essex Richards, P.A., Charlotte, by Norris A. Adams, II, for North Carolina Fraternal Order of Police, amici curiae.

Edelstein & Payne, Raleigh, by M. Travis Payne, for the Professional Fire Fighters and Paramedics of North Carolina, amicus curiae.

Tin, Fulton, Walker & Owen, PLLC, Charlotte, by John W. Gresham, for the National Association of Police Organizations, amicus curiae.

STROUD, Judge.

It is unlikely so many lawyers have ever before written so many pages because of a lost hat. True, hats have caused serious problems in prior cases. Once a street car passenger was blinded in one eye by a hat thrown by a man quarreling with others.¹ Lost and misplaced hats have been important bits of evidence in quite a few murder and other felony cases.² People have suffered serious injuries trying to catch a hat.³ As in those cases, the real issue here is far more serious than an errant hat, but that is where it started. Up to this point, this case includes over 1,000 pages of evidence, testimony, briefs, and rulings from courts, from the agency level to the Supreme Court and back to this Court for a second time. But we agree with Respondent, this matter is not just about a hat. It is about the tension between the statutorily protected rights of a law enforcement officer and proper discipline to protect the integrity and reliability of the North Carolina State Highway Patrol.

This case began in 2009 when Petitioner Wetherington, then a trooper with the North Carolina State Highway Patrol, misplaced his hat during a traffic stop; he then lied about how he lost his hat, which was later recovered, mostly intact. Respondent terminated Petitioner's employment as a trooper based upon its "per se" rule that any untruthfulness by a state trooper is unacceptable personal conduct and just cause for dismissal. See N.C. Gen. Stat. § 126-35 (2017). In the first round of appellate review, the North Carolina Supreme Court concluded, "Colonel Glover's use of a rule requiring dismissal for all violations of the Patrol's truthfulness policy was an error of law," and remanded for Respondent to make a decision on the proper legal basis "as to whether petitioner should be dismissed 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, based upon the same evidence and facts, Respondent again determined Petitioner engaged in unacceptable personal conduct and there was just cause for his dismissal. Because Respondent failed to consider the factors as directed by the Supreme Court on remand, we again reverse and conclude as a matter of law, on de novo review, that Petitioner's unacceptable personal conduct was not just cause for dismissal. In accord with North Carolina General Statute § 126-34.02(a), we remand to the Office of Administrative Hearings for entry of a new order imposing some disciplinary action short of dismissal and reinstating Petitioner to the position from which he was removed.

I. Background

The full factual and procedural history of this case leading up to remand can be found in Wetherington I , 368 N.C. 583, 780 S.E.2d 543. By the time of remand from the Supreme Court, Colonel Randy Glover, who had originally terminated Petitioner's employment, had retired. In March 2013, Colonel William Grey became the Commander of the North Carolina State Highway Patrol responsible for considering the appropriate discipline for Petitioner's violation of the truthfulness policy on 28 March 2009. Col. Grey did not provide notice or a pre-dismissal conference to Petitioner, and he reviewed the existing record. On 20 May 2016, Col. Grey sent a termination letter to Petitioner. The letter states:

Pursuant to the decision of the North Carolina Supreme Court filed on 18 December 2015, this case has been remanded back to the North Carolina Highway Patrol for me to determine, based upon the facts and circumstances of this case, whether you should be dismissed from the Highway Patrol, as previously determined by Colonel Glover, or whether you should be reinstated.

This letter serves as notification of my decision to uphold your dismissal. My decision is based on my review of the Report of Investigation and attached documents, my viewing of the video recording of your interview with Internal Affairs and the evidence presented by you during your pre-dismissal conference.

This case has been remanded for me to review based on a determination that Colonel Glover's earlier decision to dismiss you from the Highway Patrol was premised on a "misapprehension of the law, namely that he had no discretion over the range of discipline he could administer." Accordingly, I review this case with an open mind and with the full understanding that the range of discipline to be administered, if any, is within my discretion and based on the unique facts and circumstances of your case.

Your dismissal was based on evidence that you provided contradictory statements about an incident in which you lost your campaign hat during a traffic stop, thereby violating the Highway Patrol's truthfulness policy. That policy, at all relevant times, stated, in pertinent part: "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."

....

Consistent with the mandate of the North Carolina Supreme Court, I have reviewed the record with the understanding that I have discretion in determining what, if any, level of punishment is most appropriate based on the facts and circumstances of this case. I have considered the entire range of disciplinary actions available under state law. In that regard, I have taken into consideration the fact that you had been employed by the Highway Patrol as a Cadet and as a State Trooper from June 2007 until the time of your dismissal on August 4, 2009 that you did not have any disciplinary actions prior to the time of your dismissal and that your overall performance rating and work history since being sworn as a Trooper in November 2007 was "Good."

I am also mindful that, pursuant to Brady v. Maryland, 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (1963), prosecutors have constitutional obligation to disclose evidence favorable to the defendant. "Favorable evidence" includes evidence that is exculpatory as well as information that could be used to impeach the testimony of a prosecution witness. Giglio v. U.S. , 405 U.S. 150 [92 S.Ct. 763, 31 L.Ed.2d 104] (1972). Consistent with this Constitutional obligation, law enforcement agencies have a duty to disclose information to prosecutors, including a summary of Internal Affairs findings and other applicable conduct that bears on the credibility of any witness who may testify. In federal court, the United States Attorney, in each of the three North Carolina districts, routinely requires the Highway Patrol to disclose, in writing, potential Giglio issues for each and every case in which a Trooper may testify. Several District Attorneys have adopted similar policies based on an understanding that the credibility of the judicial system rests on the foundation that public servants possess integrity that is beyond reproach and can be trusted to testify truthfully in every case. Despite these Constitutional concerns, I understand that not every violation of the Highway Patrol's truthfulness policy warrants dismissal.

Based upon the facts and circumstances of this case, as described above, I have no confidence that you can be trusted to be truthful to your supervisors or even to testify truthfully in court or at administrative hearings. Given that you were willing to fabricate and maintain a lie about such an insignificant fact as losing a campaign cover⁴ as part of an attempt to cover up the fact that you did not wear it during an enforcement contact, I have no confidence that you would not alter material facts in court in an attempt to avoid evidence from being suppressed or for the purpose of obtaining a conviction. Even if my confidence in your ability to testify truthfully had not been lost, your ability to perform the essential job functions of a Trooper is reparably limited due to the Highway Patrol's duty to disclose details of the internal investigation to prosecutors, as discussed above. If you were to return to duty with the Highway Patrol I could not, in good conscience, assign you to any position where you may potentially have to issue a citation, make an arrest or testify in a court of law or administrative proceeding. There are no Trooper positions available within the Highway Patrol that do not include these essential job functions, accordingly, any assignment would compromise the integrity of the Highway Patrol and the ability of the State to put on credible evidence to prosecute its cases.

For the above-stated reasons, I do not find any level of discipline, short of dismissal, to be appropriate in your case. Your violation of the Highway Patrol's truthfulness policy, while over a trivial matter, does not negate the fact that your

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