STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF ROWAN 01 OSP 1214

Craig B Hilliard
Petitioner
vs.
NC Department of Correction
Respondent / )
))
)))) / DECISION GRANTING SUMMARY JUDGMENT FOR RESPONDENT

THIS MATTER came on to be heard before Senior Administrative Law Judge Fred G. Morrison Jr., on November 21, 2001, on Respondent’s Motion for Summary Judgment. Upon review of the pleadings, the motions, the responses, the affidavits and documents submitted in support thereof, arguments of counsel, and the law, the undersigned finds that the following facts are undisputed, makes the following conclusions of law, and renders the following decision on the Respondent’s Motion for Summary Judgment:

APPEARANCES

Petitioner: J. Stephen Gray

310 N. Main Street

P.O. Box 4158

Salisbury, North Carolina 28145

Respondent: Buren R. Shields, III

Assistant Attorney General

N. C. Department of Justice

P. O. Box 629

Raleigh, North Carolina 27602

ISSUE

Did Petitioner commit at least one act of misconduct which constituted Unacceptable Personal Conduct within the meaning of State Personnel Commission regulations and, therefore, provided “just cause” within the meaning of N.C.G.S. § 126-35 for his demotion from Correctional Superintendent II to Programs Supervisor ?

FINDINGS OF FACT

1. At the time of the Petition for Contested Case, the Petitioner had been in the continuous employment of the NCDOC for two hundred and twenty-one months. At the time of the incidents underlying his demotion, he was employed in Respondent’s Division of Prisons (“DOP”) as the Superintendent of Davidson Correctional Center (“DCC”) in Lexington, North Carolina. Petitioner is currently assigned as a Programs Supervisor at Cabarrus Correctional Center in Mt. Pleasant, North Carolina.

2. By Demotion Letter, dated May 31, 2001, and served upon Petitioner that same day, as modified by a second Demotion Letter dated July 24, 2001,(hereinafter collectively “The Demotion Letter”), Petitioner was demoted from Correctional Superintendent II to Programs Supervisor effective June 1, 2001. This effected an approximate seventeen percent reduction in his salary. See Amended Document Constituting Agency Action (“ADCAA”).

3. Because the decision as to Petitioner’s discipline was made by the Secretary, NCDOC, Petitioner was not required to appeal his demotion under the NCDOC internal grievance system to the Employee Relations Committee and the Demotion Letter, which Petitioner received on May 31, 2001, advised him of his rights to appeal to the Office of Administrative Hearings (“OAH”).

4. On June 28, 2001, Petitioner filed a typed, five page letter at the OAH containing his “Responses to the Seven Accusations.” By June 29, 2001, letter, the Deputy Clerk, OAH, notified Petitioner that it could not determine that his letter constituted a Petition for Contested Case as required to activate OAH jurisdiction. On July 13, 2001, Petitioner filed a form Petition for Contested Case Hearing with a one page, handwritten addendum incorporating by reference his June 28, 2001 letter.

5. As a result of employee reports to the DOP Piedmont Regional Office (“PRO”) of misconduct by Petitioner, PRO Operations Manager Danny Safrit and DOP Assistant Chief of Security John Blalock were appointed to conduct an official NCDOC investigation into the allegations. In accordance with NCDOC personnel policy and practice, Petitioner was provided all rights prior to a final agency decision on discipline, including notice of the results of this investigation and an opportunity to respond at a Pre-Disciplinary Conference (“Pre-D”). R. Ex. 1, Affidavit of Danny Safrit (“Safrit Aff.”), ¶¶ 5, 25.

6. Following the Pre-D and in accordance with standard published NCDOC disciplinary practice and procedure, a recommendation that Petitioner be dismissed from State employment for his misconduct was staffed up through the DOP chain of command to the Office of the Secretary, NCDOC. The entire DOP chain of command up to the Office of the Secretary recommended that Petitioner be dismissed. Chief Deputy Secretary Daniel L. Steineke approved dismissal as appropriate, but suggested to the Secretary, NCDOC, that he, in his independent discretion, may want to consider only imposing a “mercy demotion” to Correctional Officer. R. Ex. 2, Affidavit of Daniel L. Steineke (“Steineke Aff.”), ¶¶ 4 - 10.

7. The Demotion Letter stated that the disciplinary action was based on seven types of misconduct by the Petitioner. Six were identified by NCDOC as each constituting Unacceptable Personal Conduct (“UPC”) and sufficient to authorize discipline up to and including dismissal without prior warning. Those six types of UPC misconduct included: (a) stealing food from the prison dining facility by taking it without signing for it or paying for it; (b) obtaining personal services from inmates under his charge by, on more than one occasion, having them sew patches on uniforms for one or more baseball teams on which his son played; (c) having State employees perform personal services for him on State time and using State equipment and supplies, i.e., having office personnel type team rosters, newspaper articles, directions to ballfields and labels for Petitioner’s AAU baseball team, and (d) using State equipment, e.g. State official use telephones and a facsimile machine, for personal business while on State time. See ADCAA.

8. During the NCDOC investigation, Correctional Sergeant Lomax told the investigators that he had observed Petitioner having food delivered from the DCC kitchen to his office. Food Service Officer (“FSO”) Christopher Kimbrough stated to investigators that he had prepared food trays for the Petitioner prior to January 2001. FSO Barry Baker told investigators that he had prepared food trays for Petitioner several times and that, on other times, Petitioner had called the kitchen and requested that food trays be prepared for him. Correctional Officer Bivens told investigators that he saw Petitioner coming to DCC on a Sunday, going directly to the dining facility, and leaving with three styrofoam food trays. Both FSO Baker and Kimbrough told investigators that Petitioner did not sign or pay for the meals they prepared and delivered to him. Investigators checked the DCC food service records and they showed that Petitioner had not signed or paid for any of this food. R. Ex. 1, Safrit Aff., ¶¶ 7 - 11 and Exhibits B - E thereto, certified investigation statements of Lomax, Kimbrough, Baker and Bivens.

9. During the investigation and in his certified witness statement, Petitioner admitted that he took food from the dining facility and that he did not pay for it. He stated that he did it only to “sample” the food. In his Petition, Petitioner also admits that he took food without paying. He stated he was “testing” it and gave one example of such food as “Texas Hash.” He concedes that this was “one of the times I took it [food] home to sample . . . .” He defends his action by stating “[e]very superintendent in the state eats out of the kitchen at one time or another.” R. Ex. 1, Safrit Aff., ¶ 12 and Exhibit F thereto, certified investigation statement of Petitioner; Petitioner’s June 28, 2001 Letter to OAH, p. 1, ¶ 1; R. Ex. 7, Petitioner’s Answers to Respondent’s First Set of Interrogatories, No. 1a (“sampling the food” and “I did take some trays home . . . .”).

10. During the NCDOC investigation, Assistant Superintendent Wendell Hargrave told investigators that he had observed Petitioner’s baseball team uniforms at DCC on two occasions, being carried either to or from the DCC clothes house by an inmate. He also reported to investigators that, on at least two other occasions, it had been reported to him by Correctional Officers Lebrasseur and Bivens that inmates were sewing patches on baseball uniforms for Petitioner. R. Ex. 1, Safrit Aff., ¶ 17 and Exhibit H thereto, certified investigation statement of Hargrave.

11. Correctional Officer Bivens, assigned as the Secondary Clothes House Officer at DCC, told investigators that he had observed inmates sewing patches on baseball uniforms for Petitioner on three occasions. During the Spring of 2000, he personally observed Petitioner bring a box of fifteen uniforms to the clothes house to have Inmates Thomas Salley and Chris Johnson sew patches on the left sleeves. He saw Petitioner demonstrating to the inmates how he wanted the patches sewn on. Officer Bivens stated that he personally observed Petitioner give money to these inmates for this sewing. On two other occasions, he observed about the same number of uniforms in the clothes house to have patches sewn on for Petitioner. R. Ex. 1, Safrit Aff., ¶ 14 and Exhibit D thereto, certified investigation statement of Bivens.

12. Correctional Sergeant James Lomax, the DCC Administrative Sergeant, told investigators that he knew of three separate occasions when Petitioner brought baseball uniforms to DCC to have inmates sew patches on them. On April 4, 2000, Sergeant Lomax went to the clothes house and observed an inmate sewing patches on baseball uniforms. He asked the inmate what he was doing and the inmate stated that he was sewing on patches for Petitioner. Sergeant Lomax reported what he had seen to Assistant Superintendent Hargrave and documented it on a daily log. Sergeant Lomax also reported to investigators that, on another occasion, Inmate Thomas Salley sewed patches on some baseball uniforms for Petitioner. He saw Salley carrying the uniforms toward the gate at DCC and, when he questioned Salley, Salley told him he had just sewed the patches on for Petitioner and was returning them to him. Sergeant Lomax documented this on a duty log. R. Ex. 1, Safrit Aff., ¶¶ 15 - 16 and Exhibit E thereto, certified investigation statement of Lomax.

13. Correctional Officer Dennis LeBrasseur, DCC Clothes House Supervisor, told investigators that, in February or March 2000, when he went into the clothes house, the inmate operator, Inmate Salley, told him that Petitioner had directed him to sew patches on uniforms for an entire baseball team, to include a uniform for the Petitioner’s son. R. Ex. 1, Safrit Aff., ¶ 18 and Exhibit I thereto, certified investigation statement of LeBrasseur.

14. During the investigation and in his certified witness statement, Petitioner admitted that, on two occasions (late February or March 2001 and approximately August 2000), he had inmates at DCC sew patches on baseball uniforms for an AAU team he helped to coach. He admitted that both inmates in the DCC clothes house had done this for him. He denied paying the inmates and opined that there was nothing wrong with this because the baseball team was a “non-profit organization.” R. Ex. 1, Safrit Aff., ¶ 19 and Exhibit F thereto, certified investigation statement of Petitioner. In his Petition, Petitioner admits that he had DCC inmates sew patches on baseball uniforms and states that the head coach, a Mr. Canfield, had requested this service. June 28, 2001 Letter, p. 2, ¶ 2; R. Ex. 7, Answer to Interrogatory No. 2a (“Inmates did sew a patch on uniforms.”).

15. Ms. Lynda Charles, Office Assistant IV, has been with the NCDOC for eight years and she told investigators that, at Petitioner’s request, she has typed, on State time and using State equipment and supplies: baseball rosters, baseball schedules, newspaper articles, directions to various baseball fields and labels for Petitioner’s personal use. She stated that she prepared envelopes and typed labels with Petitioner’s return address on them and then placed the labels on the envelopes for Petitioner. She stated that one such mailing was sent to an AAU baseball organizer. She told investigators that Petitioner has used State equipment to fax various materials dealing with baseball activities. R. Ex. 1, Safrit Aff., ¶ 21 and Exhibit J thereto, Charles certified witness statement.

16. Ms. Lila Baldwin, Administrative Services Assistant V, has been with the NCDOC for eleven years and she told investigators that Petitioner had asked her, while on State time and using State equipment and supplies, to type documents related to his baseball teams, to include ball team forms, sports schedules and rosters. She stated that Petitioner made long distance telephone calls on his official use State telephone and sent materials over the State fax machine which were not official business and that, on numerous occasions during the duty day, she heard him on the telephone talking about baseball teams and activities. R. Ex. 1, Safrit Aff., ¶ 22 and Exhibit K thereto, Baldwin certified witness statement.

17. During the investigation and in his certified witness statement, Petitioner admitted that he had asked both Ms. Charles and Ms. Baldwin while on State time to type personal documents for him and that all these were related to baseball. He admitted that he had asked Ms. Charles to do this on more than one occasion and that the materials included several baseball team rosters and various envelopes. He admitted also having done this at his prior assignment at Iredell Correctional Center. He also admitted making and receiving numerous calls on State telephones during State time related to baseball. He admitted that he used a State fax machine, on State time, to fax various materials to baseball sponsors at a number that is long distance from DCC. He admitted that he did not pay for or charge some of these calls to his home telephone or credit card. He stated that he made up for it by making calls from his home telephone related to State business. He told investigators that he felt guilty about using State telephones for personal business and expressed shock at the number of personal calls reflected on facility telephone records. R. Ex. 1, Safrit Aff., ¶ 23 and Exhibit F thereto, Hilliard certified witness statement; R. Ex. 7, Answer to Interrogatory No. 6a (admitting “less than 6 personal calls made on my work telephone.”); R. Ex. 8, Petitioner’s Answers to Respondent’s First Set of Requests for Admissions (RFA) Nos. 3 and 4 (admits faxing from work baseball tournament registration form).