STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 05 OSP 2024

Michael D. Bognanowicz, )

Petitioner, )

)

vs. ) RECOMMENDED DECISION

)

North Carolina Wildlife )

Resources Commission, )

Respondent. )

Prior to July 25, 2005, Petitioner in this action, Michael Bogdanowicz, was employed by Respondent, North Carolina Wildlife Resources Commission as a Wildlife Enforcement Officer holding the rank of Captain. On that date, he was dismissed from his employment based on allegations that he stole lumber from a construction site in the early morning hours of June 16, 2005, and that he later lied to his superiors about this matter during an internal investigation.

Petitioner timely appealed his dismissal. A hearing was held on Petitioner’s claims before the undersigned on March 27 & 28, 2005 in Raleigh, North Carolina. The parties were properly before this Office, and this Office has jurisdiction over the parties and the subject matter.

Based on the testimony of witnesses and exhibits offered by the parties, the undersigned hereby makes the following Findings of Fact:

FINDINGS OF FACT

1. At the time of his dismissal, Petitioner was employed by the Respondent as a Wildlife Enforcement Officer holding the rank of Captain. He was in charge of hunter safety education programs, and grant programs managed by Respondent’s Enforcement Division.

2. In the early morning hours of June 16, 2005, SGT D.R. McCollum of the Raleigh Police Department (RPD) was on routine patrol in the Duraleigh Road area of the city. Among other things, SGT McCollum was looking for suspicious activity regarding theft of building materials in the area.

3. SGT McCollum was the shift sergeant in charge for his district. There had been a number of instances of theft of building materials in his area of responsibility prior to this date, and he and the officers under him had been instructed to watch for signs of theft while on patrol.

4. At approximately 3:23 a.m. on June 16, 2005, SGT McCollum observed a white Ford pickup truck with a load of lumber in the bed traveling north in the 4300 block of Duraleigh Road. He made a sharp U turn as the truck was making a left turn onto Furman Hall Road. Moments later, the truck made a U turn on Furman Hall Road and then made a right turn back onto Duraleigh Road headed south.

5. SGT McCollum then stopped the vehicle to investigate based on his observations of the vehicle’s travel. The driver did not have a driver license or any other identification and appeared very nervous. He was wearing black shorts and a white V neck T shirt, and was sweating profusely.

6. The temperature at the time Petitioner was stopped was approximately 69 degrees. (Respondent’s # 2)

7. When asked where he got the lumber, the driver initially said he bought it in Garner. He then said that he bought it at 84 Lumber in Clinton and paid cash. The driver also said that he was using the wood to build a shed on his farm in Turkey, although he was unable to explain why he bought the wood in Clinton and brought it back to Raleigh when he intended to use it in Turkey, which is near Clinton.

8. The driver told SGT McCollum that he had turned into Furman Hall to “take a leak,” although he did not have enough time to urinate before turning back onto Duraleigh Road.

9. SGT McCollum then asked the driver where he was going. He said that he was going to pick up his son and then drop the wood off at Turkey.

10. While being questioned about the wood, the driver identified himself as a law enforcement officer working for Respondent. He further identified himself as Petitioner and stated that he was “in charge of statewide hunting and fishing.”

11. SGT McCollum suspected that the lumber on the back of the truck had been stolen and called another officer for assistance. When the other officer arrived, SGT McCollum photographed Petitioner beside the truck and removed two tags from the lumber on the back of the truck.

12. Because he could not prove that Petitioner had taken the lumber, SGT McCollum let Petitioner go and did not charge Petitioner for not having his driver license with him.

13. However, because Petitioner had identified himself as a law enforcement officer, and because SGT McCollum was not satisfied with Petitioner’s explanation, he contacted RPD Internal Affairs about the stop. It is department policy to refer matters involving law enforcement officers to Internal Affairs if further action is required.

14. SGT McCollum contacted SGT D.K. Murphy at approximately 7:30 a.m. on June 16, 2005 and related information concerning the stop to him.

15. Subsequently, SGT Murphy went with Detective Vinson to the Furman Hall Road area to look for construction sites. He entered the apartment complex located there and noticed a tan Suburban with state tags parked in front of 4361 Furman Hall. He looked inside the vehicle and saw a wildlife officer uniform in the back seat. He also saw a satchel with a Wildlife Commission emblem on it. He later determined that this was the state vehicle assigned to Petitioner. He did not see the white pickup truck driven by Petitioner earlier that morning.

16. Before leaving the apartment complex, SHT Murphy noticed a pile of lumber next to a metal storage container. The lumber was new and some of the boards still had tags affixed. He and Detective Vinson photographed the pile as it appeared that morning. (Respondent’s # 1B)

17. SGT Murphy then talked to one of the supervisors, Didier Arroyo, about the lumber. Mr. Arroyo identified the boards as belonging to his employer, and because the boards were haphazardly spread out, thought that some lumber was missing. However, after a check, he told SGT Murphy that no boards were unaccounted for.

18. When he returned to RPD, SGT Murphy recalled seeing two boards. He also recalled that each had a small portion of green and white tags on them.

19. MAJ Keith Templeton was employed by Respondent’s Enforcement Division and was on duty on June 16, 2005. Early that afternoon, he was contacted by RPD CPT Joyner. CPT Joyner informed him that this was a “courtesy call” to inform Respondent that Petitioner was under investigation for stealing lumber from a construction site. CPT Joyner also requested to interview Petitioner that afternoon.

20. Petitioner asked MAJ Templeton whether he had been contacted by RPD, and MAJ Templeton indicated that he had. Petitioner told MAJ Templeton that he had been stopped and did not have his license. He further stated that the officer who stopped him was “very aggressive.” MAJ Templeton then directed Petitioner to meet with RPD and to be honest with them.

21. At approximately 3:30 p.m., Petitioner was interviewed by RPD DET R.S. Bailey and other officers at the police department. DET Bailey asked Petitioner where he was coming from when he was stopped by SGT McCollum, and Petitioner stated that he was coming from Greensboro and on his way to Clinton. When DET Bailey asked him why he was traveling at that time of night, Petitioner said he was getting into personal issues that he preferred not to talk about. He denied having a residence anywhere off Duraleigh Road

22. When asked where the lumber in the back of his truck came from, Petitioner stated that this was also an area that pertained to personal issues that he did not want to talk about. While never saying where this wood came from, Petitioner said that his friends sometimes engaged in odd jobs and projects, but he did not elaborate.

23. Petitioner then stated that he had bought the lumber the previous Saturday at Lowes in Clayton, but offered no explanation as to why it was still in the back of his truck.

24. When DET Bailey told Petitioner that they knew he lived at 4361 #103 Furman Hall, he admitted that he did. He then declined to answer any more questions and left.

25. DET Bailey testified that Petitioner was not forthcoming with responses to his questions.

26. After the interview, SGT Murphy and other officers returned to the apartment complex on Furman Hall Road. They returned to the lumber pile where SGT Murphy retrieved a triangular fragment of a lumber tag that had fallen to the ground, as well as a board with another small triangular fragment still attached.

27. After returning to the police department, the two fragments were compared to the labels torn by SGT McCollum from the lumber on Petitioner’s truck. The fragments were an exact match. Photographs of these tags were made. (Respondent’s # 1D, 1G, and 1H)

28. In addition, an enlargement of the photograph of the boards in Petitioner’s truck was compared to boards at the Furman Hall construction site. Several additional boards were identified as having been on Petitioner’s truck when he was stopped, based on markings and grain patterns. (Respondent’s # 1I thought 1K)

29. After interviewing Petitioner, DET Bailey went to Petitioner’s residence in Turkey. There, he photographed an open storage shed with lumber stacked inside. The wood appeared to be much older and lacked the distinctive tags and markings of the wood in the back of Petitioner’s truck at the time of the stop. This wood was photographed as well. (Respondent’s # 1L)

30. On June 17, 2005 CPT Jordan, SGT Murphy and DET Bailey met with COL Kenneth Everhart, Chief of Respondent’s Enforcement Division, and MAJ David Stokes who was Petitioner’s direct supervisor at the time. The RPD officers told COL Everhart and MAJ Stokes that they would be seeking warrants against Petitioner, and that the investigation was continuing.

31. On that same day, Petitioner was placed on investigatory leave with pay. (Respondent’s # 6)

32. On June 21, 2005, Petitioner came in after hours to assist MAJ Stokes with the preparation of Hunter Education grants. While they were working, MAJ Stokes asked Petitioner whether he had taken the lumber. Petitioner told him that he had not. He stated that he got the wood from “various sources” including Matt Silvanic and Eric Henry. Petitioner also stated that he knew a guy high up in Lowes who was always trying to give him wood for his projects. According to Petitioner, he finally told this person that he would take some lumber, but that he would have to pay for it. Petitioner stated that he never got a bill for the lumber. He thought that this might be “a little shady” and he would not do it again. When MAJ Stokes asked him about the lumber from his truck, he said he got it from several sources where he kept wood stored. Petitioner told MAJ Stokes that there was only scrap wood and metal in the truck when he was stopped. However, he never directly addressed where the wood came from.

33. On June 23, 2005, a warrant was issued for Petitioner’s arrest, charging him with misdemeanor larceny. (Respondent’s # 3) MAJ Stokes contacted Petitioner and advised him to turn himself in.

34. On July 6, 2005, MAJ Stokes informed Petitioner that Respondent would need a written statement from him regarding this incident. Petitioner suggested that they could meet at the Burger King just off I-95 in Benson. At approximately 9:30 a.m., MAJ Stokes and MAJ Templeton met Petitioner at that location.

35. When they arrived, Petitioner showed them several bottles of medicine that he said he was taking. MAJ Stokes asked Petitioner if he was OK to drive. He also asked whether the medications would impair Petitioner’s ability to give a written statement. Petitioner stated that the medicines would not affect his ability to drive or to give a statement. Petitioner was then advised of his “Garrity” rights and signed a copy of the rights form. (Respondent’s # 7)

36. At that point, Petitioner went inside the Burger King to write out his statement while MAJ Templeton and MAJ Stokes waited outside. This statement consisted of six handwritten pages, including an addendum. (Respondent’s # 8)

37. In this statement, Petitioner stated, among other things, that he had just left his fiancée’ Laurie Edwards’ apartment to go down to his farm in Sampson County. He said that he had told the officer that he had to urinate but that he actually had to pour out a cup that he had urinated into earlier. When the officer asked him about the wood, he said that he wasn’t sure because he had drawn the wood from a pile of lumber at his farm, and that he had a collection of wood from different sources. He said that he told the officer that he had gotten some of it from 84 Lumber in Clinton. In his statement, Petitioner also said that he had been under the care of a psychiatrist for several years for anxiety, and that he was currently medicated. He also said “My mind and thoughts and memories are clouded at times.” He concluded by stating that he did not steal any wood from any entity or person. In his addendum, Petitioner stated that he had a stack of boards, and possibly some mixed wood, that he pulled in order to put floor joists in a tobacco barn.

38. Later that afternoon after MAJ Stokes returned to Raleigh. He then reviewed the statement and had some questions about it and called Petitioner at about 4:45 p.m. During that conversation, MAJ Stokes asked Petitioner where he took the wood after he was stopped. Petitioner stated that he took it to the farm and some of it “got missing” after that. However, he also stated that the remaining wood was in a stack of wood in his barn. (Respondent’s #9)

39. On July 12, 2005, Petitioner requested leave pursuant to the Family Medical Leave Act. (Respondent’s #10)

40. On July 13, 2005, Petitioner was informed by Respondent’s employee, K.C. Dowd, that his request had been approved through November 13, 2005.

41. Also on July 13, 2005, MAJ Stokes was in District Court for Petitioner’s scheduled court date. At that time, MAJ Stokes gave Petitioner a letter notifying him of a pre-disciplinary conference scheduled for the next day in Raleigh. (Respondent’s # 11)