STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF SCOTLAND 07 OSP 0135
______
Ralph Mitchell Foard )
Petitioner, )
)
v. ) DECISION
)
North Carolina Highway Patrol )
Respondent. )
This contested case was heard by Administrative Law Judge Joe L. Webster in Raleigh, North Carolina on December 17, 18 and 19, 2007, February 13, 14, and 15, 2008, March 6, 2008 and May 1, 2008. Also on March 6, 2008, a site visit was made to view the interrogation room located in the Archdale Building, in which Petitioner was interviewed on two occasions.
APPEARANCES
For Petitioner: M. Travis Payne,
Attorney at Law
P.O. Box 28186
Raleigh, NC 27611
For Respondent: Ashby T. Ray
Hal F. Askins
Special Deputy Attorney General
North Carolina Department of Justice
9001 Mail Service Center
Raleigh, NC 7699-9001
EXHIBITS ADMITTED INTO EVIDENCE
The following exhibits offered by Petitioner were received in evidence:
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1. Phone records supplied by Virgil Lessane pursuant to a subpoena
2. News articles concerning Virgil Lessane complaint
3. 5/22/06 Memo from Lt. Lessane to Capt. Jones re intent to retire
4. CD of the digitized version of the Lessane tape prepared by Professor Rodman
5. Resume for Dr. Robert D. Rodman
6. 9/24/07 report of Professor Rodman
7. Timeline of Lessane tape prepared by Professor Rodman
wave form printouts of the Lessane tape and Foard voice exemplars of the phrase “niggers are very little help”
8. Wave form and duration measurements of the words “niggers are”
9. Duration of the words “niggers are” on the Lessane tape and on Foard exemplars
10. Yarmey, et al, Commonsense Beliefs and the Identification of Familiar Voices”, Appl. Cognit. Psychol. 15: 283-299 (2001)
11. Koenig, Authentication of Forensic Audio Recordings, J. Audio Eng. Soc. Vol. 38, No. 1 / 2 1990
12. Picture of desk and phone in Captain’s office in Troop H Headquarters
13. DVD of Mitch Foard Internal Affairs interviews conducted on October 7, and October 19, 2006
14. 10/9/06 Written statement of Capt. Jones provided to Internal Affairs
15. Transcript of phone interviews conducted on October 9, 2006, by Lt. Hicks with three Lieutenants from Troop H
16. 12/13/06 Memo from Lt. Hicks to Capt. Castelloe regarding 15 interviews conducted at Troop H Headquarters on October 17, 2006
17. Transcript of 14 interviews conducted by Internal Affairs at Troop H on October 17, 2006
18. Transcript of second interview with First Sergeant R. M. Foard by Internal Affairs on October 19, 2006
19. Cell phone records for the cell phone of Virgil Lessane obtained by Internal Affairs
20. Phone records for all phone lines in the building occupied by Troop H, obtained by Internal Affairs
21. 1/22/08 Affidavit of Liane Erickson of Cingular/AT&T
22. 11/1/06 Personnel Charge Sheet Disposition for First Sergeant R. M. Foard
23. 10/30/06 Memo from Capt. Castelloe to Col. Clay re pre-demotion conference
24. May 2006 Report of Investigation regarding Complaint of Capt. P. M. Jones against Lt. V. C. Lessane
25. 5/30/06 Memo from Capt. Castelloe to Col. Clay re recommended discipline for Lt. V. C. Lessane
26. 1/16/96 Report of Investigation regarding Complaint of First Sgt. L. E. Williams against Sgt. V. C. Lessane
27. 7/9/07 vehicle accident report involving accident of Capt. Castelloe
28A. Transfer Requests of Trooper R. M. Foard submitted during the period of July 19, 2007, through January 10, 2008
28. Picture from behind the Captain’s desk at Troop H showing the 2 doors into the office
29. Picture showing the Captain’s desk at Troop H
30. Picture looking out of the door nearest the desk in the Captain’s office at Troop H
31. Picture looking into the Captain’s office through the “back” door to the Captain’s office and showing the recruiter’s desk
32. Picture of the floor plan of the building that Troop H is in
33. Internal Affairs Complaint of Former Captain Phil Jones
34. Summary of disciplinary actions provided by Highway Patrol to the media
at a press conference following the decision in the Monty Poarch case (Respondent’s objection to admission sustained, but accepted as an offer of proof)
The following exhibits offered by Respondent were received in evidence:
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1. Lessane’s letter of complaint, 9/30/06
2. 10/6/06 Memo from Col. Clay to Capt. Castelloe
3. 10/7/06 Memo from Capt. Castelloe to Maj. Johnson
4. Patrol policies initialed by First Sgt. Foard
5. First Sgt. Foard’s written statement on 10/7/06
6. Transcript of 10/7/06 interview with First Sgt. Foard
7. Initial and Supplementary Reports of Investigation concerning First Sgt. Foard
8. 10/12/06 Memo from Capt. Castelloe to Col. Clay recommending demotion
9. 10/12/06 Memo from Col. Clay to Capt. Castelloe
10. 10/12/06 Memo from Capt. Castelloe to First Sgt. Foard re administrative suspension
11. 10/12/06 Memo from Capt. Castelloe to First Sgt. Foard
12. 10/19/06 Memo from Capt. Castelloe to First Sgt. Foard
13. 10/25/06 Memo from Col. Clay to Capt. Castelloe
14. 10/31/06 Memo from col. Clay to Capt. Castelloe
15. 10/25/06 Memo from Capt. Castelloe to First Sgt. Foard
16. 11/1/06 Personnel Charge Sheet Disposition
17. 11/1/06 Memo from Maj. Wilson to Capt. Glidewell
18. Original microcassette
19. CV of Koenig
20. 10/15/07 BEK TEK Lab Report
21. CD of Foard voice exemplars taken by Rodman
22. Supplementary Response to Respondent’s First Set of Interrogatories
23. 10/93 Crime Lab Digest article by Koenig
24. Voice comparison standards
25. Cd of 10/7/06 interview of Petitioner
ISSUES
Whether Respondent has established just cause to demote Petitioner?
BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interest, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case. Wherefore, the undersigned makes the following Findings of Fact, Conclusions of Law and Decision, which is tendered to the Office of State Personal for a final decision.
FINDINGS OF FACT
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1. Petitioner Ralph Mitchell “Mitch” Foard has been a Highway Patrol Trooper since August 4, 1985. He was promoted to Sergeant in 1996 and in June, 2003, he was promoted to First Sergeant. (T-997-98) Before the demotion that is the subject of this case, Trooper Foard had never received any formal discipline. He had a good work record and had received ratings on his performance appraisals of above standard. (T-1019)
2. At the time of the events in question, Trooper Foard was assigned to Trooper H, District 2, which covers Richmond and Scotland Counties. As of November 1, 2006, he was demoted two levels to Master Trooper and transferred to an administrative assignment in Raleigh, due to a complaint filed by former Lt. Virgil Lessane in which it was alleged that Trooper Foard used a racial slur while on duty. (T-972; Resp. Ex. #16)[1]
3. This case began with the submission of a letter dated September 30, 2006 by former Lt. Lessane. That letter alleged that on September 19, 2006, Capt. Phil Jones who was in charge of Troop H, called Lt. Lessane’s cell phone. The letter stated that the call was not answered but went into voice mail, and Lt. Lessane alleged that Capt. Jones did not properly hang up the phone and a conversation “that was taking place in Captain Jones’ office” was recorded in the voice mail message system. The letter then set out five separate statements or phrases that were alleged to have been recorded in Lt. Lessane’s voice mail message system, including the following statement: “See Virgil’s figuring out that you can’t get...... niggers for very little help. (laughter)” The letter represented that Capt. Jones’ voice was on the recording, but did not identify any of the other alleged speakers. (Resp. Ex. #1)
4. Lt. Lessane is African-American. (T-190)
5. The Patrol received Lt. Lessane’s letter by fax, following a phone call that Lt. Col. Lockley placed to him. During the conversation, Lt. Lessane informed Lt. Col. Lockley that the voice on the tape recording saying the statement with the racial slur was the voice of First Sergeant Foard. (T-182-83; Resp. Ex. #2)
6. Trooper Foard testified that he had never made a derogatory racial slur about or directed toward any minority person during his career with the Patrol. He specifically denied that he had ever used to the word “nigger” in any derogatory way towards any minority persons during his career. (T-972).
7. Respondent admits through Capt. Castelloe who was primarily responsible for conducting the Internal Affairs investigation into the complaint, that no one was found who heard Trooper Foard utter a derogatory racial slur. (T-777) Likewise, Respondent did not find anyone who heard Trooper Foard make a derogatory comment about Lt. Lessane. (T-815) Lt. Col. Lockley is not aware of any instance where Trooper Foard used a racial slur. (T-267-68) Maj. Hatcher has never heard Trooper Foard use a racial slur. (T-296) Lt. Lessane has never heard Trooper Foard use a racial slur or make a derogatory comment towards any minorities. (T-150) Capt. Jones has never heard Trooper Foard use a racial slur. (T-1141) Likewise, no witness was found by Respondent who ever heard Capt. Jones use a racial slur, or ever observed him tolerating the use of a racial slur. (T-189) Capt. Allen, who was a Lieutenant in Troop H at the time of the events in question, stated that he had never heard Trooper Foard use a derogatory racial slur, or behave in any way that would indicate racism or unfair treatment of any minorities. (T-1333-34) Capt. Poole who also was a Lieutenant in Troop H at the time of the events confirmed that Trooper Foard never used a racial slur or behaved in any way that indicated racism or unfair treatment of any minorities. (T-1260-61) Lt. Combs went to Patrol School in August, 1985, with Trooper Foard and has interacted with him throughout his career. (T-1074) In all those years he has never heard Trooper Foard use a racial slur or observed him behaving in any way inappropriately toward minorities or African Americans. (T-1078-79)
8. Simmons, who was and is the sergeant in charge of Moore County, also confirmed that he had never heard Trooper Foard use a derogatory racial slur, or behave in any inappropriate fashion towards minorities. (T-1100-02) First Sergeant Ellis, who was assigned to Troop H at the time of the events, testified that Trooper Foard had never used a derogatory racial slur, and that Trooper Foard’s interactions with minorities were always professional and he showed no indication of racism or unfair treatment toward any minorities. (T-1299-1300) Jeffrey Rowell, who is now the Clerk of Superior Court for Union County, but was a First Sergeant in Troop H at the time of the events, indicated that at all times Trooper Foard had behaved appropriately when interacting with members of the public, and had never showed any indication of racism or unfair treatment toward minorities. He also stated that he had never heard Trooper Foard use a racial slur. (T-1322) Edwin Cathey, who is presently Sheriff of Union County but who served as a First Sergeant in Troop H where Trooper Foard was assigned for a period of some nine years and has known Trooper Foard for some 25 years, also testified that he had never heard Trooper Foard use a racial slur, and that at all times Trooper Foard had acted appropriately towards all minorities with whom he came into contact. (T-1343-45)
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9. Bruce E. Koenig, a highly respected expert in audio analysis, was presented as a witness by Respondent. A paper he wrote about investigating tape recordings was introduced as Petitioner’s Exhibit #12. In that paper, Mr. Koenig indicated that someone investigating an audio recording must approach the investigation “suspiciously” and that they “cannot be biased” during the investigation. (Pet. Ex. #12, p.4)4 In his testimony, Mr. Koenig confirmed that anyone involved in investigating audio recordings cannot be biased and at all times must be open to new information that develops. He also confirmed that one of the things that you should obtain would be a detailed statement or sworn testimony from the person or persons who made the recording. (T-529-32)
10. In general, in order to establish the validity or “authenticity” of a recording, particularly where, as in this case, the original of the recording was not preserved, there should be corroborating evidence, such as testimony from persons who were present when the event or conversation on the recording occurred, who can confirm that the recording accurately represents that event. See, United States v. Carrasco, 887 F.2d 794 (7th Cir. 1989) (witness was an active participant in the recorded conversations).