STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAYNE 08 OSP 2242
Isaac T PerkinsPetitioner
vs.
North Carolina Department of Corrections
Respondent / )
))
)))) / DECISION
On April 27, 2009 and May 12, 2009, Administrative Law Judge Donald W. Overby heard this contested case in Raleigh, North Carolina.
APPEARANCES
For the Petitioner: Glenn A. Barfield
Haithcock, Barfield, Hulse & Kinsey, PLLC
P.O. Drawer 7
Goldsboro, NC 27533
For the Respondent: Catherine M. (Katie) Kayser
Assistant Attorney General
N.C. Department of Justice
P.O. Box 629
Raleigh, North Carolina 27602
STATUTES, RULES & POLICIES IN ISSUE
N.C. Gen.Stat. §§ 126-1.1, -34, -34.1, -35, -37; 25 NCAC 1J .0604, 0605, .0608, .0613, .0614; North Carolina Office of State Personnel, Personnel Manual; and the Department of Correction Personnel Manual.
ISSUE
Did Respondent meet its burden of proof that it had just cause to dismiss Petitioner for one or more acts of unacceptable personal conduct in accordance with N.C.G.S. Section 126-35?
WITNESSES
The Respondent, North Carolina Department of Correction (hereinafter Respondent or NC DOC) presented testimony from the following nine witnesses: Thomas Clayton Surber; Linda Surber; Dennis Guy, retired Chief Probation/Parole Officer with NC DOC Division of Community Corrections (hereinafter DCC); Kenneth King, retired DCC Judicial District Manager, District 4A; Lori Millette, DCC Personnel Manager; Terry Gootee, DCC Assistant Division 1 Administrator; Cornell McGill, DCC Division 1 Administrator; Robert Guy, retired Director of DCC; and the Petitioner, Isaac T. Perkins (hereinafter Petitioner).
The Petitioner presented testimony from one witness, Charles Raiford, a DCC Probation/Parole Officer.
EXHIBITS
The following exhibits were offered and admitted into evidence by Respondent:
1. Petition for a Contested Case Hearing
2. Letter from Thomas Surber
3. 8/14/08 written statement from Thomas Surber
4. Letter from Linda Surber
5. 11/29/07 memo from Dennis Guy to Kenneth King
6. 2/11/08 written statement from Petitioner
7. 3/1/07-3/11/07 DCC Narratives Report of Thomas Surber
8. 2/29/08 memo from Kenneth King to Terry Gootee
9. 3/18/08 memo from Terry Gootee to Cornell McGill
10. 3/25/08 memo from Cornell McGill to Lori Millette
11. 4/4/08 e-mail from Terry Gootee to Robert Guy
12. 4/4/08 Memo from Terry Gootee to Cornell McGill
13. 4/7/08 memo from Terry Gootee to Cornell McGill
14. 4/7/08 written statement from Petitioner
15. 4/28/08 letter from Terry Gootee to Petitioner re: Predisciplinary Conference Acknowledgement Form
16. 4/30/08 Predisciplinary Conference Acknowledgement Form
17. 4/30/08 letter from Terry Gootee to Petitioner re: Recommendation for Dismissal
18. 5/1/08 memo from Terry Gootee to Cornell McGill
19. 5/12/08 memo from Cornell McGill to Lori Millette
20. 5/19/08 letter from Terry Gootee to Petitioner, re: Dismissal
21. 9/17/08 letter from Lola Denning to Petitioner
22. Staff Training History for Petitioner
23. DCC Policies-Procedures entitled, “Substance Abuse Screening Program”
24. NC DOC Personnel Manual section entitled, “Disciplinary Policy and Procedures”
Based upon the pleadings and the entire file, sworn testimony of the witnesses, exhibits presented at the hearing and other competent and admissible evidence, the undersigned makes the following:
FINDINGS OF FACT
1. The Petitioner Isaac Thomas Perkins was a probation officer employed by the Department of Corrections in the Division of Community Corrections. Petitioner began his employment as a probation officer with the North Carolina Department of Corrections on May 1, 1984, and was continuously employed in that capacity until his dismissal on May 19, 2008.
2. Petitioner was dismissed from his position as an Intensive Case Officer with NC DOC effective May 19, 2008 for unacceptable personal conduct. He had 289 months of service at the time of his dismissal. After he was dismissed, Petitioner retired effective June 1, 2008. He has not sought employment since being dismissed.
3. His duties were primarily to supervise criminal offenders who had been sentenced to a period of active incarceration, but whose sentence had been suspended and placed on supervised probation as an alternative to incarceration, subject to certain terms and conditions imposed by the sentencing court. The Petitioner’s job was to monitor and enforce the offender’s compliance with conditions of probation.
4. A sentencing judge may require, among other conditions, that the probationer submit at reasonable times to warrantless searches by a probation officer of his or her person and random drug testing.
5. Petitioner was assigned the supervision of probationer Thomas Surber. In March of 2007, Mr. Surber was on probation for convictions of felony forgery and uttering, and had a criminal history of previous property offenses. Mr. Surber had previously been incarcerated in prison.
6. NC DOC policy governing its Substance Abuse Screening Program is found in the DCC Policies-Procedures Manual which at the time of the incident at issue had last been revised November 1, 2005. The mission and purpose of the program is as follows:
“The Substance Abuse Screening Program is a supervision tool used to identify offenders with substance abuse problems in order that appropriate treatment services may be provided. DCC recognizes that denial and relapse are expected components of the treatment and recovery process….Probation/Parole Officers will use Substance Abuse Screening to: Augment Substance Abuse Treatment Plans; and provide validation to encourage offenders to enter into treatment.”
7. With regard to the collection of urine specimens, the policy states:
“To reduce the possibility of an offender returning with a substance used to adulterate the specimen or concealing a container with a clean urine specimen that could be substituted, the Probation/Parole Officer will not allow the offender to leave the vicinity after a urine specimen has been requested. If the offender refuses to submit a specimen or is unable to provide a specimen, the Probation/Parole Officer will allow the offender no more than two hours to provide one.
Because the consumption of increased amounts of water lowers the concentration of drug in the specimen and possibly renders it undetectable, the offender will consume no more than eight ounces of liquid every hour and no more than sixteen ounces during the entire two-hour period. If the offender does not provide a specimen during the two-hour period, he/she will be in violation of the conditions of his/her probation, parole, or post-release supervision.”
8. This same policy requires a Probation/Parole Officer to escort the offender to the restroom and “[e]nsure that the offender remains in his/her presence without access to a water fountain, faucet, soap dispenser, cleaning agent, or any other material which could be used to adulterate the specimen.” The officer was directed to “observe the collection from a side or frontal view”.
9. Petitioner attended a two-hour drug testing training class on November 28, 1990, taught by the Division of Adult Probation and Parole, wherein the proper procedure for collection of urine specimens and what to do if an offender is unable to produce a specimen was discussed. The DCC policy and procedures for collection of urine specimens have not substantially changed since Petitioner received this training. Chief Probation/Parole Officer Dennis Guy (hereinafter “CPPO Guy”), Judicial District Manager Kenneth King (hereinafter “JDM King”), Assistant Division 1 Administrator Terry Gootee (hereinafter “Assistant Administrator Gootee”), and Division 1 Administrator Cornell McGill (hereinafter “Administrator McGill”) attended the training class with Petitioner.
10. To comply with these requirements, a probation officer conducting a drug screen would have to closely observe the offender’s genitals, close enough to determine that the offender was not attempting in any regard to render a false test, and the officer would have to continue observing the genitals the entire time the offender was urinating into the collection cup.
11. Mr. Surber was subject to random drug screens as a condition of his probation. Petitioner typically conducted Mr. Surber’s drug screens on Sundays at the Town of Wallace Police Department, which he used as a satellite office to meet with offenders between 1:00 pm and 6:00 pm.
12. Mr. Surber contends that he suffers from a condition referred to as “shy bladder”. He contends the condition is a consequence of feeling embarrassed by having an officer closely observe his genitals while he attempted to urinate.
13. “Shy bladder” is a recognized medical condition; the formal name is “paruresis.” Kenneth King, the Judicial District Manager who conducted the Respondent’s initial investigation, was familiar with the condition, stating “Yes, I have heard of it. Somebody who couldn’t go in front of other people.”
14. There is no evidence presented that Mr. Surber has a diagnosed medical condition that made it difficult for him to urinate in the presence of others. There is ample evidence that Mr. Surber often had difficulty producing a urine specimen for testing while being observed by others.
15. Mr. Surber had difficulty urinating in front of other probation officers, as well as Petitioner. In each instance he was advised he could drink some water and wait for up to two hours. He was always able to produce a urine specimen in view of the probation officer after using this procedure. Similarly, when Mr. Surber had difficulty producing a urine specimen in prison, he was given an eight-ounce cup of water, told he could wait two hours and was he able to produce the specimen.
16. On occasion when Mr. Surber was unable to produce a urine specimen while being observed, Petitioner did not give him the option of drinking eight ounces of water and waiting up to two hours as DCC policy provides. Instead, Petitioner suggested that he “prime the pump,” a prison term to describe a method to stimulate the flow of urine. Most of the time, “priming the pump” was helpful to Mr. Surber in producing the urine specimen. When “priming the pump” did not help Mr. Surber produce a urine sample, Petitioner advised he would be marked as a refusal if he was unable to produce, which would have been a violation of probation.
17. On March 11, 2007, as an alternative, Petitioner told Mr. Surber he could strip naked, “squat and cough” to prove he wasn’t hiding anything on his person, and go into the bathroom by himself to produce the urine specimen.
18. There is conflicting evidence as to the origin of the idea for Mr. Surber to strip in order to provide the urine sample. Mr. Surber contends that the Petitioner “gave me the option to strip” and suggested that it was Petitioner’s idea. Petitioner testified that the suggestion originated with Mr. Surber. Mr. Surber was familiar with this procedure since he had been subjected to this method of collection while he was in prison.
19. Mr. Surber was not forced to give a sample by stripping. He was aware of the ability to provide a urine specimen in the manner described in the DCC procedures and that he had the option to drink water and wait as much as two hours as well.
20. Mr. Surber was aware that if he did not produce a urine specimen that he would be in violation of the terms and conditions of his probationary sentence as required by DCC policy, and that he could be sent back to prison for a violation.
21. Mr. Surber removed all of his clothes and the Petitioner examined him to see if he had anything that he was trying to secret. Mr. Surber squatted and coughed to show that he had concealed nothing. The door to the bathroom was open but not open in any manner in which other persons could see Mr. Surber inside the bathroom. The Petitioner waited outside the bathroom until after Mr. Surber had provided the sample. After providing the sample Mr. Surber retrieved his clothing and got dressed.
22. The sample Mr. Surber gave on March 11, 2007 tested positive for cocaine, and combined with a later positive drug screen resulted in a hearing at which he was required to re-enter the DART program at Cherry Hospital.
23. One or more positive drug screens are a method by which a probationer may be ordered into the drug rehabilitation program at DART Cherry. The probationer could not be sent to DART for refusing drug screens.
24. As a result of Mr. Surber’s second commitment to DART Cherry for drug treatment, he successfully kicked his drug habit, which allowed him to complete his probation successfully.
25. The procedure used by Mr. Surber and the Petitioner to allow Mr. Surber to produce a urine sample after stripping completely naked was humiliating, but not more humiliating than the standard procedure. Mr. Surber had stripped to produce a urine sample in prison.
26. Mr. Surber told his wife about the naked collection procedure soon after it occurred on March 11, 2007.
27. Mr. Surber did not make or file any complaint regarding the use of this procedure to permit him to produce a urine sample until seventeen months later.
28. Approximately June of 2007, Mr. Surber complained on several occasions to CPPO Dennis Guy, the Petitioner’s immediate supervisor. Among his complaints was the frequency of the drug testing, but Mr. Surber made no mention or complaint regarding the method by which he had been giving the urine samples.
29. Between March 11, 2007, and November 2007, Mr. Surber, and his wife, made a number of complaints to the Petitioner’s supervisor, regarding other aspects of his supervision of Mr. Surber. In November 2007, Mr. Surber asked to meet with Petitioner’s direct supervisor, CPPO Guy, to discuss several instances where Petitioner had acted unprofessionally. Mr. Surber’s wife and his former boss also attended the meeting. Mr. Surber did not tell CPPO Guy about stripping naked for drug screens because he contends that he did not know it was against the rules or something that he did not have to do.