STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 00 OSP 1333

A. MARK ESPOSITO,
Petitioner,
v.
DEPARTMENT OF TRANSPORTATION,
Respondent. / ))))))))) / RECOMMENDED DECISION

This matter was heard before Beecher Gray, Administrative Law Judge, on January 25 & 26, 2001, in Raleigh, North Carolina.

APPEARANCES

For the Petitioner: Marvin Schiller, Attorney at Law

David G. Schiller, Attorney at Law

Raleigh, North Carolina

For the Respondent: Sarah Ann Lannom, Assistant Attorney General

Tina A. Krasner, Assistant Attorney General

Raleigh, North Carolina

ISSUES

1. Whether Respondent terminated Petitioner without just cause in violation of N.C.Gen. Stat. § 126-35.

2. Whether the Respondent complied with the specificity requirements contained in N.C. Gen. Stat. § 126-35.

FINDINGS OF FACT

1. The parties stipulated on the record that notice of hearing was proper in this contested case.

2. Petitioner A. Mark Esposito began employment with the Department of Transportation in 1983. Trans. I. 13. He began employment at the Division of Aviation, in the Department of Transportation in 1989. Trans. I. 13. Esposito continued his employment with the Department until he was terminated for “personal misconduct” by Daniel H. DeVane, Deputy Secretary of the Department, by letter dated September 5, 2000. Trans. I. 21; lines 1-10; Respondent’s Hearing Exhibit 10.

3. Petitioner was a “career employee” within the meaning of N.C. Gen. Stat. Chapter 126 (the State Personnel System), N.C. Gen. Stat. § 126-1.1. He could be terminated from his employment only for “just cause” in accordance with N.C. Gen. Stat. § 126-35.

4. On October 23, 1998, Petitioner received a counseling session for unacceptable personal conduct, which does not constitute either an oral warning, a first written warning, or a second written warning. Respondent’s Hearing Exhibit 1. Petitioner received a written warning for unacceptable personal conduct on October 19, 1999. Respondent’s Hearing Exhibit 2.

5. Petitioner held the position of Transportation Engineer II, Airport Project Manager. His salary was approximately $ 47,958.00 per year and his pay grade was 76. Trans. I. 13.

6. The Airport Project Manager “is the Division’s staff specialist in matters dealing with the planning, engineering design, and construction of airports.” Trans. I. 15; Petitioner’s Hearing Exhibit 1. “The Airport Project Manager provide[s] engineering and technical assistance to local government units on airport and aviation needs including long range planning, timing, and content of planning and construction projects.” Id. The Airport Project Manager recommends and reviews any project scope changes. Trans. I. 15. The Airport Project Manager establishes guidelines for completing projects in a timely manner. Trans. I. 16. Petitioner was responsible for approximately fifty (50) projects while he was employed with the Agency from 1999-2000. Trans. I. 155-56.

7. William H. Williams, the Director of Aviation, provided Petitioner with a memorandum dated June 2, 2000 requesting that he attend a pre-disciplinary conference on June 9, 2000, to discuss a recommendation that he be dismissed for unacceptable personal conduct. The memorandum specifically outlined seven instances where Petitioner had allegedly engaged in unacceptable personal conduct. Respondent’s Hearing Exhibit 7. Petitioner attended the pre-disciplinary conference and responded to these seven instances by way of a detailed, seven-page memorandum. Respondent’s Hearing Exhibit 8. On June 12, 2000, Mr. Williams dismissed Petitioner for unacceptable personal conduct based on the seven instances that were fully outlined in the June 2, 2000 memorandum and rewritten almost verbatim in the June 12, 2000 memorandum. Mr. Williams also advised Petitioner of his appeal rights to the DOT Human Resources Director. Respondent’s Hearing Exhibit 9. Petitioner appealed his dismissal and had a hearing before an Employee Relations Committee (“ERC”) on August 23, 2000. The ERC concurred with management’s decision to dismiss Petitioner. Respondent’s Prehearing Statement. Deputy Secretary Daniel H. DeVane upheld Petitioner’s dismissal by letter dated September 5, 2000. In the September 5 letter, Deputy Secretary DeVane relied on three out of the seven allegations of unacceptable personal conduct, specifically: Brunswick County Airport projects, Ocean Isle Airport projects, and a meeting on March 29, 2000 with the State Historical Preservation Office. Respondent’s Hearing Exhibit 10.

8. The bases for Petitioner’s termination contained in Deputy Secretary Daniel H. DeVane’s September 5, 2000 termination letter are:

1. As to Brunswick County Airport projects: Representatives of Brunswick County Airport and their Consultant, Talbert & Bright, Inc, Larry Prince, Bob Miller, Howie Franklin and Jay Talbert reported that since early January 2000, you have personally and continually attempted to coerce Brunswick County Airport representatives to reduce the agreed upon scope of services, by misrepresenting the facts and engaging in questionable ethical behavior.

2. As to the Ocean Isle Airport projects: On May 25, 2000, Greg Taylor, Larry Sellers, Daisy Ivey and others reported that they had been working with you on projects that were not part of the approved grant for the airport while they thought that all of the additional projects had the Division of Aviation’s approval. These projects did not have approval, and your actions with respect thereto effectively constituted a misrepresentation on the part of the Division of Aviation.

3. As to the meeting on March 29, 2000, with the State Historical Preservation Office (SHPO) staff and others: Renee Gledhill-Early indicated you behaved poorly and were unprofessional concerning the potential adverse effect finding at the Beaufort-Morehead City Airport. In this meeting, you were rude and showed a disregard for the SHPO’s staff expertise. You interrupted others present when they attempted to express an opinion and your tone was short and belligerent when an interpretation of the regulations disagreed with yours.

Respondent’s Hearing Exhibit 10.

I.  THE BRUNSWICK COUNTY AIRPORT

9. The termination letter does not specify precisely the date, time, or place of Petitioner’s specific actions which form the factual basis for the allegations stated in the first numbered paragraph of his termination letter. Respondent’s Hearing Exhibit 10 . In particular, the termination letter does not specify how Petitioner coerced Brunswick County airport representatives; which Brunswick County airport representatives Petitioner coerced; what facts Petitioner misrepresented; or what behavior was “questionably ethical.” Id.

The only specific allegation contained in either letter regarding the Brunswick County Airport project is that on March 28, 2000 Petitioner indicated to Brunswick County Airport representatives that he would see that the project was killed if the scope of work was not reduced.

10. Brunswick County Airport is a general aviation airport. Trans. I. 33. The Brunswick County Airport has no commercial air service. Trans. I. 33. The airport has one single runway, which was proposed to be extended. Trans. I. 33.

11. Petitioner drafted a Memorandum dated July 21, 1999 to the Transportation Improvement Program (“TIP”) Committee concerning the Brunswick County Airport. Trans. I. 29-30; Petitioner’s Hearing Exhibit 3. The TIP Committee accepts recommendations on projects that have been submitted for airport funding. Trans. I. 30, lines 6-10. The TIP Committee included Rick Barkes (“Barkes”), Petitioner’s immediate supervisor, and other Division of Aviation officials. Trans. 30, lines 1-5. Petitioner recommended that the TIP Committee allocate $225,000.00, to bring the 4,000 foot runway up to standard. Trans. I. 32.

12. On September 30, 1999, Petitioner drafted a memorandum to Rick Barkes, his immediate supervisor. Trans. I. 33-34; Petitioner’s Hearing Exhibit 4. He informed Barkes of a discussion that he had with the Brunswick County Airport’s consultant, Jay Talbert (“Talbert”), who apparently wanted to expand the scope of the preliminary planning documents to include a “full instrument landing system” as opposed to “a non-precision landing system.” Trans. I. 34, lines 3-9. A full instrument precision approach system allows an airplane to land in adverse weather conditions. Trans. I. 34. To extend the runway to full precision would require the acquisition of a considerable amount of land. Trans. I. 35-36. Petitioner received no response to his memo to Rick Barkes dated September 30, 1999. Trans. I. 37, lines 15-22.

13. Petitioner drafted a memorandum reflecting a conversation that he had on October 4, 1999, with Department of Transportation Deputy Secretary David King and Aviation Director William Williams. Petitioner testified that Mr. King agreed with him that a non-precision approach appeared adequate for the Brunswick County Airport. Trans. I. 38-39; Petitioner’s Hearing Exhibit 5. Petitioner e-mailed the memorandum to Messrs. King, Williams, and Barkes, his immediate supervisor. Trans. I. 38, lines 19-22.

14. Petitioner drafted another memorandum to Supervisor Barkes on December 9, 1999, apprising him of the status of the Brunswick County Airport. Trans. I. 40; Petitioner’s Hearing Exhibit 6. Petitioner informed Rick Barkes of his concern that the scope of the project was being expanded without the Division’s approval. Trans. I. 41-42. He received no response from Supervisor Barkes to his December 1999 letter. Trans. I. 42, lines 22-24.

15. Mr. Scott Fletcher, a scientist for Duke Engineering Services (“Duke”), provided a statement of services for an evaluation of the Brunswick County Airport project per Petitioner’s request. Trans. I. 49-50; Petitioner’s Hearing Exhibits 7, 8, and 10. The Duke proposal only included a scope of services for a runway extension at the Brunswick County Airport, which was not to exceed $45,668 plus expenses. Trans. I. 61, 204, 216-219. In contrast, Talbert & Bright’s proposal was much more comprehensive, including an instrument landing system in the scope of the project. Trans. II. 33-34. Talbert & Bright’s proposal was $239,000.00. Trans. I. 61. Petitioner concluded that the scope of the Duke proposal concerning the Brunswick County Airport was appropriate. Trans. I. 50.

16. Petitioner submitted copies of both the Talbert & Bright and the Duke proposals to Mr. M. Randall Turner (“Turner”), Division Environmental Office, Division of Highways, North Carolina Department of Transportation. Trans. I. 52. Randall Turner has been employed with [the] Department of Transportation since 1990. Trans. I. 171. He is a biologist and conducts environmental evaluations of highway projects across the state. Trans. I. 171. He is responsible for reviewing consulting work of highway projects. Trans. I. 172. Randall Turner provided an analysis of both the Talbert and the Duke proposals. He concluded that Duke “makes the most reasonable proposal, both in terms of general services and cost, while [Talbert’s] proposal misses the mark by being excessive on both counts.” Trans. I. 55; Petitioner’s Hearing Exhibit 11. However, Mr. Turner admitted that he never has done any work for the Aviation Division and has almost no expertise in FAA environmental processes and procedures. Mr. Turner stated that he does not know what constitutes a major action under FAA guidelines that would justify or require an environmental assessment instead of a categorical exclusion and does not really know what an instrument landing system is at an airport. When Mr. Turner concluded that Duke Engineering made the most reasonable proposal, he was not aware that the funding for the project included an environmental assessment. Trans. I. 183-198.

17. On March 27, 2000, Petitioner sent an email to his immediate supervisor, Rick Barkes and to Aviation Director Williams. Trans. I. 56, Petitioner’s Hearing Exhibit 13. Petitioner requested to meet with Supervisor Barkes and Director Williams to review the scope of the services that the State would agree to with respect to the Brunswick County Airport. Trans. I. 56. As of May 1, 2000, Petitioner had not received a response to his March 27, 2000, email to Supervisor Barkes. Trans. I. 56, line 20 through Trans. I. 57, line 7; Petitioner’s Hearing Exhibit 13. On April 7, 2000, and April 28, 2000, Petitioner sent emails to Supervisor Barkes regarding the scope of the services in the Brunswick County Airport. Trans. I. 57-58. Again, Petitioner received no response to these emails. Trans. I. 58, lines 5-7.

18. Larry Prince, former Chairman of the Brunswick County Airport, testified that Talbert & Bright was the Engineer of Record for the Brunswick County Airport Commission. Mr. Prince had the authority to solicit proposals for work at the airport, and he did not request Petitioner to solicit the Duke proposal. Mr. Prince stated that Petitioner had tried to convince him and other board members (in his presence) on several occasions that they should downsize the scope of the airport expansion and not take a full instrument landing system (“ILS”) approach. Petitioner even told the Commission that if it went with the full ILS approach, it would not be funded. Trans. II. 228-236, 242-255.

II.  THE OCEAN ISLE BEACH AIRPORT

19. The bases for Petitioner’s dismissal are contained in the letter to Petitioner dated June 12, 2000 from William H. Williams (Respondent’s Hearing Exhibit 9) and in the letter to Petitioner dated September 5, 2000 from Daniel H. DeVane. Respondent’s Hearing Exhibit 10. Both were submitted by the Respondent as the Documents Constituting Final Agency Action and comprise the reasons for his dismissal. The letter to Petitioner dated September 5, 2000 from Daniel H. DeVane discussed three areas which constituted unacceptable personal conduct: Brunswick County Airport projects, Ocean Isle Airport projects, and a meeting on March 29, 2000 with the State Historical Preservation Office. Respondent’s Hearing Exhibit 10. The termination letter does not specify on what projects Petitioner was working. Nor does the letter specify what constituted Petitioner’s alleged “misrepresentation on the part of the Division of Aviation.” Respondent’s Hearing Exhibit 10. No dates, times, or places of Petitioner’s acts or omissions are provided regarding the Ocean Isle Beach Airport project.

20. The Ocean Isle grant agreement was executed January 19, 1996. Trans. I. 63, lines 14-15; Petitioner’s Hearing Exhibit 16. The agreement provides that “any amendments or modifications to the scope shall be in the form of a modified grant agreement” Trans. I. 64; Petitioner’s Hearing Exhibit 16. There is no “modified grant agreement.” Trans. I. 64.

21. The purpose and scope of the Ocean Isle Agreement was to purchase eight (8) acres located at the end of the runway to clear trees violating or penetrating the approach of the airport runway. Trans. I. 67. The Town was unable to purchase the land because a landowner resisted selling his land and the Town decided to condemn it, which delayed the project. Trans. I. 67-68.

22. Petitioner wrote to Town Manager Gregory Taylor (“Taylor”) on August 18, 1998, to inform him of the Agency’s position with respect to the Ocean Isle Airport project. Trans. I. 69; Petitioner’s Hearing Exhibit 18. Petitioner stated that there was no increase in funds available if the cost of the land was higher than anticipated. At most, the State would pay no more than 20 % more than the land’s appraised value. Id. In the event that the land could not be purchased, Petitioner suggested that the Town could attempt to purchase the trees. Trans. I. 70; Petitioner’s Hearing Exhibit 18.