State of North Carolina s4

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

MECKLENBURG COUNTY 01 OSP 1516

Marshall E. Carter )

Petitioner )

)

v. ) DECISION

)

NC Department of Transportation )

Respondent. )

This matter was heard before Administrative Law Judge Beryl E. Wade, in Charlotte, North Carolina, on May 22, 2002.

APPEARANCES

For Petitioner: Marshall E. Carter

5102 Rosemeade Drive

Charlotte, North Carolina 28227-3011

For Respondent: Gaines M. Weaver

Assistant Attorney General

NC Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602-0629

PROCEDURAL BACKGROUND

By letter dated September 10, 2001 and sent to the Office of Administrative Hearings, Petitioner stated that he disagreed with the decision of the Employee Relation’s Committee and petitioned for review by Governor Easley and Department of Transportation “(hereinafter DOT)” Deputy Secretary Daniel H. Devane. On September 14th, OAH notified Petitioner that it could not determine whether the letter constituted a petition and provided him with the appropriate form for filing a petition. On September 20, 2001, Petitioner filed a Petition for Contested Case Hearing in the Office of Administrative Hearings naming “Employee Relations Committee” as the Respondent. On October 25, 2001, Respondent filed a Motion to Dismiss for lack of subject matter jurisdiction, personal jurisdiction, insufficiency of service of process and failure to state a claim upon which relief can be granted.

Petitioner filed his prehearing statement on November 15, 2001. Respondent received an extension of time to file its prehearing statement until after its motion to dismiss was ruled upon. By order dated January 7, 2001, the undersigned Administrative Law Judge denied the motion. Respondent filed its prehearing statement and documents constituting final agency action on January 22, 2002.

ISSUES

1. Did the DOT have just cause to dismiss Petitioner for unacceptable personal conduct based

unauthorized use of a State vehicle and accepting a gift from a contractor?

2. Did DOT fail to give Petitioner priority consideration for a promotion?

WITNESSES

Johnnie Hinton, Jr. Transportation Technician II

Timothy N. Boland Division 10 Construction Engineer

Scotty Jarman Transportation Technician II

Marshall E. Carter Petitioner

Louis Mitchell Resident Engineer

Ron Graham Resident Engineer

James M. Dennis Resident Engineer (retired)

William H. King Assistant Resident Engineer

EXHIBITS RECEIVED INTO EVIDENCE

Petitioner: None

Respondent

a. Policy on Use of State Vehicles

b. NCDOT Ethics Policy

c Signed Statement of Petitioner

d. Memo to DOT Employees regarding Policy on Ethical Conduct

e. Memo to DOT Employees regarding Update to Ethics Policy

f. Summary of Terminations in Division 10

g. Application for Permanent Assignment of Personal Vehicle

FINDINGS OF FACT

Based upon the official documents in the file, the sworn testimony of the witnesses, and the other competent evidence considered, the undersigned finds the following facts:

1. Petitioner was employed by NCDOT beginning in June, 1990. He received a number of promotions and raises over the next 11 years and received generally positive performance reviews. (Respondent’s Prehearing Statement)

2. Petitioner admitted under oath that on May 15, 2001, he was offered some construction material (stones) by an employee of Blythe Construction Company, a contractor on a highway project Petitioner was assigned to. Petitioner had the contractor load the stone into the bed of a state-owned, NCDOT pick-up truck. (T p 67, lines 8-10)

3. Petitioner testified that while stopping to talk to his supervisor, he was passed by Ron Graham, Acting Resident Engineer for NCDOT, one of Petitioner's superiors, and who was driving in the opposite direction through the construction project. He further testified that after notifying his supervisor that he was leaving for the day, he left in the state-owned truck with the stone. (T pp 70-71, lines 24-25, 1-13)

4. When Ron King passed Petitioner's state vehicle, he did not at first notice the stone in the bed of the truck. As he passed it, Mr. King noticed that Petitioner's vehicle was sagging due to some sort of weight in the bed. He then saw the stone. He knew this was probably not right, but avoided jumping to any conclusions. He stopped to consider what he had seen and what he should do. (T p 112, lines 11-15)

5. He called his office to verify that Petitioner was on duty and, due to his suspicions, asked for Petitioner's home address. Billy King and David Gillette, Assistant Resident Engineers, were in the office when Mr. Graham called in. They volunteered to meet him at Petitioner's home.(T p 113, lines 1-17)

6. Mr. Graham usually carries a camera in his State vehicle, so it was available for evidentiary purposes. (T p 113, lines 19-22) The three men met at Petitioner's home. (T p 73, lines 2-13) In addition, Petitioner was not approved to drive his vehicle home. (T pp 90-91, lines 7-25, 1-12 ) Mr. Graham used his camera to document the situation. (T p 113-, lines 19-20)

7. The N.C. Department of Administration sets policies regarding the use of state-owned vehicles in all state agencies and departments, including NCDOT. The first clause reads in pertinent part: "It shall be unlawful for any state employee to use a state-owned vehicle for any private purpose whatsoever." (T p 127, lines 1-25)

8. In addition, NCDOT has an Ethics Policy which applies to both officers and employees of the Department. It reads in pertinent part:

These policies on ethical behavior are intended to guide the actions of all officers and employees of the Department of Transportation and copies of this policy are to be brought of the attention of each employee on a regular basis . . . A conflict of interest is a situation in which an employee's private interests, usually of a financial or economic nature, conflicts or raises a reasonable question of conflict with the employee's public duties and responsibilities . . . No officer or employee of the NCDOT or member of his/her immediate family shall use such position to profit from, directly or indirectly, an interest in real or personal property. (T p 131-132, lines 2-25, 1-9)

9. Petitioner signed a statement on February 14, 1991, which indicated that the ethics policy had been discussed with him. In addition, he stated in writing, "I understand that I am not to accept anything of value from any person, corporation or company outside of NCDOT."(T pp 86-87, lines 15-25, 1)

10. He also acknowledged that he had received and read an updated copy of the policy on December 16, 1993. (T pp 88-89, lines 1-25, 1-5)

11. Mr. Graham reported what he had observed to Timothy Boland, NCDOT Division Construction Engineer, who in turn reported the situation to Benton Payne, NCDOT Division Engineer. (T p 114, lines 9-16; T p 125, lines 5-24)

12. On May 16, 2001, Petitioner was given a memo from Mr. Payne instructing him to attend a pre-disciplinary conference on Friday, May 18, 2001, to respond to the recommendation that he be dismissed for two counts of unacceptable personal conduct stemming from the events of May 15, 2001, (1) use of a State-owned vehicle for personal purposes and (2) removing project material for personal use. (Respondent’s Prehearing Statement; T pp 73-74, lines 20-25, 1-7)

13. On May 18, 2001, the conference was held with Petitioner, Mr. Payne and Mr. Boland. At the conference, Petitioner admitted that he had loaded his assigned state vehicle, which he admitted he was not authorized to take home, with stone from the project, transported it to his home and unloaded the stone for his own use. (Respondent’s Prehearing Statement)

14. Because of Petitioner's length of tenure with the State and the signed statements acknowledging familiarity with the relevant state policies, Mr. Payne and Mr. Boland felt that they could not ignore such clear cut violations of state policies. They concluded that his conduct was such that no reasonable person should have expected a prior warning before dismissal and it violated known or written work rules. Petitioner was dismissed effective May 24, 2001. (Respondent’s Prehearing Statement; Document Constituting Final Agency Action)

15. Petitioner admitted on the witness stand that DOT had cause to terminate him for violating state policies. (T p 74, lines 10-13)

16. In NCDOT Division 10, from January 29, 1992 to June 27, 2001, eleven employees had been terminated. Of the eleven, nine were white and two were African-American. (T p 138-140)

17. In three similar cases, employees were terminated because of misappropriation of materials, similar to the Petitioner's situation. Mulch, pipe and stone were taken for personal use in the respective cases and in all three cases, the terminated employee was White. (T pp 138-140)

18. Petitioner submitted no evidence regarding any allegation of failure to receive priority consideration.

19. Over objections from Respondent, Petitioner attempted to elicit testimony from multiple witnesses regarding other instances in which violators of various policies were not punished. However, no witness was able to testify with first hand knowledge. Thus, all such testimony was hearsay and has been disregarded by the court.

CONCLUSIONS OF LAW

1. The parties are properly before the Office of Administrative Hearings and received notice of the hearing in this matter. This office has jurisdiction to hear the matter and to issue a recommended decision to the State Personnel Commission which shall render a final agency decision.

2. The State Personnel Act permits disciplinary action against career state employees for “just cause.” N.C. Gen. Stat. §126-35. Although “just cause” is not defined in the statute, the words are to be accorded their ordinary meaning. Amanini v. Dep't of Human Resources, 114 N.C. App. 668, 443 S.E.2d 114 (1994) (defining “just cause” as, among other things, good or adequate reason). In addition, administrative regulations provide two grounds for discipline or dismissal based on just cause, unacceptable job performance and unacceptable personal conduct. N.C. Admin. Code tit. 25 r. 1J.0604(b).

3. “Unacceptable personal conduct” means, among other things, conduct for which no reasonable person should expect to receive prior warnings, the willful violation of known or written work rules, or conduct unbecoming a state employee that is detrimental to state service. N.C. Admin. Code tit. 25 r. 1J.0604(d). An employee may be disciplined or dismissed for personal conduct violations without warning.

4. The facts here demonstrate that Petitioner was fully aware of the State and DOT policies regarding the personal use of state-vehicles.

5. Petitioner admitted that Respondent had just cause to terminate for violating the vehicle policy. (T p 74, lines 10-13) In his defense, he argued repeatedly that he was not being treated fairly in comparison to other employees. However, Petitioner was unable to elicit consistent, credible, admissible testimony to support this contention. Thus, this court cannot find that he was treated inconsistently with DOT policies applied to other DOT employees. That leaves the court with nothing but Petitioner’s own consistent testimony which admitted to every fact alleged by DOT and admitted that DOT had cause to terminate him.

6. Therefore, the competent and substantial evidence demonstrates that the DOT had just cause to dismiss Petitioner for unacceptable personal conduct— illegal use of a state vehicle for personal purposes and violation of the DOT ethics policy regarding the acceptance of gifts.

7. Since no evidence was presented by Petitioner that “failure to receive priority consideration” has any relevance to this case, DOT clearly did not fail to give him priority consideration.

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the State Personnel Commission find that the Department of Transportation had just cause to terminate Petitioner for illegal use of a state-owned vehicle for personal purposes and for violation of DOT’s ethics policy regarding the acceptance of gifts.

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714, in accordance with N.C. Gen. Stat. § 150B-36(b).

NOTICE

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this recommended decision and to present written arguments to those in the agency who will make the final decision. N.C. Gen. Stat. § 150B-36(a).

The agency is required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the attorney of record and to the Office of Administrative Hearings.

The agency that will make the final decision in this contested case is the State Personnel Commission.

This the 19th day of December, 2002.

______

Beryl E. Wade