{ "id": 11242057, "name": "N.C. DEPARTMENT OF CORRECTION, Petitioner v. DONALD P. McNEELY, Respondent", "name_abbreviation": "N.C. Department of Correction v. McNeely", "decision_date": "1999-11-16", "docket_number": "No. COA98-1131", "first_page": "587", "last_page": "594", "citations": [ { "type": "official", "cite": "135 N.C. App. 587" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 126-35", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1995, "opinion_index": 0 }, { "cite": "231 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "888" } ], "opinion_index": 0 }, { "cite": "292 N.C. 70", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567415 ], "year": 1977, "pin_cites": [ { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0070-01" ] }, { "cite": "233 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "541" } ], "opinion_index": 0 }, { "cite": "292 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569880 ], "year": 1977, "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0406-01" ] }, { "cite": "253 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "922" }, { "page": "922" } ], "opinion_index": 0 }, { "cite": "297 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566826 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "65" }, { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0048-01" ] }, { "cite": "301 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "quoting In re Rogers, 297 N.C. 48, 65, 253 S.E.2d 912, 922 (1979)" } ], "opinion_index": 0 }, { "cite": "308 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707236 ], "year": 1983, "pin_cites": [ { "parenthetical": "quoting In re Rogers, 297 N.C. 48, 65, 253 S.E.2d 912, 922 (1979)" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0131-01" ] }, { "cite": "293 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "674" }, { "page": "674" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 241", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524580 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "257" }, { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0241-01" ] }, { "cite": "483 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "392", "parenthetical": "quoting Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118" }, { "page": "393" } ], "opinion_index": 0 }, { "cite": "345 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53839 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "706", "parenthetical": "quoting Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118" }, { "page": "707" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0699-01" ] }, { "cite": "500 S.E.2d 723", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "129 N.C. App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651162 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc-app/129/0499-01" ] }, { "cite": "481 S.E.2d 685", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "691" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 457", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11868692 ], "year": 1997, "pin_cites": [ { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0457-01" ] }, { "cite": "435 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "363" }, { "page": "363", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 161", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 12137315 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "596" }, { "page": "597" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0590-01" ] } ], "analysis": { "cardinality": 768, "char_count": 17781, "ocr_confidence": 0.742, "pagerank": { "raw": 1.6135447564196638e-07, "percentile": 0.6860085279103144 }, "sha256": "90aead747de8e210d7fdc7375daccb167f363bfd9525834c5dcdc6a4dae29b72", "simhash": "1:843cdcad75cda948", "word_count": 2770 }, "last_updated": "2023-07-14T18:51:33.981101+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHN and EDMUNDS concur." ], "parties": [ "N.C. DEPARTMENT OF CORRECTION, Petitioner v. DONALD P. McNEELY, Respondent" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\n\u25a0 Donald P. McNeeiy (hereinafter, \u201crespondent\u201d), a correctional officer with the North Carolina Department of Correction (hereinafter, \u201cDOC\u201d), was dismissed for misconduct effective 22 June 1994. The stated grounds for the dismissal were: \u201c(1) leaving [his] post without authorization and (2) failure to remain alert on duty.\u201d From the Superior Court\u2019s Memorandum of Decision instructing the Personnel Commission (hereinafter, \u201cthe Commission\u201d) to enter an order upholding the dismissal, respondent appeals.\nThe evidence tends to show that on 5 June 1994, respondent was assigned as Control Officer from 10:00 p.m. to midnight at McDowell County Correctional Center. The Control Officer is primarily \u201cresponsible for maintaining the safety and security of the inmates and staff in the dormitory area.\u201d\nIn pertinent part, the published work rules for the Control Officer post state the following:\n(1) No officer is to leave this post until properly relieved. The Officers shall be alert at all times and shall not engage in any activity which will distract their attention from their responsibilities.\n(2) The Control Officer will maintain visual contact with the Dormitory Patrol Officer. If the Control Officer does not see the Dormitory Officer for 3 minutes, then call the Officer-In-Charge (OIC).\nRespondent was familiar with the aforementioned duties of the Control Officer, having - repeatedly served in that capacity while employed with the DOC.\nAt approximately 10:55 p.m., while conducting an inspection of the officers on duty, Sergeant Elkins, the shift supervisor, observed respondent away from his assigned work post, the control room, without authorization. Respondent was standing in a corridor'adjacent to the control room, smoking a cigarette and reading a novel. From this position, respondent could observe only two-thirds of the dormitory area, and as a result of leaving his post, respondent lost sight of the two Dorm Officers, Tim Frady and Steven Edwards, for a period of six to ten minutes. The two officers, armed only with cans of mace, were walking among the prisoners. Both officers testified that they had a heightened concern for their own safety due to respondent\u2019s actions.\nThis incident was not respondent\u2019s first warning concerning his conduct at work. Respondent received three prior warnings about his performance, two of which were specifically related to his failure to remain vigilant while assigned to the dormitory area. On 30 July 1993, respondent was issued a final written warning for failing to stay alert in the dormitory when he was observed sitting down with his head resting on his chest and his eyes closed. Thereafter, on 23 September 1993, respondent was again issued a written warning for failing to perform assigned duties in an acceptable manner by watching television in lieu of making assigned rounds in the dormitory. Both of these warnings were instigated by Sergeant Elkins.\nOn 22 June 1994, DOC dismissed respondent from his position as a correctional officer for \u201cunacceptable personal conduct\u201d occurring on 5 June 1994. Respondent filed a petition for wrongful termination, and a hearing was held before an Administrative Law Judge (hereinafter, \u201cALJ\u201d) on 10 October 1995. On 12 February 1996, the ALJ found that respondent\u2019s misconduct met the regulatory definition of \u201cunsatisfactory job performance\u201d rather than \u201cunacceptable personal conduct.\u201d Therefore, the ALJ concluded that respondent was not dismissed for just cause and recommended that the dismissal be reversed and respondent be reinstated with a final written warning for \u201cunsatisfactory job performance\u201d or, alternatively, with a five percent pay reduction. The Commission considered the ALJ\u2019s recommendation on 6 June 1996 and entered an order upholding the decision with slight modifications. The Commission ordered respondent\u2019s reinstatement, after concluding that respondent\u2019s misconduct failed to meet the definition of \u201cunacceptable personal conduct.\u201d On 30 August 1996, the DOC petitioned for judicial review of the Commission\u2019s order on the grounds that the legal and factual bases of its decision, as stated in Conclusion of Law Number 3, were arbitrary and capricious, unsupported by substantial evidence, and erroneous as a matter of law. In an order dated 29 June 1998, the trial court reversed the Commission and upheld the DOC\u2019s decision to dismiss respondent. Respondent now appeals the ruling.\nBy his sole assignment of error, respondent argues that the trial court erred in reversing the Commission\u2019s decision. Specifically, respondent contends that the trial court erroneously determined that the Commission\u2019s Conclusion of Law Number 3 was not supported by substantial evidence in the record. We must disagree.\nJudicial review of administrative agency decisions is governed by the Administrative Procedure Act, North Carolina General Statutes sections 150B-1 to 150B-52. N.C. Gen. Stat. \u00a7\u00a7 150B-1-150B-52 (1995); Eury v. North Carolina Employment Security Comm., 115 N.C. App. 590, 596, 446 S.E.2d 383, 387, disc. review denied, 338 N.C. 309, 451 S.E.2d 635 (1994). Section 150B-51(b) states the following:\n[T]he court reviewing a final decision may affirm the decision of the agency or remand the case for further proceedings. It may also reverse or modify the agency\u2019s decision if the substantial rights of the petitioner may have been prejudiced because the agency\u2019s findings, inferences, conclusions, or decisions are:\n(1) In violation of constitutional provisions;\n(2) In excess of the statutory authority or jurisdiction of the agency;\n(3) Made upon unlawful procedure;\n(4) Affected by other error of law;\n(5) Unsupported by substantial evidence ... in view of the entire record as submitted; or\n(6) Arbitrary or capricious.\nN.C.G.S. \u00a7 150B-51(b). Although section 150B-51(b) lists the grounds upon which the superior court may reverse or modify a final agency decision, \u201cthe proper manner of review depends upon the particular issues presented on appeal.\u201d Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994).\nIf [petitioner] argues the agency\u2019s decision was based on an error of law, then \u201cde novo\u201d review is required. If, however, [petitioner] questions (1) whether the agency\u2019s decision was supported by the evidence or (2) whether the decision was arbitrary or capricious, then the reviewing court must apply the \u201cwhole record\u201d test.\nId. (quoting In re Appeal by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993). \u201c \u2018De novo\u2019 review requires a reviewing court to consider a question anew, as if not considered or decided by the agency.\u201d Amanini at 674, 443 S.E.2d at 118. Under the \u201cwhole record\u201d test, a reviewing court must consider all competent evidence, including that which fairly detracts from the Commission\u2019s findings, con-elusions, or ultimate decision, to determine whether the decision has a rational basis in the evidence. Beauchesne v. University of N.C. at Chapel Hill, 125 N.C. App. 457, 465, 481 S.E.2d 685, 691 (1997).\nUnder section 150B-52 of the General Statutes, this Court\u2019s review of a trial court\u2019s order \u201cis the same as in any other civil case;\u201d thus, we must examine the trial court\u2019s order for error of law. In re Appeal by McCrary, 112 N.C. App. at 165, 435 S.E.2d at 363 (citation omitted); N.C.G.S. \u00a7 150B-52. The reviewing process of a superior court order concerning an agency decision is two-fold. We must (1) determine whether the trial court utilized the appropriate scope of review and, if appropriate, (2) decide whether the court did so properly. Eury, 115 N.C. App. at 597, 446 S.E.2d at 388. Because the order in the instant case does not specify which standard of review the trial court employed, we will look to how the alleged error was characterized by the parties on appeal to the superior court. See In re Appeal of Willis, 129 N.C. App. 499, 500 S.E.2d 723 (1998).\nIn its petition for judicial review, DOC argued that the Commission\u2019s Conclusion of Law Number 3 was \u201carbitrary and capricious, unsupported by substantial evidence in view of the entire record, and erroneous as a matter of law.\u201d Thus, the trial court should have reviewed the matter under the \u201cwhole record\u201d test. Amanini, 114 N.C. App. 668, 443 S.E.2d 114. In reversing the Commission\u2019s decision, the trial court\u2019s order states that the \u201cCommission\u2019s modified conclusion was not supported by substantial evidence in the record.\u201d The order further provides that \u201c[t]here is no evidence that any other correctional officer assigned to control room duty violated this rule.\u201d In view of this language, we are satisfied that the trial court used the appropriate standard of review \u2014 the \u201cwhole record\u201d test \u2014 in reaching its decision. We now must determine whether the trial court properly applied the \u201cwhole record\u201d test.\nAs previously stated, under the \u201cwhole record\u201d test, the reviewing court must examine \u201call competent evidence (the \u2018whole record\u2019) in order to determine whether the agency decision is supported by \u2018substantial evidence.\u2019 \u201d ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118). This test, however, is not \u201ca tool of judicial intrusion,\u201d North Carolina Dept. of Correction v. Gibson, 58 N.C. App. 241, 257, 293 S.E.2d 664, 674 (1982), rev\u2019d on other grounds, 308 N.C. 131, 301 S.E.2d 78 (1983) (quoting In re Rogers, 297 N.C. 48, 65, 253 S.E.2d 912, 922 (1979)), and thus, does not permit the court \u201cto replace the [agency\u2019s] judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo,\u201d Thompson v. Board of Education, 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977). Instead, the \u201cwhole record\u201d test \u201cmerely gives a reviewing court the capability to determine whether an administrative decision has a rational basis in the evidence.\u201d Gibson, 58 N.C. App. at 257, 293 S.E.2d at 674 (quoting In re Rogers, 297 N.C. at 65, 253 S.E.2d at 922). Therefore, if the Commission\u2019s findings are supported by substantial evidence \u2014 that amount of evidence that a reasonable mind would accept as adequate to support a decision, the reviewing court must uphold the Commission\u2019s decision. ACT-UP Triangle, 345 N.C. at 707, 483 S.E.2d at 393 (quoting State ex rel. Comm\u2019r of Ins. v. N.C. Fire Ins. Rating Bureau, 292 N.C. 70, 80, 231 S.E.2d 882, 888 (1977)); N.C.G.S. \u00a7 150B-51(b).\nAfter a thorough review of the record, we conclude that the trial court was correct in determining that the record lacked substantial evidence to support the Commission\u2019s Conclusion of Law Number 3, which reads as follows:\n[Petitioner (DOC)] has not met its burden of showing just cause for terminating [respondent\u2019s] employment. While [respondent] acted inappropriately in leaving his post to smoke and read a novel for a period of 6-10 minutes, because this type of conduct was routinely engaged in by correctional staff at this unit without any disciplinary action being taken, this constituted, at best, a violation of the standard operating procedures of the unit and unsatisfactory job performance. While a professional Correctional Officer should know better, no detriment to state service was shown by the [Petitioner]. [Respondent] remained in full control of the keys to the dorms at all times.\nSection 126-35 of the General Statutes provides that \u201c[n]o career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.\u201d N.C. Gen. Stat. \u00a7 126-35 (1995). The State Personnel Manual divides \u201cjust cause\u201d into two categories: (1) unsatisfactory job performance and (2) personal conduct detrimental to State service. \u201cUnsatisfactory job performance\u201d is defined as \u201cthe failure to satisfactorily perform job requirements as specified in the job description, work plan, or as directed by management of the work unit or agency.\u201d \u201cUnacceptable personal conduct\u201d refers to:\n(1) conduct for which no reasonable person should expect to receive prior warnings;\n(2) job-related conduct which constitutes a violation of state or federal law;\n(3) conviction of a felony or an offense involving moral turpitude;\n(4) the willful violation of known or written work rules; or\n(5) conduct unbecoming a state employee that is detrimental to state service.\nAccording to the provisions of the DOC Personnel Manual, examples of \u201cunsatisfactory job performance\u201d include poor performance of duties, misuse of state property, absence without approved leave, failure to report for duty at an assigned time or place, and failure to follow established safety policies and procedures. Among the examples of \u201cunacceptable personal conduct\u201d listed in the DOC Manual are willful acts that would endanger the lives and property of others, leaving an assigned post without specific authorization from a superior, failure to remain alert while on duty (threatening the security and safety of the State, department, citizens, employees, inmates, probationers, or parolees), engaging in activity which seriously jeopardizes the safety of fellow employees or inmates, and failure to follow established safety policies and procedures which results or could result in the endangerment of life and/or property. Before an employee maybe dismissed for \u201cunsatisfactoryjob performance,\u201d he must receive at least three prior written warnings. However, an employee may be dismissed for \u201cunacceptable personal conduct\u201d without any prior warning.\nBased on the State Personnel Manual, the DOC Personnel Manual and the published work rules for the Control Officer post at McDowell County Correctional Center, respondent\u2019s behavior in leaving his post without authorization and failing to remain alert while on duty falls squarely within the category of \u201cunacceptable personal conduct.\u201d The evidence shows that at approximately 10:55 p.m., respondent left his assigned post as Control Officer without authorization from his superiors. Officers Elkins, Frady and Edwards testified that they witnessed respondent reading a novel and smoking a cigarette in the corridor outside the control room for approximately six to ten minutes. The Commission stated that \u201cthis type of conduct was routinely engaged in by correctional staff at this unit without any disciplinary action being taken,\u201d and thus, the conduct constituted \u201cunsatisfactory job performance\u201d rather than \u201cunacceptable personal conduct.\u201d We cannot agree with the Commission\u2019s conclusion.\nWhile there is evidence in the record that other correctional officers read books and smoked while on duty, we find no evidence that any other correctional officer assigned to the control room left his duty post without authorization and lost visual contact with the Dorm Officers for more than three minutes. The published work-rules for the Control Officer post at McDowell County Correctional Center clearly provide that \u201c[n]o officer is to leave [the control room] post until properly relieved\u201d and that \u201c[t]he officers shall be alert at all times and shall not be engaged in any activity that will distract their attention from their responsibilities.\u201d Respondent\u2019s willful violation of a written work rule was a serious breach of security which jeopardized the custody and security of the inmates and the safety of his coworkers. Therefore, the DOC has met its burden of showing just cause for terminating respondent\u2019s employment, and the Commission\u2019s conclusion to the contrary was error.\nFor the foregoing reasons, the trial court\u2019s Memorandum of Decision reversing the Commission\u2019s order and instructing the Commission to enter an order upholding respondent\u2019s dismissal is affirmed.\nAFFIRMED.\nJudges JOHN and EDMUNDS concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Associate Attorney General Bur\u00e9n R. Shields, III, for the State.", "G. Gary Triggs, P.A., by G. Gary Triggs, for respondent appellant." ], "corrections": "", "head_matter": "N.C. DEPARTMENT OF CORRECTION, Petitioner v. DONALD P. McNEELY, Respondent\nNo. COA98-1131\n(Filed 16 November 1999)\n1. Administrative Law\u2014 whole record test \u2014 not explicitly stated\nThe trial court used the appropriate standard of review, the whole record test, when reviewing the dismissal of a correctional officer where the court\u2019s order did not specify the standard of review employed, but stated that the Personnel Commission\u2019s conclusion was not supported by substantial evidence in the record and that there was no evidence that any other officer assigned to that duty violated the applicable rule.\n2. Public Officers and Employees\u2014 correctional officer\u2014 dismissal \u2014 personal conduct\nThe Department of Correction met its burden of showing just cause for terminating respondent-correctional officer\u2019s employment, and the Personnel Commission\u2019s conclusion to the contrary was error, where respondent left his post without authorization and failed to remain alert while on duty. This conduct constituted unacceptable personal conduct for which an employee may be dismissed without prior warning. While there was evidence that other correctional officers read books and smoked while on duty, there was no evidence that any other officer assigned to the control room left his duty post without authorization and lost visual contact with dorm officers for more than three minutes in violation of published work rules. Respondent\u2019s willful violation of the written work rule was a serious breach of security which jeopardized the custody and security of inmates and the safety of his co-workers.\nAppeal by respondent from judgment entered 29 June 1998 by Judge Henry V. Barnette, Jr. in Wake County Superior Court. Heard in the Court of Appeals 9 June 1999.\nAttorney General Michael F. Easley, by Associate Attorney General Bur\u00e9n R. Shields, III, for the State.\nG. Gary Triggs, P.A., by G. Gary Triggs, for respondent appellant." }, "file_name": "0587-01", "first_page_order": 621, "last_page_order": 628 }