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    "judges": [
      "Judges McGEE and TYSON concur."
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    "parties": [
      "ROGER D. DAVIS, Petitioner v. NORTH CAROLINA DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY, DIVISION OF STATE HIGHWAY PATROL, Respondent"
    ],
    "opinions": [
      {
        "text": "EAGLES, Chief Judge.\nRoger Davis (\u201cpetitioner\u201d) appeals from the trial court\u2019s order affirming the State Personnel Commission\u2019s (\u201cCommission\u201d) Decision and Order upholding his demotion. On appeal, petitioner contends that the trial court, the Commission, and the Administrative Law Judge erred in concluding that there existed just cause for his demotion. After careful consideration of the record and briefs, we disagree and affirm the trial court.\nThe evidence tends to show the following. Petitioner had served as a member of the North Carolina State Highway Patrol (\u201cHighway Patrol\u201d), a division of the North Carolina Department of Crime Control and Public Safety, for approximately twenty-seven years. On 12 September 1996, petitioner was a First Sergeant with the Highway Patrol. On the morning of 12 September 1996, petitioner and his wife were packing their vehicles for a trip to Myrtle Beach, South Carolina. At 12:00 p.m., petitioner consumed one 12 ounce can of beer. Shortly thereafter, petitioner and his wife, driving separate vehicles, left their residence. The couple drove approximately 130 miles and stopped at a convenience store. While in the parking lot of the convenience store, petitioner consumed a hot dog and two 12 ounce cans of beer. Petitioner placed the empty beer cans on his vehicle\u2019s floorboard and resumed his trip.\nAt approximately 2:30 p.m., Trooper C.S. Grubbs was patrolling U.S. Highway 64 when he observed petitioner\u2019s vehicle traveling at a high rate of speed. After confirming with his radar unit that petitioner\u2019s vehicle was traveling 70 miles per hour in a 55 miles per hour zone, Trooper Grubbs activated his blue lights and followed petitioner. Petitioner stopped his vehicle on the shoulder of U.S. Highway 64, approximately 13.8 miles from the convenience store where he consumed the two beers, and Trooper Grubbs approached the vehicle.\nWhile conversing with petitioner, Trooper Grubbs detected an odor of alcohol on petitioner\u2019s breath. Trooper Grubbs asked petitioner if he had been drinking, and petitioner admitted that he drank one beer at home and two beers at the convenience store. Trooper Grubbs also noticed a cooler on the vehicle\u2019s right front floorboard and one empty beer can on the floorboard between petitioner\u2019s feet. Trooper Grubbs asked petitioner to perform a field sobriety test which he did. Trooper Grubbs formed the opinion that petitioner was not appreciably impaired.\nNevertheless, Trooper Grubbs decided to administer an alco-sensor test. The first test resulted in an alcohol concentration of 0.09, and the second test, administered five to six minutes later, resulted in an alcohol concentration of 0.08. Trooper Grubbs did not arrest petitioner for impaired driving, but he did tell petitioner not to drive. Petitioner left the scene with his wife driving his vehicle. The couple left their other vehicle on the shoulder of the highway.\nTrooper Grubbs reported the 12 September 1996 incident to his immediate supervisor, and the incident report was communicated up through the chain of command. Subsequently, a Highway Patrol Internal Affairs investigation was conducted, and petitioner, petitioner\u2019s wife, and Trooper Grubbs, inter alia, were interviewed. At the conclusion of the investigation, it was recommended that petitioner be demoted to the rank of Line Sergeant with a corresponding salary reduction. A pre-demotion conference was held on 25 February 1997.\nPetitioner timely filed an appeal to the Secretary of the North Carolina Department of Crime Control and Public Safety. The Secretary convened an Employee Advisory Committee, which recommended that petitioner be reinstated to the rank of First Sergeant. The Secretary considered the Committee\u2019s recommendation, but the Secretary upheld petitioner\u2019s demotion due to his personal misconduct.\nPetitioner filed a petition for a contested case hearing, and a hearing was held before Administrative Law Judge Sammie Chess, Jr. By Recommended Decision entered 27 May 1998, Administrative Law Judge Chess affirmed petitioner\u2019s demotion. In so doing, Administrative Law Judge Chess concluded that there was just cause to demote petitioner pursuant to (1) G.S. \u00a7 20-138.1 (impaired driving) and (2) North Carolina State Highway Patrol Directive F.l, Section IV (unbecoming conduct). Petitioner next appealed to the State Personnel Commission.\nBy Decision and Order entered 14 October 1998, the Commission adopted the Administrative Law Judge\u2019s findings and conclusions and affirmed his Recommended Decision. Thereafter, petitioner filed a petition for judicial review. A hearing was held during the 16 January 2001 Civil Session of Catawba County Superior Court, the Honorable L. Oliver Noble, Jr., presiding. The trial court affirmed the Commission\u2019s Decision and Order by order entered 24 January 2001. Petitioner appeals.\nAt the outset, we note that respondent North Carolina Department of Crime Control and Public Safety has on two occasions moved to dismiss this appeal alleging petitioner\u2019s untimely notice of appeal. Nevertheless, in our discretion under N.C. R. App. P. 21, we deny respondent\u2019s motions and treat petitioner\u2019s appeal as a petition for writ of certiorari.\nIn his brief, petitioner contends that the trial court \u201cfailed to properly review the record using the \u2018whole record test\u2019 and therefore erred in the entry of its order on January 24, 2001 affirming the final decision and order of the North Carolina State Personnel Commission.\u201d In essence, petitioner argues that the Highway Patrol did not have \u201cjust cause\u201d under G.S. \u00a7 126-35 to warrant his demotion. After careful review, we disagree.\nPursuant to G.S. \u00a7 126-35(a), \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 \u201c \u2018Just cause\u2019 is a legal basis, set forth by statute, for the termination [or demotion] of a State employee, and requires the application of legal principles. Thus, its determination is a question of law.\u201d Gainey v. N.C. Dept. of Justice, 121 N.C. App. 253, 259 n.2, 465 S.E.2d 36, 41 n.2 (1996), but see N.C. Dept. of Correction v. Myers, 120 N.C. App. 437, 441, 462 S.E.2d 824, 827 (1995) (applying \u201cwhole record\u201d test in reviewing whether just cause existed to demote State employee). \u201cWe review questions of law de novo.\u201d Staton v. Brame, 136 N.C. App. 170, 174, 523 S.E.2d 424, 427 (1999).\nHere, the trial court stated in its order that it reviewed petitioner\u2019s petition for judicial review under the \u201cwhole record\u201d test. Additionally, petitioner now requests that this Court review the Commission\u2019s decision under the \u201cwhole record\u201d test. However, \u201cthe manner of our review is [not] governed merely by the label an appellant places upon an assignment of error; rather, we first determine the actual nature of the contended error, then proceed with an application of the proper scope of review.\u201d Amanini v. N. C. Dept. of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114, 118 (1994). \u201c[W]here the initial reviewing court should have conducted de novo review, this Court will directly review the State Personnel Commission\u2019s decision under a de novo review standard.\u201d Id. at 677, 443 S.E.2d at 119.\nAs noted above, a trial court\u2019s \u201cdetermination of whether a termination [or demotion] was for \u2018just cause\u2019 based upon personal misconduct is a question of law, and [] questions of law are to be reviewed de novo.\" Souther v. New River Area Mental Health, 142 N.C. App. 1, 4, 541 S.E.2d 750, 752, aff\u2019d, 354 N.C. 209, 552 S.E.2d 162 (2001); see also Amanini, 114 N.C. App. at 678, 443 S.E.2d at 120. \u201cWe will employ the proper standard of review regardless of that employed by the reviewing trial court.\u201d Souther, 142 N.C. App. at 4, 541 S.E.2d at 753.\n\u201c \u2018De novo\u2019 review requires a court to consider a question anew, as if not considered or decided by the agency.\u201d Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118. Here, competent evidence before this Court shows that petitioner was sworn to uphold the law as a member of the Highway Patrol; that petitioner had written thousands of criminal citations for speeding and had arrested motorists for impaired driving and other alcohol-related violations during his twenty-seven years with the Highway Patrol; that petitioner drank three beers within a two and a half hour period on 12 September 1996; that petitioner proceeded to drive after drinking the three beers; that petitioner exceeded the posted speed limit while driving; that petitioner had an odor of alcohol on his breath; that two alco-sensor tests administered on petitioner registered 0.09 and 0.08 alcohol concentration readings respectively. Moreover, petitioner readily admitted that he drank three beers in a two and a half hour period and that he was driving 60 to 62 miles per hour in a 55 miles per hour zone when he was stopped by Trooper Grubbs.\nUnder the State Personnel Act, G.S. \u00a7 126-1 et seq., \u201c[a]ny employee may be demoted as a disciplinary measure. Demotion may be made on the basis of either unsatisfactory or grossly inefficient job performance or unacceptable personal conduct.\u201d 25 N.C.A.C. \u00a7 lJ.0612(a). Moreover, \u201c[a]n employee may be demoted for unacceptable personal conduct without any prior disciplinary action.\u201d 25 N.C.A.C. \u00a7 1J.0612(a)(3). Unacceptable personal conduct includes \u201cconduct unbecoming a state employee that is detrimental to state service.\u201d 25 N.C.A.C. \u00a7 1J.0614(i)(5).\nAdditionally, the Highway Patrol has a written policy that provides:\nMembers shall conduct themselves at all times, both on and off duty, in such a manner as to reflect most favorably upon the Highway Patrol and in keeping with the high standards of professional law enforcement. Unbecoming conduct shall include any conduct which tends to bring the Patrol into disrepute, or which reflects discredit upon any member(s) of the Patrol, or which tends to impair the operation and efficiency of the Patrol or of a member, or which violates Patrol policy.\nNorth Carolina State Highway Patrol Directive F.l, Section IV. The primary mission of the Highway Patrol is to ensure highway safety. To accomplish that mission in part, the Highway Patrol admonishes members of the general public not to drink and drive. Here, petitioner was demoted for unacceptable personal conduct for violating the Highway Patrol\u2019s policy.\nAfter conducting our de novo review, we conclude that substantial competent evidence supports the conclusion that the Highway Patrol had just cause to demote petitioner for unbecoming conduct pursuant to North Carolina State Highway Patrol Directive F.l, Section IV. Having determined that substantial competent evidence supports the Highway Patrol\u2019s decision to demote petitioner pursuant to Highway Patrol Directive F.l, Section IV, we need not address petitioner\u2019s argument that the Commission erred in concluding that the Highway Patrol had just cause to demote him pursuant to G.S. \u00a7 20-138.1 (impaired driving).\nParenthetically, we note that the result here would have been the same even if we had reviewed the decision below utilizing the \u201cwhole record\u201d test. \u201cThe \u2018whole record\u2019 test requires the court to examine all competent evidence comprising the \u2018whole record\u2019 in order to ascertain if substantial evidence therein supports the administrative agency decision.\u201d Dorsey v. UNC-Wilmington, 122 N.C. App. 58, 62, 468 S.E.2d 557, 560 (1996). In examining the \u201cwhole record,\u201d we would hold that the Highway Patrol\u2019s decision here is supported by substantial evidence and was neither arbitrary nor capricious.\nAccordingly, we affirm the trial court.\nAffirmed.\nJudges McGEE and TYSON concur.",
        "type": "majority",
        "author": "EAGLES, Chief Judge."
      }
    ],
    "attorneys": [
      "C. Gary Triggs and Curt J. Vaught for petitioner-appellant.",
      "Attorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III, for the State."
    ],
    "corrections": "",
    "head_matter": "ROGER D. DAVIS, Petitioner v. NORTH CAROLINA DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY, DIVISION OF STATE HIGHWAY PATROL, Respondent\nNo. COA01-805\n(Filed 16 July 2002)\nPublic Officers and Employees\u2014 highway patrolman \u2014 demotion \u2014 just cause \u2014 unbecoming conduct\nA de novo review reveals that the trial court did not err by affirming the State Personnel Commission\u2019s decision and order upholding petitioner highway patrolman\u2019s demotion based on just cause for personal misconduct including proceeding to drive after drinking three beers and speeding, because: (1) substantial competent evidence supports the conclusion that the Highway Patrol had just cause to demote petitioner for unbecoming conduct under North Carolina Highway Patrol Directive F.l, Section IV; and (2) even if the whole record test was applied, the result would have been the same since the decision was supported by substantial evidence and was neither arbitrary nor capricious.\nAppeal by petitioner from order entered 24 January 2001 by Judge L. Oliver Noble, Jr., in Catawba County Superior Court. Heard in the Court of Appeals 20 May 2002.\nC. Gary Triggs and Curt J. Vaught for petitioner-appellant.\nAttorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III, for the State."
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  "file_name": "0513-01",
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