{ "id": 8412598, "name": "JAMES DONOGHUE, Petitioner v. NORTH CAROLINA DEPARTMENT OF CORRECTION, Respondent", "name_abbreviation": "Donoghue v. North Carolina Department of Correction", "decision_date": "2004-10-19", "docket_number": "No. COA03-1157", "first_page": "612", "last_page": "619", "citations": [ { "type": "official", "cite": "166 N.C. App. 612" } ], "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": "690 S.E.2d 8", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "13" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 14", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8914347 ], "year": 2004, "pin_cites": [ { "page": "21" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0014-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-35", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2003, "pin_cites": [ { "page": "(a)" }, { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "565 S.E.2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "717-19" }, { "page": "719" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 513", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080997 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/151/0513-01" ] }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "118" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527936 ], "year": 1994, "pin_cites": [ { "page": "677" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0668-01" ] }, { "cite": "372 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "889" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526141 ], "year": 1988, "pin_cites": [ { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0527-01" ] } ], "analysis": { "cardinality": 689, "char_count": 16173, "ocr_confidence": 0.752, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.3944685578193941 }, "sha256": "91c737a27cbe8610d54a29604f0501134ff2586aaa8b1580f472075413e5b551", "simhash": "1:abae3babdc6b0751", "word_count": 2558 }, "last_updated": "2023-07-14T18:02:59.875915+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and BRYANT concur." ], "parties": [ "JAMES DONOGHUE, Petitioner v. NORTH CAROLINA DEPARTMENT OF CORRECTION, Respondent" ], "opinions": [ { "text": "McCullough, judge.\nPetitioner James L. Donoghue began working at the North Carolina Department of Correction (DOC) on or about 15 July 1983. During the course of his career, Donoghue established a good reputation for his work as a probation and parole officer. He was the first officer in North Carolina to create a specialized caseload of sex offenders. Donoghue was also instrumental in developing a list of \u201csex offender conditions\u201d of probation, and the legislature adopted a number of his recommendations statewide.\nOn or about 12 March 2001, Donoghue was assigned to supervise a sex offender, M.V. There was some conflicting evidence regarding whether M.V. was allowed to travel out of state. First, the probationary judgment was ambiguous. The trial judge imposed the \u201cregular conditions of probation\u201d which are codified at N.C. Gen. Stat. \u00a7 15A-1343(b) (2003). Under that statute, M.V. had to \u201c[r]emain within the jurisdiction of the court unless granted written permission to leave by the court or his probation officer.\u201d N.C. Gen. Stat. \u00a7 15A-1343(b)(2). However, in another portion of the judgment, the trial court ordered that M.V. \u201cis not to leave the State of North Carolina during the term of probation.\u201d To complicate matters further, the DOC\u2019s policies and procedures manual states that offenders subject to Level I Intermediate Punishment \u201care not allowed to travel out-of-state except in emergency situations with the specific approval of either the court or the Post-Release Supervision and Parole Commission.\u201d\nM.V. asked for Donoghue\u2019s permission to travel outside of North Carolina for his job as a computer software salesman. After reviewing the judgment, various departmental policies, and the procedures manual, Donoghue authorized the out-of-state travel.\nOn 18 June 2001, the mother of M.V.\u2019s victim complained because she believed that allowing M.V. to travel out of state was improper. On 20 June 2001, the Assistant Judicial District Manager over Donoghue, Cynthia Mitchell, received a phone call from a DOC senior official requesting an investigation.\nMitchell conducted an investigation which reviewed Donoghue\u2019s entire caseload. Based on this investigation, Donoghue was demoted from his PPO III position to a PPO I position. This demotion carried a five percent reduction in salary and was based on \u201cgrossly inefficient job performance, to wit: your failure to properly supervise offenders[.]\u201d The demotion focused primarily on Donoghue\u2019s supervision of M.V., and to a lesser extent, his failure to conduct weekend supervision of other probationers.\nIn January of 2002, Donoghue filed a Petition for Contested Case hearing with the Office of Administrative Hearings. The presiding Administrative Law Judge (ALJ) conducted a contested case hearing and determined that the DOC failed to prove by the greater weight of the evidence that Donoghue had been demoted for just cause. The DOC appealed this decision to the State Personnel Commission (SPC). On 16 December 2002, the SPC issued its Decision and Order rejecting the decision of the ALJ and upholding the DOC\u2019s demotion of Donoghue. Donoghue filed a Petition for Judicial Review in Mecklenburg County Superior Court. On 24 June 2003, Judge Nathaniel J. Poovey issued an order which determined that Donoghue\u2019s actions did not rise to the level of \u201cgrossly inefficient job performance.\u201d The DOC appeals.\nOn appeal, the DOC argues that the superior court erred by failing to find that Donoghue engaged in grossly inefficient job performance. We disagree and affirm the decision of the trial court.\nI. Standard of Review\nChapter 150B of the North Carolina General Statutes addresses judicial review of administrative agency decisions. Henderson v. N. C. Dept. of Human Resources, 91 N.C. App. 527, 530, 372 S.E.2d 887, 889 (1988). The standard of review that this Court utilizes is mentioned in N.C. Gen. Stat. \u00a7 150B-52 (2003). Amended in 2000, the current version of the statute states:\nA party to a review proceeding in a superior court may appeal to the appellate division from the final judgment of the superior court as provided in G.S. 7A-27. The scope of review to be applied by the appellate court under this section is the same as it is for other civil cases. In cases reviewed under G.S. 150B-51(c), the court\u2019s findings of fact shall be upheld if supported by substantial evidence.\nId. (emphasis added).\nThis case falls under N.C. Gen. Stat. \u00a7 150B-51(c) (2003) because that section applies when \u201cthe agency does not adopt the administrative law judge\u2019s decision[.]\u201d Here, although the ALJ issued a decision favoring the employee, the SPC rejected that decision and sided with the DOC. Normally, we would uphold the decision if the trial court\u2019s findings of fact were supported by substantial evidence.\nThis case, however, is more complicated because the trial court did not utilize the correct standard of review when considering the final agency decision. N.C. Gen. Stat. \u00a7 150B-51(c) states that \u201cthe [trial] court shall review the official record, de novo, and shall make findings of fact and conclusions of law.\u201d Here, the trial court utilized a whole record test instead of conducting de novo review when evaluating the Commission\u2019s findings. Therefore, the issue is whether, as a result of this error, we should employ de novo review instead of the substantial evidence test mentioned in N.C. Gen. Stat. \u00a7 ISOB-SNc).\nThere is some precedent for using de novo review. In Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 677, 443 S.E.2d 114, 118 (1994), this Court noted that \u201cwhere 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 More recently, we articulated this same principle in Davis v. N.C. Dep\u2019t of Crime Control & Pub. Safety, 151 N.C. App. 513, 565 S.E.2d 716 (2002). There, the trial court applied the whole record test erroneously when reviewing an agency\u2019s decision to demote a member of the North Carolina State Highway Patrol. Id. at 513-16, 565 S.E.2d at 717-19. On appeal, this Court utilized the de novo standard of review. Id. at 516, 565 S.E.2d at 719.\nWe do not need to make a definitive determination regarding which standard of review to employ. Under either standard, de novo review or the more deferential framework articulated in N.C. Gen. Stat. \u00a7 150B-52, we would affirm the decision of the trial court.\nII. Legal Background\nPursuant to N.C. Gen. Stat. \u00a7 126-35(a) (2003), \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 \u201cIn contested cases conducted pursuant to Chapter 150B of the General Statutes, the burden of showing that a career State employee subject to the State Personnel Act was discharged, suspended, or demoted for just cause rests with the department or agency employer.\u201d N.C. Gen. Stat. \u00a7 126-35(d) (2003). The North Carolina Administrative Code permits demotion \u201cfor grossly inefficient job performance without any prior disciplinary action.\u201d N.C. Admin. Code tit. 25, r. lJ.0612(a)(2) (June 2004). The Code also defines \u201cGross inefficiency (Grossly Inefficient Job Performance)\u201d as:\nA type of unsatisfactory job performance that occurs in instances in which the employee: fails to satisfactorily perform job requirements as specified in the job description, work plan, or as directed by the management of the work unit or agency; and, that failure results in:\n(1) the creation of the potential for death or serious bodily injury to an employee(s) or to members of the public or to a person^) over whom the employee has responsibility].]\nN.C. Admin. Code tit. 25, r. lJ.0614(f) (June 2004). Thus, the DOC must prove that (1) the employee failed to perform his job satisfactorily and (2) that failure resulted in the potential for death or serious bodily injury. Id. With these principles in mind, we turn to consider the assignment of error on appeal.\nIII. Grossly Inefficient Job Performance\nThe DOC first argues that Donoghue engaged in grossly inefficient job performance by allowing a probationer to travel out of state. We disagree.\nThe DOC has not shown that Donoghue failed to perform his job satisfactorily because the terms of the probationary judgment regarding M.V.\u2019s travel were ambiguous. The trial judge imposed the \u201cregular conditions of probation\u201d which are set forth in N.C. Gen. Stat. \u00a7 15A-1343(b) (2003). Under that statute, M.Y. had to \u201c[r]emain within the jurisdiction of the court unless granted written permission to leave by the court or his probation officer.\u201d N.C. Gen. Stat. \u00a7 15A-1343(b)(2). However, in its judgment, the trial court also ordered that M.V. \u201cis not to leave the State of North Carolina during the term of probation.\u201d\nThe DOC asserts that the court\u2019s more stringent prohibition against out-of-state travel supercedes the regular condition of probation which authorized out-of-state travel if M.V. received permission from the court or his probation officer. It cites a portion of N.C. Gen. Stat. \u00a7 15A-1343(b)(ll) which states:\nRegular conditions of probation apply to each defendant placed on supervised probation unless the presiding judge specifically exempts the defendant from one or more of the conditions in open court and in the judgment of the court.\nWhether the sentencing judge intended to \u201cspecifically exempt\u201d defendant from the regular condition of probation that authorized travel is an open question. However, we understand, as the trial court did, why Donoghue would be confused after reading an order which appears to say two entirely different things. It would have been the better practice for the sentencing court to state more clearly whether out-of-state travel was prohibited. Furthermore, we accept Donoghue\u2019s explanation that he tried to find consistency in the two statements:\nAnd, when I read that [the court\u2019s statement that M.V. is not to leave North Carolina during the term of his probation], I interpreted that to mean stay in the state of North Carolina to be supervised, not transfer out of the state of North Carolina to be supervised by another state. That\u2019s what I read \u2014 took that to mean. I didn\u2019t take it to mean he\u2019s not allowed to travel out of state because there are other conditions that allowed him to travel out of state contained in the judgment. So I looked at all these conditions and weighed it, and that\u2019s what I came up with.\nSince the judgment of the sentencing court was ambiguous, we do not believe that Donoghue engaged in grossly inefficient job performance by permitting out-of-state travel.\nWe also note that Donoghue was forced to evaluate other conflicting information in deciding whether to authorize out-of-state travel. The DOC\u2019s Division of Community Corrections Policies and Procedures Manual (\u201cthe Manual\u201d) does have language which prohibits out-of-state travel for Level I Intermediate Punishment cases like M.V.\u2019s \u201cexcept in emergency situations with the specific approval of either the court or the Post-Release Supervision and Parole Commission[.]\u201d However, these guidelines, as written, seem to be inconsistent with testimony from judges, prosecutors, and public defenders who indicate that probation officers have discretion in supervising the terms of probation, including the decision of whether to allow out-of-state travel. The manual also appears to conflict with the portion of the sentencing court\u2019s judgment which authorized out-of-state travel with Donoghue\u2019s permission.\nBased on this information, we cannot conclude that Donoghue failed to perform his job satisfactorily by allowing out-of-state travel.\nThe DOC also contends that Donoghue\u2019s job performance was unsatisfactory because he failed to make weekend curfew checks. We do not agree. Evidence in the record reveals that Donoghue was scheduled to work forty hours per week. Since many probationers participated in evening treatment sessions, Donoghue attended such sessions to monitor probationers\u2019 treatment. As a result of working so many evening hours, Donoghue usually completed forty hours before the weekend began. Moreover, Donoghue\u2019s supervisor for over ten years was aware that Donoghue was not working weekends because Donoghue submitted regular employee time reports. This is significant because Donoghue\u2019s supervisor never suggested that this was problematic when she conducted regular audits of Donoghue\u2019s caseload.\nThere was also evidence that Donoghue was carrying a caseload of 60 probationers, even though the recommended number of cases was 25 when the program was set up. Donoghue simply had too many cases, too much territory to cover, and too many job demands. Under these circumstances, we cannot conclude that Donoghue engaged in grossly inefficient job performance.\nAs we have stated, the outcome of this case does not hinge upon which standard of review to employ. Our review of the record indicates that the trial court made findings of fact that were supported by competent evidence, and those findings, in turn, supported the conclusions of law. Furthermore, even under the less deferential de novo standard of review, the result would be the same. Therefore, the decision of the trial court is\nAffirmed.\nJudges HUDSON and BRYANT concur.\n. We cannot be too critical of the trial court because the legislature added Section 150B-51(c) to the North Carolina Administrative Procedure Act in 2000. Cape Med. Transp., Inc. v. N.C. Dep\u2019t of Health and Human Servs., 162 N.C. App. 14, 21, 690 S.E.2d 8, 13 (2004). Additionally, both parties requested review under the whole record test and \u201cfailed to call the recent statutory amendment to the attention of the trial judge.\u201d", "type": "majority", "author": "McCullough, judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Neil C. Dalton and Assistant Attorney General Joseph Finarelli, for the North Carolina Department of Correction respondent appellant.", "Lesesne & Connette, by Edward G. Connette, for petitioner appellee." ], "corrections": "", "head_matter": "JAMES DONOGHUE, Petitioner v. NORTH CAROLINA DEPARTMENT OF CORRECTION, Respondent\nNo. COA03-1157\n(Filed 19 October 2004)\nPublic Officers and Employees\u2014 demotion of probation and parole officer \u2014 allegations of gross inefficiency\nUse of either the de novo review or whole record test reveals that the trial court did not err by failing to find that petitioner probation and parole officer engaged in grossly inefficient job performance by allowing a probationer to travel out of state and by failing to make weekend curfew checks of other probationers, because: (1) the Department of Corrections (DOC) failed to show that petitioner failed to perform his job satisfactorily when the terms of the probationary judgment regarding the probationer\u2019s travel were ambiguous, and it would have been the better practice for the sentencing court to state more clearly whether out-of-state travel was prohibited; (2) although the pertinent DOC manual does have language which prohibits out-of-state travel for cases like the probationer\u2019s except in emergency situations with specific approval, these guidelines seem to be inconsistent with testimony from judges, prosecutors, and public defenders who indicate that probation officers have discretion in supervising the terms of probation including the decision of whether to allow out-of-state travel; and (3) even though petitioner failed to make weekend curfew checks of other probationers, petitioner was scheduled to work forty hours per week and usually completed his hours before the weekend began, he attended many evening treatment sessions to monitor probationers\u2019 treatment, his supervisor for over ten years was aware that petitioner was not working weekends since petitioner submitted regular employee time reports and the supervisor never suggested this was problematic, and petitioner was carrying a caseload of sixty probationers even though the recommended number of cases was twenty-five when the program was set up.\nAppeal by respondent from order entered 24 June 2003 by Judge Nathaniel J. Poovey in Mecklenburg County Superior Court. Heard in the Court of Appeals 20 May 2004.\nAttorney General Roy Cooper, by Assistant Attorney General Neil C. Dalton and Assistant Attorney General Joseph Finarelli, for the North Carolina Department of Correction respondent appellant.\nLesesne & Connette, by Edward G. Connette, for petitioner appellee." }, "file_name": "0612-01", "first_page_order": 642, "last_page_order": 649 }