{ "id": 8187603, "name": "GARY P. RAMSEY, Petitioner v. N.C. DIVISION OF MOTOR VEHICLES, Respondent", "name_abbreviation": "Ramsey v. N.C. Division of Motor Vehicles", "decision_date": "2007-07-17", "docket_number": "No. COA06-931", "first_page": "713", "last_page": "719", "citations": [ { "type": "official", "cite": "184 N.C. App. 713" } ], "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": "640 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637766 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "794" }, { "page": "794", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/640/0790-01" ] }, { "cite": "414 S.E.2d 50", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "53" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 526", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524132 ], "year": 1992, "pin_cites": [ { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0526-01" ] }, { "cite": "181 N.C. App. 666", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375839 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "670" }, { "page": "671" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0666-01" ] } ], "analysis": { "cardinality": 672, "char_count": 15770, "ocr_confidence": 0.758, "pagerank": { "raw": 7.413293299757623e-08, "percentile": 0.44329727331593466 }, "sha256": "744ecf96e6c01864e8ce0db82d1ca5988beff9e6b82dbcce8334ab8e23c9fce6", "simhash": "1:c8dcd3b1aeba2740", "word_count": 2511 }, "last_updated": "2023-07-14T19:54:59.559545+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and GEER concur." ], "parties": [ "GARY P. RAMSEY, Petitioner v. N.C. DIVISION OF MOTOR VEHICLES, Respondent" ], "opinions": [ { "text": "ELMORE, Judge.\nOn 23 May 2002, the North Carolina Division of Motor Vehicles (DMV or respondent) dismissed Gary P. Ramsey (petitioner) from his employment as a Captain with the Enforcement Section of the DMV in District VIII. Respondent dismissed petitioner because petitioner violated a written work order known as General Order No. 24.\nGeneral Order No. 24, in relevant part, states:\nMembers shall neither solicit nor accept from any person, business or organization any bribe, gift or gratuity, for the benefit of the member, their family or the Enforcement Section if it may reasonably be inferred that the person, business or organization giving the gift:\na. seeks to influence the action of an official nature, or\nb. seeks to affect the performance or non-performance of an official duty, or\nc. has an interest which may be substantially affected, either directly or indirectly, by the performance or non-performance of an official duty.\nAt the time the events in question occurred, the Enforcement Section of the DMV held \u201cCaptains\u2019 Meetings\u201d outside of Raleigh one or two times per year at different locations around the state. All DMV captains and lieutenants from the eight DMV districts attended these meetings, along with personnel from DMV headquarters and representatives from the DMV Commissioner\u2019s office. The meetings typically included training sessions and recreational golf outings. Attendees generally stayed at the facility hosting the meeting and were provided some meals. Each attendee paid for his own meals and lodging, but \u201c[t]he evidence is conflicting as to how many, if any, attendees paid out of pocket for golf at the various Captains\u2019 meetings. Golfing fees were not furnished or reimbursed by the State.\u201d\nEach Captains\u2019 Meeting was planned by the captain in charge of the district in which the meeting would be held. Petitioner planned the 1998 and 1999 Captains\u2019 Meetings, which were held at the Waynesville Country Club. Petitioner determined that he would not be able to keep the cost per attendant below $52.00 per day, which was the applicable per diem allowance at the time. Petitioner then raised additional funds from automobile dealers throughout his district, and used the funds to cover the difference between the actual cost of the meeting and the per diem allowance. Petitioner raised a total of $3,500.00 for the 1998 Captains\u2019 Meeting and $2,950.00 for the 1999 Captains\u2019 Meeting. Automobile dealers also contributed door prizes of greater than de minimis value. This fundraising was sanctioned by one of petitioner\u2019s supervisors, Lt. Col. William Brinson, who told petitioner \u201cthat he should talk to his \u2018dealer friends\u2019 and that \u2018no Captain was worth his salt\u2019 who couldn\u2019t get some help from his dealers.\u201d The \u201cdealers\u201d referenced by Brinson are automobile dealers regulated by the DMV. Several witnesses corroborated this conversation. In addition, \u201cIt was apparent to any reasonable person attending and participating in either the 1998 or 1999 . . . Captains\u2019 Meetings that all of the rooms, meals, golf, refreshments, prizes, and gifts provided could not have been provided for within the state per diem [sic] allowance.\u201d Previous Captains\u2019 Meetings, which petitioner had attended, sometimes provided meals, alcohol, and door prizes without charge.\nBrinson\u2019s immediate successor, Lt. Col. Michael Sizemore, ordered that certain documents related to questionable fundraising, including petitioner\u2019s, \u201cdisappear.\u201d On Sizemore\u2019s order, another DMV employee \u201cbrought the documents back to Asheville and ordered that they be thrown away by one of the inmates of the N.C. Department of Correction working for DMV, who placed the documents in a garbage dumpster.\u201d Before the dumpster was emptied, the documents \u201cwere discovered by another employee of DMV who removed them from the dumpster and provided them to Petitioner\u2019s counsel.\u201d\nPetitioner was dismissed because his solicitation of funds for the 1998 and 1999 Captains\u2019 Meetings violated General Order No. 24. He filed a petition for contested case hearing, which was heard before an administrative law judge (AU). The ALJ made extensive findings of fact and concluded that \u201ca reasonable person in Petitioner\u2019s circumstances existing at the time would more likely than not expect to be warned that conduct which he had observed as a pattern and practice at DMV, with apparent acceptance'by superiors in DMV, was sufficient to compel his discharge.\u201d The AU found \u201cthat sufficient evidence ha[d] been produced to constitute just cause for Petitioner\u2019s dismissal but that, considering Petitioner\u2019s outstanding work record and his good faith belief that his actions were within the accepted pattern and practice of the DMV Enforcement Section ... [pjetitioner should be reinstated to his position.\u201d In addition, the ALJ ordered respondent to \u201cpay Petitioner back pay and all benefits to which he would have been entitled but for his dismissal from the date of his dismissal on May 23, 2002 until the date of his reinstatement . . . .\u201d Petitioner did not receive any attorneys\u2019 fees in connection with this case and was disciplined by receipt of a written warning.\nRespondent appealed the AU\u2019s decision to the State Personnel Commission (the Commission), who reversed the AU\u2019s decision after a brief hearing. The Commission adopted the ALJ\u2019s findings of fact, but concluded that respondent had just cause to dismiss petitioner.\nPetitioner then appealed to the Buncombe County Superior Court pursuant to N.C. Gen. Stat. \u00a7 150B-51(c). Th\u00e9 superior court made substantial and detailed findings of fact and conclusions of law. It ordered that petitioner be reinstated to his position at the DMV; that respondent \u201cpay Petitioner back pay and all benefits to which he would have been entitled ... from the date of his dismissal on 23 May 2002 until the date of his reinstatement\u201d; that petitioner receive a written warning; that respondent pay costs, except for petitioner\u2019s attorneys\u2019 fees; and that the matter be remanded to the State Personnel Commission. Respondent appeals from the order.\nRespondent argues that the superior court erred by reversing the Commission\u2019s order. Specifically, respondent notes that, \u201cLike OAH and'the SPC[,] the trial court concluded that Petitioner\u2019s actions violated a known work rule, General Order No. 24.\u201d However, \u201cthe trial court concluded that DMV did not have just cause to dismiss Petitioner thereby ordering his reinstatement along with a written warning.\u201d Respondent argues that the trial court misapplied 25 N.C.A.C. 1B.0431 by ordering reinstatement, back pay, and benefits without finding a lack of substantive just cause. Respondent also argues that the superior court applied the wrong standard of review. We disagree.\nOur review of the superior court\u2019s order is governed by N.C. Gen. Stat. \u00a7 150B-52, which states, in relevant part, \u201cThe 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. \u00a7 150B-51(c), the court\u2019s findings of fact shall be upheld if supported by substantial evidence.\u201d N.C. Gen. Stat. \u00a7 150B-52 (2005). \u201cN.C. Gen. Stat. \u00a7 150B-51(c) (2005) governs judicial review in contested case petitions filed after 1 January 2001. The provision was added to the North Carolina Administrative Procedures Act (APA) in 2000 . . . .\u201d Rainey v. N.C. Dep\u2019t of Pub. Instruction, 181 N.C. App. 666, 670, 640 S.E.2d 790, 794 (2007). Petitioner commenced this case on 4 October 2002; therefore we apply section 150B-51(c). In turn, N.C. Gen. Stat. \u00a7 150B-52 \u201cgoverns our Court\u2019s review of the trial court\u2019s judgment in a case arising from a contested case petition . ...\u201d Id. Accordingly, because this .case arises from a contested case petition, our review is bound by the guidelines set out in section 150B-52.\n\u201cPursuant to N.C. Gen. Stat. \u00a7 150B-52, our review of a trial court\u2019s consideration of a final agency decision is to determine whether the trial court committed any errors of law which would be based upon its failure to properly apply the review standard set forth in N.C. Gen. Stat. \u00a7 150B-51.\u201d Sherrod v. N.C. Dept. of Human Resources, 105 N.C. App. 526, 530, 414 S.E.2d 50, 53 (1992). Our review of the superior court\u2019s order for errors of law is a \u201ctwofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.\u201d Rainey, 181 N.C. App. at 671, 640 S.E.2d at 794 (citation omitted).\nAccordingly, we first determine whether the superior court \u201cexercised the appropriate scope of review.\u201d According to its order, the superior court conducted \u201ca complete de novo review of the entire record.\u201d N.C. Gen. Stat. \u00a7 150B-51(c) provides that when a superior court reviews\na final decision in a contested case in which an administrative law judge made a decision, in accordance with G.S. 150B-34(a), and the agency does not adopt the administrative law judge\u2019s decision, the court shall review the official record, de novo, and shall make findings of fact and conclusions of law. In reviewing the case, the court shall not give deference to any prior decision made in the case and shall not be bound by the findings of fact or the conclusions of law contained in the agency\u2019s final decision. The court shall determine whether the petitioner is entitled to the relief sought in the petition, based upon its review of the official record. The court reviewing a final decision under this subsection may adopt the administrative law judge\u2019s decision; may adopt, reverse, or modify the agency\u2019s decision; may remand the case to the agency for further explanations under G.S. 150B-36(bl), 150B-36(b2), or 150B-36(b3), or reverse or modify the final decision for the agency\u2019s failure to provide the explanations; and may take any other action allowed by law.\nN.C. Gen. Stat. \u00a7 150B-51(c) (2005). In this contested case, the Commission did not adopt the ALJ\u2019s decision, and therefore the superior court was required to review the official record de novo and to make its own findings of fact and conclusions of law. We therefore hold that the superior court applied the correct standard of review, and we now proceed to the second prong of our analysis, whether the superior court \u201cproperly exercised\u201d its de novo review.\nAlthough respondent assigns error to the superior court\u2019s findings of fact, it argues that the superior court erred by concluding that petitioner\u2019s actions did not rise to the level of \u201cjust cause\u201d for his dismissal. Respondent\u2019s arguments seem to hinge on a perceived inconsistency between the trial court concluding that petitioner violated General Order No. 24, and also concluding that this violation did not rise to the level of unacceptable personal conduct. This apparent disconnect is easily resolved by reference to the Administrative Code.\nAn employee \u201cmay be warned, demoted, suspended or dismissed by the appointing authority\u201d only for \u201cjust cause.\u201d 25 N.C.A.C. 1J.0604(a) (2006). \u201cThere are two bases for the discipline or dismissal of employees under the statutory standard for \u2018just cause\u2019 as set out in G.S. 126-35.\u201d 25 N.C.A.C. lJ.0604(b) (2006). The relevant basis here is \u201c[discipline or dismissal imposed on the basis of unacceptable personal conduct.\u201d 25 N.C.A.C. lJ.0604(b)(2) (2006). Unacceptable personal conduct is defined, in relevant part, as:\n(1) conduct for which no reasonable person should expect to receive prior warning; or\n(2) job-related conduct which constitutes a violation of state or federal law; or\n* * *\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\n25 N.C.A.C. lJ.0614(i)(l)-(2), (4)-(5) (2006).\nAlthough the superior court concluded that petitioner \u201cdid violate General Order Number 24,\u201d it also concluded that petitioner \u201cheld a good faith belief that his actions were within the accepted pattern and practice of employees in the DMV Enforcement Section in funding captains\u2019 meetings . . . .\u201d The superior court further concluded that \u201ca reasonable person in Petitioner\u2019s position at that time (1998 and 1999) would have expected to be warned before being dismissed for the actions described herein.\u201d In relevant part, the Administrative Code defines unacceptable personal conduct as \u201cwillful violation of known or written work rules.\u201d 25 N.C.A.C. lJ.0614(i)(4) (2006) (emphasis added). Here, the superior court concluded only that petitioner violated the rule, not that petitioner violated the rule willfully. This is consistent with the superior court\u2019s other conclusions because one cannot simultaneously have a \u201cgood faith belief\u2019 that he is following a rule and willfully violate that rule. Accordingly, we hold that the superior court did not misapply the law by concluding that petitioner both violated the rule and did not commit unacceptable personal conduct.\nRespondent also argues that the superior court erred by \u201csecond guessing\u201d the \u201cdisciplinary actions it cho[se] to take against an employee when the employee\u2019s conduct constitutes \u2018just cause\u2019 within the meaning of 25 N.C.A.C. 1J.0604.\u201d Having already determined that the superior court did not err in concluding that petitioner\u2019s conduct did not constitute \u201cjust cause,\u201d this argument is moot. Furthermore, N.C. Gen. Stat. \u00a7 150B-51(c) states that \u201c[t]he court reviewing a final decision under this subsection may adopt the administrative law judge\u2019s decision; may adopt, reverse, or modify the agency\u2019s decision ... . and may take any other action allowed by law.\u201d N.C. Gen. Stat. \u00a7 150B-51(c) (2005). The superior court adopted the decision made by the AU, a proper action anticipated by the statute.\nAccordingly, we affirm the decision of the superior court.\nAffirmed.\nJudges TYSON and GEER concur.\n. We note that the superior court did not find just cause for petitioner\u2019s dismissal, but the AU did. However, the AU nevertheless ordered petitioner to be reinstated with back pay and benefits because of his \u201coutstanding work record and his good faith belief that his actions were within the accepted pattern and practice of the DMV Enforcement Section.\u201d", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Roy Cooper, Attorney General, by Allison A. Pinchos, Assistant Attorney General, for respondent.", "Long, Parker, Warren & Jones, P.A., by W. Scott Jones and Robert B. Long, Jr., for petitioner." ], "corrections": "", "head_matter": "GARY P. RAMSEY, Petitioner v. N.C. DIVISION OF MOTOR VEHICLES, Respondent\nNo. COA06-931\n(Filed 17 July 2007)\n1. Appeal and Error\u2014 contested case \u2014 guidelines\nAppellate review of the superior court\u2019s consideration of a contested case petition was to determine whether the trial court exercised the appropriate scope of review and whether it did so properly.\n2. Administrative Law\u2014 contested case-appeal to superior court \u2014 standard of review\nThe superior court applied the correct standard of review to a contested case involving a dismissed DMV enforcement officer where the State Personnel Commission did not adopt the ALJ\u2019s decision. The superior court was therefore required to review the official record de novo and to make its own findings of fact and conclusions of law.\n3. Public Officers and Employees\u2014 dismissal of employee\u2014 violation of rule not willful\nThe superior court did not err on de novo review of the dismissal of a DMV enforcement officer by holding that the officer had violated a rule when he solicted car dealerships for funding for two captains\u2019 meetings, but not willfully, and by concluding that his actions did not rise to the level of just cause for dismissal.\nAppeal by respondent from judgment entered 6 February 2006 by Judge Nathaniel J. Poovey in Buncombe County Superior Court. Heard in the Court of Appeals 21 February 2007.\nRoy Cooper, Attorney General, by Allison A. Pinchos, Assistant Attorney General, for respondent.\nLong, Parker, Warren & Jones, P.A., by W. Scott Jones and Robert B. Long, Jr., for petitioner." }, "file_name": "0713-01", "first_page_order": 745, "last_page_order": 751 }