{ "id": 4160188, "name": "MICHAEL A. KELLY, STEVEN WAYNE MOBLEY, Petitioners v. N.C. DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, Respondent", "name_abbreviation": "Kelly v. N.C. Department of Environment & Natural Resources", "decision_date": "2008-08-19", "docket_number": "No. COA07-881", "first_page": "129", "last_page": "143", "citations": [ { "type": "official", "cite": "192 N.C. App. 129" } ], "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": "476 S.E.2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867603 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0626-01" ] }, { "cite": "437 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "381" } ], "opinion_index": 0 }, { "cite": "335 N.C. 183", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529224 ], "year": 1993, "pin_cites": [ { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0183-01" ] }, { "cite": "462 S.E.2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "828", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 437", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916129 ], "year": 1995, "pin_cites": [ { "page": "442", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0437-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 6-19.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2007, "opinion_index": 0 }, { "cite": "510 S.E.2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "683" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 137", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237213 ], "year": 1999, "pin_cites": [ { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0137-01" ] }, { "cite": "465 S.E.2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "\"Although denominated as a conclusion of law, we treat this conclusion as a finding of fact because its determination does not involve the application of legal principles.\"" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 253", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916594 ], "year": 1996, "pin_cites": [ { "parenthetical": "\"Although denominated as a conclusion of law, we treat this conclusion as a finding of fact because its determination does not involve the application of legal principles.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0253-01" ] }, { "cite": "451 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "338 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519209, 2520269, 2519598, 2518574, 2519998 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/338/0309-05", "/nc/338/0309-02", "/nc/338/0309-03", "/nc/338/0309-01", "/nc/338/0309-04" ] }, { "cite": "446 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "pin_cites": [ { "page": "395-96" }, { "page": "395" }, { "page": "396" }, { "page": "395-96" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 590", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12137315 ], "weight": 2, "pin_cites": [ { "page": "611" }, { "page": "611" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0590-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-35", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2007, "pin_cites": [ { "page": "(a)", "parenthetical": "emphasis added" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "599 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "898" }, { "page": "898" }, { "page": "900-01", "parenthetical": "citations and internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "358 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987357 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "665" }, { "page": "665" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0649-01" ] }, { "cite": "293 S.E.2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "133" } ], "opinion_index": 0 }, { "cite": "306 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571007 ], "year": 1982, "pin_cites": [ { "page": "404" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0394-01" ] }, { "cite": "29 U.S.C. \u00a7 201", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1123, "char_count": 31434, "ocr_confidence": 0.759, "pagerank": { "raw": 8.411867578422581e-08, "percentile": 0.48332663410106147 }, "sha256": "28ebcb6f04334c99cfa94a3db9326ac2619c7964df7afc1fb4ca109f4bd2fb57", "simhash": "1:276263c67cdf7d76", "word_count": 5001 }, "last_updated": "2023-07-14T14:54:33.452279+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and ARROWOOD concur." ], "parties": [ "MICHAEL A. KELLY, STEVEN WAYNE MOBLEY, Petitioners v. N.C. DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, Respondent" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nRespondent North Carolina Department of Environment and Natural Resources (\u201cNCDENR\u201d) appeals from orders of the Wake County Superior Court concluding that petitioners Michael Kelly and Steven Wayne Mobley had received employment discipline without just cause and awarding them back pay, interest on back pay, and partial attorney fees and costs. Petitioners also appeal from the order awarding attorney fees and costs.\nDuring the period of time relevant to the facts of this case, petitioners were employees of NCDENR in the Division of Environmental Health (\u201cDEH\u201d). Michael Kelly was Deputy Director of DEH, while Steven Wayne Mobley was Chief of the Shellfish Sanitation Section of DEH. Petitioners had been employed by the State of North Carolina for fourteen and thirty-one years, respectively. On the evening of 14 June and the early hours of 15 June 2004, petitioners were fishing in the White Oak River. Over the course of the evening, petitioners gigged seventeen flounder and two red drum. While they were preparing to head inland at approximately 12:30 a.m., a Division of Marine Fisheries (\u201cDMF\u201d) patrol boat stopped petitioners\u2019 boat. After talking with petitioners about their catch that night, DMF officers asked to inspect their fishing coolers, and petitioners consented to the inspection. DMF officers asked petitioners if they knew the minimum flounder size limit, and petitioners replied that they thought it was either thirteen or thirteen and one-half inches. In fact, the applicable flounder size regulation had recently changed from thirteen inches to fourteen inches. DMF officers informed petitioners that the size limit for the recreational taking of flounder was fourteen inches.\nUpon inspecting petitioners\u2019 fishing coolers, DMF officers determined that twelve of the seventeen flounder were less than fourteen inches, and the two red drum had been gigged, which is not a permitted technique for taking red drum. The violations of applicable fishing laws were each a class one misdemeanor. DMF officers issued each petitioner a citation for taking six undersized flounder and possessing one gigged red drum. Petitioners were cooperative with DMF officers, and the following day they immediately notified their supervisors about the citations. The incident was reported in several local newspapers and a local sporting publication. NCDENR conducted an investigation of the incident to determine whether any disciplinary action was warranted. The investigation resulted in allegations against petitioners of unacceptable personal conduct unbecoming a state employee that is detrimental to state service. Because petitioners were salaried employees exempt from the overtime compensation provisions of the Fair Labor Standards Act, 29 U.S.C. \u00a7 201 et seq., the departmental human resources office stated that the choices for disciplinary action were either a written warning, suspension without pay for five days, or suspension without pay for ten days, pursuant to 25 N.C. Admin. Code 1J.0611. After holding a predisciplinary conference, Director of the Division of Environmental Health Terry Pierce on 29 July 2004 imposed disciplinary suspensions for five days without pay for unacceptable personal conduct. Petitioners appealed to Secretary of NCDENR William Ross, who affirmed Director Pierce\u2019s disciplinary action. Petitioners filed petitions for contested case hearings with the Office of Administrative Hearings. On 28 December 2004, an administrative law judge (\u201cALJ\u201d) entered a written decision reversing their suspensions and finding that NCDENR lacked just cause to discipline petitioners and that their suspensions were arbitrary and capricious. The ALJ also found that petitioners were entitled to back wages and attorney fees and costs. The State Personnel Commission (\u201cSPC\u201d) subsequently rejected the ALJ\u2019s decision and adopted new findings of fact and conclusions of law affirming NCDENR\u2019s decision to discipline petitioners. Petitioners sought judicial review of the SPC\u2019s decision in Wake County Superior Court, and the court found that petitioners did not intentionally violate the fishing laws, but rather their actions amounted to a careless mistake; that no lasting effects arose from petitioners\u2019 conduct; that, a recurrence of petitioners\u2019 conduct was unlikely; and that petitioners\u2019 conduct had not impaired their ability to perform their job duties and would not adversely impact their future ability to perform for NCDENR. Accordingly, the court concluded that petitioners did not engage in unacceptable personal conduct that is detrimental to state service and that NCDENR did not have just cause to suspend petitioners from work for five days without pay. As a separate and independent basis for its decision, the court further concluded \u201cthat 25 N.C.A.C. 01J.0611 is void as applied on the particular facts in this case because it did not permit the exercise of discretion in determining appropriate disciplinary action.\u201d In a separate order filed 4 June 2007, the superior court awarded partial attorney fees and costs to petitioners. NCDENR appeals both of the superior court orders, and petitioners appeal the 4 June 2007 order to this Court.\nIn cases of judicial review of agency decisions, \u201c[t]he 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.\u201d N.C. Gen. Stat. \u00a7 150B-52 (2007). N.C.G.S. \u00a7 150B-51(c) governs review by a superior court of \u201ca 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.\u201d N.C. Gen. Stat. \u00a7 150B-51(c) (2007). Due to the procedural background in this case, the superior court reviewed the SPC\u2019s decision under \u00a7 150B-51(c). Accordingly, we consider whether the findings of fact are supported by substantial evidence, defined as \u201crelevant evidence a reasonable mind might accept as adequate to support a conclusion.\u201d N.C. Gen. Stat. \u00a7 150B-2(8b) (2007). Furthermore, where a party does not except to a finding of fact, it is \u201cpresumed to be correct and supported by evidence.\u201d In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982).\nIn examining the appellate standard of review in similar cases, this Court and our Supreme Court have noted that our review further entails \u201cdetermining how the trial court should have decided the case upon application of the appropriate standards of review.\u201d N.C. Dep\u2019t of Env\u2019t & Nat. Res. v. Carroll, 358 N.C. 649, 665, 599 S.E.2d 888, 898 (2004). In the case before us, the trial court\u2019s standard of review is determined by N.C.G.S. \u00a7 150B-51(c), which states:\nIn reviewing a 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.\nN.C. Gen. Stat. \u00a7 150B-51(c) (effective January 1, 2001). Accordingly, the trial court examined both the findings of fact and the conclusions of law under a de novo standard of review and, therefore, we need not consider whether the trial court\u2019s review conformed to a more restrictive standard.\nWe first consider NCDENR\u2019s argument that the trial court erred in making five findings of fact that were not supported by substantial evidence.\nThe trial court found:\nPetitioners acknowledged that they were mistaken in their understanding of the applicable fishing laws and that they should have known the rules. Petitioners were careless in their violation of the fishing laws; their violations were not intentional. Petitioners were apologetic, both privately within NCDNER [sic] and in public; they promptly acknowledged responsibility for their actions and promptly paid their $50.00 fines plus $100.00 in court costs.\nNCDENR argues that the facts do not reflect carelessness but rather demonstrate a deliberate disregard for the rules. To the contrary, substantial evidence supported the court\u2019s finding that petitioners were mistaken and that their violations were not intentional or deliberate. The DMF officers who issued the citations wrote in a narrative of the event that Mr. Mobley \u201chad made a mistake.\u201d In addition, petitioners described the incident as arising from the fact that they \u201cboth thought the minimum was 13 1/2 inches,\u201d Mr. Kelly was \u201ctotally unaware that it was illegal to gig a Drum,\u201d and \u201cthe second Drum was mistakenly taken.\u201d Mr. Kelly specifically wrote in his statement to Secretary Ross \u201c[t]here was never any malicious attempt to break the law or intentionally take fish illegally.\u201d Secretary Ross testified that \u201cthey had made a mistake, yes. The mistake was not knowing the rules.\u201d Therefore, we affirm this finding of fact.\nThe trial court next found:\nOnly a few articles and commentaries were written about the incident in newspapers and a sporting publication. In general those articles demonstrated both the fact that two NCDNER [sic] employees violated fishing regulations, and the fact that NCDNER [sic] actually enforces those fishing regulations\u2014 even against its own employees. The impact of those articles and commentaries in the public, on balance, is neutral but certainly not negative. The articles show that the law is being enforced evenhandedly against anyone who violates the law, even unintentionally.\nNCDENR argues that because news publications criticized petitioners, the overall impact of the publicity must be negative. NCDENR\u2019s argument fails to appreciate the aspect of the publicity which reported that petitioners were punished for their conduct, as any member of the general public would be, notwithstanding their position with the' agency. Substantial evidence supported this neutralizing aspect of the publicity, where Secretary Ross testified:\nQ. In all of these articles, letters, editorials, whatever you wish to call them in the entire bunch, is it not fair to say that the Department is being lauded for busting its own officials?\nA. Yes, to the extent the articles talk about that. It was uniformly reported, it seemed to me, that the Marine Patrol officers did what they should have done, did a good job.\nTherefore, we also affirm this finding of fact.\nThe trial court also found \u201c[no] lasting negative effects have arisen from the conduct giving rise to the fishing tickets.\u201d NCDENR argues that \u201cpotential lasting negative effects are self-evident,\u201d citing a negative impact on the public\u2019s voluntary compliance with fishing regulations as well as the public\u2019s perception that the agency was not abiding by the same rules it enforces against the general public. With regard to the effect on voluntary compliance, Director Pate testified:\nQ. [S]ince [the incident], have you had wholesale increase of violations of gigged drums or flounders too small?\nA. I\u2019m not aware of any major changes in the incidents [sic] of those types of violations.\nSecretary Ross testified that he did not know whether people were actually violating fishing regulations as a result of the publicity.\nWith regard to the effect the publicity had on public opinion about NCDENR, Director Pate was asked whether his concern about the way that petitioners\u2019 actions would be interpreted by the general public came to fruition. Director Pate testified \u201cit has not been quantified. Reactions of that nature by the public and by my staff are very difficult to measure.\u201d Further, Director Pierce testified:\nQ. [In] the eleven months since your deposition^ h]ave you seen anywhere on e-mail, on \u2014 in the newspapers on fishing \u2014 have you anywhere seen a discussion of this fishing incident again?\nA. I have not looked for nor have I found.\nWhen asked how he had followed up to assess the impact of petitioners\u2019 actions on the public, Director Pierce testified that he worked with two public information officers who scan newspapers in the state and the adjoining states for agency publicity, and neither officer had called any articles to his attention. By testifying that they were not aware of any increases in fishing violations or any instances of continued or lasting publicity of the incident, the witnesses\u2019 testimony was substantial evidence that no lasting negative effects had occurred.\nThe trial court subsequently found \u201c[g]iven the circumstances surrounding this case, a recurrence of [p]etitioners\u2019 conduct giving rise to the fishing tickets is unlikely.\u201d NCDENR argues that, without employment discipline, petitioners would have no reason not to repeat their conduct. Evidence was presented to show that, in addition to employment discipline, petitioners were subject to embarrassment, both personally, at work, and publicly, and punishment under the law, including a monetary penalty of $150 each. Furthermore, petitioners\u2019 repeated apologies expressed their regret and indicated that they learned from their mistake. Therefore, we affirm this finding of fact.\nUltimately, the trial court found:\nAt no point were [p]etitioners, as a consequence of the conduct giving rise to their fishing tickets, impaired to any extent in performing their job duties with NCDNER\u2019s [sic] Division of Environmental Health, or in interacting with their respective staffs, or in interacting with other Divisions within NCDNER [sic], nor was there ever a potential threat of any adverse impact on their future ability to perform for the agency. There was no adverse impact on [petitioners\u2019 colleagues or on the quality of [petitioners\u2019 work.\nNCDENR argues that the \u201cevidence showed that working relationships and interagency harmony were h\u00e1rmed,\u201d as was petitioners\u2019 relationship with the public. As previously noted, the evidence showed that NCDENR and petitioners\u2019 relationship with the public suffered no quantifiable or evident harm.\nWith regard to their ability to perform their job duties and interact with their own staff and the staff in other divisions of NCDENR, Director Pierce, Director Pate, and Secretary Ross all testified that no harm had resulted. Director Pierce, petitioners\u2019 supervisor in DEH, testified that he had not talked to any of the staff in the Shellfish Sanitation Section of his division about their feelings toward petitioners, but that he had received a letter of support from an employee in the Shellfish Sanitation Section. Director Pierce also indicated that both petitioners received a rating of \u201coutstanding\u201d on their performance evaluations after the fishing incident, which included an evaluation of \u201cleadership qualities,\u201d \u201cstaff guidance,\u201d \u201chow his subordinates viewed him,\u201d and \u201cworking relationship . . . with everybody else in the . . . Division and the Department.\u201d\nDirector Pate, head of DMF, testified:\nQ. When you indicate you were concerned that you-all shared and have separate regulatory actions, was your concern that your people could not do their job based on Mr. Mobley\u2019s fishing citation?\nA. No, it was not.\nQ. Was your concern [that] Mr. Mobley could not do his job based on the fishing citation?\nA. No.\nQ. Was your concern that your officers would somehow feel that they couldn\u2019t do their job?\nA. No.\nQ. Has [the incident] affected your working relationship [with Mr. Mobley]?\nA. No, sir.\nQ. ... So despite your concern, it has not manifested itself in any way?\nA. That\u2019s correct.\nQ. And do you know if it\u2019s manifested itself with any of your enforcement officers or any of your staff that deals with Mr. Mobley?\nA. Not aware of it, and I would be disappointed if it did.\nQ. [I]s it fair to say that your relationship with Mr. Kelly hasn\u2019t been affected at all?\nA. No, sir, it has not been changed.\nQ. And at that point when this happened, did you have any concern that it would be affected with Mr. Kelly?\nA. The concern was there, yes, but again, it has not manifested itself.\nSecretary Ross testified:\nQ. . . . But the simple fact is, you never got any information after the phone call on June 21st expressing disappointment and concern \u2014 you never got any information from the Marine Patrol offices, officers, people that the relationship was not working, that this thing had caused problems?\nA. No. That\u2019s true.\nQ. Do you have any objective evidence after the hearing that there has been \u2014 or even before the hearing \u2014 that there has been any intradepartmental harm?\nA. No.\nAlthough there was concern about potential harm to the agency, it is apparent from the testimony that those concerns were unfounded. We find substantial evidence was presented to support the trial court\u2019s finding of fact that there was no adverse impact on or impairment of petitioners\u2019 ability to do their jobs.\nBy separate argument, NCDENR contends that the trial court erred in concluding that petitioners did not engage in unacceptable personal conduct \u201cunbecoming a state employee that was detrimental to state service\u201d and that NCDENR lacked just cause to discipline petitioners. Disciplinary actions for state employees are governed by N.C.G.S. \u00a7 126-35, which states: \u201cNo 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(a) (2007) (emphasis added). \u201cDisciplinary actions, for the purpose of this Article, are those actions taken in accordance with the disciplinary procedures adopted by the State Personnel Commission and specifically based on unsatisfactory job performance, unacceptable personal conduct or a combination of the two.\u201d N.C. Gen. Stat. \u00a7 126-35(b). In this case, NCDENR cited unacceptable personal conduct as the basis for discipline. Unacceptable personal conduct includes, in its definition, \u201cconduct unbecoming a state employee that is detrimental to state service.\u201d 25 N.C. Admin. Code U.0614(i)(6) (2008).\nBecause the underlying conduct is undisputed, the only inquiry before this Court is whether just cause existed for petitioners\u2019 discipline. See Carroll, 358 N.C. at 665, 599 S.E.2d at 898. We note our Supreme Court\u2019s language from Carroll:\n[T]he fundamental question in a case brought under N.C.G.S. \u00a7 126-35 is whether the disciplinary action taken was \u201cjust.\u201d . . .\n\u201cJust cause,\u201d like justice itself, is not susceptible of precise definition. It is a flexible concept, embodying notions of equity and fairness, that can only be determined upon an examination of the facts and circumstances of each individual case. Thus, not every violation of law gives rise to \u201cjust cause\u201d for employee discipline.\nId. at 669, 599 S.E.2d at 900-01 (citations and internal quotation marks omitted). As part of the just cause analysis, this Court has held:\n[W]here an employee has engaged in off-duty criminal conduct, the agency need not show actual harm to its interests to demonstrate just cause for an employee\u2019s dismissal. However, it is well established that administrative agencies may not engage in arbitrary and capricious conduct. Accordingly, we hold that in cases in which an employee has been dismissed based upon an act of off-duty criminal conduct, the agency must demonstrate that the dismissal is supported by the existence of a rational nexus between the type of criminal conduct committed and the potential adverse impact on the employee\u2019s future ability to perform for the agency.\nEury v. N.C. Emp. Sec. Comm\u2019n, 115 N.C. App. 590, 611, 446 S.E.2d 383, 395-96 (citations omitted), disc. review denied, 338 N.C. 309, 451 S.E.2d 635 (1994). Although this Court in Eury discussed the issue of just cause specifically in the context of \u201cdismissal,\u201d we note that the logic requiring a rational nexus applies equally in any case of state employee discipline. See id. at 610, 446 S.E.2d at 395 (referencing N.C.G.S. \u00a7 126-35(a) in its entirety in a discussion of the connection between conduct and negative consequences, where \u00a7 126-35(a) governs discharge, suspension, and demotion).\nIn determining whether a rational nexus exists, the Commission may consider the following factors:\n\u2014the degree to which, if any, the conduct may have adversely affected clients or colleagues;\n\u2014the relationship between the type of work performed by the employee for the agency and the type of criminal conduct committed;\n\u2014the likelihood of recurrence of the questioned conduct and the degree to which the conduct may affect work performance, work quality, and the agency\u2019s good will and interests;\n\u2014the proximity or remoteness in time of the conduct to the commencement of the disciplinary proceedings;\n\u2014the extenuating or aggravating circumstances, if any, surrounding the conduct;\n\u2014the blameworthiness or praiseworthiness of the motives resulting in the conduct; and\n\u2014the presence or absence of any relevant factors in mitigation.\nId. at 611, 446 S.E.2d at 396. This Court further noted that this list is not all-inclusive; however, it is instructive in any analysis of the existence of a rational nexus. Id.\nThe trial court made findings of fact relating to each of the relevant factors, as follows. With respect to any adverse effect on clients or colleagues, the trial court found \u201c[t]here was no adverse impact on [petitioners\u2019 colleagues.\u201d As for the relationship between the criminal conduct and the type of work performed by the employee and the agency, the trial court concluded \u201c[petitioners\u2019 job duties did not include enforcing regulations for fin fish, and there is, therefore, not a close relationship between the conduct at issue and the type of work performed by [petitioners.\u201d To the extent this conclusion of law is actually a finding of fact, we treat it as such. See Gainey v. N. C. Dep\u2019t of Just., 121 N.C. App. 253, 257 n.l, 465 S.E.2d 36, 40 n.l (1996) (\u201cAlthough denominated as a conclusion of law, we treat this conclusion as a finding of fact because its determination does not involve the application of legal principles.\u201d). NCDENR does not challenge the fact that petitioners did not enforce fin fish regulations, and that fact supports the trial court\u2019s conclusion that a close relationship did not exist. With regard to the likelihood of recurrence of the questioned conduct, the trial court found \u201ca recurrence of [petitioners\u2019 conduct giving rise to the fishing tickets is unlikely.\u201d As for the degree to which the conduct may affect work performance, and work quality, the trial court found:\nAt no point were [petitioners, as a consequence of the conduct giving rise to their fishing tickets, impaired to any extent in performing their job duties ... , or in interacting with their, respective staffs, or in interacting with other Divisions within NCDNER [sic], nor was there ever a potential threat of any adverse impact on their future ability to perform for the agency. There was no adverse impact on [petitioners\u2019 colleagues or on the quality of [petitioners\u2019 work.\nWith respect to the effect on the agency\u2019s good will, the trial court found that the publicity was neutral and had no lasting effects. The trial court also found some mitigating factors, including \u201c[petitioners were very cooperative and polite to the DMF Officers, and later were complimentary of the DMF Officers for issuing the citations,\u201d and \u201c[petitioners were apologetic, both privately within NCDNER [sic] and in public; they promptly acknowledged responsibility for their actions and promptly paid their $50.00 fines plus $100.00 in court costs.\u201d\nIn light of these factors, the trial court properly concluded that \u201c[a] \u2018rational nexus\u2019 does not exist in this matter between the off-duty criminal conduct at issue \u2014 conduct giving rise to the fishing tickets\u2014 and the potential adverse impact on [petitioners\u2019 future ability to perform for [NCDENR].\u201d Where the agency fails to show a rational nexus, there cannot be just cause for discipline. Eury, 115 N.C. App. at 611, 446 S.E.2d at 395-96. Accordingly, the trial court properly concluded that petitioners had not engaged in unacceptable personal conduct that is detrimental to state service and that there was no just cause for discipline.\nNext, NCDENR argues that the trial court erred in concluding:\n[A]s a separate and independent basis for overruling the disciplinary actions at issue in this case, ... 25 NCAC 01J.0611 is void as applied on the particular facts in this case because it did not permit the exercise of discretion in determining appropriate disciplinary action[, and] on these specific facts, the disciplinary actions in this matter were arbitrary and capricious and not the product of reasoned decision making.\nBecause we affirm the trial court\u2019s reversal of the discipline for lack of just cause and because this conclusion was a separate and independent basis for reversing the SPC\u2019s decision, we need not address it.\nAdditionally, NCDENR argues that the trial court erred in awarding prejudgment and postjudgment interest on petitioners\u2019 back pay awards. We note that \u201cthe State is not required to pay interest on its obligations unless it is required to do so by contract or by statute.\u201d Faulkenbury v. Teachers\u2019 & State Employees\u2019 Ret. Sys., 132 N.C. App. 137, 149, 510 S.E.2d 675, 683 (1999). The State Personnel Commission rules specifically provide, \u201c[t]he state shall not be required to pay interest on any back pay award.\u201d 25 N.C. Admin. Code 1B.0425 (2008) (emphasis added). Accordingly, we reverse the award of prejudgment and postjudgment interest on the back pay awards in the 19 April 2007 order.\nFinally, we must address an issue raised by NCDENR in its appeal and by petitioners in their cross-appeal. NCDENR argues that the 4 June 2007 order awarding attorney fees and costs to petitioners should be reversed because petitioners should not have been prevailing parties. In light of our analysis of the just cause issue, NCDENR\u2019s argument is without merit. Petitioners contend that the trial court erred in awarding partial attorney fees in the 4 June 2007 order because the court erred in failing to make findings of fact to support the reasonableness of the award. We agree.\nA trial court\u2019s discretionary award of attorney fees and costs is governed by N.C.G.S. \u00a7\u00a7 6-19.1 and 6-20, which provide:\nIn any civil action . . . brought by a party who is contesting State action pursuant to G.S. 150B-43 . . . , unless the prevailing party is the State, the court may, in its discretion, allow the prevailing party to recover reasonable attorney\u2019s fees, including attorney\u2019s fees applicable to the administrative review portion of the case, in contested cases arising under Article 3 of Chapter 150B, to be taxed as court costs against the appropriate agency if:\n(1) The court finds that the agency acted without substantial justification in pressing its claim against the party; and\n(2) The court finds that there are no special circumstances that would make the award of attorney\u2019s fees unjust.\nN.C. Gen. Stat. \u00a7 6-19.1 (2007). \u201c[C]osts may be allowed in the discretion of the court.\u201d N.C. Gen. Stat. \u00a7 6-20 (2007).\nIn the case before us, the trial court concluded that NCDENR acted without substantial justification and that no special circumstances existed to make the award unjust. The court further found that petitioners submitted information showing attorney fees of $102,239.40 and costs of $4,159.35. However, the court awarded only $51,119.70 in attorney fees and only $2,617.10 in costs. \u201cAlthough the award of attorney\u2019s fees is within the discretion of the trial judge under N.C. Gen. Stat. \u00a7 6-19.1 (1986), the trial court must make findings of fact \u2018as to the time and labor expended, the skill required, the customary fee for like work, and the experience or ability of the attorney.\u2019 \u201d N.C. Dep\u2019t of Corr. v. Myers, 120 N.C. App. 437, 442, 462 S.E.2d 824, 828 (1995) (internal quotation marks omitted) (quoting United Labs. v. Kuykendall, 335 N.C. 183, 195, 437 S.E.2d 374, 381 (1993)), aff\u2019d per curiam, 344 N.C. 626, 476 S.E.2d 364 (1996). Here the court failed to make necessary findings of fact about the reasonableness of the award of attorney fees to enable this Court to determine whether the award was within the trial court\u2019s sound discretion or was an abuse thereof. Therefore, we must reverse and remand the 4 June 2007 order for findings of fact consistent with this opinion.\n19 April 2007 order affirmed in part, reversed in part; 4 June 2007 order reversed and remanded for findings of fact.\nAffirmed in part, reversed in part, and remanded.\nJudges BRYANT and ARROWOOD concur.\n. N.C.G.S. \u00a7 150B-51 was amended in 2000 to add subsection (c). 2000 N.C. Sess. Laws ch. 190, \u00a7 11. The amendment applies to contested cases commenced on or after 1 January 2001.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Shanahan Law Group, by Rieran J. Shanahan, Reef G. Ivey, II, and Steven K. McCallister, for petitioners-appellees.", "Roy Cooper, Attorney General, by Tiare B. Smiley, Special Deputy Attorney General, and Edwin Lee Gavin II, Assistant Attorney General, for respondent-appellant." ], "corrections": "", "head_matter": "MICHAEL A. KELLY, STEVEN WAYNE MOBLEY, Petitioners v. N.C. DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, Respondent\nNo. COA07-881\n(Filed 19 August 2008)\n1. Public Officers and Employees\u2014 discipline of state employees \u2014 suspension for misconduct \u2014 fishing violations\nIn an action that began with NCDENR officials receiving citations for fishing violations and then being suspended for five days without pay, the trial court did not err by finding that the violations were not intentional, that the impact of the publicity on NCDENR was neutral and not negative, that there was no lasting negative effect from the conduct giving rise to the fishing tickets, and that there was no adverse impact on impairment of petitioners\u2019 ability to do their jobs.\n. 2. Public Officers and Employees\u2014 fishing tickets \u2014 not conduct unbecoming\nThe trial court did not err by concluding that petitioners had not engaged in unacceptable personal conduct unbecoming a state employee where they had received fishing citations. The trial court made findings relating to each of the relevant factors and properly concluded that a rational nexus did not exist between the off-duty criminal activity giving rise to the fishing tickets and the potential adverse impact on petitioners\u2019 future ability to perform for the agency.\n3. Public Officials and Employees\u2014 wrongful suspension\u2014 interest on back pay award.\nThe trial court erred by awarding prejudgment and postjudgment interest on back pay awards for state employees wrongfully suspended. The State Personnel Commission rules specifically provide that the State shall not be required to pay interest on any back pay award.\n4. Costs\u2014 attorney fees \u2014 insufficient findings\nThe trial court erred by awarding partial attorney fees to improperly disciplined state employees without making necessary findings as to the reasonableness of the fees awarded. N.C.G.S. \u00a7\u00a7 6-19.1, 6-20.\nAppeal by respondent from orders entered 19 April 2007 by Judge Ronald Stephens in Wake County Superior Court, and appeal by petitioners and respondent from order entered 4 June 2007 by Judge Ronald Stephens in Wake County Superior Court. Heard in the Court of Appeals 28 April 2008.\nShanahan Law Group, by Rieran J. Shanahan, Reef G. Ivey, II, and Steven K. McCallister, for petitioners-appellees.\nRoy Cooper, Attorney General, by Tiare B. Smiley, Special Deputy Attorney General, and Edwin Lee Gavin II, Assistant Attorney General, for respondent-appellant." }, "file_name": "0129-01", "first_page_order": 157, "last_page_order": 171 }