{ "id": 4358012, "name": "JOHN BAKER WARREN, Petitioner v. NORTH CAROLINA DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY; NORTH CAROLINA HIGHWAY PATROL, Respondent", "name_abbreviation": "Warren v. North Carolina Department of Crime Control & Public Safety", "decision_date": "2012-06-19", "docket_number": "No. COA11-884", "first_page": "376", "last_page": "383", "citations": [ { "type": "official", "cite": "221 N.C. App. 376" } ], "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": "664 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641638 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "632", "parenthetical": "\"Although this Court in Eury discussed the issue of just cause specifically in the context of 'dismissal,' we note that the logic requiring a rational nexus applies equally in any case of state employee discipline.\"" }, { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/se2d/664/0625-01" ] }, { "cite": "1985 Duke L.J. 594", "category": "journals:journal", "reporter": "Duke L.J.", "year": 1985, "pin_cites": [ { "page": "599" } ], "opinion_index": 0 }, { "cite": "192 N.C. App. 129", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160188 ], "year": 2008, "pin_cites": [ { "page": "139", "parenthetical": "\"Although this Court in Eury discussed the issue of just cause specifically in the context of 'dismissal,' we note that the logic requiring a rational nexus applies equally in any case of state employee discipline.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/192/0129-01" ] }, { "cite": "446 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "395-96", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 590", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12137315 ], "year": 1994, "pin_cites": [ { "page": "611", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0590-01" ] }, { "cite": "911 F.2d 191", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10532910 ], "year": 1990, "pin_cites": [ { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/f2d/911/0191-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-35", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(a)" }, { "parenthetical": "b" } ], "opinion_index": 0 }, { "cite": "707 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "735", "parenthetical": "reviewing an incorrectly labeled \"conclusion of law\" as a finding of fact" } ], "opinion_index": 0 }, { "cite": "599 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 19, "year": 2004, "pin_cites": [ { "page": "898" }, { "page": "898" }, { "page": "899" }, { "page": "893" }, { "page": "890" }, { "page": "905" }, { "page": "900" }, { "page": "900-01", "parenthetical": "citations omitted" }, { "page": "904", "parenthetical": "emphasis added" }, { "page": "900", "parenthetical": "internal quotation mark omitted" }, { "page": "900", "parenthetical": "internal quotation marks omitted" }, { "page": "901" }, { "page": "900" }, { "page": "901" } ], "opinion_index": 0 }, { "cite": "358 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987357 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "666" }, { "page": "665" }, { "page": "656" }, { "page": "669" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0649-01" ] }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "118-19" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527936 ], "year": 1994, "pin_cites": [ { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0668-01" ] }, { "cite": "483 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "392" } ], "opinion_index": 0 }, { "cite": "345 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53839 ], "year": 1997, "pin_cites": [ { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0699-01" ] } ], "analysis": { "cardinality": 804, "char_count": 18126, "ocr_confidence": 0.75, "pagerank": { "raw": 2.0006872139233257e-07, "percentile": 0.7429334683218983 }, "sha256": "994a6d973000a4a89b2751b1a1090db01663110b5523c354ee81e81af2eb5bb4", "simhash": "1:a2bc50c2c4fe2d56", "word_count": 2833 }, "last_updated": "2023-07-14T16:36:11.101860+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and HUNTER, JR., Robert N. concur." ], "parties": [ "JOHN BAKER WARREN, Petitioner v. NORTH CAROLINA DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY; NORTH CAROLINA HIGHWAY PATROL, Respondent" ], "opinions": [ { "text": "STEELMAN, Judge.\nThe trial court\u2019s order is vacated and remanded for entry of findings of fact and conclusions of law reconciling conflicts in the order. In order to discharge, suspend, or demote a career state employee for disciplinary reasons based on unacceptable personal conduct, the specific misconduct must constitute just cause for the specific disciplinary sanction imposed.\nI. Factual and Procedural Background\nOn 7 October 2007, the North Carolina State Highway Patrol (the \u201cPatrol\u201d), a division of the North Carolina Department of Crime Control and Public Safety (\u201crespondent\u201d), dismissed Sergeant John Baker Warren (\u201cpetitioner\u201d). The dismissal was based on the Patrol\u2019s determination that petitioner had engaged in unacceptable personal conduct in an alcohol-related incident.\nShortly after midnight on 9 September 2007, petitioner stowed an open bottle of vodka in the trunk of his Patrol-issued vehicle and drove to a party. He could have used his personal vehicle, but he elected not to because he was concerned that he would wake his aunt (with whom he was residing at the time) in an effort to get the keys to his personal vehicle. After petitioner arrived at the party, deputies of the Nash County Sheriff\u2019s Office were called because of an altercation between two women. The deputies arrested petitioner, who had consumed a significant amount of alcohol at some point that evening, because they believed he was already impaired before driving to the party.\nAfter an investigation by Internal Affairs, the Patrol dismissed Petitioner for violating the Patrol\u2019s written policies on \u201cconformance to laws\u201d and \u201cunbecoming conduct.\u201d Petitioner filed a contested case petition challenging his termination. The administrative law judge (\u201cALJ\u201d) found that the Patrol failed to prove just cause for termination but acknowledged that some discipline was appropriate. The State Personnel Commission (\u201cSPC\u201d) adopted the Aid\u2019s findings of fact but rejected the Aid\u2019s conclusion of law that termination was inappropriate. Petitioner appealed to Wake County Superior Court.\nThe trial court reversed the SPC, concluding Petitioner\u2019s conduct did not justify termination. The trial court concluded that petitioner violated the Patrol\u2019s written conduct unbecoming policy by operating a state-owned vehicle after consuming \u201csome quantity of alcohol.\u201d The trial court also concluded that petitioner did not violate the Patrol\u2019s written conformance to laws policy because there was insufficient evidence to establish that he was appreciably impaired at the time he operated a motor vehicle upon the highways of this state. The court held as a matter of law that petitioner\u2019s conduct did not justify dismissal. The case was remanded to the SPC for imposition of discipline \u201cconsistent with the lesser misconduct proven.\u201d\nRespondent appeals.\nII. Termination\nIn its only argument on appeal, respondent contends that the trial court erred in reversing the Patrol\u2019s decision to terminate petitioner\u2019s employment. We agree that the trial court did not make adequate findings of fact and conclusions of law.\nA. Standard of Review\nWhen reviewing a superior court order concerning an agency decision, we examine the order for errors of law. ACT-UP Triangle v. Comm\u2019n for Health Servs. of N.C., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997). \u201cThe process has been described as a twofold 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 Id. (quoting Amanini v. N. C. Dep\u2019t of Human Res., 114 N.C. App. 668, 675, 443 S.E.2d 114, 118-19 (1994)) (internal quotation mark omitted). When an administrative agency rejects an ALJ\u2019s decision in a contested case and a party appeals to the superior court, the superior court is required to review the record de novo and make findings of fact and conclusions of law. N.C. Gen. Stat. \u00a7 150B:51(c) (2007). In making its findings of fact and conclusions of law, the superior court \u201cshall not\u201d accord any deference to any prior decision made in the case. Id. Whether conduct constitutes just cause for the disciplinary action taken is a question of law we review de novo. N. C. Dep\u2019t of Env\u2019t & Natural Res. v. Carroll, 358 N.C. 649, 666, 599 S.E.2d 888, 898 (2004).\nB. Analysis\n1. Findings of Fact Required\nIn its order of remand, the trial court did not make findings of fact as required by statute. See N.C. Gen. Stat. \u00a7 150B-51(c). Instead, the court stated that the \u201cfacts are not disputed and are before the Court as found by Judge Overby.\u201d The court based its decision on the factual determination that \u201cthe evidence and fact findings are sufficient to show that [petitioner had consumed some quantity of alcohol before or during the driving in question.\u201d However, the ALJ concluded that the Patrol failed to establish petitioner drove the Patrol vehicle with any alcohol in his system. This determination by the AU was categorized as a conclusion of law but was clearly a factual determination. Therefore, we treat it as such. See Peters v. Pennington, - N.C. App. -, -, 707 S.E.2d 724, 735 (2011) (reviewing an incorrectly labeled \u201cconclusion of law\u201d as a finding of fact). Thus, there is a conflict between the AU\u2019s findings of fact and the trial court\u2019s findings of fact, which state that petitioner consumed some amount of alcohol prior to driving. We vacate the trial court\u2019s order and remand this case so that the trial court can make findings of fact resolving this issue.\n2. The Just Cause Framework\nWe address the parties\u2019 arguments on the subject of commensurate discipline because these issues will arise on remand. Career state employees, like petitioner, may not be discharged, suspended, or demoted for disciplinary reasons without \u201cjust cause.\u201d N.C. Gen. Stat. \u00a7 126-35(a). This requires the reviewing tribunal to examine two things: (1) \u201c \u2018whether the employee engaged in the conduct the employer alleges\u2019 \u201d and (2) \u201c\u2018whether that conduct constitutes just cause for the disciplinary action taken.\u2019 \u201d Carroll, 358 N.C. at 665, 599 S.E.2d at 898 (quoting Sanders v. Parker Drilling Co., 911 F.2d 191, 194 (9th Cir. 1990)). There are two categories of just cause for discipline: \u201c\u2018unsatisfactory job performance and \u201c\u2018unacceptable personal conduct.\u2019 \u201d Id. at 666, 599 S.E.2d at 899 (quoting N.C. Gen. Stat. \u00a7 126-35 (b) (2003)). This case involves only unacceptable personal conduct. The North Carolina Administrative Code defines unacceptable personal conduct as, among other things, \u201cthe willful violation of known or written work rules.\u201d 25 N.C.A.C. 1J.0614(i)(4) (2006).\nRespondent contends that that all forms of unacceptable personal conduct under 25 N.C.A.C. lJ.0614(i) amount to just cause for any disciplinary action authorized by N.C. Gen. Stat. \u00a7 126-35, which includes dismissal. Petitioner contends that in making a determination of just cause, the reviewing tribunal must examine the nature of the misconduct and the type of discipline imposed. In other words, the facts of a given case might amount to just cause for discipline but not dismissal. The parties have not cited, and our research has not discovered, any binding precedent that explicitly addresses this issue.\nPetitioner contends that this Court adopted a \u201crational nexus\u201d approach for off-duty misconduct. However, that test applies to off-duty criminal conduct:\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\u2019t Sec. Comm\u2019n, 115 N.C. App. 590, 611, 446 S.E.2d 383, 395-96 (1994) (citations omitted). Our research has not discovered any binding precedent applying the rational-nexus test to noncriminal conduct. The rationale for applying this test is that some off-duty criminal violations may have little bearing on the employee\u2019s job. We decline to extend this test to non-criminal conduct based on Eury.\nOur Supreme Court\u2019s opinion in Carroll suggests that a commensurate discipline approach is appropriate, but it is not entirely clear at which step of the analysis this should be applied. In Carroll, the petitioner was demoted for willfully violating written workplace guidelines. 358 N.C. at 656, 599 S.E.2d at 893. The petitioner, a Department of Environmental and Natural Resources (\u201cDENR\u201d) park ranger, exceeded posted speed limits while activating the blue lights on his patrol vehicle for a personal emergency. Id. The petitioner was demoted, and his salary was reduced. Id. The SPC reversed DENR\u2019s decision to discipline the petitioner. Id. at 652, 599 S.E.2d at 890. The trial court reversed, and this Court affirmed. Id. The Supreme Court reversed. Id. at 676, 599 S.E.2d at 905.\nThe Supreme Court first addressed DENR\u2019s argument that discipline was justified because the petitioner violated state law. Under the Administrative Code, unacceptable personal conduct includes \u201cjob-related conduct which constitutes a violation of state or federal law.\u201d 25 N.C.A.C. lJ.0614(i)(2). But \u201c[e]ven assuming [the petitioner] lacked legal justification or excuse for exceeding the ... speed limit,\u201d the Court explained, this \u201cconduct did not warrant demotion under the \u2018just cause\u2019 standard.\u201d Carroll, 358 N.C. at 669, 599 S.E.2d at 900. The Court then described the just cause standard:\nWe acknowledge that SPC regulations define \u201cjust cause\u201d to include \u201cunacceptable personal conduct\u201d and \u201cunacceptable personal conduct\u201d to include \u201cjob-related conduct which constitutes a violation of state or federal law.\u201d Nonetheless, the fundamental question in a case brought under N.C.G.S. \u00a7 126-35 is whether the disciplinary action taken was \u201cjust.\u201d Inevitably, this inquiry requires an irreducible act of judgment that cannot always be satisfied by the mechanical application of rules and regulations.\n\u201cJust cause,\u201d like justice itself, is not susceptible of precise definition. It is a \u201c \u2018flexible concept, embodying notions of equity and fairness,\u2019 \u201d 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 omitted). This passage instructs us to consider the specific discipline imposed as well as the facts and circumstances of each case to determine whether the discipline imposed was \u201cjust.\u201d Based on this language, and the authorities relied upon by the Supreme Court, we hold that a commensurate discipline approach applies in North Carolina. Note that the quoted text indicates that this inquiry is appropriate despite the fact that the regulations define just cause as unacceptable personal conduct.\nHowever, later in the opinion, the Supreme Court stated, \u201cAlthough there is no bright line test to determine whether an employee\u2019s conduct establishes \u2018unacceptable personal conduct\u2019 and thus \u2018just cause\u2019 for discipline, we draw guidance from those prior cases where just cause has been found.\u201d Id. at 675, 599 S.E.2d at 904 (emphasis added). This quotation is difficult to reconcile with the Court\u2019s discussion on the flexibility of the just cause standard because it suggests that all unacceptable personal conduct is just cause for all forms of discipline. If unacceptable personal conduct amounts to just cause, and just cause must be \u201cdetermined upon an examination of the facts and circumstances of each individual case\u201d by reference to \u201cnotions of equity and fairness,\u201d id. at 669, 599 S.E.2d at 900 (internal quotation mark omitted), it should follow that all categories of unacceptable personal conduct must be determined according to this standard. But not every category provided by the Administrative Code permits this type of flexibility. In Carroll, the Supreme Court was presented with the provision stating that \u201cjob-related conduct which constitutes a violation of state or federal law\u201d amounts to unacceptable personal conduct. See id. at 669, 599 S.E.2d at 900 (internal quotation marks omitted). To account for the lack of flexibility in the language of the regulation, and accommodate the flexible just cause standard, the Court stated that \u201cnot every violation of law gives rise to \u2018just cause\u2019 for employee discipline.\u201d Id. at 670, 599 S.E.2d at 901. In other words, not every instance of unacceptable personal'conduct as defined by the Administrative Code provides just cause for discipline.\nWe conclude that the best way to accommodate the Supreme Court\u2019s flexibility and fairness requirements for just cause is to balance the equities after the unacceptable personal conduct analysis. This avoids contorting the language of the Administrative Code defining unacceptable personal conduct. The proper analytical approach is to first determine whether the employee engaged in the conduct the employer alleges. The second inquiry is whether the employee\u2019s conduct falls within one of the categories of unacceptable personal conduct provided by the Administrative Code. Unacceptable personal conduct does not necessarily establish just cause for all types of discipline. If the employee\u2019s act qualifies as a type of unacceptable conduct, the tribunal proceeds to the third inquiry: whether that misconduct amounted to just cause for the disciplinary action taken. Just cause must be determined based \u201cupon an examination of the facts and circumstances of each individual case.\u201d Id. at 669, 599 S.E.2d at 900.\nIII. Conclusion\nWe vacate the trial court\u2019s decision and remand for the trial court to make findings of fact as directed above. These findings should then be analyzed in accordance with the analytical framework set forth above. The trial court may, in its discretion, hold additional hearings in this matter.\nVACATED and REMANDED.\nJudges GEER and HUNTER, JR., Robert N. concur.\n. Citations to the North Carolina General Statutes refer to the statutes in effect at the time of the event giving rise to this case. The General Assembly made extensive changes to N.C. Gen. Stat. \u00a7 150B-51 effective 1 January 2012. See Act to Increase Regulatory Efficiency in Order to Balance Job Creation and Environmental Protection, ch. 398, sec. 27, 2011 6 N.C. Adv. Legis. Serv. 17, 18 (LexisNexis). These amendments are not applicable to the instant case.\n. This regulation was modified effective 1 January 2011, but this modification is not applicable to this case.\n. This proposition applies to all forms of state employee discipline, not just dismissal. Kelly v. N.C. Dep\u2019t of Natural Res., 192 N.C. App. 129, 139, 664 S.E.2d 625, 632 (2008) (\u201cAlthough this Court in Eury discussed the issue of just cause specifically in the context of \u2018dismissal,\u2019 we note that the logic requiring a rational nexus applies equally in any case of state employee discipline.\u201d).\n. The Court concluded that the agency lacked just cause to demote the petitioner for exceeding the speed limit. Id. at 670, 599 S.E.2d at 901. In reaching this result, the Court examined the petitioner\u2019s exemplary employment record as well as the circumstances under which the petitioner exceeded the posted speed limit. Id.\n. Among other secondary sources, the Supreme Court cited as persuasive Professors Roger Abrams\u2019 and Dennis Nolans\u2019 work on just cause. See id. at 669, 599 S.E.2d at 900 (citing Roger I. Abrams & Dennis R. Nolan, Toward a Theory of \u201cJust Cause\" in Employee Discipline Cases, 1985 Duke L.J. 594, 599 (1985)). In this article, Professors Abrams and Nolan advance a commensurate approach to discipline:\nThe nature and severity of the employee\u2019s offense, among other things, \u25a0will determine what form of discipline is appropriate. A small departure from \u2018satisfactory\u2019 work may result in a verbal or written warning. A more serious or repeated offense may produce a suspension without pay. In an extreme case, the employer may be justified in discharging an employee.\nAbrams & Nolan, supra, at 601-02 (footnotes omitted).\n. For example, unacceptable personal conduct includes \u201cabsence from work after all authorized leave credits and benefits have been exhausted.\u201d 25 N.C.A.C. 1J.0614(i)(7). This language provides no leeway to account for the nature of the absence from work or the discipline imposed. It cannot accommodate the just cause standard adopted in Carroll.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "The McGuinness Law Firm, by J. Michael McGuinness, for petitioner.", "Attorney General Roy Cooper, by Assistant Attorney General Tamara S. Zmuda, for respondent.", "Richard, C. Hendrix for Amicus Curiae North Carolina Troopers Association.", "Richard E. Mulvaney for Amicus Curiae National Troopers Coalition." ], "corrections": "", "head_matter": "JOHN BAKER WARREN, Petitioner v. NORTH CAROLINA DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY; NORTH CAROLINA HIGHWAY PATROL, Respondent\nNo. COA11-884\n(Filed 19 June 2012)\nPolice Officers \u2014 administrative law \u2014 dismissal for unacceptable personal conduct \u2014 failure to make necessary findings of fact \u2014 analytical approach\nThe trial court erred by reversing the North Carolina State Highway Patrol\u2019s decision to terminate petitioner sergeant\u2019s employment based on its failure to make findings of fact required by N.C.G.S. \u00a7 150B-51(c). The proper analytical approach to be used after making the required findings of fact is to first determine whether the employee engaged in the conduct the employer alleged, and second to determine whether the employee\u2019s conduct fell within one of the categories of unacceptable personal conduct provided by the Administrative Code.\nAppeal by respondent from order entered 20 April 2011 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 25 January 2012.\nThe McGuinness Law Firm, by J. Michael McGuinness, for petitioner.\nAttorney General Roy Cooper, by Assistant Attorney General Tamara S. Zmuda, for respondent.\nRichard, C. Hendrix for Amicus Curiae North Carolina Troopers Association.\nRichard E. Mulvaney for Amicus Curiae National Troopers Coalition." }, "file_name": "0376-01", "first_page_order": 386, "last_page_order": 393 }