STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
01 OSP 2178
COUNTY OF HARNETT
BARBARA A. HARRINGTON,
Petitioner,
v.
HARNETT CORRECTIONAL
INSTITUTION
Respondent
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DECISION
This matter came on for hearing before the undersigned Administrative Law Judge on
July 9, 2002, in Lillington, North Carolina. Respondent submitted proposed Findings of Fact
and Conclusions of Law on August 6, 2002.
APPEARANCES
For Petitioner:
Barbara A. Harrington
P. O. Box 701
Dunn, N. C. 28355
Petitioner
For Respondent:
Dolores O. Smith
Assistant Attorney General
Post Office Box 629
Raleigh, North Carolina 27602
Attorney for Respondent
ISSUE
Did Respondent have just cause to dismiss Petitioner?
STATUTES AND RULES AT ISSUE
N. C. Gen. Stat. 126-34.1, 126-35
N. C. Admin. Code, Tit. 25, r.1J.0606
N. C. Admin. Code, Tit. 25, r.1J.0614
Based upon careful consideration of the testimony and evidence presented at the hearing,
the documents and exhibits received into evidence, and the entire record in this proceeding, the
undersigned makes the following:
FINDINGS OF FACT
1.
Petitioner was employed at Harnett Correctional Institution (Harnett) as a Correctional
Officer (CO) from June of 1995 to her dismissal in August of 2001.
2.
Petitioner was a permanent State employee and was subject to the provisions of the State
Personnel Act.
3.
The Office of Administrative Hearings has jurisdiction over this matter.
4.
On April 24, 2001, Donny Stanley, a Correctional Sergeant at Harnett, was assigned to
the mail room. It was Sergeant Stanley’s duty to open all inmate mail unless that mail was
clearly marked as legal correspondence.
5.
On the morning of April 24, 2001, Sergeant Stanley inspected a piece of mail which had
been incorrectly addressed and which was being returned to Toney Jones, an inmate at Harnett.
6.
Sergeant Stanley opened the envelope and examined the contents. He found a four page
document which was handwritten on yellow, lined paper. As he examined the document further,
he noticed the name of the Petitioner, Barbara A. Harrington, written at several places in the
document.
7.
Sergeant Stanley turned the document and the envelope over to Captain Johnny Meeks,
who is the internal affairs officer at Harnett.
8.
Captain Meeks examined the document and determined the following:
a.
b.
c.
d.
It had been returned to sender because of an incorrect mailing address
It had been sent by regular mail
It did not appear to be legal mail
It had not been mailed from the Harnett mail room because it did not have
the Harnett mail room stamp on it.
9.
Captain Meeks noticed that the document looked like a contract in the form of a letter to
a bank, directing the bank to issue a check in the amount of $450,000 (four hundred and fifty
thousand dollars) from the bank account of Toney Jones to Barbara A. Harrington. Captain
Meeks also noticed that the name of ‘Barbara A. Harrington’ or ‘Ms. Harrington’ appeared eight
times in printing and four times as what appeared to be signatures.
10.
Captain Meeks further noticed that the document included a reference to Barbara A.
Harrington’s bank account and it listed both the name of the bank and the number of her bank
account.
11.
The contract further stated that Barbara A. Harrington agreed to pay back the loan in the
amount of $100 (one hundred dollars) per month and that she would not be subject to any
criminal charges if she did not fulfill the contract. The contract further showed the bank account
number of Barbara A. Harrington as account number 5017013185.
12.
Captain Meeks compared that bank account number with the bank account number which
appeared on the photocopy of a check made in January of 2001 which had been submitted by
Petitioner for purposes of the automatic deposit of her salary. The photocopy of the check
showed that Petitioner’s bank account number was 5017013185.
13.
On April 25, 2001, Captain Meeks completed an Inmate Notification of Withholding
Mail and inmate Jones was notified that this mail was being held.
14.
In an effort to determine if the signatures on the document were authentic, Captain Meeks
obtained six documents from Petitioner’s personnel file that contained her signature. The six
documents were:
1.
2.
3.
4.
5.
6.
A witness statement form dated March 7, 2001
A second witness statement form also dated March 7, 2001
An internal investigation form dated March 7, 2001
An authorization for automatic deposit of pay dated January 8, 2001
An employee’s withholding allowance certificate, W-4, dated January 8,
2001
A medical insurance enrollment application dated January 1, 2001
15.
Captain Meeks compared those six known signatures with the four signatures which
appeared in the document and determined that they appeared to him to be the same.
16.
Captain Meeks then brought the matter to the attention of Assistant Superintendent for
Custody and Operations, A. L. Gregory. Mr. Gregory reviewed the material and contacted
Donald Rouse, Chief of Employee Relations, Department of Correction (DOC) Personnel in
Raleigh. Mr. Gregory requested that a professional handwriting analysis be done and Mr. Rouse
approved that request. He directed Mr. Gregory to have the samples and the document brought
to his office.
17.
Mr. Gregory then told Captain Meeks to take the document and the known signature
samples to Mr. Rouse and on April 26, 2001, Captain Meeks delivered those items to Mr.
Rouse’s office in Raleigh.
18.
Mr. Gregory also told Captain Meeks to proceed with an investigation into the matter.
19.
On April 27, 2001, Mr. Rouse turned the package of documents over to Durward C.
Matheny, a forensic document examiner. Mr. Matheny was directed to compare the four
signatures in the body of the questioned document (Q1-4) with the six known signatures of
Petitioner (K1-7).
20.
On April 30, 2001, Mr. Matheny completed his examination and wrote his report which
he forwarded to Mr. Rouse.
21.
Mr. Matheny reported, in pertinent part, the following:
It is my opinion that the author of the signatures of Barbara A. Harrington on
Documents K-1 through K-6 is also the author of the signatures of Barbara A.
Harrington on Document Q-1.
22.
At the hearing, Mr. Matheny was proffered and qualified to testify as an expert in
forensic document examination and handwriting analysis. Mr. Matheny has had 4 years of
experience in forensic document examination with the United States Federal Bureau of
Investigation (FBI), 28 years experience as a forensic document examiner with the North
Carolina State Bureau of Investigation (SBI) and nine additional years as a private forensic
document examiner. Mr. Matheny has had the following training:
-
Handwriting, hand printing, inks, paper examination and comparison and
special photography - U. S. Department of Treasury.
United States Secret Service School, Questioned Documents course
3 summer sessions in handwriting and typewriting examinations and
comparison, Georgetown University
Handwriting and typewriting examination and comparison, FBI Academy
Ink examination, paper examinations and typewriting examination and
comparisons, Alcohol, Tobacco and Firearms Lab
Typewrite examinations, U. S. Postal Lab
Photocopy examinations, Georgia Bureau of Investigation
23.
Mr. Matheny testified, and it is found as fact, that, after comparing the known signatures
of Barbara A. Harrington with the questioned signatures of Barbara A. Harrington, he had
“absolutely no doubt” that they were written by the same person.
24.
Mr. Matheny testified, and it is found as fact, that forged signatures have common,
telltale signs of forgery such as a tremors appearing in the lines of the signature or the
appearance of carbon under the ink lines. The signatures he examined had no signs of forgery.
25.
On May 1, 2001, Mr. Matheny’s report was turned over to Captain Meeks.
26.
On April 30, 2001, Captain Meeks interviewed inmate Jones. Jones said, and it is found
as fact, that he had known Petitioner for six years; that they talked a lot; that he had become fond
of her; that he knew Petitioner was in need of money and he had volunteered to help her out; and
that he had written the contract, showed it to her and she had signed it and mailed it.
27.
On May 4, 2001, Captain Meeks interviewed Petitioner. Captain Willie Surles was
present as a witness during that interview. Petitioner was shown the document and given time to
read it. She stated, but it is not found as fact, that she did not know anything about the
document; that the signature of her name was very good but it was not hers; that she had never
signed any papers with inmate Jones; that she had never discussed any of her personal affairs
with Jones; and that she did not mail any letters for him.
28.
The Department of Correction Personnel Manual (DOCPM), at Section 8, Page 61, states
that all DOC employees shall treat inmates “. . .in a quiet, but firm manner and shall refrain from
inappropriate and improper contact with them.” That section of the DOCPM also includes a list
of prohibited activities which list includes, in pertinent part, that employees shall not do the
following:
Borrow anything from an offender.
Accept any gift or personal service from an offender.
Convey to or from an offender any letters.
Knowingly enter into a business relationship with an offender.
29.
On May 8, 2001, Captain Meeks sent a memorandum to Mr. Gregory summarizing the
results of his investigation.
Subsequently, Mr. Gregory reported those findings to
Superintendent Martin J. McDade.
30.
On June 5, 2001, Mr. McDade directed Petitioner to report to Steve Davenport, a
Polygraph Examiner with the SBI, for a polygraph examination, which was scheduled for June
11, 2001.
31.
On June 11, 2001, Petitioner reported for the polygraph examination. Before it began,
she gave Mr. Davenport a handwritten note allegedly signed by P. K. Vyas, M. D., which stated
that she had been under his care for the treatment of anxiety which could interfere with a
polygraph test. Mr. Davenport stopped the examination at that point and advised Petitioner that
he could not administer a polygraph examination to her unless and until a medical doctor said
that it was safe to do so.
32.
On July 11, 2001, Mr. McDade wrote to Petitioner notifying her that the investigation
had been completed and outlining with specificity the results of the investigation. That letter
further stated that it was his intention to recommend that Petitioner be dismissed for
unacceptable personal conduct. The letter also informed Petitioner that a Pre-Disciplinary
Conference was scheduled for Monday, July 16, 2001.
33.
On July 16, 2001, Petitioner attended the Pre-Disciplinary Conference. She signed a PreDisciplinary conference form acknowledging that she had attended the conference and that she
had been given the opportunity to explain her side of the story.
34.
At the Pre-Disciplinary Conference, Petitioner reported that during the course of her
work day, she kept an activity log which she signs. She stated that the log may have been seen
by an inmate and that may explain how inmate Jones knew the appearance of her signature.
35.
On July 25, 2001, Mr. McDade wrote a memorandum to Patricia L. Chavis, Director of
the South Central Region of DOC. In that memorandum he recommended the dismissal of
Petitioner. That memorandum also outlined with specificity the results of the investigation
which had been conducted, the results of the Pre-Disciplinary Conference, and a
recommendation that Petitioner be dismissed for unacceptable personal conduct.
36.
Subsequently, Mr. McDade’s recommendation was approved and on August 6, 2001, he
wrote a letter to Petitioner informing her that she was being dismissed for unacceptable personal
conduct effective August 6, 2001.
37.
That letter again specifically outlined the results of the investigation, cited the DOCPM
policies prohibiting the specific interactions which Petitioner had with inmate Jones, outlining
the results of the Pre-Disciplinary Conference, and notifying Petitioner of her appeal rights.
38.
That letter also noted that there had been two prior disciplinary warnings which Petitioner
had received.
39.
On January 16, 2001, Petitioner was issued a written warning for failure to follow DOC
policies and procedures in failing to inform the Correctional Administrator or work
supervisor/manager of a criminal charge.
40.
In October of 2000, Captain Willie Surles received a phone call followed by an in-person
visit from a female member of the public. The woman was accompanied by Petitioner’s exhusband. She reported to Captain Surles that Petitioner had been harassing her because she was
dating Petitioner’s ex-husband. The woman further reported that she had filed criminal
harassment charges against Petitioner. Captain Surles reported this information to Captain
Meeks who conducted a criminal history check to see if harassment charges were outstanding
against Petitioner. Captain Meeks did not find a harassment charge but he discovered that a
Criminal Summons for a misdemeanor worthless check charge had been filed against Petitioner,
with an offense date of September 11, 1999, and a disposition date of February 16, 2000.
Petitioner had not reported this charge.
41.
The DOCPM, (s.6, P.19), provides, in pertinent part, that all DOC employees are required
to report any civil or criminal charges for which they receive formal notice. Formal notice is
defined, in part, as arrest, detention, citation, criminal summons, civil summons, warrant for
arrest, order for arrest, or bill of information.
42.
On April 30, 2001, Petitioner received a second written warning for unacceptable
personal conduct for insubordination in failing to obey a direct order of a supervising officer.
43.
On February 19, 2001, Glenn King, a Correctional Lieutenant at Harnett, called Petitioner
and advised her that due to staff shortage on the second shift, it would be necessary for her to
work that day. Petitioner told Lt. King that she had been told to take the day off and that she was
not going to work. Lt. King again told Petitioner about the staff shortage and his need for her to
work. She again stated that she refused to report to work. Lt. King stated that he was giving her
a direct order and that she could be written up for disobeying. She replied that he could write her
up, but she was not coming to work.
44.
The State Personnel Commission rule for dismissals for personal conduct provides, in
pertinent part, the following:
(a) Employees may be dismissed for a current incident of unacceptable personal
conduct, without any prior disciplinary action.
(b) Prior to dismissal of a career employee on the basis of unacceptable personal
conduct, there shall be a pre-dismissal conference between the employee and the
person recommending dismissal.
(c) Dismissals for unacceptable personal conduct require written notification to
the employee. Such notification must include specific reasons for the dismissal
and notice of the employee’s right of appeal.
(N. C. Admin Code, Title 25, r. 1J .0608)
Based upon the foregoing Findings of Fact, the undersigned makes the following:
CONCLUSIONS OF LAW
1.
Petitioner violated DOCPM, s.8, p. 61, by engaging in improper contact with an inmate
in that she developed a friendship with Inmate Toney Jones and talked with him about things of a
personal nature.
2.
Petitioner violated DOC PM, s. 8, p. 61, by arranging to borrow money from an inmate.
3.
Petitioner violated DOCPM, s. 8, p. 61, by conveying a letter from an inmate, taking it
out of the Institution, and mailing it, for inmate Jones.
4.
Petitioner violated DOCPM, s. 8, p. 61, by entering into a business arrangement with an
inmate by signing a contract with inmate Jones for the loan of money.
5.
Each of these violations of DOCPM, s. 8, 61, are incidents of unacceptable personal
conduct.
6.
Respondent followed proper procedure in dismissing Petitioner for unacceptable personal
conduct.
Based upon the foregoing Conclusions of Law, the undersigned makes the following:
DECISION
The Respondent did not err in terminating the Petitioner’s employment for unacceptable
personal conduct and her dismissal must be affirmed.
ORDER
It is hereby ordered that the agency serve a copy of the final decision on the Office of
Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714, in accordance
with North Carolina General Statute 150B-36(b).
NOTICE
The decision of the Administrative Law Judge in this contested case will be reviewed by
the agency making the final decision according to the standards found in G.S. 150B-36(b)(b1)
and (b2). The agency making the final decision is required to give each party an opportunity to
file exceptions to the decision of the Administrative Law Judge and to present written argument
to those in the agency who will make the final decision. G.S. 150B-36(a).
The agency that will make the final decision in this contested case is the State Personnel
Commission.
This the 3rd day of September, 2002.
______________________________________
James L. Conner, II
Administrative Law Judge