STATE OF NORTH CAROLINA
IN THE OFF ICE OF
ADMINISTRATIVE HEARINGS
06 OSP 2037
COUNTY OF WAKE
)
)
)
)
)
)
)
)
)
)
)
Ronald D. Jacobs
Petitioner
v.
N.C. Department of Crime Control and
Public Safety/NC Highway Patrol
Respondent
DECISION
This contested case was heard by Senior Administrative Law Judge Fred G. Morrison Jr.
on April 4, 5, and 10, 2007, in Raleigh, North Carolina. Petitioner filed a proposed decision on
May 16, 2007. Respondent filed its proposed decision on May 14, 2007.
APPEARANCES
Petitioner: J. Michael McGuinness, Esquire, Elizabethtown, N.C.
Respondent: Hal Askins, Special Deputy Attorney General, and Ashby T. Ray, Assistant
Attorney General, Raleigh, N.C.
ISSUE
Whether the Respondent had just cause to terminate Petitioner’s employment with the
State Highway Patrol for unacceptable personal conduct.
FINDINGS OF FACT
1.
First Sergeant Ronald D. Jacobs (“Petitioner”) began employment with the North
Carolina Highway Patrol (“Respondent”) on November 12, 1994. Upon finding the Petitioner
violated Highway Patrol alcohol and truthfulness policies, Respondent terminated Petitioner’s
employment on August 18, 2007.
2.
During his employment with the Respondent, Petitioner was promoted to line
sergeant and was assigned to the technical services unit. In 2005, he was promoted to First
Sergeant and in 2006 he was transferred to Troop C, District 7, to accordingly serve as First
Sergeant. On July 21, 2006, Petitioner was stationed in Troop C, District 7. Evidence revealed
Petitioner’s excellent job performance, professionalism, hard work, and good character.
-1-
3.
On July 20th, 2006, Petitioner attended a social gathering at the apartment
complex where he lived in Raleigh, NC. Petitioner remained at the gathering from late afternoon
until 10:00 p.m., during which time he consumed several twelve ounce beers. Petitioner also
consumed various items of food while at the pool party.
4.
Petitioner, Israel Morrow, Tracy Shook, Traci Hobson, and another resident
named “Tim”, left the pool party for Scooters, a bar in Raleigh. Petitioner drove the group in his
vehicle. The group arrived at Scooters around 10:30 p.m. and remained there for over an hour.
While at Scooters, Petitioner consumed more beer. Petitioner’s group left Scooters, with
Petitioner driving, to go to Rum Runners in downtown Raleigh.
5.
The group arrived at Rum Runners at approximately midnight. Petitioner drank
more beer there. “Tim,” a member of Petitioner’s group, engaged in an argument with another
Rum Runners’ patron. During this altercation, Tim assaulted the patron with a head butt to the
nose, and the patron threw several punches at Tim. Petitioner, along with the other members of
his group, was separated from the incident on the other side of the establishment.
6.
Upon realizing what was transpiring, Petitioner intervened to help break up the
fight. Both men had cuts to their face and were bleeding. Petitioner and the other group
members left the bar before the Raleigh Police Department arrived, with Petitioner driving the
group home in his vehicle.
7.
After throwing his blood-stained shirt in the wash and taking a shower, Petitioner
went to bed around 1:20 a.m. At approximately 3:00 a.m., Petitioner awoke with sinus pressure
and “wheezing.” In response, he consumed two “caps” (approximately three ounces) of Nyquil
and returned to bed. The Nyquil contained a 10% alcohol concentration.
8.
The following morning at approximately 8:00 a.m., Raleigh Police Department
Captain Mike Reynolds notified the Troop C Commander, Captain Anthony Midgett, that he was
investigating an affray from the previous night in which Petitioner was allegedly involved.
9.
Captain Midgett attempted to contact Petitioner at home and at his Durham office,
both to no avail. Although Petitioner was scheduled to work from 9:00 a.m. until 6:00 p.m., he
had decided to work from 10:00 a.m. until 7:00 p.m. instead. His office’s “flex hour” scheduling
allowed troopers to work an earlier or later shift. Petitioner called Captain Midgett en route to
work at approximately 9:49 a.m. They arranged to meet near I-540.
10.
Upon meeting, Captain Midgett instructed Petitioner to sit in the front passenger
seat of his patrol vehicle while Lt. Hicks sat in the rear passenger seat. Captain Midgett
informed Petitioner that he was investigating an affray which had taken place the previous night.
He additionally informed Petitioner that he smelled the odor of alcohol on his person. Lt. Hicks
also noticed this odor of alcohol emanating from Petitioner.
11.
During the course of Captain Midgett’s questioning, Petitioner willfully and
falsely stated that he had not driven the group home from Rum Runners. Given “one chance to
-2-
tell the truth,” Petitioner stated that he was absolutely sure that Tracy Shook had driven. In a
later interview with Sergeant Lisenby, Petitioner corrected himself and admitted that he had
driven his vehicle to and from the bars.
12.
Petitioner initially told Captain Midgett that he had consumed about six twelve
ounce beers the previous night.
13.
Earlier in the week, Petitioner and Sergeant Gerald M. Cutler discussed Sergeant
Cutler taking Friday, July 21, 2006, off from work. When Sergeant Cutler indicated that he may
take the day off, Petitioner stated that it was fine. Petitioner requested that Sergeant Cutler notify
him and communications so they could update their schedules. Petitioner never heard anything
else from Sergeant Cutler, and assumed the schedule he printed out Tuesday was still valid on
Friday. This schedule listed Sergeant Cutler as the early officer on duty Friday morning.
14.
Captain Anthony Midgett noted in his report that Sergeant Cutler was the
assigned early duty officer for July 21, 2006. He was “surprised” to receive a phone call from
Petitioner that morning after the communications center informed him Sergeant Cutler was the
assigned early duty officer. It is reasonable to conclude Petitioner and Sergeant Cutler
misunderstood one another.
15.
Upon checking his computer assisted dispatch system (CAD), Petitioner noticed
Friday morning that Cutler was not on duty and apparently had taken the day off. When
questioned by Captain Midgett about who the early officer on duty was, Petitioner accordingly
responded, “I guess I am.”
16.
Captain Midgett produced an Alco-sensor instrument he had brought with him
and informed Petitioner he was going to administer a series of Alco-sensor tests. Petitioner
complied, and Captain Midgett administered a series of tests at 10:20 a.m., 10:22 a.m., and 10:28
a.m. Petitioner informed Captain Midgett that he had consumed approximately three ounces of
Nyquil at 3:00 a.m. that morning
17.
Based on the results of these tests and the odor of alcohol about Petitioner’s
person, Captain Castelloe of Internal Affairs directed Captain Midgett and Lt. Hicks to transport
Petitioner to the medical office to obtain a blood sample. There, Dr. Griggs withdrew a blood
sample, which Captain Midgett then transported to LabCorp for blood alcohol analysis.
18.
Sergeant Lisenby arrived at the medical office to transport Petitioner and Lt.
Hicks back to Headquarters for further investigation into the matter. Sergeant Lisenby noticed
an odor of alcohol on Petitioner’s person and that Petitioner appeared “hungover”. Sergeant
Lisenby further opined that the odor emanating from Petitioner did not resemble that of Nyquil.
19.
During the interview with Sergeant Lisenby and Lt. Hicks, Petitioner admitted to
being untruthful with Captain Midgett concerning his driving the night before.
20.
Witnesses appearing on behalf of LabCorp proved to be credible, and the greater
weight of the evidence suggests that LabCorp’s findings of a .035 blood alcohol content in
-3-
Petitioner are true and accurate. Any alleged improper administration of the Alco-sensor tests is
irrelevant to the findings of the blood alcohol test LabCorp conducted.
21.
There was conflicting testimony regarding the effect of Petitioner’s ingestion of
Nyquil at 3:00 a.m. Mr. Paul Glover is a research scientist with the Forensic Tests for Alcohol
Branch of the North Carolina Department of Health and Human Safety. Mr. Glover testified that
Petitioner’s body would have metabolized the ingested Nyquil in about twenty to twenty-five
minutes, and therefore would not have affected Petitioner’s blood test. Petitioner’s expert, Dr.
John Mennear, testified to the contrary. Had it not been for the Nyquil ingested at 3:00 a.m., Dr.
Mennear opined that Petitioner’s blood alcohol content at the time of his blood testing would
have been .00. It is more likely than not that Glover’s opinion is correct.
22.
Nonetheless, LabCorp’s findings demonstrate that Petitioner possessed a blood
alcohol content of .035 while on duty. Alcohol, regardless of how it is ingested, is still an
intoxicant and impairing substance. As a result, the Nyquil label provides a warning about the
product’s alcohol content.
23.
Captain Ken Castelloe, commander of the State Highway Patrol’s Internal Affairs,
knows of no cases since 2000 where there has been a substantiated allegation of alcohol
remaining in a Trooper’s system while on duty, and the Trooper was not dismissed.
CONCLUSIONS OF LAW
1.
Petitioner was a career state employee at the time of his dismissal. Because he is
entitled to the protections of the North Carolina State Personnel Act, and has alleged that
Respondent lacked just cause for his dismissal, the Office of Administrative Hearings has
jurisdiction to hear his appeal and issue a Decision to the State Personnel Commission. N.C.
GEN. STAT. §§ 126-1 et seq., 126-35, 126-37(a). (2007).
2.
N.C. GEN. STAT. § 126-35(a) provides that “No career State employee subject to
the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons,
except for just cause.” In a career state employee’s appeal of a disciplinary action, the
department or agency employer bears the burden of proving that “just cause” existed for the
disciplinary action. N.C. GEN. STAT. § 126-35(d) (2007).
3.
25 NCAC 1I.2301(b) enumerates two grounds for disciplinary action, including
dismissal, based upon just cause: (1) unsatisfactory job performance, including grossly
inefficient job performance; and (2) unacceptable personal conduct. “Unacceptable personal
conduct” is defined as willful violation of known or written work rules or conduct unbecoming a
state employee that is detrimental to state service. 25 NCAC 1J.0614(i)(4,5) (2007).
4.
The North Carolina State High Highway Patrol’s Directive H.1, Section VI
“Truthfulness” provides as follows:
-4-
Members shall be truthful and complete in all written and oral
communications, reports, and testimony. No member shall
willfully report any inaccurate, false, improper, or misleading
information.
5.
The North Carolina State Highway Patrol’s Directive H.1, Section XII “Use of
Alcoholic Beverages While Off Duty” states that:
While off duty, members shall refrain from ingesting any
intoxicants to the extent that such ingestion results in appreciable
impairment which would tend to discredit the member or the Patrol
or to render the member unfit to report to his/her next regular tour
of duty, including having any amount of intoxicant in his/her
system.
6.
Petitioner cites N.C.D.E.N.R. v. Clifton Carroll, 358 N.C. 649, 599 S.E.2d 888
(2004), which states that the fundamental question in determining just cause is whether the
disciplinary action taken was just. Citing further, “Inevitably, this inquiry requires an irreducible
act of judgment that cannot always be satisfied by the mechanical application of rules and
regulations.” While it certainly may be true that not every violation of law or rule would
constitute just cause for discipline, including dismissal, some violations may still facially
constitute just cause. Petitioner’s conduct here constituted unacceptable personal conduct.
7.
Petitioner reported for duty on July 21, 2006, in uniform and in operation of a
state vehicle with a blood alcohol content of .035. Because alcohol is an intoxicant, regardless of
the manner ingested, Petitioner violated Respondent’s “Use of Alcohol While Off Duty” policy.
8.
Petitioner knowingly and willfully gave false information to Captain Midgett on
the morning of July 21, 2006, when he twice told Captain Midgett that Tracy Shook had driven
the group home the night before when in fact he was the driver. These false statements violated
Respondent’s “Truthfulness” policy.
9.
Respondent had just cause to terminate Petitioner’s employment.
DECISION
Based upon the foregoing Findings of Fact and Conclusions of Law, Respondent’s
decision to terminate Petitioner’s employment should be upheld as being for just cause.
-5-
ORDER AND NOTICE
The North Carolina State Personnel Commission will make the Final Decision in this
contested case. N.C. Gen. Stat. § 150B-36(b), (b1), (b2), and (b3) enumerate the standard of
review and procedures the agency must follow in making its Final Decision, and adopting and/or
not adopting the Findings of Fact and Decision of the Administrative Law Judge.
Pursuant to N.C. Gen. Stat. § 150B-36(a), before the agency makes a Final Decision in
this case, it is required to give each party an opportunity to file exceptions to this decision, and to
present written arguments to those in the agency who will make the Final Decision. N.C. Gen.
Stat. 150B-36(b)(3) requires the agency to serve a copy of its Final Decision on each party, and
furnish a copy of its Final Decision to each party’s attorney of record and to the Office of
Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714.
This the 27th day of June, 2007.
_____________________________
Fred G. Morrison Jr.
Senior Administrative Law Judge
-6-