STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
01 OSP 2150
COUNTY OF GASTON
Bruce A. Parsons,
Petitioner,
v.
Gaston County Board of Health,
Respondent.
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DECISION
The above-entitled contested case was heard before Administrative Law Judge Beecher
R. Gray on August 19 and 20, 2002 in Gastonia, North Carolina.
APPEARANCES
For Petitioner:
J. Heydt Philbeck
Attorney at Law
PO Drawer 1270
Raleigh, NC 27602
For Respondent:
Heather Graham Connor
Attorney at Law
401 East Franklin Boulevard
PO Box 995
Gastonia, NC 28053-0995
ISSUE:
Whether Respondent had just cause to discharge Petitioner from its employment on the
basis of unacceptable conduct.
FINDINGS OF FACT
1.
Petitioner was hired as the Gaston County Health Director in March of 1989. ( Transcript
P. 332; all references hereinafter are transcript page numbers).
2.
In the early 1990's, Donna Oliver began working at the Health Department as a nurse.
(405)
3.
At all times during Donna Oliver's employment with Gaston County, she was a
subordinate to Petitioner. (405)
4.
In July of 1999, Petitioner and Donna Oliver began having sexual relations. (339, 404)
5.
At the time the sexual relationship began in July 1999, Petitioner was married. (405)
6.
At the time the sexual relationship began in July 1999, Donna Oliver was married. (405)
7.
Sometime in July 1999 at 8:00 or 9:00 p.m., Petitioner and Donna Oliver had sexual
relations in a storage closet in the Health Department building. (426)
8.
This was the first sexual encounter between Petitioner and Donna Oliver. (339)
9.
Normal working hours for Petitioner were 9:00 a.m. to 6:00 or 6:30 p.m. (427)
10.
While Petitioner did have to work late on some occasions, it was not usual for him to do
so. (427)
11.
Normal working hours for the approximately 200 Heath Department employees was 8:00
a.m. to 5:00 p.m. (427, 431)
12.
Petitioner had no explanation for why he and Donna Oliver were both working late that
night as they were not working on any joint project or assignment. (427)
13.
In July or August of 1999, Petitioner and Donna Oliver kissed in a conference room in
the Health Department building sometime around 8:00 p.m. (429)
14.
Petitioner did not know why he and Donna Oliver were both working late that night as
they were not working on any joint project or assignment. (430-431)
15.
In August 1999, while Petitioner was on a Gaston County business trip to Raleigh, he had
sexual intercourse with Donna Oliver in her hotel room. (432)
16.
Petitioner testified that Donna Oliver must have been on a County business trip to
Raleigh as well. (432,434)
17.
Petitioner was not aware of any other Gaston County employees on a business trip to
Raleigh on the same date in August 1999. (433)
18.
Petitioner spent a couple of hours in Donna Oliver's hotel room that night in August 1999
while on a county business trip. (439)
19.
Gaston County reimbursed Petitioner for this business trip to Raleigh in August 1999.
(435)
20.
In August or September 1999, while Petitioner was on a Gaston County business trip to
Asheville, he had sexual intercourse with Donna Oliver in her hotel room. (435)
21.
Petitioner testified that Donna Oliver must have been on a County business trip to
Asheville as well. (435)
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22.
Petitioner was not aware of any other Gaston County employees on a county business trip
to Asheville on the same date in August or September 1999. (437)
23.
Petitioner spent a portion of the night in Donna Oliver's hotel room that night. (437)
24.
Gaston County reimbursed Petitioner for this business trip to Asheville. (439)
25.
In December 1999, Petitioner and Donna Oliver had sexual intercourse in Concord, N.C.
in a car rented by Gaston County. (439)
26.
In December 1999, Petitioner was on his way to a county business trip in Raleigh but
made hotel reservations to stay in Greensboro that night. (439)
27.
Donna Oliver met Petitioner at a restaurant in Concord Mills. (439)
28.
Petitioner was driving a rental car paid for by Gaston County at the time he met Ms.
Oliver in Concord, N.C. (440)
29.
Petitioner and Donna Oliver also had sexual intercourse on several occasions at her
home. (431-432)
30.
Petitioner and Donna Oliver had sexual relations at least twelve times. (411)
31.
Donna Oliver resigned from employment with Gaston County effective September 9,
1999. (338)
32.
Donna Oliver's husband separated from her in January 2000. (411)
33.
The sexual relationship between Petitioner and Donna Oliver ended in February or March
2000 because Petitioner wanted to restore his relationship with his wife. (406, 412) Donna
Oliver wanted Petitioner to leave his wife and marry her. (412)
34.
On May 5, 2000, Donna Oliver was hired by Petitioner as Projects and Contracts
Administrator in the Health Department of Gaston County. (343, 406)
35.
Projects and Contracts Administrator was a newly created position that was requested by
Petitioner. (344)
36.
The applications for this position were initially screened by Charles Vinson in Human
Resources and, the applications of four qualified applicants were sent to Petitioner. (409)
37.
The four applicants considered by Petitioner for the position included Donna Oliver.
(345)
38.
All four applicants were qualified for the position. (345)
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39.
The person hired for this position would be directly subordinate to Petitioner and would
receive assignments and report directly to Petitioner. (408)
40.
Petitioner, alone, made the decision to hire Donna Oliver for the position. (406)
41.
Donna Oliver was directly subordinate to Petitioner. (408)
42.
Petitioner was responsible for doing any employee evaluations or performance appraisals
of Donna Oliver. (411)
43.
Donna Oliver's office was next door to Petitioner's office. (408)
44.
Petitioner testified that he chose Donna Oliver because she previously had worked in jail
health and the jail health nurse contract would be the first assignment for the person chosen for
the position. (410)
45.
This newly created position established at the request of Petitioner included duties and
responsibilities beyond negotiating the jail health nurse contract. (410)
46.
While Donna Oliver did a good job on the jail health nurse contract, she did not do as
well on her other duties. (410)
47.
Petitioner expressed dissatisfaction over Donna Oliver's ability or willingness to take on
other duties at the conclusion of the jail health nurse contract. (410)
48.
After Donna Oliver was rehired by Petitioner in May 2000, she alluded to Petitioner that
she wanted to resume their sexual affair. (412-413)
49.
From January 2001 to May 2001, Donna Oliver made sexual advances to Petitioner.
(413)
50.
The day after Easter in 2001, Donna Oliver asked Petitioner, while in his office with him,
"do you still think of me when you cream" and "I want to kiss you so bad." (413)
51.
Petitioner did not verbally reprimand Donna Oliver for this inappropriate behavior. (414)
52.
Petitioner did not report this inappropriate behavior to anyone in Personnel. (414)
53.
In 2001, Donna Oliver made comments to Petitioner at work that she "wanted Petitioner
inside her." (414)
54.
Petitioner did not verbally reprimand Donna Oliver for this inappropriate behavior. (414)
55.
Petitioner did not report this inappropriate behavior to anyone in Personnel. (414)
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56.
In February or March 2001, Donna Oliver asked Petitioner to call her at a hotel where she
was staying in Chapel Hill, N.C. (422)
57.
Petitioner complied with her request and telephoned her in February or March 2001.
(422)
58.
Petitioner left his home and went to a pay telephone at a convenience store to call Donna
Oliver, rather than making the call from his home. (423)
59.
Donna Oliver told Petitioner on the phone that she was lying in bed thinking about him
and masturbating. (348)
60.
The call from the pay telephone at the convenience store lasted about five minutes. (349)
61.
In April 2001, Donna Oliver began to have a lot of absences from work. (414)
62.
On April 26, 2001, Donna Oliver demanded that Petitioner restore all of her partial leave
credits for sick time and vacation time. (415)
63.
That same day, April 26, 2001, Donna Oliver reported to Charles Vinson, the Director of
Human Resources, that Petitioner sexually harassed her, but declined to make a formal written
complaint. (416)
64.
On May 4, 2001, Petitioner told his wife about the sexual affair with Donna Oliver.
(357)
65.
Petitioner testified that he was not advised of Oliver's allegations until May 9, 2001.
(351)
66.
On May 11, 2001, Petitioner admitted to Charles Vinson and Phillip Ponder, Interim
County Manager, that he had sexual relations with Donna Oliver on numerous occasions,
including on county property. (351)
67.
In May 2001, Petitioner admitted to Dr. Robert Crouch, Chairman of Board of Health,
and Thomas Novinc, Vice Chairman of the Board of Health, that he had sexual relations with
Donna Oliver. (420)
68.
On May 25, 2001, Petitioner received a letter from an attorney hired by Donna Oliver
regarding her allegations of sexual harassment. (420)
69.
The May 25, 2001 letter alleges that Petitioner gave Donna Oliver herpes; forced her to
engage in phone sex, demanded oral sex; and had sex with Donna Oliver in a storage area and in
various bathrooms on County property. (Exhibit P-4)
70.
On October 9, 2001, Petitioner, Gaston County and the Board of Health entered into a
settlement agreement with Donna Oliver. (444)
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71.
Petitioner retained his own private attorney to represent him in the settlement
negotiations with Donna Oliver. (442)
72.
Petitioner was in favor of and supported the monetary settlement with Donna Oliver.
(444)
73.
After learning of the sexual harassment claim in May 2001, Petitioner was concerned
about his job and concerned that there might be disciplinary action. (444-445)
74.
Prior to his termination, Petitioner already was seeking other employment. (445)
75.
Petitioner applied for two jobs in the State of Michigan. (445)
76.
Petitioner was aware at least two or three days prior to the October 15, 2001 meeting that
the Board of Health would have to consider disciplinary action against him. (446)
77.
October 15, 2001 was the date of the regular monthly Board of Health meeting. (447)
78.
Petitioner was present at this meeting as were the following Board of Health members:
Dr. Crouch, Simon Roe, Thomas Novinc, Commissioner Pearl Floyd, Donald D. Smith, Martin
Murphy, Elizabeth Rinker, Melissa Putnam, Janet Arthurs, Dr. Lee Barro, and Robert Sullivan.
(Exhibits R-3,R-4; 102)
79.
At the conclusion of the regular Board of Health meeting, a special closed meeting was
held to discuss Petitioner. (Exhibit R-4)
80.
Simon Roe, Board of Health member, made a motion in open session to hold a predisciplinary conference. That motion was seconded by Thomas Novinc and passed unanimously.
(Exhibit R-3; 29)
81.
The Board of Health discussed possible times to hold the pre-disciplinary conference and
decided on October 16, 2001. (Exhibit R-3)
82.
At the conclusion of the October 15, 2001 Board of Health meeting, Petitioner was
verbally advised of, and received a paper writing notifying him of, a pre-disciplinary conference
scheduled for October 16, 2001 at 6:00 p.m. (381)
83.
The October 15, 2001 paper writing provided that Petitioner's personal misconduct and
impaired judgment in the performance of his duties as Health Director had led to a lack of
confidence in his ability to competently direct the Gaston County Health Department and
brought his continued employment into question. (Exhibit R-1; 30-32)
84.
The October 15, 2001 document set forth Gaston County's personnel policy on
misconduct and set forth examples of Petitioner's misconduct as follows:
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Affair has led to rumors and suspicions among Health Department
employees which have discredited leadership and authority; exercised
exceedingly poor judgment in rehiring Oliver; compromised service to
Health Department and ability to effectively supervise by rehiring Oliver;
questionable ability to supervise affects delivery of public service and
disrupts normal operation of Health Department and left County
vulnerable to liability; and caused potential or actual loss of County funds.
(Exhibit R-1)
85.
Petitioner at no time informed the Board of Health that he would not be prepared to
present his case on October 15, 2001 or that he would need additional time to present his case.
(32-33,450)
86.
The Board of Health, according to the testimony of Board Chairman, Dr. Crouch, would
have given Petitioner additional time if he had requested it. (33)
87.
On October 16, 2001, the Board of Health held a pre-disciplinary conference for
Petitioner. (Exhibits R-3, R-4)
88.
The following Board of Health members were present at the meeting: Dr. Crouch, Simon
Roe, Thomas Novinc, Melissa Putnam, Commissioner Pearl Floyd, Donald D. Smith, Martin
Murphy, Elizabeth Rinker, Janet Arthurs, Dr. Lee Barro, and Robert Sullivan. (Exhibits R-3, R4; 146)
89.
The Board of Health voted unanimously to go into closed session and Dr. Crouch stated
that Petitioner had as much time as he needed to make his presentation in defense of the charges
and allegations against him. (Exhibit R-3; 449)
90.
During the closed session, Petitioner showed a Powerpoint presentation with sixty-one
slides that lasted approximately two hours and, at no time during the presentation, was Petitioner
interrupted. (391,449)
91.
At the conclusion of Petitioner's presentation, a question and answer period was held with
the Board of Health members. (450)
92.
In open session, the Board of Health voted unanimously to recess the meeting until
October 17, 2001. (Exhibit R-3)
93.
On October 17, 2001, the Board of Health voted unanimously to go into closed session.
(Exhibit R-3)
94.
Present at the closed session were: Dr. Crouch, Simon Roe, Thomas Novinc,
Commissioner Pearl Floyd, Donald D. Smith, Melissa Putnam, Martin Murphy, Elizabeth
Rinker, Dr. Lee Barro and Janet Arthurs. (Exhibit R-4; 147)
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95.
A motion was made to terminate Petitioner’s employment and only one Board of Health
member voted against the termination. (Exhibit R-4)
96.
Nine members of the Board of Health voted to terminate Petitioner. (Exhibit R-4; 171)
97.
Petitioner was terminated from his position as Gaston County Health Director effective
October 17, 2001, after pre-disciplinary conference, for unacceptable personal conduct. (Exhibit
R-2)
98.
On or about October 19, 2001, Petitioner received a letter dated October 18, 2001 from
the Chairman of the Gaston County Board of Health, Dr. Robert Crouch, providing him with
notice of termination, the reasons therefor, and appeal rights. (Exhibit R-2; 401)
99.
The October 18, 2001 letter stated that Petitioner was in violation of Sections 11.2.1 and
11.2.3 of the Gaston County Personnel Policy and that a majority of the Board of Health
Members determined that Petitioner was in violation of these policies as Petitioner admitted past
behavior and actions which discredited his leadership and authority; reflected exceedingly poor
judgment; compromised his service to the Health Department and his ability to supervise;
negatively affected the delivery of public services; disrupted the normal operation of the Health
Department; and resulted in a legal settlement involving the expenditure of County funds.
(Exhibit R-2)
100. Policy 11 entitled "Corrective Actions and Disciplinary Procedures" of the Gaston
County Personnel Policies and Procedures (January 2001) defines "misconduct" as
mismanagement, intentional wrongdoing, or any deliberate violation of laws, regulations,
policies, or procedures. (Exhibit P-13)
101. Policy 11 sets forth examples of misconduct, including, but not limited to dishonesty;
misusing County property; behavior during or outside duty hours which could impair the
effective delivery of public service; and participating in an action which could, in any way,
seriously disturb or disrupt the normal operation of any branch of County government. (Exhibit
P-13; 304-305)
102. Policy 11 provides that an employee may be discharged for unacceptable person conduct
without any prior corrective or disciplinary action. (Exhibit P-13; 306)
103. The January 1, 2001 version of the Gaston County Personnel Policies and Procedures was
in effect during 2001 and was the applicable version of the County's personnel policies to be
applied to any disciplinary action taken in 2001, regardless of whether the conduct occurred
before 2001. (304)
104. The Gaston County Board of Health has authority to bring disciplinary action against the
Director of the Health Department. (304)
105. The Gaston County Board of Health does not exercise any disciplinary powers over any
person other than the Director of the Health Department. (304)
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106. The Gaston County Board of Health members are not employees of Gaston County but
are appointed volunteers from the community.
107. 25 NCAC 01I.2301 provides that any employee, regardless of position, may be dismissed
for just cause even if the employee has permanent status.
108. 25 NCAC 01I.2301 provides that an employee may be dismissed for just cause for
unacceptable personal conduct.
109. The STATE PERSONNEL MANUAL, § 7(IV)(C) provides that just cause may be
created by intentional or unintentional acts. The conduct may be job related or off duty so long
as there is a sufficient connection between the conduct and the employee's job.
110. 25 NCAC 01I.2304 and STATE PERSONNEL MANUAL, § 7(III) provide that
employees may be dismissed for a current incident of unacceptable personal conduct.
Unacceptable personal conduct includes conduct for which no reasonable person should expect
to receive prior warning; or job related conduct which constitutes violation of state or federal
law; or conviction of felony or offense involving moral turpitude that is detrimental to or impacts
the employee's service to agency; or willful violation of known or written work rules; or conduct
unbecoming an employee that is detrimental to the agency's service.
111. STATE PERSONNEL MANUAL, § 7(IV)(E) provides that an employee may be
dismissed for a current incident of unacceptable personal conduct without any prior disciplinary
action.
112. 25 NCAC 01I.2308 and STATE PERSONNEL MANUAL, § 7(IV)(F) provide that prior
to dismissal, an agency must conduct a pre-dismissal conference with the employee; give
advance oral or written notice of the pre-disciplinary conference, the amount of advance notice
shall be as much as is practical under the circumstances; no attorney representing either side may
attend the conference; the employee is to be given a full opportunity during the conference to set
forth information; and if the decision is dismissal, a written letter is to be sent to employee
containing reasons for dismissal, effective date of dismissal, and appeal rights.
113. "Misconduct" as defined in the Tenth Edition (2002) of the Merriam-Webster's Collegiate
Dictionary includes "mismanagement, especially of governmental or military responsibilities,"
"intentional wrongdoing," "deliberate violation of a law or standard, especially by a government
official," "malfeasance," "improper behavior," and "adultery."
114. Bill Gross, the Allied Health Administrator of the Health Department, whose immediate
supervisor was Petitioner, found that Petitioner's behavior changed when he rehired Ms. Oliver
in May 2000 and that there were rumors within the Health Department that Petitioner was having
an affair with Oliver. Mr. Gross was not surprised when he learned of Petitioner's termination.
(478)
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115. The North Carolina Administrative Code permits disciplinary action, including dismissal,
against employees with permanent status for "just cause." 25 NCAC § 01I.2301. Although "just
cause" is not defined, the words are to be accorded their ordinary meaning. Amanini v. Dep't of
Human Resources, 114 N.C.App. 668, 443 S.E.2d 114 (1994) (defining "just cause" as, among
other things, good or adequate reason). In addition, this administrative regulation provides two
grounds for discipline or dismissal based on just cause, unsatisfactory job performance and
unacceptable personal conduct.
CONCLUSIONS OF LAW
1.
The parties are properly before the Office of Administrative Hearings and received notice
of the hearing in this matter. This office has jurisdiction to hear the matter and to issue a
decision to the State Personnel Commission which shall render an advisory decision to the local
government appointing authority, the Gaston County Board Of Health. Respondent has the
burden of proof that it had just cause to terminate Petitioner. Petitioner has the burden of proof
that he was denied due process.
2.
Petitioner was dismissed for just cause from employment for unacceptable personal
conduct. Petitioner, the highest ranking employee in the Health Department and the person who
represented the Health Department in its dealings with the public, had an inappropriate and
adulterous sexual relationship with a subordinate employee of the Health Department. Petitioner
and this subordinate employee had sexual relations on County property in the Health Department
building, while Petitioner was on County business trips, and at the subordinate employee's home.
This conduct is unbecoming of a County employee, particularly an employee with Petitioner's
supervisory powers and relations to the public at large, and is detrimental to County service.
Petitioner severely compromised his ability to supervise this employee and other employees of
the Health Department both by having the sexual relationship with the subordinate employee and
then personally rehiring this employee into a position directly subordinate to Petitioner where the
employee reported directly to Petitioner, was evaluated by Petitioner and whose office was next
door to Petitioner. Evidence of the compromising of Petitioner's ability to supervise is set forth
by Petitioner's inability, refusal or failure to address with the employee or report to Human
Resources the subordinate employee's highly inappropriate and sexually suggestive behavior and
comments towards him at work after the sexual relationship had ended. The sexual relationship
with the subordinate employee and her subsequent rehiring led to rumors and suspicions within
the Health Department. This behavior reflected poor judgment, discredited Petitioner's
leadership and authority, compromised his service to the Health Department, and negatively
affected the delivery of public services. Petitioner's behavior also led to the expenditure of
County funds.
3.
Petitioner received his due process right of notice of the pre-disciplinary conference in
accordance with state law and administrative regulations. The amount of notice provided was
reasonable under the circumstances.
4.
Petitioner was afforded sufficient time and opportunity to present evidence at the October
16, 2001 hearing as he made a two hour presentation featuring sixty plus Powerpoint slides and
was allowed as much time as he needed to present his case.
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5.
Petitioner appropriately was notified of the Board of Health's decision, its reasons for
dismissal, and his appeal rights.
DECISION
Based upon the foregoing Findings of Fact and Conclusions of Law, hereby it is recommended
that the State Personnel Commission find that the Gaston County Board of Health had just cause
to terminate Petitioner for unacceptable personal conduct and that Petitioner was not deprived of
any due process rights in the disciplinary process.
ORDER
Hereby it is 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-26(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 advisory decision in this contested case is the State
Personnel Commission.
This the 4th day of November, 2002.
_________________________________________
Beecher R. Gray
Administrative Law Judge
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