STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
01 OSP 0862
WAKE COUNTY
NADINE H. WARD,
Petitioner,
v.
NORTH CAROLINA STATE
UNIVERSITY,
Respondent.
)
)
)
)
)
)
)
)
DECISION
The above-captioned hearing was heard before Beecher R. Gray, Administrative Law Judge,
on November 15, 16, 19 & 20, 2001, in Raleigh, North Carolina.
APPEARANCES
For Petitioner:
Janet I. Pueschel
Attorney at Law
P. O. Box 2725
Raleigh, NC 27602-2727
For Respondent:
Joyce S. Rutledge
Assistant Attorney General
N.C. Department of Justice
P. O. Box 629
Raleigh, North Carolina 27602
EXHIBITS
Admitted for Respondent
1.
2.
3.
4.
5.
6.
7.
8.
9.
State Employment Guide from Office of State Personnel
http://www.osp.state.nc.us/emphndbk/final.pdf
Staff Employee Handbook for North Carolina State University (selected pages)
Summary of Personal Long-Distance Calls, and back-up documentation
NCSU Administrative Procedures Manual, sections J and L
http://www.bas.ncsu.edu/procman/
Travel Request for Ward, not signed by supervisor; Travel Request for Simmons, signed by
supervisor
Travel Authorization and Reimbursement form # 361057 (Ward), with attachments
Conference Registration Form for Puerto Rico trip
Small Purchase Approval entries for N. Ward, # S0956894
Travel agency receipt (Ward)
9B.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
Travel receipts (Simmons and Sheppard); Small Purchase Approval entries for Simmons,
# S0956897, and Sheppard, # S0956898
Travel Authorization and Reimbursement form # 361608 (Simmons), with attachments,
including 6/23/99 Notice of Overpayment to Ward
7/2/99 Letter from Continental re: travel vouchers
Sam’s Club statements
Sam’s Club cash register receipts
Sam’s Club checks written on personal account
Internal Auditor’s Summary Report
10/12/00 Letter from Hauser to Ward regarding investigatory status
10/12/00 Letter from Masnari to Kurz regarding investigatory audit
11/7/00 Letter from Doyle to Ward outlining issues for conference on 11/10/00;
Notes from College interviews with Sheppard and Ward on 11/10/00;
Ward’s written presentation at 11/10/00 conference
Notes of Doyle re: Sam’s Club reconciliation
11/16/00 Letter from Doyle to Ward
Notes regarding issues for second pre-disciplinary conference
11/29/00 Letter from Doyle to Ward
Step I Documents
1/31/01 Letter from Dean Masnari to Ward
Step III Management Summary
Ward’s Summary at Step III
HR Policy # 1201
HR Policy # 1202
Ward’s Training Transcript & Ward’s Course Materials (selected)
Grievance Panel Report
HR Grievance Report dated 3/27/01
Position description written by N. Ward
Ward’s Grievance Statement
Ward’s response to Audit
Admitted for Petitioner
1.
2.
3.
4.
5.
7.
8.
10.
11.
12.
13.
14.
Ward Course Transcript
Ward Employee Performance Appraisal (98-99)
Ward Employee Performance Appraisal (99-00)
Predismissal Conference Memorandum, 11/7/00
Reply to Predismissal Conference, 11/10/00
Dismissal Letter, 11/29/00
Audit Report, March 2001
Memo to Travel Audit Dept. from Hauser, 1/25/99
Memo re Refund, 1/11/01
American Express account records
Continental delayed baggage report
Letter to Ward from Continental, 7/2/99
2
15.
16.
17.
18.
19.
20.
21.
E-mail to Hauser from Ward, 5/19/99
Travel Reimbursement for Hauser, 11/7/99
Conference Registration Form for Ward
ERC/AEMP balances, 10/21/99
Employee Relations Update e-mail, 4/19/01
Ward record of position applications
Continental e-mail
WITNESSES
For Respondent
Dean Nino Masnari
Galen Meekins Jones
Rebecca Benton Doyle
Ericka Kranitz
Nadine Ward
For Petitioner
Ericka Kranitz
Nadine Ward
Elizabeth Simmons
Heyley Johnson
Rebecca Benton Doyle
On the basis of 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 initially hired at Respondent University in 1989, and worked in a
number of positions in different departments and units for a period of years. In August 1998, she
moved to the position of Administrative Assistant I at the Center for Advanced Electronic Materials
Processing (hereafter “Center”). The Center is a unit within the College of Engineering (“COE”),
but it functions autonomously in some respects.
2.
The Center had an administrative support staff, consisting from 1998 forward of
Petitioner and four staff members whom she supervised. That staff provided administrative support
to the Center’s research personnel, with access to a budget of between three and six million dollars
annually. T p. 16
3.
According to the University’s first witness, Nino A. Masnari, Dean of COE, the
Center was established by the National Science Foundation (“NSF”) at N.C. State University in
1988. At its peak, the Center consisted of approximately twenty-five faculty members, from various
3
universities, ninety to one hundred graduate students, and fifteen to thirty undergraduates. T pp. 1113
4.
In viable centers such as the Center at NCSU, NSF funding tapers down in the final
three years of an eleven-year period of national funding, so that the Center began downsizing in
1998. Petitioner’s position was created during this reorganization. T pp. 11-12
5.
In addition, Dr. Masnari had left the position of Director of the Center in 1996 to
become Dean of COE. Dr. John R. Hauser replaced Dr. Masnari as Director, and Dr. Hauser
remained Director through the fall of 2001, when he assumed responsibility as the acting Chair of the
Department of Electrical and Computer Engineering. T p. 17
6.
Petitioner reported directly to Dr. Hauser at the Center, but many of her administrative
duties were intended to be autonomous. R-Ex. 30 (pp. 5 & 9 “work independently”; p. 8 “must be a
self-starter and able to work independently with almost no supervision”; p. 9 “great measure of
independence”).
7.
Petitioner’s primary responsibilities involved administrative management, including
full accountability for contracts/grants, state appropriations and discretionary funding sources.
8.
According to the job description which Petitioner herself drafted in January 1999,
forty percent of her duties went to financial management and thirty percent of her duties went to
acting as administrative leader and supervisor of the other support staff. R-Ex. 30 (p. 2).
9.
Petitioner’s personnel responsibilities included training new employees and
communicating to staff concerning University policies and procedures. R-Ex. 30 (p. 5); T pp. 55052
10.
All travel by Center participants, including staff, was routed through Petitioner’s
office. R-Ex. 30 (p. 4). Her job description explicitly states she was “accountable for making
certain that the Center accounts follow state and university policies and procedures.” R-Ex. 30 (p.
4). Petitioner testified, on direct examination by Respondent’s counsel, that this part of the job
description was accurate. T pp. 586-87
11.
Her job description likewise specifies that Petitioner was to “verify that . . .
documents are correct and interpret the policies,” including the policies found in the University’s
Administrative Procedures Manual, “to develop and implement office procedures that will stand up
to the auditor’s examination.” R-Ex. 30 (p. 5). Petitioner testified, on direct examination by
Respondent’s counsel, that this part of her job description also was accurate. T p. 586
12.
In late October 2000, Dean Masnari at COE was advised of the possible misuse of
funds within the Center. Petitioner was implicated in the allegations of misuse of State property. T
pp. 19-20
4
13.
Dean Masnari initially received this information from Connie Reno, an Assistant
Director of Finance and Personnel at COE. Ms. Reno had worked for many years as Dr. Hauser’s
secretary, and knew his signature. When Ms. Reno pulled Petitioner’s travel voucher for a five-day
business trip to Puerto Rico in June of 1999, Ms. Reno immediately recognized that Dr. Hauser had
not signed that travel form as Petitioner’s supervisor, as required by University policies. In Ms.
Reno’s view, the signature had been forged. T p. 17
14.
Ms. Reno showed the forged signature to her supervisor, Rebecca Benton Doyle,
Director of Finance and Personnel at COE. Together they showed the suspicious travel voucher to
Dr. Masnari and explained their concerns to him. Id.
15.
The Dean contacted various administrators, as required whenever misuse of State
property is suspected. T pp. 18-19 He requested, by way of a memorandum dated October 12,
2000, and addressed to Mary Beth Kurz, University Counsel, that the University consider conducting
a formal internal audit. R-Ex. 16. The Dean also met with the Chancellor, Provost Hall and Vice
Chancellor Worsley about possible misappropriation.
16.
Vice Chancellor Worsley, who is responsible for financial operations at the
University, appointed Ericka Kranitz, the University’s internal auditor, to conduct an audit. T p. 21
17.
At the same time, the Dean also selected Rebecca Benton Doyle to assist with an
internal COE investigation of the travel irregularity and to conduct any necessary employee
interviews because (1) Ms. Doyle’s professional background gave her a familiarity not only with
Center operations but also with personnel policies; (2) the University’s written policies permit a
higher level administrator to participate in pre-disciplinary meetings, especially (3) where an issue of
forged approval exists between an employee and her direct supervisor, in this case Dr. Hauser. The
Dean chose Ms. Doyle, then, to create an insulation layer between Dr. Hauser and Petitioner. T pp.
25-26
18.
In addition, the Dean interviewed Dr. Hauser personally about the questionable
approval for Petitioner’s travel to Puerto Rico. Dr. Hauser told Dean Masnari that he did not sign the
travel voucher, and that he also did not recall discussing this travel with Petitioner in advance. T p.
18
19.
The Dean also eventually interviewed both Petitioner and Gwen Sheppard, another
Center employee who had traveled with Petitioner to Puerto Rico in June 1999. T pp. 28-30
20.
Further investigations of this and other matters were done by Ms. Doyle and Ms.
Reno; and both administrators collected documentation for the internal auditor, Ericka Kranitz. T p.
24
21.
According to Ms. Doyle, the audit report of the Center existed in a preliminary
version no later than early November 2000. Ms. Kranitz presented her findings to the Dean and Ms.
Doyle, prior to COE’s decision to dismiss Petitioner. T pp. 185, 190, 254-55, 256 The official
version of the audit report was issued in March 2001. R-Ex. 15.
5
22.
Dean Masnari testified to findings from the internal audit implicating acts and
omissions by Petitioner including: duplicate expenditures and reimbursements for airline tickets and
for meals, improper approvals and improper accounting for travel and reimbursements, misuse of
University account and credit cards (American Express card, Sam’s Club Corporate Membership),
and long distance personal phone calls placed through the State Network, all of which are not
permitted under State policies. R-Ex. 15; T p. 23
23.
Based on the auditor’s findings, Rebecca Benton Doyle scheduled pre-disciplinary
conferences with both Petitioner and another employee. Those conferences were held, separately, on
November 10, 2000. T p. 28
24.
Petitioner was invited to the conference by means of a letter setting out COE’s
specific concerns with respect to her Puerto Rico travel documentation; grad student payments;
charges on the American Express and Sam’s Club credit cards; telephone charges; use of the Petty
Cash fund; and misplaced computer equipment. R-Ex. 17 (p. 1); T pp. 28-29
25.
Both the Dean and Ms. Doyle made notes during the other employee’s and also
Petitioner’s first pre-disciplinary conference on November 10. R-Ex. 17; T pp. 30-31 The notes
were admitted as documentary evidence at the hearing in this matter; and both Dean Masnari and Ms.
Doyle described at trial their discussions with Petitioner during the November 10 conference.
26.
Galen Meekins Jones, Assistant Director in Employee Relations within the Human
Resources Division at N.C. State University, testified as to the training program for new employees
performed by Human Resources personnel. It is a requirement that each new SPA employee at
NCSU participate in these all-day training programs. T pp. 83-85
27.
The Office of State Personnel permits State agencies to elect among various options
for communicating policies and procedures to State employees. T p. 85
28.
As Assistant Director since April 1, 1999, Ms. Jones has participated in numerous
consultations and employee support and training sessions. Her consultations pertain to selected
University policies and interpretation of various personnel regulations. T p. 83
29.
Ms. Jones supervises two other specialists within Human Resources; she has been in
the human resources field for more than fifteen years. T p. 84
30.
Ms. Jones testified that Respondent’s Exhibit 1 is the August 2000 version of the
Office of State Personnel’s "Inside North Carolina - A Guide to State Employment," published on
the OSP’s website. This Guide is designed for SPA employees in all of the State agencies. T pp.
86-88
31.
Ms. Jones read into the record page 7 of the Guide to State Employment. The first
two sentences of that section specifically state that use of State property or funds for personal gain is
a criminal violation and that dismissal or disciplinary action is a possible outcome for such conduct.
T pp. 87-88
6
32.
Ms. Jones further explained that NCSU also has an explicit written policy applicable
to SPA employees prohibiting use of State property, including telephones and equipment, for
personal purposes or personal gain. T p. 88
33.
Ms. Jones identified Respondent’s Exhibit 2 as the March 2000 version of N.C.
State’s Staff Employee Handbook. NCSU has been printing this handbook, which is furnished to all
its SPA employees upon each revision, since 1995. T pp. 88, 89, 90-92
34.
Ms. Jones was responsible for the 2000 publication and the printing of approximately
10,000 copies of this SPA Handbook. In April of 2000, one copy was mailed to every SPA
employee on campus, from mailing labels printed from the active payroll. T p. 89 This testimony
throws into question the conflicting testimony of Petitioner that she was unaware of the existence of
NCSU’s SPA Handbook, despite her years of service at NCSU, numerous courses she had taken
through the University’s Human Resources Office and her serving as a supervisor of other SPA
employees at the Center.
35.
Ms. Jones explained that although this same Handbook is usually also available
online, it is currently in the process of being revised before being put back on the web. T pp. 89-90
36.
Ms. Jones read page 11 of the Handbook into the record, which pertains to "Use of
Mail, Telephones, and Computers". This page clearly states that University computers and mail
cannot be used for personal business. Long distance telephone and toll calls of any personal nature
are also prohibited on the State Telephone Network. R-Ex.2; T p. 90
37.
Ms. Jones read page 19 of the Handbook into the record, which pertains to discipline
for personal conduct. That page states that dismissal based on personal conduct on the part of a State
employee may relate to conduct including, but not limited to, jeopardizing the safety of others,
disrupting work, and/or misusing State funds or property. R. Ex. 2; T p. 91
38.
SPA employees at NCSU also are informed by their supervisors of the sorts of actions
serious enough to warrant disciplinary measures. T p. 92
39.
In addition, Petitioner’s HR course training transcript from her personnel file, kept by
NCSU’s Department of Human Resources, indicates that Petitioner was, or should have been, well
versed on NCSU personnel policies and procedures. Petitioner had taken multiple in-house courses
on personnel policies and supervisory duties, including Performance Appraisal (l998 & 1999);
Travel Policies and Procedures (1998); Employee Disciplinary and Grievance Procedures (1998 &
1999); Supervisory Role (Supervisory Series 1999); Position Management (1999); and Salary and
Leave Administration (1999). R-Ex. 27; T pp. 93-95
40.
As is also evident from Petitioner’s personnel file at HR, Petitioner had participated in
training in the grievance process, and had been specifically trained in NCSU’s Grievance Policy
#1201. R-Ex. 27; T pp. 95, 128
7
41.
It is clearly stated on page 3 of #1201 of the Grievance Policy that "stealing State
property or funds, or knowingly misusing State property" is categorized by the University as
unacceptable personal conduct. T p. 97
42.
Petitioner held a supervisory position at the Center. As such, she was also responsible
for communicating NCSU’s policies and procedures to several people working under her
supervision. R-Ex. 30.
43.
Ms. Jones identified Respondent’s Exhibit 25 as Policy #1201 of NCSU’s Policies
and Procedures Manual, outlining SPA employee discipline and grievance policies and procedures at
the University. T p. 98
44.
Ms. Jones testified, as stated in Policy #1201, that "unacceptable personal conduct"
includes the following under NCSU’s written guidelines: refusing to accept a reasonable and proper
assignment from an authorized supervisor; reporting to work under the influence of alcohol or illegal
drugs; stealing State property or funds, or knowingly misusing State property; willful violation of
known or written work rules. R-Ex. 25; T pp. 91, 97
45.
Ms. Jones testified that an SPA employee cannot appeal a suspension with pay. T p.
99
46.
In Petitioner’s letter dated March 1, 2001, Respondent’s Exhibit 24, Petitioner
contended she was not given any information about the rights to appeal. Ms. Jones testified that an
SPA employee would not have any rights to appeal when suspended with pay because "suspension
with pay” is not a disciplinary action with appeal rights. T pp. 99-100
47.
Similarly, no SPA policy requires that a notice of appeal rights appear in the letter
inviting an employee to a pre-disciplinary conference.
48.
Ms. Jones next explained Human Resources’ involvement with an SPA internal
grievance. For all grievances, HR processes paperwork, monitors steps, assembles hearing panels,
generates reports, sends staff to hearings, and offers assistance to grievants. T pp. 101, 104-106
49.
Human Resources participated in Petitioner’s internal grievance from COE, as is
customary with all SPA internal grievances.
50.
Ms. Jones identified Respondent’s Exhibit 31 as the SPA grievance filing filled out
by Petitioner. T p. 102
51.
Once a grievance is filed, HR offers the grievant access to a grievance assistant. Ms.
Jones testified Petitioner did not request an assistant, and insisted she did not need one. T p. 106
8
52.
Respondent’s Exhibit 29, dated March 27, 2001, was prepared by Ms. Jones. This
document summarizes Petitioner’s grievance and summarizes the panel’s findings in its grievance
report. T p. 107
53.
Ms. Jones testified that the Panel’s findings were as follows: Petitioner was not
denied any due process appeal rights; the audit was justified and not a retaliatory or punitive
measure; Petitioner demonstrated unacceptable disregard of university policy, using State property
for personal gain. R-Ex. 29; T pp. 106-07
54.
Rebecca Benton Doyle was the next witness for Respondent.
55.
Ms. Doyle is currently Director of Finance and Personnel within the College of
Engineering at NCSU. She has held that position for more than two years, and she now reports
directly to Nino Masnari, the Dean. Prior to holding this position she was Director of Personnel in
the College of Engineering, and has worked at the College for twenty years. T p. 249-50
56.
Ms. Doyle’s primary functions include overseeing all State money that comes through
the College. The money, allocated to the various departments and the centers, is administered by her
office. Ms. Doyle’s role is to oversee compliance with spending and paperwork requirements, and to
keep financial records accurate. T p. 250
57.
Ms. Doyle’s other main duties include overseeing SPA and EPA personnel
operations, all of which run directly out of the Finance and Personnel Office.
58.
Connie Reno, in the position of Assistant Director for Finance and Personnel, reports
directly to Ms. Doyle. Four other individuals report indirectly to Ms. Doyle, and directly to Ms.
Reno. T p. 251
59.
Ms. Doyle knew Petitioner in her capacity as administrative assistant in the Center.
As Director of Finance and Personnel, Ms. Doyle had contact with all administrative staff in all the
areas of the COE. T p. 251
60.
In the fall of 2000, Connie Reno brought the possibility of misuse of travel funds by
three employees working in the Center to Ms. Doyle’s attention. Ms. Reno had recognized that Dr.
Hauser’s signature had been forged on one of the travel reimbursement forms. Ms. Reno had
previously worked as Dr. Hauser’s secretary, and was aware of his signature. T p. 252
61.
Ms. Doyle and Ms. Reno met with Dean Masnari, and also with Dr. Hauser, about the
travel document in question. T p. 253
62
After consulting with upper administration, Dean Masnari requested an internal audit
of the Center. T p. 253
63.
During the course of the internal audit and pending its outcome, Petitioner was put on
investigatory placement with pay. R-Ex. 16.
9
64.
Ms. Ericka Kranitz conducted the internal audit. Ms. Doyle worked closely with Ms.
Kranitz during this audit investigation, discussing various issues, including the following: a Puerto
Rico trip taken in June 1999: suspicious signatures on travel forms; duplicate reimbursement for
airline tickets; duplicate meals filed on reimbursement forms; missing computer equipment; personal
long-distance telephone calls; and two corporate memberships (Sam’s Club and American Express).
T pp. 253-54
65.
Once the internal auditor had completed her investigation, Dean Masnari, Craig
Forsyth and Ms. Doyle met with Ms. Kranitz to learn about her findings. Ms. Kranitz’ findings were
substantiated by formal documents. T p. 254
66.
Ms. Doyle testified to the accuracy of the Audit Report, and its findings, which she
identified as Respondent’s Exhibit 15. The issue of Petitioner’s use of the American Express card
had been mooted by the date on which the auditor formally presented her findings.
67.
Dean Masnari designated Ms. Doyle to invite Petitioner to a pre-dismissal conference,
specifically asking Petitioner to respond to certain issues revealed in the internal audit. T p. 255
This invitation was sent, via registered, certified mail, to Petitioner by letter dated November 17,
2000. R-Ex. 17; T p. 255
68.
Ms. Doyle conducted this first pre-dismissal conference consistent with NCSU Policy
# 1201, stating that such conferences are to be held with the employee’s supervisor or a designated
management representative. T p. 303
69.
At the first pre-dismissal conference, Ms. Doyle and Dean Masnari both met with
Petitioner and discussed the specific issues mentioned in the November 17, 2000 letter. Those issues
were: the Puerto Rico trip documentation; grad student payments; charges on both Center’s
corporate credit cards; telephone charges; use of petty cash fund; and missing computer equipment.
70.
Ms. Doyle identified, as part of Respondent’s Exhibit 17, the handwritten and typed
out notes made by her and Dean Masnari during and after the pre-dismissal conference with
Petitioner. Ms. Doyle’s testified that page numbers 10, 11, 12, 13, and 14 of Exhibit 17 were her
notes. T p. 258 Dean Masnari’s notes, as to Petitioner, were page numbers 15 through 20. T p. 30
71.
During this pre-dismissal conference, Petitioner contended the Puerto Rico trip had
been approved by Dr. Hauser, but there was no supporting written documentation showing such
approval. T p. 259 Failure to obtain written approval was a violation of University policies.
72.
In addition, the College learned that Petitioner initiated and also approved direct
payment to the travel agency by the University for her airline ticket to Puerto Rico, but then applied
for, and received, reimbursement for about $ 600 for an airline ticket she never had paid for. T p.
260
10
73.
All meals for the Puerto Rico trip had been pre-paid in the conference registration fee.
R-Ex. 7. As to meals, Petitioner initially told Ms. Doyle she had requested reimbursement for meals
because she did not like the food that was being served. Later, Petitioner said she was allergic to the
food being served, and thus went out for her meals. T pp. 260-61
74.
When questioned more closely at trial, Petitioner could not adequately explain her
inability to take breakfasts at the hotel, included in the conference fee. T pp. 520-21, 524
75.
Petitioner reviewed telephone bills presented to her by Ms. Doyle, drawn from the
audit, and admitted to placing numerous personal long-distance calls for which she had not
reimbursed the Center. R-Ex. 3; T p. 261
76.
On another topic raised in the pre-disciplinary conference, Petitioner denied being
compensated in any way by Continental Airlines for a missing University laptop she had taken on the
Puerto Rico trip. Instead, she said that she called the insurance office on campus regarding the
missing laptop, but nothing could be done to recoup this loss through either insurance or the airline.
T pp. 263-64
77.
According to Ms. Doyle, she and Dean Masnari twice asked Petitioner whether any
reimbursement had been made from the airline or airport, and “[b]oth times she denied any
reimbursement or compensation.” T p. 263 More specifically, the issue of travel vouchers was not
mentioned by Petitioner at this first conference. Tr p. 264.
78.
COE personnel subsequently learned that Petitioner’s account was not accurate, as
Ms. Kranitz received information from the airline that Petitioner had been sent travel certificates
worth $ 1, 250. T p. 264
79.
As to staff use of corporate credit card memberships, Petitioner admitted she had used
the Sam’s Club card for personal purchases. She submitted documentation which, she asserted,
showed that she had paid Sam’s Club personally for such personal items. R-Ex. 18. University
witnesses disputed that this documentation could be matched up with the alleged personal charges,
T pp. 266-267, but I find that the University’s evidence by a preponderance did not show how the
State had been damaged in this regard.
80.
Because other information was being obtained by staff, Ms. Doyle invited Petitioner
to a second pre-disciplinary conference, at the Dean’s request, in order to try to clarify some
lingering discrepancies. R-Ex. 19.
81.
One issue to be clarified were the number of personal long-distance phone calls; and
Petitioner brought in a summary of those calls. R-Ex. 3.
82.
At the second conference, the Dean and Ms. Doyle again asked Petitioner about
compensation for the missing laptop. Initially, she again denied receiving anything for the laptop.
Only when they presented her with a copy of the letter from Continental, R-Ex. 11, forwarding to her
some travel vouchers, did Petitioner admit receipt of those travel certificates. T pp. 264; 268
11
83.
Petitioner insisted she had offered the certificates to three individuals at the Center,
and that the vouchers were in a blue folder on her desk. T p. 264
84.
Dean Masnari testified that he interviewed each of the three persons named by
Petitioner; and no one remembered being offered the vouchers. T p. 42
85.
Ms. Doyle also searched Petitioner’s office more than once for the letter from
Continental, the blue folder and the travel vouchers, but never found any of those items. T pp. 27071
86.
It was obvious from Continental’s letter, however, that the vouchers had been sent to
Petitioner’s home address. T p. 294 Since no one at COE, other than Petitioner, ever saw the
vouchers, the University had no information about whether the vouchers were in Petitioner’s name.
Id.
87.
Following the second conference, the Dean met with Ms. Doyle to determine an
appropriate sanction. The Dean determined that Petitioner should be dismissed for unacceptable
personal conduct. T p. 272-74; R-Ex. 20.
88.
During Petitioner’s internal grievance, Ms. Doyle met with her at the Step I meeting.
The contents of that discussion, T pp. 276-79, were then summarized in a letter provided to
Petitioner, explaining Ms. Doyle’s reasons for not recommending a different outcome. R-Ex. 21.
89.
Respondent’s next witness, Ericka Kranitz, is the director of the Internal Audit
Division at NCSU. She has been in public accounting for five years and has performed more than
twenty-five (25) audits during her tenure at NCSU. At trial, Ms. Kranitz estimated she has
performed more than one hundred (100) audits during the course of her career, which includes
employment within the private sector. T pp. 133-34
90.
Ms. Kranitz testified that she accepted an assignment from Vice Chancellor Worsley
to perform an audit of the Center at NCSU in October 2000 in response to an allegation of the misuse
of funds at the College of Engineering T pp. 134-35
91.
For that audit, she reviewed financial cycles, like receipts, and disbursements. The
period of her review was July 1998 to October 2000, and it took her about 4 to 5 weeks to conduct
the audit. T pp. 135-36
92.
Ms. Kranitz testified that a sample from the Center’s telephone records showed that
Petitioner had made numerous telephone calls that were personal in nature, at the expense of the
state. After this discovery, further investigations revealed that the many repeated phone numbers on
the phone print-outs were Petitioner’s relatives. These relatives were identified when actually called
by Ms. Kranitz. T pp. 140-41
93.
Ms. Kranitz testified that Petitioner admitted responsibility for the other calls listed on
pages 1-4 of Respondent’s Exhibit 3. T p. 142
12
94.
Ms. Kranitz identified Respondent’s Exhibit 1 as a guide to state employment
published by the Office of State Personnel. After looking at the section entitled “Use of State
Property” on page 7, she testified that to the best of her knowledge, the language of this section had
not changed since the period of time when she commenced her audit of the Center. T pp. 137-38
According to the OSP guide for all SPA employees, “[u]sing state property or funds for personal gain
is a violation of criminal law and may result in a disciplinary action or dismissal.” That same policy
makes clear that “[u]nder no circumstances may long distance calls or toll calls of a personal nature
be made at the state’s expense.” R-Ex. 1 (p. 7).
95.
Ms. Kranitz identified Respondent’s Exhibit 2 as the SPA staff employee handbook
for NCSU. After looking at the section entitled “Use of mail, telephones, and computers” on page
11, she testified that to the best of her knowledge, the language of this section had not changed since
the period of time when she commenced her audit of the Center. T p. 138 That language states:
“University employees may not use University or State property or funds for personal gain. This
includes, but is not limited to, telephones, equipment, internet, or mail services. Misuse of state
property or funds may result in dismissal.” R-Ex. 2 (p. 11).
96.
Ms. Kranitz testified that in her opinion as director of the Internal Audit Division,
when an employee of the University needs to make personal long-distance phone calls while at work,
a personal calling card or a personal cellular phone should be used. T p. 139
97.
Ms. Kranitz testified that Petitioner reimbursed the University for her personal longdistance telephone charges, but only after she was confronted with phone records showing personal
phone calls. T pp. 142-43
98.
Ms. Kranitz testified that she also discovered that Francine Johnson, Gwen Sheppard,
and Pat Whitaker, who at the time were employees at the Center, also had been making personal
long-distance phone calls at the expense of the University. All of these employees were supervised
by Petitioner. T p. 143
99.
Ms. Kranitz testified that NCSU policies require a phone log be kept of all long
distance phone calls made for business purposes, and that the person who makes the calls is
responsible for keeping such a log. However, no such logs ever were found at the Center. T p. 144
100. Ms. Kranitz identified Respondent’s Exhibit 4 as an excerpted section of the North
Carolina State University Administrative Procedures Manual, and said that the policies and
procedures in that manual applied to all employees at NCSU. T p. 145
101. Ms. Kranitz testified that to the best of her knowledge, no substantive changes had
been made to this manual since the period of time when she commenced her audit of the Center. T
p. 146
102. Ms. Kranitz read into the record a passage from page 42 of Respondent’s Exhibit 4,
specifically Section L, Statement 4 under the heading “Long distance telephone calls
13
documentation.” She read: “Documentation of all long distance telephone calls should be available
in the department for periodic audit or review. The person, place, and reason must be given for each
call. See suggested form to use for this documentation attached.” Id.
103. Ms. Kranitz testified that the form on page 43 of the Respondent’s Exhibit 4 was the
form to which the above quoted language referred. Id.
104. Ms. Kranitz testified that during the course of her audit she also investigated the
procedures followed by Petitioner relating to a business trip she took to Puerto Rico to attend a
conference. Petitioner took that trip in June of 1999 with two of her subordinate employees at the
Center. T pp. 146-47
105. Ms. Kranitz testified that page 1 of Respondent’s Exhibit 5 was a travel request form
for Nadine Ward for the trip to Puerto Rico in question. The form did not have a signature in the
space for “signature of supervisor,” and it never had such a signature to the best of her knowledge.
This form alone would not constitute a valid travel approval for the Puerto Rico trip. T pp. 147-48
106. Ms. Kranitz testified that page 2 of Respondent’s Exhibit 5 was a travel request form
for Elizabeth Simmons to go on the same Puerto Rico trip, and that form was signed by J.R. Hauser,
who was the supervisor of both Petitioner and Elizabeth Simmons at the relevant time. Elizabeth
Simmons is another employee of the Center. T p. 148
107. Ms. Kranitz testified Petitioner was required to obtain the authorization of her
supervisor, Dr. Hauser, before she was allowed to go on the trip to Puerto Rico. T pp. 154-55
108. Ms. Kranitz read into the record a passage from page 8 of Respondent’s Exhibit 4,
specifically Section J, Statement 2. She read: “Pre-authorization and maintenance of the
authorization to travel is the responsibility of each department. Anyone traveling on University
business must have written prior approval from the department head or his or her designee to ensure
the travel was necessary and proper. The written approval documentation is to be retained in
department file.” T p. 151
109. Ms. Kranitz also read into the record a passage from page 35 of Respondent’s
Exhibit 4, specifically Section J, Statement 12, subsection D, number 13. She read: “The
reimbursement request must be signed by the traveler and the approved. If the traveler is the
responsible party, then his/her supervisor must approve the reimbursement.” T pp. 151-52
110. Ms. Kranitz testified that Respondent’s Exhibit 6 was a travel authorization and
reimbursement form for Nadine Ward for the same trip to Puerto Rico. Ms. Kranitz testified that she
learned from Dr. Hauser that the signature in his name on the line for “approval signature” was in
fact not his signature. T pp. 152-53
14
111. Ms. Kranitz testified that while it is possible that Dr. Hauser may have given
Petitioner the authority to sign his name for certain purposes, he could not have given her the
authority to sign his name to approve her own travel request. T p. 153
112. In support of this testimony regarding policy at NCSU, Ms. Kranitz read into the
record a passage from page 31 of Respondent’s Exhibit 4, specifically Section J, Statement 11,
subsection E, number 18. She read: “Approval Signatures - The travel authorization must be signed
by the authorized individual and dated to certify that the travel is for official University business and
that funds are available. Enter the date signed. An individual may not approve his own travel.” T pp.
154-55
113. Ms. Kranitz testified that as an employee of the Center at the time of the Puerto Rico
trip, Petitioner should have obtained the authorization of her supervisor before going on the trip.
Petitioner did not do so, as also is shown on Respondent’s Exhibit 5.
114. Ms. Kranitz testified that during the course of her audit, she was not able to find any
document that purported to give Petitioner the authority to sign the name of Dr. Hauser on her own
travel reimbursement form. In any event, such a document would be invalid to authorize Petitioner
to approve her own travel under Section J, Statement 11, subsection E, number 18 of the
Administrative Procedures Manual, cited above. T p. 156
115. Ms. Kranitz testified that Respondent’s Exhibit 6 showed that Petitioner was seeking
reimbursement for eighteen meals. This was not a proper request from Petitioner, however, because
all of the meals were meals that were included in the conference fee. T p. 156
116. Ms. Kranitz testified that she knew what meals were included in the conference fee
based on language contained in the conference registration form. She identified Respondent’s
Exhibit 7 as that conference registration form. T p. 156
117. Ms. Kranitz testified that Petitioner received $70.00 for extra meals that had already
been paid for by the University in the conference fee. T p. 156 Ms. Kranitz read into the record a
passage from page 11 of Respondent’s Exhibit 4, specifically Section J, Statement 3, subsection H.
She read: “The costs of meals included in other related activities (registration fees, conference
costs, hotel registration, etc.) may not be duplicated in the reimbursement requests.” T p. 157
118. Ms. Kranitz read into the record a passage from page 11 of Respondent’s Exhibit 4,
specifically Section J, Statement 3, subsection J. She read: “The traveler cannot request
reimbursement or duplicate meals furnished with other related activities (registration fees,
conference costs, etc.).” T p. 157
119. Ms. Kranitz read into the record a passage from page 36 of Respondent’s Exhibit 4,
specifically the last paragraph of Section J, Statement 12, subsection D. She read: “When the cost
of meals is stated as being part of the registration fee for a meeting, conference, convention, seminar,
15
etc., the allowance must be deducted from the subsistence allowed for those particular meals. This
must be reflected on the Travel Reimbursement Request.” T p. 158
120. Ms. Kranitz read into the record a passage from page 3 of Respondent’s Exhibit 4,
specifically Section J, Statement 1, subsection B, number 7. She read: “An employee traveling on
official business is expected to exercise the same care in incurring expenses that a prudent person
would exercise if traveling on personal business and expending personal funds. Excess costs,
circuitous routes, delays or luxury accommodations and services unnecessary or unjustified, or for
the convenience or personal preference of the employee in the performance of official state business
are not acceptable under this standard. Employees will be responsible for unauthorized costs and any
additional expenses incurred for personal preference or convenience.” T p. 157
121. Ms. Kranitz testified that Respondent’s Exhibit 6 showed that Petitioner was seeking
reimbursement for round trip airfare to Puerto Rico in the amount of $534.70. The trip took place
between June 1 and June 6, 1999. Ms. Kranitz said that this document appeared to have been
completed on June 16, 1999, because that was the date beside the false signature of Dr. J. R. Hauser.
T p. 162
122. Ms. Kranitz identified Respondent’s Exhibit 8 as a small purchase approval that
showed Petitioner entering and approving her own airfare in advance of the trip. This was done on
May 7, 1999. The amount of pre-payment by the University for the airfare purchased was $534.70.
Ms. Kranitz testified that NCSU employees are not allowed to initiate and approve the same small
purchase. T pp. 163-64, 166
123. Ms. Kranitz identified Respondent’s Exhibit 9 as the travel agency receipt from
Capitol Travel for the airfare that Petitioner purchased for the trip to Puerto Rico. The date on the
document was May 6, 1999, and the amount of the airfare purchased was $534.70. T p. 164
124. Ms. Kranitz said that the “SP APPROVED” notation on page 3 of Respondent’s
Exhibit 9 showed the small purchase number assigned to the purchase of Petitioner’s airline ticket
when it was approved, and she identified that number to be “0956894.” T p. 165
125. Ms. Kranitz testified that this same number also appeared on Respondent’s Exhibit
8, showing that these two documents related to the same purchase. Id.
126. Ms. Kranitz identified page 1 of Respondent’s Exhibit 10 as the travel authorization
and reimbursement form for Elizabeth Simmons for the same trip to Puerto Rico. She read a
notation from the document that said: “Per Nadine Ward airfare was previously paid 6/23.” She said
that this shows that Petitioner had notice that there had been attempted double-billing for airfare for
the trip to Puerto Rico. Petitioner had notice of this double-billing in June 1999, which is the same
month that Petitioner went on the trip. T p. 167
127. Ms. Kranitz identified page 2 of Respondent’s Exhibit 10 as a memorandum to
Nadine Ward from Tamara Dawson, who works in NCSU’s travel office. This memorandum was
16
sent on June 23, 1999, and it showed that Elizabeth Simmons had sought reimbursement for airfare
that had been prepaid. She said that document reference number “TAA 361608” on the
memorandum referred to the document number on page 1 of Exhibit 10, and that the numbers were
the same. T p. 169
128. Ms. Kranitz testified that based on the information she obtained during her audit,
Petitioner never alerted the University that she had also double-billed her own airfare for the Puerto
Rico trip. This was discovered for the first time only during her audit. T p. 171
129. Ms. Kranitz also testified that during the course of her audit, she learned that Gwen
Sheppard also double-billed her airfare for the Puerto Rico trip. Gwen Sheppard was supervised by
Petitioner and accompanied Petitioner on the trip. Id.
130. Ms. Kranitz testified that during her audit, she investigated the whereabouts of a
missing laptop computer that was owned by the University. She said that Petitioner claimed she took
the laptop to Puerto Rico and that it was lost or stolen in the baggage on the flight back to Raleigh.
T pp. 171-72
131. Ms. Kranitz said that Petitioner made a claim with Continental Airlines for the lost
laptop, but to the best of her knowledge Petitioner never notified her supervisor at NCSU that the
laptop had been lost or that she was making a claim. T p. 172
132. Ms. Kranitz identified Respondent’s Exhibit 11 as a letter from Continental to Ms.
Ward regarding the missing laptop claim that Petitioner had made. Ms. Kranitz obtained a copy of
the letter by calling Continental and requesting a copy. T p. 173
133. Ms. Kranitz testified that she did not know the address at the upper left corner of the
letter, but she knew that it was not the address of the Center. T pp. 173-74
134. Ms. Kranitz testified that this letter indicated that Continental sent a travel voucher
worth $1,250 to Petitioner to compensate for the lost laptop. However, Ms. Kranitz said she was
unable to locate the travel voucher and only learned of its existence after receiving a copy of this
letter from Continental. T pp. 174-75
135. After looking back at Respondent’s Exhibit 2, the NCSU staff employee handbook,
and looking at the section entitled “Use of University or State Property,” Ms. Kranitz testified that in
her opinion, this policy required Petitioner to turn over the travel vouchers to the University. T p.
175
136. Ms. Kranitz read into the record a passage from page 23 of Respondent’s Exhibit 4,
specifically Section J, Statement 8, subsection G. She read: “Coupons or certificates for reduced air
fare if acquired by a state employee while traveling on state business at State expense are the
property of the State and should be used, to the extent possible, by the State employee on future State
business trips.” T p. 176
17
137. Ms. Kranitz testified that she did not find any evidence that Petitioner ever used these
travel vouchers on subsequent State business trips. Id.
138. Ms. Kranitz testified that while she didn’t herself know if Petitioner had been exposed
to any of these policies and procedures, the rules were all very common and well-known at NCSU.
T p. 183
139. Ms. Kranitz identified Respondent’s Exhibit 15 as the Internal Audit Report that she
prepared to summarize her findings of her audit of the Center. She said that the “Administrative
Assistant I” that she referred to in her report was Petitioner. T. p 184
140. Ms. Kranitz testified that the findings in her audit report were that Petitioner did not
receive the appropriate approval for her trip to Puerto Rico, that Petitioner improperly received
reimbursement for airfare and meals that had been previously paid for by the University, and that
Petitioner improperly made personal long-distance phone calls at the expense of the State. T p. 184
141. Ms. Kranitz testified that she communicated her findings in writing to the
administration at NCSU before Petitioner was dismissed. T p. 185
142.
The parties do not dispute Petitioner’s status as a career State employee.
143. Petitioner was called by Respondent to testify about her job duties and
responsibilities.
144. Petitioner testified she wrote out and signed a Position Description Form, dated
January 28, 1999. R-Ex. 30 Her signature represented that she certified the completeness and
accuracy of that description of responsibilities and duties in her job as Administrative Assistant I.
This document resulted in her approval for an in-grade adjustment amounting to a ten percent
increase in salary. T pp. 586-90
145. Petitioner testified to filing the North Carolina State University SPA Employee
Grievance Form after her dismissal from NCSU. R-Ex. 31 The summary attached to that form also
was written by Petitioner. T p. 321
146. Petitioner testified to the last sentence of the second typed page of R- Ex.31, authored
by her: “I understand that an audit can happen at any time, but this audit had no merits.” This
statement shows Petitioner knew an audit could occur at any point. T p. 322
147. Petitioner admitted to using the State phone network for numerous personal phone
calls over a two-year period of time. R Ex. 31; T p. 324 The University’s evidence showed, by more
than a preponderance, that such use of the State telephone network is contrary to NCSU policies and
State law.
18
148. Petitioner claimed she had approval from her supervisor, Dr. Hauser, to travel to
Puerto Rico. But the University’s evidence showed that Dr. Hauser stated to Dean Masnari that
Hauser had not pre-approved Petitioner’s the Puerto Rico trip.
149. In addition, the University’s investigation could not find any written documentation to
support Petitioner’s claim. In fact, the only document relevant to this issue clearly shows the lack of
Dr. Hauser’s signature signifying his approval, whereas Elizabeth Simmons’ form for the same trip
was signed by Dr. Hauser. R-Ex. 5
150. As shown by Ms. Kranitz’ testimony, it clearly was against policy and procedure of
the University for Petitioner not to obtain her supervisor’s prior approval and also to personally
approve her own trips and reimbursements.
151. Petitioner had approved and submitted duplicate reimbursement requests for meals on
the Puerto Rico trip. Her explanation for this ‘double-dipping’ was that she simply did not like the
meals that previously had been paid, as part of the trip package. T. p. 260 Such double
reimbursement violated NCSU policies, also as shown by Ms. Kranitz’ testimony. Such policies
were in the Administrative Procedures Manual, acknowledged in Petitioner’s job description to be
one of her primary resources for training and information.
152. Petitioner testified to authoring the statement: “Although I feel these actions [by me]
may have been serious enough for another type of discipline, there was no just cause for dismissal.”
R Ex. 31; T p. 329
153. The evidence revealed unanswered questions about Petitioner’s failure to ascertain
whether her double-billing the University for her Puerto Rico airfare ever was corrected. Petitioner
testified she recognized a memo dated June 23, 1999, sent directly to her. R-Ex 10 This memo of
correction involved the Puerto Rico travel reimbursement for Elizabeth Simmons, and the memo
stated: “Airfare was paid previously. Lodging amount incorrect. Meals disallowed due to departure
time.” Id. Petitioner was responsible for all travel forms. T pp. 324-27 This memo about the
Simmons double-billing for airfare was received by Petitioner in the same month as the travel took
place and the employees turned in their reimbursement requests.
154. Petitioner testified to signing, but not fully filling out, her travel reimbursement form
for the Puerto Rico trip. She said she gave this signed, blank form, with her receipts attached, to the
accounting clerk to process. R Ex. 6; T p. 335 Petitioner testified that she thought she checked over
the form before turning it in, once it had been filled out more completely. She had no satisfactory
explanation at trial for not catching her signed representation that the airfare previously had not been
paid by the University. In fact, Petitioner testified that she was aware that NCSU had prepaid the
airfare because she had processed the payment. T p. 508
155. Petitioner also had no adequate explanation for not re-confirming that her own airfare
had not been double-billed, once she learned on June 23, 1999, that the Simmons travel
reimbursement form had been challenged and corrected.
19
Based upon the foregoing Findings of Fact, the undersigned makes the following:
CONCLUSIONS OF LAW
1.
The Office of Administrative Hearings has personal and subject matter jurisdiction
over this contested case pursuant to Chapter 126 of the North Carolina General Statutes.
2.
At the time of her dismissal, Petitioner was a career State employee subject to the
State Personnel Act. N.C.G.S. § 126-35 provides, in relevant part, that a career State employee only
may be discharged for “just cause”.
3.
The phrase "just cause" is not defined in the statute; its meaning has been discussed in
our case law. The North Carolina Court of Appeals has stated that the words "just cause" in the
context of Chapter 126 are to be given their ordinary meaning. See, e.g., Wiggins v. N.C. Dep’t of
Human Res., 105 N.C. App. 302, 306, 413 S.E.2d 3, 5 (1992) (citation omitted). In WEBSTER'S NEW
INTERNATIONAL DICTIONARY, "cause" is defined as a "good or adequate reason," and "just" as
"reasonable" or "having a basis in fact." See WEBSTER'S NEW INTERNATIONAL DICTIONARY 356, 1228
(3d ed. 1968); Amanini v. N.C. Dep’t of Human Res., 114 N.C. App. 668, 678, 443 S.E.2d 114, 120
(1994).
4.
Section 1J.0604(b) of Title 25 of the North Carolina Administrative Code establishes
two bases for just cause dismissal under N.C.G.S. § 126-35, including:
“. . . (2) Discipline or dismissal imposed on the basis of unacceptable personal conduct.”
Respondent’s designation of Petitioner’s dismissal as being for “personal misconduct” places her
within this category.
5.
Discipline may be imposed as a result of unacceptable personal conduct, up to and
including dismissal, without any prior disciplinary action. 25 NCAC 1J.0608.
6.
Section 1J.0614(i) defines unacceptable personal conduct to include “(1) conduct for
which no reasonable person should expect to receive prior warning; or (2) job-related conduct which
constitutes a violation of state or federal law; . . . or (4) the willful violation of known or written
work rules; or (5) conduct unbecoming a state employee that is detrimental to state service,” inter
alia.
7.
Substantial credible evidence in this case, as found in the foregoing Findings of Fact,
supports Respondent’s decision to dismiss this Petitioner for unacceptable personal conduct on a
number of those grounds set out in section 1J.0614(i).
8.
As set out in more detail in the Findings of Fact above, Petitioner’s conduct was
unbecoming and detrimental, and a reasonable person would not expect prior warning for discipline
based on so many unexplained and undisclosed acts of misusing State property.
20
9.
In addition, Petitioner’s conduct clearly violates various State statutory provisions;
and it also is willful violation of written work rules, although statutory violation alone is enough.
See, e.g., In re Gregory v. N.C. Dep’t of Revenue, 93 N.C. App. 785, 786, 379 S.E.2d 51, 52 (1989)
(“[p]etitioner’s conduct being forbidden by statute[,] a work rule to the same effect was
unnecessary”).
10.
In this case, the statutes most implicated by Petitioner’s misconduct are N.C.G.S. §§
143-32 and 143-58.1.
11.
Under section 143-32(a), any person who expends appropriated State monies “for any
purpose other than that for which the money was appropriated and budgeted” is liable to the State for
sums so expended. Willful diversion, misuse or unapproved expenditure of such funds exposes the
person to prosecution for a Class 1 misdemeanor, under section 143-32(b). A person’s conviction of
such an offense constitutes “sufficient cause for . . . dismissal from employment by the Governor
upon 30 days’ notice in writing to such offender.” Id.
12.
The State Telephone Network does not receive its appropriations from the General
Assembly for personal long-distance phone calls by State employees; nor were travel vouchers in the
amount of $ 1,250 -- obtained by Petitioner because of the airline’s reported loss of the State-owned
computer -- correctly deemed by Petitioner not to be a reimbursement for a State loss. See also
N.C.G.S. § 143-58.1 (making it a Class 1 misdemeanor for any person to “procure . . . any property
or services [under public contract procedures] for private use or benefit”).
13.
Case law holds that an employee’s misuse of State property, as occurred in this case,
constitutes just cause grounds for discharge. Most importantly, the Court of Appeals has held that
evidence of using the State Telephone Network for “a number of personal calls” -- without more -supports a just cause discharge. White v. N.C. Dep’t of Env’t, 117 N.C. App. 545, 548, 451 S.E.2d
376, 378-79 (upholding State Personnel Commission’s reversal of ALJ’s reinstatement
recommendation), rev. denied, 340 N.C. 263, 456 S.E.2d 839 (1995).
14.
In Petitioner’s case, the grounds for her discharge embraced acts of misconduct in
addition to her using the State phone system for numerous personal long-distance calls over a twoyear period. See also Nadeu v. Employment Sec. Comm’n, 97 N.C. App. 272, 388 S.E.2d 145
(1990) (upholding Commission’s determination that employee had been discharged for cause, where
he had made numerous personal long-distance phone calls on company time at company expense);
Fuqua v. Rockingham County Bd., 125 N.C. App. 66, 479 S.E.2d 273 (1997) (upholding discharge of
25-year employee for misconduct, even though employee’s single violation of purchasing rules may
not have been for personal gain); Floyd v. N.C. Dep’t of Commerce, 99 N.C. App. 125, 392 S.E.2d
660, disc. rev. denied, 327 N.C. 482, 397 S.E.2d 217 (1990) (upholding dismissal of 14-year
employee based on personal misconduct, where employee used regular work time for personal
business).
15.
Case precedent also demonstrates that Petitioner’s actions were personal misconduct,
rather than job performance as asserted by Petitioner’s counsel at the hearing in this case. See, e.g.,
Amanani v. N.C. Dep’t of Human Res., 114 N.C. App. at 679, 443 S.E.2d at 121 (citing State
21
Personnel Manual “examples of personal (mis)conduct include: . . . . insubordination, reporting to
work under the influence of drugs or alcohol, and stealing or misusing State property”).
16.
The financial magnitude of the misuse need not rise above a de minimis one. In a
1993 case, the Court of Appeals considered whether an employee’s discharge based on a slight
detour with a State-owned van was personal misconduct under the definition of personal misconduct
in the State Personnel Manual. The Manual stated: “‘An employee who steals State Property or
funds, or who knowingly misuses State Property may be dismissed without warning under the
Personal Conduct disciplinary process.’” Davis v. N.C. Dep’t of Human Res., 110 N.C. App. 730,
735, 432 S.E.2d 132, 135 (1993). The Court held that “[t]here is no doubt that [the employee’s] act
of driving the State van 46 miles out of the way to conduct personal business at a mobile home sales
lot falls within the purview of misusing State property” and upheld the dismissal. Id.
17.
All the components of Petitioner’s personal misconduct, on which the University’s
evidence showed it relied in discharging her, are spelled out in detail in numerous written
communications including Petitioner’s discharge letter, consistent with due process requirements for
the discharge of a career State employee based on unacceptable personal conduct. See R- Exs. 17,
19 & 20.
18.
Thus, Respondent proved by a preponderance that it had just cause to dismiss
Petitioner for unacceptable personal conduct.
19.
The procedural aspects of Petitioner's dismissal conformed in all respects to the
requirements of the State Personnel Act and interpreting regulations.
20.
In choosing the level of discipline in this case, NCSU’s initial decision maker testified
he gave special weight to Petitioner’s leadership position and her duties as a supervisor of four other
employees, responsible for training them about, and for enforcing, the sort of policies and procedures
implicated by the facts in this case.
21.
To the extent that Petitioner's appeal to the Commission contests the appropriateness
of dismissal as the disciplinary sanction for Petitioner's conduct, and to the extent it is necessary to
address that issue, the undersigned concludes that the level of discipline selected by NCSU was not
arbitrary and capricious. E.g., North Carolina A & T University v. Kimber, 49 N.C. App. 46, 51-52,
270 S.E.2d 492, 494-95 (1980).
On the basis of the above Conclusions of Law, the undersigned issues the following:
DECISION
Respondent’s decision terminating Petitioner’s employment for unacceptable personal
conduct is supported by substantial evidence constituting just cause and is affirmed..
22
ORDER
It is hereby ordered that the agency serve a copy of the final decision on the Office of
Administrative Hearings, 6714 Mail Services Center, Raleigh, NC 27699-6714, in accordance with
N.C.G.S. § 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 North Carolina State
Personnel Commission.
This the 31st day of January 2002.
________________________________
Beecher R. Gray
Administrative Law Judge
23