State of North Carolina s3

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF CUMBERLAND 02 OSP 1797

CHESTER MICHAEL MARTIN, / )
Petitioner, / )
)
v. / ) / DECISION
)
CUMBERLAND COUNTY DEPARTMENT / )
OF SOCIAL SERVICES, / )
Respondent. / )

The Petitioner was terminated from his position with the Cumberland County Department of Social Services October 11, 2002. A Petitioner for Contested Case Hearing was filed in the Office of Administrative Hearings on October 28, 2002. The hearing was conducted on March 10, 2002 in Fayetteville, North Carolina by James L. Conner, II, Administrative Law Judge, Office of Administrative Hearings. The parties submitted briefing and Proposed Findings on March 28 and 31, 2003.

APPEARANCES

For the Petitioner: Pro Se

For the Respondent: Douglas E. Canders

Cumberland County Attorney’s Office

P. O. Box 1829

Fayetteville, NC 28302-1829

WITNESSES

The following witnesses testified for the Respondent: Frieda Lockamy, Mary Lee Roberts, William Scarlett, Arthur Bethea, Valerie Haynes, John Campbell, and Patania Eiland.

The following witnesses testified for Petitioner: Faith Gloria Philps, William Scarlett, Petitioner, and Frieda Lockamy.

EXHIBITS

Petitioner’s Exhibits A, C, E, F, G, H, I, J, M, Mc, N, O, P, R, Z, 2(two), and 3A, B, C, and D were admitted without objection. In addition, Petitioner’s Exhibits K, L, Q, S, T, U, V and W were admitted over Respondent’s objection.

Respondent’s Exhibits 1 and 2 were admitted without objection.

ISSUE

Whether the Respondent properly terminated Petitioner for unacceptable personal conduct.

SUMMARY OF ACTIONS

LEADING TO THE TERMINATION

The decision to terminate the employment of Petitioner, Chester Michael Martin, was reached by William F. Scarlett after investigation conducted by Frieda Lockamy, Unit Supervisor, and Lee Roberts, Program Manager, Placement Services, recommendation by the supervisory staff, as well as communications and meetings with Mr. Martin to afford him a complete opportunity to present all information that Petitioner deemed relevant.

FINDINGS OF FACT

1.  The Petitioner, Chester Michael Martin, was employed as a Placement Services Worker in an Adoption Unit of the Placement Services Division of the Cumberland County Department of Social Services (“CCDSS”). This position was assumed by the Petitioner in March of 1999. Prior to assuming the placement position, Mr. Martin was serving as the Interim Director of the Child Advocacy Center, a jointly financed venture of CCDSS and Cape Fear Hospital Systems. He was not selected as the Director of the newly created non-profit Child Advocacy Center. This time frame also witnessed a reduction in force of a large number of CCDSS employees.

2.  Petitioner was a career employee at the time of his dismissal.

3.  During the course of his employment with the Child Advocacy Center, Mr. Martin submitted a request for approval of secondary employment as a Christian Counselor. He advocated approval by asserting the counseling kept his clinical skills viable. The request for approval limited the scope of activities by agreeing not to have as clients any clients of the Social Services system and by assuring that the counseling would not interfere with his work duties. This request was approved by a previous Director of CCDSS.

4.  After he assumed his duties in the adoption unit, Mr. Martin either began or continued counseling the P family. The P family was a CCDSS foster family with whom CCDSS had placed a child for adoption.

5.  In mid-March 2002, the adoption procedure initiated by the P family resulted in information being provided by the pastor of the P Family, who made the counseling referral of the family to Mr. Martin. The pastor indicated that he had reservations regarding the suitability of the P’s as adoptive parents based on the issues which caused his referral of the family to Mr. Martin for counseling.

6.  The pastor’s revelation to CCDSS workers came on the same day as a direct contact by Gloria Philps, Guardian Advocate for the adoptive child, with Mr. Martin. The purpose of her contact was to determine the counseling issues that Mr. Martin was addressing with the P family and whether those issues would have any impact on the adoption.

7.  Ms. Philps told Mr. Martin that she thought his counseling the family was a conflict of interest.

8.  Ms. Philps continued her adoption investigation by talking with the P family to verify the counseling issues. Her investigation resulted in the Guardian recommending canceling the adoption by the P family.

9.  Frieda Lockamy, Mr. Martin’s supervisor, contacted Mr. Martin on the morning of March 17, 2002 to inform him that the adoption case worker, also under her supervision, had a call from a pastor regarding the P family adoption during which he was identified as a counselor for the foster parents. Mr. Martin indicated that he might be counseling the P family, but that it would be a conflict for him to discuss their counseling with her.

10.  Ms. Roberts discussed with Ms. Lockamy the information she gained from the pastor regarding the P family, including how they came to be referred to Mr. Martin for counseling. They contacted Mr. Martin and discussed with him his outside counseling activity.

11.  Martin admits that he counseled the P family up to February 2002. The last session was within 30 days of the events of March 17, 2002.

12.  After several discussions with Mr. Martin by Ms. Lockamy and Ms. Roberts, and after several written communications, the CCDSS became convinced that Mr. Martin did not understand the conflict issue.

13.  By letter dated May 20, 2002, William F. Scarlett, Director of CCDSS, reiterated the problem to Mr. Martin, withdrew approval of Mr. Martin’s secondary employment, and directed that Mr. Martin cease private counseling by June 7, 2002. Pet. Exh. O.

14.  Following Mr. Martin’s written objection to the May 20, 2002 letter, Mr. Scarlett on June 10, 2002 withdrew that letter. Pet Exh. Mc. This was on advice of counsel, to avoid a continuing dispute over the language in the May 20 letter.

15.  On the same day (June 10), Mr. Scarlett also sent Mr. Martin a second letter. This second letter, instead of completely revoking Mr. Martin’s secondary employment approval, modified it. The letter stated: “Effective June 14, 2002, you may not counsel any individual or family residing in Cumberland County.” Pet Exh. M.

16.  Though Mr. Martin continued to try to negotiate exceptions to this ban on counseling Cumberland County residents, it stayed in effect throughout his remaining tenure at CCDSS.

17.  Despite this clear directive, Mr. Martin refused to stop privately counseling persons in Cumberland County. He continued to privately counsel Cumberland County residents and took no steps to cease the practice.

18.  In the fall of 2002, Mr. Martin requested additional approval for yet another secondary employment position. Mr. Scarlett informed Mr. Martin, through his supervisor, Ms. Lockamy, that the request would not be processed until the counseling authorization was resolved.

19.  Mr. Martin, without approval of the secondary employment, taught at the Carolina Bible College. The morning after his first night course, he remarked to a co-employee that his legs had become numb while standing and teaching the night before.

20.  When asked during the pre-termination conference with Mr. Scarlett if he had used CCDSS equipment or time for his private business, Mr. Martin responded “no”, even though he received phone calls from private clients on numerous occasions.

21.  Petitioner was dismissed from his position for failing to follow the limitations of his secondary employment, and for entering into a second employment relationship after being told approval was withheld pending resolution of this first secondary employment issue.

Based on the foregoing Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS OF LAW

1.  Mr. Martin was a career State employee in the CCDSS at the time of his dismissal. Because the Petitioner has alleged lack of just cause for his termination, the Office of Administrative Hearings has jurisdiction to hear the matter. N.C.G.S. §§ 126-35, 126-37 and 150B-23.

2.  N.C.G.S. § 126-35 states that “[n]o career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.” As defined by SPC rules in effect at the time this action was taken, “[e]ither unacceptable job performance or unacceptable personal conduct constitutes just cause for discipline or dismissal.” 26 NCAC 1J.0604(e) (effective March 1, 1994).

3.  The term “unacceptable personal conduct” is defined as conduct for which no reasonable person should expect to receive prior warnings or conduct unbecoming a State employee that is detrimental to State service. 25 NCAC 1J.0604(b) and (c) (effective March 1, 1994). Employees may be dismissed, demoted, suspended or warned on the basis of unacceptable personal conduct. Discipline may be imposed as a result of unacceptable conduct, up to and including dismissal without any prior warning to the employee. 35 NCAC 1J.0608 (effective March 1, 1994). Actions by State employees which have been found by the courts to constitute unacceptable personal conduct include insubordination, job-related conduct which constitutes a violation of state or federal law, and willful violation of known or written work rules.

4.  Petitioner knowingly and willfully violated a direct, written, and clearly worded directive from the Director of CCDSS when he continued his private counseling practice after June 14, 2002.

5.  Petitioner knowingly violated written work rules when he began secondary employment with the Bible College without approval.

6.  These activities also constituted insubordination.

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following:

DECISION

The decision of the Cumberland County Director of Social Services in terminating the employment of Petitioner for unacceptable personal conduct is upheld.

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance with N.C. Gen. Stat. § 150B-36(b).

NOTICE

The State Personnel Commission will issue an advisory opinion to the Director of the Cumberland County Department of Social Services. G.S. 150B-23(a). The agency that will make the final decision in this contested case is the Cumberland County Department of Social Services.

The agency making the final decision in this contested case 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. G.S. 150B-36(a).

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings.

This the 8th day of May, 2003.

______

James L. Conner, II

Administrative Law Judge

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