STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF MITCHELL 06 OSP 1757

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PAUL MICHAEL DALE Petitioner,

v.

N. C. DEPARTMENT OF CORRECTION

Respondent.


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DECISION

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This matter was heard before the Honorable Donald W. Overby, Administrative Law Judge, on April 24, 2007 at the courtroom on the Broughton Hospital campus in Morganton, North Carolina.

APPEARANCES

For Petitioner: Leonard Poe, Esquire

93 South Main Street

Marion, NC 28752

For Respondent: Thomas H. Moore

Assistant Attorney General

N.C. Department of Justice

Post Office Box 629

Raleigh NC 27602

WITNESSES

The Respondent, North Carolina Department of Correction (hereinafter the “Respondent”) presented testimony from the following nine (9) witnesses: the Petitioner, Paul M. Dale (hereinafter the “Petitioner”); Haroldus Walton; Avery-Mitchell Correctional Institution Watauga Unit Manager Bryan Johnson; Correctional Captain Gregory P. Taylor; Correctional Sergeant Joey Hylemon; Correctional Sergeant William McCurry; Correctional Lieutenant Jeffery Daniels; former Avery-Mitchell Correctional Institution Superintendent Willard Jobe; and Avery-Mitchell Correctional Institution Assistant Superintendent Robert Cooper.

The Petitioner presented testimony from the following three (3) witnesses: Correctional Officer David Anthony, Correctional Officer William Denver Caterson; and the Petitioner.

EXHIBITS

The Respondent offered into evidence the following twenty-three (23) exhibits, all of which were admitted into evidence:

R. Ex. 3 (June 5, 2006 report from Lieutenant. Jeffrey Daniels to Robert Cooper regarding Petitioner);

R. Ex. 4 (Photocopy of $100 bill with serial number CA 0051413 A);

R. Ex. 5 (Photocopy of exterior of CD-ROM from Pennsylvania Culinary Institute “Learn the Art of Le Cordon Bleu”);

R. Ex. 6 (Memorandum from Division of Prisons Director Boyd Bennett dated February 14, 2005 regarding banning of employee pocket knives);

R. Ex. 7 (Avery-Mitchell Correctional Institution Shift Narrative for June 3, 2006);

R. Ex. 8 (N.C. Department of Correction Personal Dealings With Offenders policy);

R. Ex. 9A (Department of Correction Employment Statements signed by the Petitioner on April 18, 2003);

R. Ex. 9B (N.C. Department of Correction training history printout for the Petitioner);

R. Ex. 9C (Attendance roster for staff/inmate relations signed by the Petitioner on April 30, 2003);

R. Ex. 10 (June 3, 2006 Internal Investigation written statement from Bryan Johnson);

R. Ex. 11 (June 10, 2006 Internal Investigation written statement from Haroldus Walton);

R. Ex. 12 (June 3, 2006 Internal Investigation written statement from the Petitioner);

R. Ex. 13 (June 3, 2006 Internal Investigation written statement from Correctional Captain Gregory P. Taylor);

R. Ex. 14 (June 4, 9 and 16, 2006 Internal Investigation written statements from Correctional Sergeant William McCurry);

R. Ex. 15 (June 3, 2006 letter from Superintendent Willard Jobe placing the Petitioner on investigatory status);

R. Ex. 16 (June 5, 2006 letter from Nancy Wilder to Superintendent Willard Jobe and Steve Bailey);

R. Ex. 17 (June 13, 2006 letter from Superintendent Willard Jobe notifying the Petitioner of his scheduled pre-disciplinary conference);

R. Ex. 18 (June 15, 2006 pre-disciplinary conference acknowledgment form signed by the Petitioner);

R. Ex. 19 (June 23, 2006 letter from Superintendent Willard Jobe notifying the Petitioner of his employment termination);

R. Ex. 20 (Section 6 of the Department of Correction Personnel Manual regarding personal conduct issues);

R. Ex. 21 (June 4, 2006 Internal Investigation written statement from Correctional Sergeant Joey Hylemon); R. Ex. 23 (Copy of June 30, 2006 log from Watauga Unit Control Room at Avery-Mitchell Correctional Institution);

R. Ex. 24 (Photographs of Watauga Unit Control Room).

The Petitioner offered into evidence the following five (5) exhibits, all of which were admitted into evidence:

P. Ex. 1 (Petitioner’s April 21, 2003 “TAP” job performance evaluation);

P. Ex. 2 (Petitioner’s 2004-2005 “TAP” job performance evaluation);

P. Ex. 3 (Petitioner’s 2005-2006 “TAP” job performance evaluation);

P. Ex. 4 (Petitioner’s 2006-2007 “TAP” job performance evaluation); and

P. Ex. 5 (Department of Correction’s May 31, 2006 notice of paycheck deposit for the Petitioner).

ISSUE

Did the Respondent have just cause for terminating its employment of Petitioner for one or more acts of unacceptable personal conduct?

Based upon the pleadings, sworn testimony of the witnesses, exhibits presented at the hearing and other competent and admissible evidence, the undersigned makes the following:

FINDINGS OF FACT

1. The Petitioner was first employed in April 2003 by the Respondent’s Division of Prisons (hereinafter “DCC”) as a correctional officer stationed at Avery-Mitchell Correction Institution (hereinafter “Avery-Mitchell”), a prison facility located in Spruce Pine, North Carolina. (R. Exs. 9A, 9B, 9C; Tr. pp. 14-15, pp. 322-324).

2. As a correctional officer, the Petitioner was responsible for the custody and supervision of inmates at Avery-Mitchell, a medium custody prison housing approximately 856 inmates. The Petitioner’s specific post assignments at the facility varied, according to his assignments by Avery-Mitchell management. During June 2006, the Petitioner was assigned to work the second shift at Avery-Mitchell, running from 6 p.m. to 6 a.m. (Tr. pp. 14-16, p. 24).

3. The Petitioner was made aware of his official job duties as a correctional officer and various policies of the Respondent, including the Respondent’s policy governing “Personal Dealings with Offenders,” when hired for the position in April 2003. At the time of his hiring, the Petitioner signed a form acknowledging that he had been furnished a copy of the “Personal Dealings with Offenders” policy and that it was his responsibility to read and comply with the terms of this policy. (R. Ex. 9A, 9B, 9C; Tr. pp. 16-20).

4. In addition to being furnished a copy of the “Personal Dealings with Offenders,” the Petitioner underwent specialized training in the policy in a session held by the Respondent on April 30, 2003. (R. Exs. 9B, 9C; Tr. pp.17-20).

5. The Respondent’s “Personal Dealings with Offenders” policy prohibits employee fraternization with criminal offenders under supervision of the Respondent. It is included in the Respondent’s Personnel Manual and notes that it is “the policy of the Department of Correction to require all employees to maintain professional relationships with offenders in accordance with the laws, regulations, and general statutes governing such relationships.” (R. Ex. 8; Tr. pp. 15-20). The policy further states that “[a]ll employees of the Department of Correction ... shall treat offenders in a quiet, but firm manner and shall refrain from inappropriate and improper contact with them. The policy includes a list of specific prohibited activities, noting that

“Employees of the Department of Correction shall not ... Lend anything to an offender, ... Accept any gift or personal service from an offender, except as specifically authorized by law, regulation, or directive, ... Make gifts to or perform personal services for an offender, ... Sell to an offender any article forbidden by Division of Prison [or] Division of Adult Probation and Parole rules, ... Knowingly enter into a business relationship with an offender or their family member or close associate.” (R. Ex. 8; Tr. pp. 15-20).

6. The “Personal Dealings with Offenders” policy states that this list is not exclusive, specifying that: “Any time an employee is in doubt about an issue regarding dealings with a offender(s), the employee has an obligation to ask questions of his/her supervisor or other appropriate manager for clarification.” (sic) The policy further notes that: “Violations of this policy may result in disciplinary action up to and including dismissal in accordance with the Department of Correction Disciplinary Policy and may result in criminal charges against the employee.” (R. Ex.8; Tr. pp.15-20).

7. On June 2, 2006, Bryan Dale Johnson, the manager of the Watauga Unit or Dormitory at Avery-Mitchell, met with inmate Haroldus Walton (hereinafter referred to as Walton) concerning possible disciplinary action against inmate Walton. During that meeting, Walton reported allegations of misconduct by the Petitioner to Mr. Johnson in that the Petitioner was selling various items to inmates, including pills, food, and music. Walton also stated that the Petitioner would exchange money for inmates, charging a fee for breaking large denomination bills into smaller bills. (R. Exs. 3, 10, 11; Tr. pp. 88-90, pp. 98-100, pp.131-134).

8. Walton informed Mr. Johnson that he had first-hand experience in purchasing items from the Petitioner. He stated that the Petitioner had given him garlic and that the Petitioner provided him an information packet and CD-Rom from the Pennsylvania Culinary Institute on payment of $20.00. Walton could not remember the exact dates of those transactions but believed them to have been in the spring of 2006. At Mr. Johnson’s request, Walton retrieved the CD-Rom from the Pennsylvania Culinary Institute from his cell locker and provided it to Mr. Johnson. (R. Exs. 3, 10, 11; Tr. pp. 88-90, pp.131-134).

9. During the session, Mr. Johnson asked Walton if he thought the Petitioner might exchange money for him, and Walton responded that he thought the Petitioner would be willing to do so. Mr. Johnson also asked Walton if he would be willing to be involved in an undercover operation in an attempt to catch the Petitioner making change for inmates. Walton replied that he was agreeable to participation in such an operation. Walton said he thought he would need a $100 bill in order to attract the Petitioner’s attention. He estimated that the Petitioner would charge at least $20 for making change for Walton. (R. Exs. 3, 10, 11; Tr. pp. 88-90, pp. 131-134).

10. Avery-Mitchell is a cashless prison. Inmates are forbidden possession of any script or coin money. If an inmate at Avery-Mitchell is in possession of any amount of cash, he may be subjected to disciplinary action. (Tr. p. 41, pp. 250-254).

11. Walton was in possession of contraband, the CD-Rom. Since Walton was able to produce the contraband, Mr. Johnson considered his allegations about the Petitioner to be credible. After meeting with Walton, Mr. Johnson immediately reported Walton’s allegations to Avery-Mitchell Assistant Superintendent Robert Cooper. (R. Exs. 3, 10; Tr. pp. 134-141).

12. Assistant Superintendent Cooper during the afternoon of June 2, 2006 contacted Avery-Mitchell Superintendent Willard Jobe to discuss Walton’s allegations and whether an undercover operation should be launched to determine if the Petitioner would accept money from Walton. Superintendent Jobe gave his approval for an undercover operation after conferring by telephone with Roger Moon, Western Region Operations Manager for the Respondent’s DOP and one of Superintendent Jobe’s supervisors. (Tr. pp. 227-230, pp. 249-252).

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13. Mr. Cooper had previously been involved in similar undercover probes using inmates to attempt to pass money to employees suspected of wrongdoing, and it was his decision as to how to conduct the undercover operation involving the Petitioner. (R. Exs. 3, 10, 13; Tr. pp. 134-136, pp. 249-250).

14. The plan devised by Mr. Cooper is as follows: Walton would be instructed to inform the Petitioner that he expected to receive some money during visitation on June 3, 2006 and that he needed the Petitioner to exchange for smaller bills. A $100.00 bill would be used. Walton would be given the $100 bill on June 3, 2006 by Captain Gregory Taylor. Walton would wait for a convenient time to pass the money to the Petitioner on June 3, 2006. Walton would wait approximately thirty (30) minutes after passing the $100 bill to the Petitioner before declaring a medical emergency so that he could be escorted out of the prison dormitory without attracting attention to himself. The declaration of a medical emergency by Walton would be the signal that Walton had passed the $100 bill. Once this signal was given, Captain Taylor was to contact Mr. Johnson, Avery-Mitchell Special Affairs Lieutenant Jeffrey Daniels, and Assistant Superintendent Cooper at home to come to the prison to question the Petitioner. Captain Taylor was to relieve the Petitioner from his post and take him to the Avery-Mitchell administrative offices for questioning. (R. Exs. 3, 10, 13; Tr. pp.134-136, pp. 249-250).

15. The thirty-minute waiting period before Walton was to declare a medical emergency was intended in part to give the Petitioner a chance to properly report to his supervisors that he had been handed money by Walton. According to Assistant Superintendent Cooper’s plan, if the Petitioner reported this action to his supervisors in a prompt and proper manner, he would not be relieved from his post and brought in for questioning. Assistant Superintendent Cooper informed Mr. Johnson, Lt. Daniels, and Captain Taylor of his plans for the undercover operation on June 2, 2006. (R. Exs. 3, 10, 13; Tr. pp.134-136, pp. 249-250).

16. Assistant Superintendent Cooper personally provided a $100 bill for use in the undercover operation involving Walton. The bill bore serial number CA 00051413A. On June 2, 2006, Mr. Cooper made copies of the front and back of the bill before giving it to Captain Taylor, who was to provide the $100 bill to Walton on June 3, 2006. (R. Ex. 4; Tr. p.136, pp. 251-254).

17. On instruction from Assistant Superintendent Cooper, Mr. Johnson met again with inmate Walton on June 2, 2006 and informed Walton of Mr. Cooper’s plan for the undercover operation. He told Walton that Captain Taylor would provide him with the $100 bill the following day. (Tr. pp. 89-90, pp.134-136).

18. Avery-Mitchell management received permission on June 2, 2006 from Mr. Moon, the Respondent’s DOP Western Region Operations Manager, and Nancy Wilder, the Respondent’s Employee Relations Manager, to place the Petitioner on investigatory leave status if the undercover operation resulted in the Petitioner accepting money from inmate Walton and not properly reporting this action to Avery-Mitchell management. Pre-approval of the investigatory placement was given because the undercover operation was scheduled to be conducted late on June 3, 2006, a Saturday. Superintendent Jobe prepared a letter dated June 3, 2006 which informed the Petitioner that he was placed on investigatory placement and that he was to remain out-of-work with pay while allegations that he engaged in undue familiarity with an inmate were investigated by Avery-Mitchell management. Assistant Superintendent Cooper took possession of the letter on June 2, 2006, with the intention of presenting it to the Petitioner only if the undercover operation resulted in his apparent acceptance of money from Walton. (R. Exs. 15, 16; Tr. pp. 231-233, pp. 250-252).

19. Captain Taylor presented Walton with the $100.00 bill from Assistant Superintendent Cooper at approximately 5:15 p.m. on June 3, 2006. (R. Exs. 3, 13; Tr. pp. 165-166).

20. For part of the day on June 3, 2006, the Petitioner was assigned to work in the control booth for Watuaga dormitory. The control booth is a secure, enclosed area, with thick glass windows on all sides. It is staffed with one correctional officer at a time whom is primarily responsible for opening and closing the secure doors to the dormitory so that Avery-Mitchell staff and inmates can enter and exit the dormitory. The booth contains a stationary control board, where the correctional officer primarily sits. The control booth has a stationary metal pass box, located on its exterior to the right of the control board, which is used by staff and inmates to pass or receive items from the inside. The booth is well lighted, with several lights located above the drop box area. There is a live video camera in the control booth. The control booth also has a closed toilet facility, located at its rear. The enclosed toilet area is not within the range of the video camera. (R. Exs. 24A, 24B, 24C, 24D, 24E; Tr. pp. 25-53, pp. 311-316).