COUNTY OF ROBESON / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
11 OSP 08851
HUBERT JUNIOR SEALEY,
Petitioner,
v.
NORTH CAROLINA DEPARTMENT OF CRIME CONTROL AND PUBLIC SAFETY, NORTH CAROLINA HIGHWAY PATROL,
Respondent. / )
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The contested case of Hubert Junior Sealey, Petitioner herein, was heard before Senior Administrative Law Judge Fred G. Morrison Jr. on December 12 and 13, 2011, at the Office of Administrative Hearings in Raleigh, North Carolina.
APPEARANCES
PETITIONER: Geraldine Sumter
Ferguson, Stein, Chambers, Gresham & Sumter, P.A.
741 Kenilworth Avenue, Suite 300
Charlotte, NC 28204
RESPONDENT: Tammera S. Hill
Tamara S. Zmuda
Assistant Attorneys General
N.C. Department of Justice
9001 Mail Service Center
Raleigh, NC 27609
ISSUES
1. Whether Respondent discriminated against Petitioner because of his race when he was disciplined and his employment was terminated?
2. Whether Respondent had just cause to terminate Petitioner’s employment?
BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following Findings of Fact and Conclusions of Law. In making the Findings of Fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case.
BASED UPON the foregoing and upon the preponderance or greater weight of the evidence in the whole record, the Undersigned makes the following:
FINDINGS OF FACT
1. Petitioner was employed by the North Carolina Highway Patrol (NCHP) for nine years. He attained the position of Master Trooper, and was assigned to Troop B, headquartered in Lumberton, North Carolina.
2. NCHP Directive E.10 sets forth the guidelines for Patrol members engaging in secondary employment. Petitioner was aware of the regulations and conditions therein. (T. p. 15-17). (Respondent’s Exhibit 13).
3. Pursuant to Directive E.10, Petitioner requested, and was granted, permission to serve as a Robeson County Commissioner. Petitioner has not been approved for any other secondary employment by NCHP. (Id.)
4. Petitioner’s wife, Linda Sealey, was the registered agent and manager of Independent Community-Based Services, L.L.C. (Independent). Articles of Organization for Independent were filed with the North Carolina Secretary of State on March 26, 2009. (Petitioner’s Exhibit 1).
5. Independent is regulated by Southeastern Local Management Entity (SLME). SLME is responsible for monitoring mental health companies and for issuing endorsements required for operation. (T. p. 145).
6. Petitioner was not listed in any ownership or management capacity on any official filings with the North Carolina Secretary of State.
7. An anonymous letter, dated September 14, 2010, was sent to the Office of the Governor, the Commander of NCHP, and various media outlets. Among the various allegations in the letter, Petitioner was accused of engaging in secondary employment while on duty. (Respondent’s Exhibit 1).
8. An investigation was launched as a result of the complaint. Captain Charles V. Ward, Unit Commander of Internal Affairs, investigated the secondary employment complaint against Petitioner. (Respondent’s Exhibit 24).
9. An interview of Petitioner was conducted on February 28, 2011. During the interview, when asked about his relationship with Independent, Petitioner stated that he was “not associated with it at all,” and that he was “not affiliated with it at all.” (Respondent’s Exhibit 4).
10. During the interview on February 28, 2011, Petitioner stated that he “usually [did] all the cleaning,” and that he “usually [kept] all the computers going.” (Id.).
11. Petitioner possesses a personal cell phone registered with NCHP dispatch. Petitioner provided copies of phone records pursuant to request from NCHP. (T. p. 28) (Respondent’s Exhibit 2).
12. Petitioner possesses a cell phone issued to him for use as a Robeson County Commissioner. Respondent obtained copies of phone records pursuant to its investigation of Petitioner’s conduct. (T. p. 80) (Respondent’s Exhibit 3).
13. Phone records for the Robeson County cell phone show that on August 10, 2010, three calls were placed to SLME between 2:28 p.m. and 2:31 p.m. (Respondent’s Exhibit 3).
14. Phone records for Petitioner’s personal cell phone show that on August 11, 2010, a call from SLME was received at 2:38 p.m. (Respondent’s Exhibit 4).
15. Petitioner filed a “Weekly Report of Daily Activity” with NCHP reporting the hours worked between August 9 and August 15, 2010. The report shows Petitioner was on-duty from 7:00 a.m. to 4:00 p.m. on August 10 and August 11. (Respondent’s Exhibit 17).
16. Melinda Weissinger, a representative of SLME, told investigators and testified at the December 12, 2011, hearing, that she spoke with Petitioner on August 10 and August 11, 2010. (Respondent’s Exhibit 5) (T. pp. 149-50).
17. As part of a routine business practice, SLME utilizes a computer-based system to document contact with the providers they regulate. Melinda Weissinger documented phone conversations with Petitioner on August 10 and August 11, 2010. (T. p. 148) (Respondent’s Exhibit 28).
18. SLME contact documentation further reflects phone conversations with Petitioner on August 30, 2010, and February 3, 2011, as well as a personal appearance from Petitioner on September 3, 2010. All documented contacts with Petitioner pertained to the operation of Independent, and none indicate under what capacity. (Id.).
19. Steve Jordan is the Director of the North Carolina Department of Mental Health (DMH). Director Jordan is responsible for establishing policy for community-based services for mental health providers, including Independent. (T. p. 288).
20. In September 2010 Petitioner requested a meeting with Director Jordan regarding a denial of certification for Independent. (T. p. 289).
21. When meeting with known political office-holders, as a normal practice, Director Jordan inquires as to what capacity they are present. At the September, 2010 meeting, when asked whether he was attending the meeting as a commissioner or on behalf of Independent, Petitioner responded that he “was here representing the company.” (T. p. 291).
22. While Linda Sealey was present at the September, 2010 meeting, “eighty, to eighty-five percent” of the dialogue was between Director Jordan and Petitioner. (T. p. 293).
23. A letter dated September 13, 2010, was sent by Linda Sealey to Director Jordan which detailed an interaction between her husband (Petitioner) and SLME requesting an on-site evaluation to obtain additional endorsements. (Respondent’s Exhibit 19).
24. In response to Investigator Ward’s inquiry, Director Jordan made note of a second meeting on February 16, 2011, with Petitioner and Linda Sealey. (Respondent’s Exhibit 6).
25. During the February 16, 2011, meeting, Director Jordan noted while Petitioner arranged the meeting in his capacity as [Commissioner], at the meeting he represented himself as Linda Sealey’s husband, “was an active participant,” and “was truly acting [as] part of the company at the meeting.” (Id.).
26. At the February 16, 2011, meeting, Petitioner stated that DMH officials “were purposely not wanting his company to make it,” and questioned why DMH failed to “give us…technical assistance.” (T. p. 294).
27. Petitioner either initiated, or was a participant in, every interaction that Director Jordan had with Independent. (Id.).
28. NCHP Directive H.1 sets forth Rules of Personal Conduct and Job Performance. Petitioner received a copy of Directive H.1 when he became a member of the Patrol. (Respondent’s Exhibit 14) (T. p. 17-18).
29. Section XVIII of Directive H.1 sets forth NCHP policy concerning insubordination and requires Patrol members to “obey any lawful order of a superior officer….” (Respondent’s Exhibit 14).
30. Section VII of Directive H.1 sets forth NCHP policy concerning truthfulness and requires Patrol members to “be truthful and complete in all written and oral communications, reports and testimony…” and prohibits willful reporting of “inaccurate, false…or misleading information.” (Id.).
31. On May 29, 2009, Captain G. L. Bell issued an order from Major W.R. Scott directing Petitioner to “cease from carrying and using the cellular phone provided to him by the Robeson County Board of Commissioners while on duty,” and to “cease from conducting activities related to his secondary employment [as a Commissioner] while on duty.” It was further ordered that any failure to comply would subject Petitioner to further disciplinary action. The order was documented in two separate memoranda that Petitioner acknowledged by initialing and dating. (Respondent’s Exhibits 10 and 11).
32. Bell, now a Lt. Colonel, personally met with Petitioner in June, 2009, and made it “very clear” to Petitioner “that he could no longer have that cellular telephone issued to him by the Robeson County Board of Commissioners in his presence or utilize that telephone while on duty….” (T. p. 141).
33. Petitioner admitted during his interview with Captain Ward that he had carried the Robeson County cell phone while on duty, but claimed to only use it to check voice-mail. (Respondent’s Exhibit 4).
34. Petitioner stated during his interview with Captain Ward that his wife and daughter sometimes carry the Robeson County cell phone. (Respondent’s Exhibit 4).
35. Phone records indicate that between June and October 2010, ninety-seven calls were made or received on the Robeson County cell phone during hours that Petitioner was on duty. (Respondent’s Exhibits 4 and 8).
36. Phone records indicate that Petitioner used the Robeson County cell phone to place a call to State Representative Garland Pierce at 1:02 p.m. and 1:06 p.m. on June 28, 2010. On that day, Petitioner checked in with NCHP as on-duty at 1:00 p.m. (Respondent’s Exhibit 3) (T. pp. 377-79).
37. Petitioner admitted during testimony on December 13, 2011, that he was likely not on break at the time of the June 28, 2010, phone calls to Rep. Pierce. (T. pp. 378-9).
38. Phone records indicate that Petitioner used the Robeson County cell phone to place a call to the Robeson County Manager’s Office on October 15, 2010, at 12:45 p.m., after checking in with NCHP as on-duty at 12:00 p.m. that day. (Respondent’s Exhibit 3) (T. p. 379).
39. Phone records indicate that Petitioner used the Robeson County cell phone to place a call to Director Jordan’s office on October 16, 2010, at 12:06 p.m. On that day, Petitioner checked in with NCHP as on-duty at 10:00 a.m. (Respondent’s Exhibit 3) (T. p. 381).
40. On October 15 and 16, 2010, Petitioner was assigned by NCHP to cover a race at Lowe’s Motor Speedway near Charlotte. Petitioner’s wife was not with him and he was carrying the Robeson County cell phone on those days. (T. p. 380).
41. Sergeant Cary Lewis supervises Troop B, and was Petitioner’s supervisor. During his testimony on December 13, 2011, he stated that NCHP troopers are considered on-duty for the duration of their shift, including lunch breaks, which are unpaid. (T. pp. 369-70).
42. Colonel Michael Gilchrist is the Patrol Commander. As Patrol Commander, he is responsible for administering disciplinary actions for the organization. (T. p. 182).
43. At the culmination of the investigation of Petitioner, Captain Ward submitted a report to Colonel Gilchrist summarizing his findings. (Respondent’s Exhibit 9).
44. Colonel Gilchrist directed Captain Ward to conduct a pre-dismissal conference where Petitioner would be allowed to provide additional information to support his position or refute any findings made during the investigation. Petitioner was notified by memorandum on April 25, 2011. (T. pp. 94-5) (Respondent’s Exhibit 18).
45. The pre-dismissal conference was held on April 29, 2011, with Captain Ward and Petitioner present. Petitioner was presented with HP-343 forms, also called charge-sheets, describing four charges in violation of NCHP Directives. (Respondent’s Exhibits 12 and 25).
46. Petitioner was charged with a violation of Section VII of Directive H-1 (Truthfulness). Specifically, it was alleged that Petitioner had been untruthful when he stated that he had not conducted Robeson County business while on-duty with the Patrol, and that he had “nothing to do with” Independent. (Respondent’s Exhibit 12).
47. Petitioner was charged with violating Section XVIII of Directive H-1 (Insubordination). Specifically, that he had conducted Robeson County business while on-duty with NCHP in direct violation of an order issued by superior officers. (Id.).
48. Petitioner was charged with a violation of Section XXVI of Directive H-1 (Neglect of Duty). Specifically, it was alleged that Petitioner had used both his personal and Robeson County cell phones excessively while on-duty, resulting in inattentiveness. (Id.).
49. Petitioner was charged with a violation of Section IV of Directive H-1 (Violation of Rules) regarding a failure to observe Directive E. 10 (Secondary Employment). Specifically, it was alleged that Petitioner was conducting business with Independent without seeking prior approval, and that he was conducting business for Independent and Robeson County while on-duty with the Patrol. (Id.).
50. Following the pre-dismissal conference, Colonel Gilchrist reviewed the charges and the findings of Captain Ward’s investigation, as well as Petitioner’s performance and disciplinary records. Colonel Gilchrist considered lesser forms of discipline, and also considered discipline that other employees had received for similar conduct. (T. pp. 198-9).
51. Colonel Gilchrist specifically considered Petitioner’s case in comparison to the conduct and discipline of two individuals with similar charges. One member resigned, and the other member was dismissed. (T. p. 199).
52. On May 3, 2011, Colonel Gilchrist issued a memorandum wherein he found that a preponderance of the evidence submitted supported the allegations contained in the charge sheets and that Petitioner should be dismissed from the Patrol. (Respondent’s Exhibit 15).
53. Colonel Gilchrist decided that dismissal was the appropriate discipline due to the existence of truthfulness and insubordination violations by Petitioner. The existence of either violation would warrant dismissal. (T. pp. 199-204).
54. At the December 12, 2011, hearing, Captain Ward was asked about the investigation of Trooper Robert Clark. Ward was not involved in the investigation of Clark but had limited knowledge of the allegations involved. Specifically, Ward knew that Clark had been investigated for conducting secondary employment and had been disciplined, but not terminated. (T. pp. 117-20).