CHRISTINE N. BREWINGTON, Petitioner,
NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, STATE BUREAU OF INVESTIGATION, Respondent.
by petitioner from final decision entered 29 March 2016 by
Senior Administrative Law Judge Fred G. Morrison, Jr. in the
Office of Administrative Hearings No. 15 OSP 07614. Heard in
the Court of Appeals 3 April 2017.
McGuinness Law Firm, by J. Michael McGuinness, for
Attorney General Joshua H. Stein, by Special Deputy Attorney
General J. Joy Strickland, for respondent-appellee.
Richards, P.A., by Norris A. Adams, II, for amicus curiae
North Carolina State Lodge of the Fraternal Order of Police.
Christine N. Brewington appeals from a Final Decision of the
North Carolina Office of Administrative Hearings, which
concluded that respondent North Carolina Department of Public
Safety (DPS), State Bureau of Investigation (SBI) had just
cause to dismiss Brewington from her position as a Special
Agent with the SBI.
reasons that follow, and after careful analysis, we affirm
the decision of the administrative law judge.
began working as a Special Agent for the SBI in 1998, and she
held that position until her dismissal in June 2015. Prior to
her dismissal, Brewington was working in the Diversion and
Environmental Crimes Unit. On 3 September 2014, Brewington
was assigned to conduct interviews with several employees of
a pharmacy located in Lillington, North Carolina. The
assignment required Brewington to work with Elizabeth
Collier, an investigator with the North Carolina Pharmacy
Board, in connection with a drug diversion case. This was
Collier's first case as an investigator with the Pharmacy
concluding the interviews between 1:45 and 2:00 p.m.,
Brewington and Collier drove separately to a nearby
restaurant called the Sports Zone, where Brewington had dined
on prior occasions, for a working lunch. While there, Martha
Sullivan waited on Brewington and Collier's table.
Sullivan would usually fix Brewington a beverage known as a
"Sprite Delight, " unless Brewington requested
something else to drink. Brewington described the Sprite
Delight as a non-alcoholic beverage, pinkish in color, which
contained "cranberry juice . . . along with pineapple
juice or grapefruit juice." Brewington recalled that she
ordered her "usual drink[, ]" a Sprite Delight,
during her 3 September 2014 lunch with Collier.
to Collier, Brewington ordered "what appeared to be a
cocktail[, ]" which was pink and was served in a
"stemmed bowl-type glass, goblet style." Brewington
drank the beverage as she and Collier ate lunch. Collier also
observed that Brewington ordered a second drink at the end of
the meal that had the same appearance. Toward the end of the
meal, Brewington's friend, Mike Mansfield, arrived at the
Sports Zone and joined Brewington and Collier. Brewington
recalled that Mansfield ordered a beer immediately after he
sat down, but Collier did not observe Mansfield order any
food or drinks and indicated that she would have remembered
seeing beer on the table. According to Brewington, she did
not consume any alcohol during lunch, but "throughout
the time that we were there, [Mansfield] continued to order
another beer. I do recall him ordering a mixed drink, but I
don't know what the mixed drink was."
after Mansfield's arrival, Collier prepared to leave the
restaurant. Because the Pharmacy Board authorized its
representatives to pay for meals they shared with members of
other state agencies, Collier offered to pay for
Brewington's lunch. However, before she paid the bill,
Collier informed Brewington that while she could pay for the
food, she could not use her Pharmacy Board credit card to pay
for alcohol. Brewington did not attempt to argue with or
correct Collier's impression that the beverages
Brewington had ordered contained alcohol. Collier "made
a point to separate [the alcohol] from [her] portion of the
bill[, ]" paid for one order of loaded potato chips and
one order of fish tacos at 3:28 p.m., and then left the
restaurant "pretty much right after" paying the
remained at the restaurant with Mansfield for approximately
thirty minutes after Collier's departure. Mansfield had
forgotten his wallet, so Brewington offered to "pay for
his meal or whatever he had ordered, and he could just pay
[her] back at a later date." At 3:57 p.m., Brewington
used her personal credit card to pay for one order of loaded
potato chips, "3 Coors Light" beers (totaling
$9.87), and "2 Special Mixed Drink 7['s]"
months after her 3 September 2014 lunch with Brewington,
Collier audited a SBI Diversion School course. After
diversion classes had concluded, Collier attended a social
dinner with a group of course participants, one of whom was
SBI Special Agent Steven Smith. During a conversation regarding
professionalism, Collier mentioned to Special Agent Smith
that she had observed Brewington consume alcohol during their
lunch at the Sports Zone. Collier recalled that the incident
"just kind of came up in conversation." Special
Agent Smith informed Collier that he would have to report the
issue of Brewington's alleged misconduct to his
supervisor, as the SBI has a strict policy that prohibits the
consumption of alcohol by on-duty agents.Once Special Agent
Smith reported Collier's allegations to his supervisor,
the issue worked its way through the SBI's chain of
command. Eventually, the Special Agent in Charge of the
SBI's Special Investigations Unit, Kanawha Perry, was
assigned to investigate the incident.
letter dated 11 May 2015, Special Agent in Charge Perry
notified Brewington that she was the subject of an internal
investigation. However, the letter contained an error as to
the date of the incident: "The nature of the allegation
is as follows: Unacceptable Personal Conduct based on an
allegation that in or around January 2015 you
consumed an alcoholic beverage while on duty." (Emphasis
added). Special Agent in Charge Perry and Assistant Special
Agent in Charge Cecil Cherry interviewed Brewington on 20 May
2015. Prior to the beginning of the interview, Special Agent
in Charge Perry advised Brewington of her Garrity
rights and corrected the date of the alleged
offense date to 3 September 2014. After the date in question
was correctly identified, Brewington stated that she did not
need extra time to prepare for the interview. Because SBI
policy generally prohibits the use of tape recorders during
non-custodial interviews, Special Agent in Charge Perry took
notes on Brewington's answers and used these notes to
generate a typewritten report.
According to Special Agent in Charge Perry's report,
Brewington was asked if she took any prescription medications
that affected her ability to use a firearm; in response, she
identified five medications that she was taking to control
various health conditions, and she stated that none of the
medicines affected her cognitive abilities or her ability to
use a firearm. The agents then proceeded to ask Brewington
questions concerning what occurred at the Sports Zone on 3
September 2014. Brewington indicated that she drank two
Sprite Delights; that she did not consume any alcohol; that
Mansfield arrived near the end of the lunch; that "she
[could not] recall what Mansfield had to drink or eat";
that Mansfield "usually gets water"; and that
Mansfield " 'rarely' dr[ank] a beer or two and
she [could not] recall if he bought a beer that day."
in the interview, the agents produced Brewington's 3
September 2014 receipt from the Sports Zone. Brewington
confirmed that her credit card was used to pay the bill, and
that her signature appeared on the receipt. Brewington also
agreed that based on the price of the two mixed drinks
(approximately $8.00 apiece), the drinks must have contained
alcohol. However, after explaining that Sullivan never
charged her for Sprite Delights, Brewington maintained that
she had not ordered any alcohol and that it was possible that
Mansfield had ordered the two mixed drinks and the three
beers listed on the receipt.
point in the interview, Assistant Special Agent in Charge
Cherry obtained Mansfield's cell phone number from
Brewington, went to another room, and called Mansfield. Upon
his return to the interview room, Assistant Special Agent in
Charge Cherry reported that, according to Mansfield, no
alcohol was ordered at the lunch, but if he did consume an
alcoholic drink at the Sports Zone, it would have been a
beer. After considering Mansfield's statement to
Assistant Special Agent in Charge Cherry and noticing certain
discrepancies in Brewington's statements, Special Agent
in Charge Perry informed Brewington that she would be
required to undergo a polygraph examination. The results of
that examination included a determination that Brewington had
answered the following question untruthfully: "Did you
drink any alcohol at lunch on September 3, 2014? (Answer:
'No')[.]" The polygraph report also contained
statements that Brewington made during a post-examination
[Special Agent] Brewington was interviewed post examination
by [Assistant Special Agent in Charge] Smith. [Special Agent]
Brewington stated that her memory was affected by some of her
medical conditions. She further stated that she possibly
could have consumed a sip of alcohol from her companion's
drink and she could not remember. After thinking about the
incident further, [Special Agent] Brewington stated she was
"sure" she did not consume any alcohol at lunch on
that particular date and time.
By letter dated 3 June 2015, the SBI notified Brewington that
she was required to attend a pre-disciplinary conference with
SBI Special Agent in Charge W. Ty Sawyer. The specific
allegations to be discussed were that Brewington had consumed
alcohol while on official duty and had been untruthful during
the internal investigation. Among the conference's
purposes were to allow Brewington to present facts that would
counter the allegations or support her case and to respond
with any information that was relevant to the question of
whether disciplinary action, up to and including dismissal,
was proper. The pre-disciplinary Conference was held on 10
June 2015. The next day, the SBI issued a letter informing
Brewington of "Management's decision . . . to
dismiss [her] effective June 11, 2015, based on Unacceptable
Personal Conduct." The dismissal decision was based upon
Brewington's consumption of alcoholic beverages while on
duty, and her untruthfulness during the internal
receiving the dismissal letter, Brewington appealed the
SBI's decision to the DPS's Employment Advisory
Committee (EAC). As part of the grievance process, Brewington
submitted two "Employee/Witness" forms requesting
that Sullivan and Mansfield be permitted to appear as
voluntary witnesses at the EAC Hearing. This request was
denied. On 25 August 2015, the EAC heard Brewington's
appeal, and considered the internal investigation file, the
polygraph examination report, and other statements and
evidence that Brewington presented on her own behalf. The EAC
also considered the statements that Sullivan and Mansfield
gave to the SBI. In a memorandum dated 7 September 2015, the
EAC "found that [while] the dismissal letter specified
that Ms. Brewington was dismissed for consuming alcohol, . .
. the evidence presented during the hearing indicated that
she purchased alcohol on duty." The EAC concluded that
this distinction was significant. Although the EAC recognized
that "both purchasing and consuming alcohol on duty . .
. constituted Unacceptable Personal Conduct[, ]" it
ultimately recommended that Brewington's dismissal be
EAC's memorandum was issued, the SBI's Deputy
Director, Janie Sutton, was charged with issuing a final
recommendation to SBI Director B.W. Collier concerning
Brewington's dismissal. In carrying out this
responsibility, Deputy Director Sutton considered the
internal investigation file, spoke with Special Agent in
Charge Perry and his staff, consulted with the SBI's
legal counsel, and reviewed the EAC's memorandum. Deputy
Director Sutton also spoke with
immediate supervisor and reviewed the portion of
Brewington's personnel file that pertained to three
previous disciplinary actions. Brewington had been given
written warnings for "Unsatisfactory Job
Performance" in August 2013 and September 2014,
respectively, for failing to "properly store and secure
evidence" that was under her control and for failing to
"complete criminal investigative reports and case
assignments in a timely manner." On 4 March 2015,
Brewington was demoted from the position of "Agent III
to Agent II" for, inter alia, failure to comply
with certain North Carolina criminal discovery statutes (by
neglecting to turn over certain discoverable materials to the
appropriate District Attorneys' Offices in several cases)
and for a continuing failure to timely complete investigative
reports and activities. After completing her independent
inquiry into the matter and conferring with Director Collier,
Deputy Director Sutton recommended that Brewington's
dismissal be upheld.
September 2015, Director Collier issued the SBI's final
agency decision, which upheld Brewington's dismissal.
Director Collier's decision was based upon the following
The facts indicate that you not only violated SBI policy and
procedure by consuming alcoholic beverages during the work
day; but you were not truthful during the internal
investigation process, which is also a violation of SBI
policy and procedure. Each of the offenses standing alone is
just cause for your dismissal for [unacceptable] personal
conduct, especially in light of your disciplinary history.
You could just as well be dismissed for unsatisfactory job
performance. . . .
Given the fact that you have been given multiple
opportunities to conform your performance and conduct to the
expected norms of this organization, and you have failed to
do so, I do not believe that another demotion or even a
suspension or written warning will serve any additional
On 21 October 2015, Brewington filed a petition for a
contested case hearing in the OAH. The case was heard on 11
and 12 January 2016 before Senior Administrative Law Judge
(ALJ) Fred G. Morrison, Jr. In a Final Decision entered 29
March 2016, ALJ Morrison made the following pertinent
findings of fact:
14.Collier recalled a man arriving toward the end of her
lunch with Petitioner, who stayed at the table briefly but he
did not sit down or order food and drinks. Collier left
shortly after the man arrived. Collier's recollection of
her interaction with this man is consistent with
Petitioner's oral statements to Special Agent in Charge
Kanawha Perry (SAC Perry) made during her May 20, 2015,
investigative interview that her friend Michael Mansfield
arrived near the end of Collier's and her lunch after
Collier and she had already eaten their lunch and that
"Mansfield met Collier just before she left."
15.Collier did not remember seeing the man order mixed drinks
or drink beer, or there being any beer on the table during
her time at lunch. She only recalls seeing the two mixed
drinks ordered by Petitioner while they ate lunch together.
Collier opined that had the man sat down and ordered and
consumed beer she would have remembered it. Collier's
testimony in this regard is credible.
. . .
22. Petitioner's testimony that Mansfield arrived at the
restaurant "around three o'clock, if not a little
before" . . .; that Mansfield came in about midway
through her meal with Collier and sat down while they
finished their meal. . .; and that Mansfield ordered a beer
as soon as he sat down and then "continued to order
another beer" while Petitioner and Collier were
finishing their meal . . . is not credible in that it
conflicts with the statements made by Petitioner to SAC Perry
listed in Finding of Fact 14 and with Collier's testimony
listed in Findings of Fact 14 and 15. Collier's testimony
is more credible.
23.Petitioner's testimony that her friend Mike Mansfield
ordered and consumed all of the alcoholic beverages listed on
the Sports Zone receipt that she paid with her debit card is
not credible, in that it is not reasonable to believe that
Mansfield ordered and/or consumed three beers and two mixed
alcoholic drinks in the approximate 30 minute time period
between 3:28 p.m. when Collier paid her bill and left the
restaurant, and 3:57 p.m. when Petitioner paid her bill.
24. It is more likely than not that Mansfield ordered and
drank the three beers while Petitioner drank her second mixed
drink after Collier left the restaurant. . . .
28. It is more likely than not that Petitioner drank
alcoholic beverages while armed and on official duty on
September 3, 2014, and made untrue statements to SBI agents
during the course of her investigative interview on May 20,
2015. . . .
31. Based on all of the information that she reviewed, Sutton
recommended to Director Collier that Petitioner be dismissed.
Director Collier adopted that recommendation and designated
authority to Sutton to sign the agency's final agency
decision dismissing her. She was dismissed from the SBI for
unacceptable personal conduct for consuming alcohol while on
duty and being untruthful when questioned about the matter
during the internal investigation. . . .
32.Sutton, on behalf of the SBI, considered the seriousness
of the offenses and Petitioner's disciplinary history
which included multiple written warnings (for unsatisfactory
work performance) and a recent demotion (for unacceptable
personal conduct and unsatisfactory job performance) in
determining the appropriate sanction for Petitioner's
unacceptable personal conduct. Based on these considerations,
Sutton determined that Petitioner's conduct warranted
dismissal and she continued to hold that position on behalf
of the SBI at hearing.
Based on these and other findings, ALJ Morrison concluded
that "substantial evidence" presented at the
hearing established that Brewington "consumed an
alcoholic beverage during her September 3, 2014 lunch"
with Collier, and that Brewington "made untrue
statements to SBI agents during her investigative interview
on May 20, 2015[.]" ALJ Morrison then concluded that DPS
had shown by the preponderance of the evidence that it had
just cause to terminate Brewington for unacceptable personal
now appeals from ALJ Morrison's Final Decision.
Standard of Review
Section 150B-51 of our State's Administrative Procedure
Act (APA) establishes the scope and standard of review that
we apply to the final decision of an administrative agency.
Harris v. N.C. Dep't of Pub. Safety, No.
COA16-341, __ N.C.App. __, __, 798 S.E.2d 127, 133, 2017 WL
900037 (Mar. 7, 2017). The APA authorizes this Court to
affirm or remand an ALJ's final decision, N.C. Gen. Stat.
§ 150B-51(b) (2015), but such a decision may be reversed
or modified only
if the substantial rights of the petitioners may have been
prejudiced because the findings, inferences, conclusions, or
(1)In violation of constitutional provisions;
(2)In excess of the statutory authority or jurisdiction of
the agency or [ALJ];
(3)Made upon unlawful procedure;
(4)Affected by other error of law;
(5)Unsupported by substantial evidence admissible under G.S.
150B-29(a), 150B-30, or 150B-31 in view of the entire record
as submitted; or
(6) Arbitrary, capricious, or an abuse of discretion.
Id. The particular standard applied to issues on
appeal depends upon the nature of the error asserted.
"It is well settled that in cases appealed from
administrative tribunals, questions of law receive de
novo review, whereas fact-intensive issues such as
sufficiency of the evidence to support an agency's
decision are reviewed under the whole-record test."
N. Carolina Dep't of Env't & Nat. Res. v.
Carroll, 358 N.C. 649, 659, 599 S.E.2d 888, 894 (2004)
(brackets, quotation marks and citation omitted).
end, we review de novo errors asserted under
subsections 150B-51(b)(1)-(4). N.C. Gen. Stat. §
150B-51(c) (2015). Under the de novo standard of
review, the reviewing court "considers the matter anew
and freely substitutes its own judgment[.]"
Carroll, 358 N.C. at 660, ...