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Warren v. N.C. Department of Crime Control and Public Safety/North Carolina Highway Patrol

Court of Appeals of North Carolina

September 17, 2019

JOHN BAKER WARREN, Petitioner,
v.
N.C. DEPARTMENT OF CRIME CONTROL AND PUBLIC SAFETY/NORTH CAROLINA HIGHWAY PATROL, Respondent.

          Heard in the Court of Appeals 13 March 2019.

          Appeal by respondent from order entered 30 October 2017 by Judge Donald W. Stephens in Wake County, No. 09 CVS 18049 Superior Court.

          The McGuinness Law Firm, by J. Michael McGuinness, for petitioner-appellee.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Tammera S. Hill, for respondent-appellant.

          Essex Richards, P. A., by Norris A. Adams, II, for Amicus Curiae North Carolina Fraternal Order of Police.

          BRYANT, JUDGE.

         Where the superior court properly determined respondent did not have just cause to terminate petitioner, we affirm the superior court's ruling.

         The full background of this case is set forth by this Court in Warren v. N.C. Dep't of Crime Control & Pub. Safety; N.C. Highway Patrol (Warren I), 221 N.C.App. 376, 726 S.E.2d 920 (2012). The facts and procedural history relevant to this appeal are as follows:

On 7 October 2007, the North Carolina State Highway Patrol (the "Patrol"), a division of the North Carolina Department of Crime Control and Public Safety ("respondent"), dismissed Sergeant John Baker Warren ("petitioner"). The dismissal was based on the Patrol's determination that petitioner had engaged in unacceptable personal conduct in an alcohol-related incident.
Shortly after midnight on 9 September 2007, petitioner stowed an open bottle of vodka in the trunk of his Patrol-issued vehicle and drove to a party. He could have used his personal vehicle, but he elected not to because he was concerned that he would wake his aunt (with whom he was residing at the time) in an effort to get the keys to his personal vehicle. After petitioner arrived at the party, deputies of the Nash County Sheriff's Office were called because of an altercation between two women. The deputies arrested petitioner, who had consumed a significant amount of alcohol at some point that evening, because they believed he was already impaired before driving to the party.
After an investigation by Internal Affairs, the Patrol dismissed Petitioner for violating the Patrol's written policies on "conformance to laws" and "unbecoming conduct." Petitioner filed a contested case petition challenging his termination. The administrative law judge ("ALJ") found that the Patrol failed to prove just cause for termination but acknowledged that some discipline was appropriate. The State Personnel Commission ("SPC") adopted the ALJ's findings of fact but rejected the ALJ's conclusion of law that termination was inappropriate. Petitioner appealed to Wake County Superior Court.
The [superior] court reversed the SPC, concluding Petitioner's conduct did not justify termination. The [superior] court concluded that petitioner violated the Patrol's written [policy for] conduct unbecoming [] by operating a state-owned vehicle after consuming "some quantity of alcohol." The [superior] court also concluded that petitioner did not violate the Patrol's written conformance to laws policy because there was insufficient evidence to establish that he was appreciably impaired at the time he operated a motor vehicle upon the highways of this state. The [superior] court held as a matter of law that petitioner's conduct did not justify dismissal. The case was remanded to the SPC for imposition of discipline "consistent with the lesser misconduct proven."
Respondent [noted its first appeal to this Court].

Id. at 377-78, 726 S.E.2d at 922.

         Respondent's first appeal was heard before a panel of this Court and a written opinion issued on 19 June 2012. Noting that respondent's specific disciplinary sanction must constitute just cause based on petitioner's specific misconduct, this Court in Warren I required the superior court on remand to resolve the conflict between the ALJ's finding of fact (that respondent failed to prove petitioner drove his Patrol vehicle with any alcohol in his system) and the superior court's finding (that petitioner consumed some amount of alcohol prior to driving).[1] This Court vacated and remanded the case ...


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