in the Court of Appeals 13 March 2019.
by respondent from order entered 30 October 2017 by Judge
Donald W. Stephens in Wake County, No. 09 CVS 18049 Superior
McGuinness Law Firm, by J. Michael McGuinness, for
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Tammera S. Hill, for respondent-appellant.
Richards, P. A., by Norris A. Adams, II, for Amicus Curiae
North Carolina Fraternal Order of Police.
the superior court properly determined respondent did not
have just cause to terminate petitioner, we affirm the
superior court's ruling.
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
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
Respondent [noted its first appeal to this Court].
Id. at 377-78, 726 S.E.2d at 922.
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). This Court vacated and remanded the case