ROGER D. DAVIS,
Petitioner
v
.
NORTH CAROLINA DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY,
DIVISION OF STATE HIGHWAY PATROL
Respondent
C. Gary Triggs and Curt J. Vaught for petitioner-appellant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Isaac T. Avery, III, for the State.
EAGLES, Chief Judge.
Roger Davis (“petitioner”) appeals from the trial court's
order affirming the State Personnel Commission's (“Commission”)
Decision and Order upholding his demotion. On appeal, petitioner
contends that the trial court, the Commission, and the
Administrative Law Judge erred in concluding that there existed
just cause for his demotion. After careful consideration of the
record and briefs, we disagree and affirm the trial court.
The evidence tends to show the following. Petitioner had
served as a member of the North Carolina State Highway Patrol
(“Highway Patrol”), a division of the North Carolina Department of
Crime Control and Public Safety, for approximately twenty-seven
years. On 12 September 1996, petitioner was a First Sergeant withthe Highway Patrol. On the morning of 12 September 1996,
petitioner and his wife were packing their vehicles for a trip to
Myrtle Beach, South Carolina. At 12:00 p.m., petitioner consumed
one 12 ounce can of beer. Shortly thereafter, petitioner and his
wife, driving separate vehicles, left their residence. The couple
drove approximately 130 miles and stopped at a convenience store.
While in the parking lot of the convenience store, petitioner
consumed a hot dog and two 12 ounce cans of beer. Petitioner
placed the empty beer cans on his vehicle's floorboard and resumed
his trip.
At approximately 2:30 p.m., Trooper C.S. Grubbs was patrolling
U.S. Highway 64 when he observed petitioner's vehicle traveling at
a high rate of speed. After confirming with his radar unit that
petitioner's vehicle was traveling 70 miles per hour in a 55 miles
per hour zone, Trooper Grubbs activated his blue lights and
followed petitioner. Petitioner stopped his vehicle on the
shoulder of U.S. Highway 64, approximately 13.8 miles from the
convenience store where he consumed the two beers, and Trooper
Grubbs approached the vehicle.
While conversing with petitioner, Trooper Grubbs detected an
odor of alcohol on petitioner's breath. Trooper Grubbs asked
petitioner if he had been drinking, and petitioner admitted that he
drank one beer at home and two beers at the convenience store.
Trooper Grubbs also noticed a cooler on the vehicle's right front
floorboard and one empty beer can on the floorboard between
petitioner's feet. Trooper Grubbs asked petitioner to perform afield sobriety test which he did. Trooper Grubbs formed the
opinion that petitioner was not appreciably impaired.
Nevertheless, Trooper Grubbs decided to administer an alco-
sensor test. The first test resulted in an alcohol concentration
of 0.09, and the second test, administered five to six minutes
later, resulted in an alcohol concentration of 0.08. Trooper
Grubbs did not arrest petitioner for impaired driving, but he did
tell petitioner not to drive. Petitioner left the scene with his
wife driving his vehicle. The couple left their other vehicle on
the shoulder of the highway.
Trooper Grubbs reported the 12 September 1996 incident to his
immediate supervisor, and the incident report was communicated up
through the chain of command. Subsequently, a Highway Patrol
Internal Affairs investigation was conducted, and petitioner,
petitioner's wife, and Trooper Grubbs, inter alia, were
interviewed. At the conclusion of the investigation, it was
recommended that petitioner be demoted to the rank of Line Sergeant
with a corresponding salary reduction. A pre-demotion conference
was held on 25 February 1997.
Petitioner timely filed an appeal to the Secretary of the
North Carolina Department of Crime Control and Public Safety. The
Secretary convened an Employee Advisory Committee, which
recommended that petitioner be reinstated to the rank of First
Sergeant. The Secretary considered the Committee's recommendation,
but the Secretary upheld petitioner's demotion due to his personal
misconduct. Petitioner filed a petition for a contested case hearing, and
a hearing was held before Administrative Law Judge Sammie Chess,
Jr. By Recommended Decision entered 27 May 1998, Administrative
Law Judge Chess affirmed petitioner's demotion. In so doing,
Administrative Law Judge Chess concluded that there was just cause
to demote petitioner pursuant to (1) G.S. § 20-138.1 (impaired
driving) and (2) North Carolina State Highway Patrol Directive
F.1, Section IV (unbecoming conduct). Petitioner next appealed to
the State Personnel Commission.
By Decision and Order entered 14 October 1998, the Commission
adopted the Administrative Law Judge's findings and conclusions and
affirmed his Recommended Decision. Thereafter, petitioner filed a
petition for judicial review. A hearing was held during the 16
January 2001 Civil Session of Catawba County Superior Court, the
Honorable L. Oliver Noble, Jr., presiding. The trial court
affirmed the Commission's Decision and Order by order entered 24
January 2001. Petitioner appeals.
At the outset, we note that respondent North Carolina
Department of Crime Control and Public Safety has on two occasions
moved to dismiss this appeal alleging petitioner's untimely notice
of appeal. Nevertheless, in our discretion under N.C. R. App. P.
21, we deny respondent's motions and treat petitioner's appeal as
a petition for writ of certiorari.
In his brief, petitioner contends that the trial court “failed
to properly review the record using the 'whole record test' and
therefore erred in the entry of its order on January 24, 2001affirming the final decision and order of the North Carolina State
Personnel Commission.” In essence, petitioner argues that the
Highway Patrol did not have “just cause” under G.S. § 126-35 to
warrant his demotion. After careful review, we disagree.
Pursuant to G.S. § 126-35(a), “[n]o career State employee
subject to the State Personnel Act shall be discharged, suspended,
or demoted for disciplinary reasons, except for just cause.”
“'Just cause' is a legal basis, set forth by statute, for the
termination [or demotion] of a State employee, and requires the
application of legal principles. Thus, its determination is a
question of law.” Gainey v. N.C. Dept. of Justice, 121 N.C. App.
253, 259 n.2, 465 S.E.2d 36, 41 n.2 (1996), but see N.C. Dept. of
Correction v. Myers, 120 N.C. App. 437, 441, 462 S.E.2d 824, 827
(1995) (applying “whole record” test in reviewing whether just
cause existed to demote State employee). “We review questions of
law de novo.” Staton v. Brame, 136 N.C. App. 170, 174, 523 S.E.2d
424, 427 (1999).
Here, the trial court stated in its order that it reviewed
petitioner's petition for judicial review under the “whole record”
test. Additionally, petitioner now requests that this Court review
the Commission's decision under the “whole record” test. However,
“the manner of our review is [not] governed merely by the label an
appellant places upon an assignment of error; rather, we first
determine the actual nature of the contended error, then proceed
with an application of the proper scope of review.” Amanini v.
N.C. Dept. of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d114, 118 (1994). “[W]here the initial reviewing court should have
conducted de novo review, this Court will directly review the State
Personnel Commission's decision under a de novo review standard.”
Id. at 677, 443 S.E.2d at 119.
As noted above, a trial court's “determination of whether a
termination [or demotion] was for 'just cause' based upon personal
misconduct is a question of law, and [] questions of law are to be
reviewed de novo.” Souther v. New River Area Mental Health, 142
N.C. App. 1, 4, 541 S.E.2d 750, 752, aff'd, 354 N.C. 209, 552
S.E.2d 162 (2001); see also Amanini, 114 N.C. App. at 678, 443
S.E.2d at 120. “We will employ the proper standard of review
regardless of that employed by the reviewing trial court.”
Souther, 142 N.C. App. at 4, 541 S.E.2d at 753.
“'De novo' review requires a court to consider a question
anew, as if not considered or decided by the agency.” Amanini, 114
N.C. App. at 674, 443 S.E.2d at 118. Here, competent evidence
before this Court shows that petitioner was sworn to uphold the law
as a member of the Highway Patrol; that petitioner had written
thousands of criminal citations for speeding and had arrested
motorists for impaired driving and other alcohol-related violations
during his twenty-seven years with the Highway Patrol; that
petitioner drank three beers within a two and a half hour period on
12 September 1996; that petitioner proceeded to drive after
drinking the three beers; that petitioner exceeded the posted speed
limit while driving; that petitioner had an odor of alcohol on his
breath; that two alco-sensor tests administered on petitionerregistered 0.09 and 0.08 alcohol concentration readings
respectively. Moreover, petitioner readily admitted that he drank
three beers in a two and a half hour period and that he was driving
60 to 62 miles per hour in a 55 miles per hour zone when he was
stopped by Trooper Grubbs.
Under the State Personnel Act, G.S. § 126-1 et seq., “[a]ny
employee may be demoted as a disciplinary measure. Demotion may be
made on the basis of either unsatisfactory or grossly inefficient
job performance or unacceptable personal conduct.” 25 N.C.A.C. §
1J.0612(a). Moreover, “[a]n employee may be demoted for
unacceptable personal conduct without any prior disciplinary
action.” 25 N.C.A.C. § 1J.0612(a)(3). Unacceptable personal
conduct includes “conduct unbecoming a state employee that is
detrimental to state service.” 25 N.C.A.C. § 1J.0614(i)(5).
Additionally, the Highway Patrol has a written policy that
provides:
Members shall conduct themselves at all times,
both on and off duty, in such a manner as to
reflect most favorably upon the Highway Patrol
and in keeping with the high standards of
professional law enforcement. Unbecoming
conduct shall include any conduct which tends
to bring the Patrol into disrepute, or which
reflects discredit upon any member(s) of the
Patrol, or which tends to impair the operation
and efficiency of the Patrol or of a member,
or which violates Patrol policy.
North Carolina State Highway Patrol Directive F.1, Section IV. The
primary mission of the Highway Patrol is to ensure highway safety.
To accomplish that mission in part, the Highway Patrol admonishes
members of the general public not to drink and drive. Here,petitioner was demoted for unacceptable personal conduct for
violating the Highway Patrol's policy.
After conducting our de novo review, we conclude that
substantial competent evidence supports the conclusion that the
Highway Patrol had just cause to demote petitioner for unbecoming
conduct pursuant to North Carolina State Highway Patrol Directive
F.1, Section IV. Having determined that substantial competent
evidence supports the Highway Patrol's decision to demote
petitioner pursuant to Highway Patrol Directive F.1, Section IV, we
need not address petitioner's argument that the Commission erred in
concluding that the Highway Patrol had just cause to demote him
pursuant to G.S. § 20-138.1 (impaired driving).
Parenthetically, we note that the result here would have been
the same even if we had reviewed the decision below utilizing the
“whole record” test. “The 'whole record' test requires the court
to examine all competent evidence comprising the 'whole record' in
order to ascertain if substantial evidence therein supports the
administrative agency decision.” Dorsey v. UNC-Wilmington, 122
N.C. App. 58, 62, 468 S.E.2d 557, 560 (1996). In examining the
“whole record,” we would hold that the Highway Patrol's decision
here is supported by substantial evidence and was neither arbitrary
nor capricious.
Accordingly, we affirm the trial court.
Affirmed.
Judges McGEE and TYSON concur.
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