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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
JAMES DONOGHUE, Petitioner, v. NORTH CAROLINA DEPARTMENT OF
Filed: 19 October 2004
Public Officers and Employees-_demotion of probation and parole officer-_allegations of
Use of either the de novo review or whole record test reveals that the trial court did not
err by failing to find that petitioner probation and parole officer engaged in grossly inefficient
job performance by allowing a probationer to travel out of state and by failing to make weekend
curfew checks of other probationers, because: (1) the Department of Corrections (DOC) failed to
show that petitioner failed to perform his job satisfactorily when the terms of the probationary
judgment regarding the probationer's travel were ambiguous, and it would have been the better
practice for the sentencing court to state more clearly whether out-of-state travel was prohibited;
(2) although the pertinent DOC manual does have language which prohibits out-of-state travel
for cases like the probationer's except in emergency situations with specific approval, these
guidelines seem to be inconsistent with testimony from judges, prosecutors, and public defenders
who indicate that probation officers have discretion in supervising the terms of probation
including the decision of whether to allow out-of-state travel; and (3) even though petitioner
failed to make weekend curfew checks of other probationers, petitioner was scheduled to work
forty hours per week and usually completed his hours before the weekend began, he attended
many evening treatment sessions to monitor probationers' treatment, his supervisor for over ten
years was aware that petitioner was not working weekends since petitioner submitted regular
employee time reports and the supervisor never suggested this was problematic, and petitioner
was carrying a caseload of sixty probationers even though the recommended number of cases
was twenty-five when the program was set up.
Appeal by respondent from order entered 24 June 2003 by Judge
Nathaniel J. Poovey in Mecklenburg County Superior Court. Heard in
the Court of Appeals 20 May 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Neil C. Dalton and Assistant Attorney General Joseph
Finarelli, for the North Carolina Department of Correction
Lesesne & Connette, by Edward G. Connette, for petitioner
Petitioner James L. Donoghue began working at the North
Carolina Department of Correction (DOC) on or about 15 July 1983. During the course of his career, Donoghue established a good
reputation for his work as a probation and parole officer. He was
the first officer in North Carolina to create a specialized
caseload of sex offenders. Donoghue was also instrumental in
developing a list of sex offender conditions of probation, and
the legislature adopted a number of his recommendations statewide.
On or about 12 March 2001, Donoghue was assigned to supervise
a sex offender, M.V. There was some conflicting evidence regarding
whether M.V. was allowed to travel out of state. First, the
probationary judgment was ambiguous. The trial judge imposed the
regular conditions of probation which are codified at N.C. Gen.
Stat. § 15A-1343(b)(2003). Under that statute, M.V. had to
[r]emain within the jurisdiction of the court unless granted
written permission to leave by the court or his probation officer.
N.C. Gen. Stat. § 15A-1343(b)(2). However, in another portion of
the judgment, the trial court ordered that M.V. is not to leave
the State of North Carolina during the term of probation. To
complicate matters further, the DOC's policies and procedures
manual states that offenders subject to Level I Intermediate
Punishment are not allowed to travel out-of-state except in
emergency situations with the specific approval of either the court
or the Post-Release Supervision and Parole Commission.
M.V. asked for Donoghue's permission to travel outside of
North Carolina for his job as a computer software salesman. Afterreviewing the judgment, various departmental policies, and the
procedures manual, Donoghue authorized the out-of-state travel.
On 18 June 2001, the mother of M.V.'s victim complained
because she believed that allowing M.V. to travel out of state was
improper. On 20 June 2001, the Assistant Judicial District Manager
over Donoghue, Cynthia Mitchell, received a phone call from a DOC
senior official requesting an investigation.
Mitchell conducted an investigation which reviewed Donoghue's
entire caseload. Based on this investigation, Donoghue was demoted
from his PPO III position to a PPO I position. This demotion
carried a five percent reduction in salary and was based on
grossly inefficient job performance, to wit: your failure to
properly supervise offenders[.] The demotion focused primarily on
Donoghue's supervision of M.V., and to a lesser extent, his failure
to conduct weekend supervision of other probationers.
In January of 2002, Donoghue filed a Petition for Contested
Case hearing with the Office of Administrative Hearings. The
presiding Administrative Law Judge (ALJ) conducted a contested case
hearing and determined that the DOC failed to prove by the greater
weight of the evidence that Donoghue had been demoted for just
cause. The DOC appealed this decision to the State Personnel
Commission (SPC). On 16 December 2002, the SPC issued its Decision
and Order rejecting the decision of the ALJ and upholding the DOC's
demotion of Donoghue. Donoghue filed a Petition for Judicial
Review in Mecklenburg County Superior Court. On 24 June 2003,
Judge Nathaniel J. Poovey issued an order which determined thatDonoghue's actions did not rise to the level of grossly
inefficient job performance. The DOC appeals.
On appeal, the DOC argues that the superior court erred by
failing to find that Donoghue engaged in grossly inefficient job
performance. We disagree and affirm the decision of the trial
I. Standard of Review
Chapter 150B of the North Carolina General Statutes addresses
judicial review of administrative agency decisions. Henderson v.
N.C. Dept. of Human Resources,
91 N.C. App. 527, 530, 372 S.E.2d
887, 889 (1988). The standard of review that this Court utilizes
is mentioned in N.C. Gen. Stat. § 150B-52 (2003). Amended in
2000, the current version of the statute states:
A party to a review proceeding in a
superior court may appeal to the appellate
division from the final judgment of the
superior court as provided in G.S. 7A-27. The
scope of review to be applied by the appellate
court under this section is the same as it is
for other civil cases. In cases reviewed under
G.S. 150B-51(c), the court's findings of fact
shall be upheld if supported by substantial
This case falls under N.C. Gen. Stat. § 150B-51(c)(2003)
because that section applies when the agency does not adopt the
administrative law judge's decision[.] Here, although the ALJ
issued a decision favoring the employee, the SPC rejected that
decision and sided with the DOC. Normally, we would uphold thedecision if the trial court's findings of fact were supported by
This case, however, is more complicated because the trial
court did not utilize the correct standard of review when
considering the final agency decision. N.C. Gen. Stat. § 150B-
51(c) states that the [trial] court shall review the official
record, de novo, and shall make findings of fact and conclusions of
law. Here, the trial court utilized a whole record test instead
of conducting de novo
review when evaluating the Commission's
findings. Therefore, the issue is whether, as a result of this
error, we should employ de novo
review instead of the substantial
evidence test mentioned in N.C. Gen. Stat. § 150B-51(c).
(See footnote 1)
There is some precedent for using de novo
review. In Amanini
v. N.C. Dept. of Human Resources,
114 N.C. App. 668, 677, 443
S.E.2d 114, 118 (1994), this Court noted that where 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. More recently, we articulated
this same principle in Davis v. N.C. Dep't of Crime Control & Pub.
151 N.C. App. 513, 565 S.E.2d 716 (2002). There, the trial
court applied the whole record test erroneously when reviewing anagency's decision to demote a member of the North Carolina State
Highway Patrol. Id.
at 513-16, 565 S.E.2d at 717-19. On appeal,
this Court utilized the de novo
standard of review. Id.
565 S.E.2d at 719.
We do not need to make a definitive determination regarding
which standard of review to employ. Under either standard, de novo
review or the more deferential framework articulated in N.C. Gen.
Stat. § 150B-52, we would affirm the decision of the trial court.
II. Legal Background
Pursuant to N.C. Gen. Stat. § 126-35(a)(2003), [n]o career
State employee subject to the State Personnel Act shall be
discharged, suspended, or demoted for disciplinary reasons, except
for just cause. In contested cases conducted pursuant to Chapter
150B of the General Statutes, the burden of showing that a career
State employee subject to the State Personnel Act was discharged,
suspended, or demoted for just cause rests with the department or
agency employer. N.C. Gen. Stat. § 126-35(d)(2003). The North
Carolina Administrative Code permits demotion for grossly
inefficient job performance without any prior disciplinary action.
N.C. Admin. Code tit. 25, r. 1J.0612(a)(2)(June 2004). The Code
also defines Gross inefficiency (Grossly Inefficient Job
A type of unsatisfactory job performance that
occurs in instances in which the employee:
fails to satisfactorily perform job
requirements as specified in the job
description, work plan, or as directed by the
management of the work unit or agency; and,
that failure results in:
(1) the creation of the potential for
death or serious bodily injury to an
employee(s) or to members of the public or to
a person(s) over whom the employee has
N.C. Admin. Code tit. 25, r. 1J.0614(f) (June 2004). Thus, the DOC
must prove that (1) the employee failed to perform his job
satisfactorily and (2) that failure resulted in the potential for
death or serious bodily injury. Id. With these principles in
mind, we turn to consider the assignment of error on appeal.
III. Grossly Inefficient Job Performance
The DOC first argues that Donoghue engaged in grossly
inefficient job performance by allowing a probationer to travel out
of state. We disagree.
he DOC has not shown that Donoghue failed to perform his job
satisfactorily because the terms of the probationary judgment
regarding M.V.'s travel were ambiguous. The trial judge imposed
the regular conditions of probation which are set forth in N.C.
Gen. Stat. § 15A-1343(b) (2003). Under that statute, M.V. had to
[r]emain within the jurisdiction of the court unless granted
written permission to leave by the court or his probation officer.
N.C. Gen. Stat. § 15A-1343(b)(2). However, in its judgment, the
trial court also ordered that M.V. is not to leave the State of
North Carolina during the term of probation.
The DOC asserts that the court's more stringent prohibition
against out-of-state travel supercedes the regular condition of
probation which authorized out-of-state travel if M.V. receivedpermission from the court or his probation officer. It cites a
portion of N.C. Gen. Stat. § 15A-1343(b)(11) which states:
Regular conditions of probation apply to
each defendant placed on supervised probation
unless the presiding judge specifically
exempts the defendant from one or more of the
conditions in open court and in the judgment
of the court.
Whether the sentencing judge intended to specifically exempt
defendant from the regular condition of probation that authorized
travel is an open question. However, we understand, as the trial
court did, why Donoghue would be confused after reading an order
which appears to say two entirely different things. It would have
been the better practice for the sentencing court to state more
clearly whether out-of-state travel was prohibited. Furthermore,
we accept Donoghue's explanation that he tried to find consistency
in the two statements:
And, when I read that [the court's
statement that M.V. is not to leave North
Carolina during the term of his probation], I
interpreted that to mean stay in the state of
North Carolina to be supervised, not transfer
out of the state of North Carolina to be
supervised by another state. That's what I
read - took that to mean. I didn't take it to
mean he's not allowed to travel out of state
because there are other conditions that
allowed him to travel out of state contained
in the judgment. So I looked at all these
conditions and weighed it, and that's what I
came up with.
Since the judgment of the sentencing court was ambiguous, we
do not believe that Donoghue engaged in grossly inefficient job
performance by permitting out-of-state travel. We also note that Donoghue was forced to evaluate other
conflicting information in deciding whether to authorize out-of-
state travel. The DOC's Division of Community Corrections Policies
and Procedures Manual (the Manual) does have language which
prohibits out-of-state travel for Level I Intermediate Punishment
cases like M.V.'s except in emergency situations with the specific
approval of either the court or the Post-Release Supervision and
Parole Commission[.] However, these guidelines, as written, seem
to be inconsistent with testimony from judges, prosecutors, and
public defenders who indicate that probation officers have
discretion in supervising the terms of probation, including the
decision of whether to allow out-of-state travel. The manual also
appears to conflict with the portion of the sentencing court's
judgment which authorized out-of-state travel with Donoghue's
Based on this information, we cannot conclude that Donoghue
failed to perform his job satisfactorily by allowing out-of-state
The DOC also contends that Donoghue's job performance was
unsatisfactory because he failed to make weekend curfew checks. We
do not agree. Evidence in the record reveals that Donoghue was
scheduled to work forty hours per week. Since many probationers
participated in evening treatment sessions, Donoghue attended such
sessions to monitor probationers' treatment. As a result of
working so many evening hours, Donoghue usually completed forty
hours before the weekend began. Moreover, Donoghue's supervisorfor over ten years was aware that Donoghue was not working weekends
because Donoghue submitted regular employee time reports. This is
significant because Donoghue's supervisor never suggested that this
was problematic when she conducted regular audits of Donoghue's
There was also evidence that Donoghue was carrying a caseload
of 60 probationers, even though the recommended number of cases was
25 when the program was set up. Donoghue simply had too many
cases, too much territory to cover, and too many job demands.
Under these circumstances, we cannot conclude that Donoghue engaged
in grossly inefficient job performance.
As we have stated, the outcome of this case does not hinge
upon which standard of review to employ. Our review of the record
indicates that the trial court made findings of fact that were
supported by competent evidence, and those findings, in turn,
supported the conclusions of law. Furthermore, even under the less
deferential de novo
standard of review, the result would be the
same. Therefore, the decision of the trial court is
Judges HUDSON and BRYANT concur.
We cannot be too critical of the trial court because the
legislature added Section 150B-51(c) to the North Carolina
Administrative Procedure Act in 2000. Cape Med. Transp., Inc. v.
N.C. Dep't of Health and Human Servs.,
162 N.C. App. 14, 21, 590
S.E.2d 8, 13 (2004). Additionally, both parties requested review
under the whole record test and
failed to call the recent
statutory amendment to the attention of the trial judge.
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