NO. COA06-756

NORTH CAROLINA COURT OF APPEALS

Filed: 3 July 2007

PATROL,
    Respondent

    Appeal by respondent (“Highway Patrol”) from judgment entered 28 March 2006 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 25 January 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Lorrin Freeman, for the State.

    The Edmisten & Webb Law Firm, by William Woodward Webb, for petitioner-appellee.

    CALABRIA, Judge.

    On 24 July 2002, Edward Keith Royal (“Royal”), an off-duty North Carolina Highway Patrol Trooper, observed Dana Pope (“Officer Pope”), an officer with the Fayetteville Police Department (“FPD”), masquerading as a prostitute in an undercover sting.     Royal was unaware that Officer Pope was an undercover police officer when he stopped his truck to speak with her. Officer Pope asked Royal if he was a police officer and he said no. Officer Pope then asked Royal if he was looking for a good time. She asked him how much money he had and he responded that he had $20. Officer Pope asked Royal if she was worth $20 and he said he guessed she was. Officer Pope asked Royal what he wanted for $20 and he shrugged his shoulders. She then asked him what his wife did not do for him anymore and he said, “A blow job.”
    Officer Pope asked Royal if he wanted oral sex for $20 and although he never gave a verbal answer, Officer Pope stated that he did nod his head, which could have indicated to her that he was responding positively. Officer Pope then directed Royal to pull into a vacant dirt parking lot down South King Street where she would meet him. Officer Pope then signaled to other members of the undercover team, alerting them that all the elements of the crime had been completed. Royal drove his truck toward the vacant dirt lot, but turned left instead of right and did not pull into the lot.
    Officer C.M. Pruitt (“Officer Pruitt”) of the FPD pulled Royal over and subsequently escorted Royal to meet Sergeant Ruff (“Sergeant Ruff”) of the FPD. Sergeant Ruff testified that Royal told him he thought Officer Pope was “a single girl and that he wasplaying around.” Sergeant Ruff alerted Lieutenant David A. Sportsman (“Lieutenant Sportsman”) that a member of the Highway Patrol had been detained for soliciting a crime against nature. Lieutenant Sportsman decided not to charge Royal with a crime out of “professional courtesy,” but brought the matter to the attention of Sergeant Parham (“Sergeant Parham”) of the Highway Patrol.
    Following an Internal Affairs investigation, the North Carolina Department of Crime Control and Public Safety, State Highway Patrol (“Highway Patrol”) on 16 August 2002 charged Royal with failing to conform to the law and conduct unbecoming an officer. Colonel R.W. Holden (“Colonel Holden”), head of the Division of the State Highway Patrol, dismissed Royal from his position as a Highway Patrol Trooper. The Employee Advisory Committee and the Secretary of the North Carolina Department of Crime Control and Public Safety each affirmed Colonel Holden's decision. Royal filed a contested case challenging his dismissal under N.C. Gen. Stat. § 126-34 (2005) and 25 N.C.A.C. 1J. 0603.
    On 25 June 2003, the Administrative Law Judge issued a recommendation concluding that the Highway Patrol had just cause to discipline Royal for engaging in unacceptable personal conduct, but determined that the Highway Patrol treated Royal unfairly by dismissing him, rather than suspending or demoting him, given that the Highway Patrol had treated similarly situated employees moreleniently. The Administrative Law Judge recommended that the dismissal be reversed and another disciplinary action substituted.
    On 12 November 2003, the State Personnel Commission (“SPC”) accepted the administrative law judge's findings that Royal had engaged in unacceptable personal conduct, but rejected the judge's determination that Royal should receive a lesser punishment. On 21 November 2003 Royal appealed the SPC's decision to Wake County Superior Court. On 4 November 2004, Judge Narley L. Cashwell entered a final judgment reversing the SPC's decision. However, Judge Cashwell failed to conduct a de novo review of the record under N.C. Gen. Stat. . 150B-51(c) (2005) , and this Court remanded the case for entry of appropriate findings of fact and conclusions of law. On 28 March 2006, Judge Cashwell entered a second order reversing the SPC's decision. From that order, the Highway Patrol appeals.
        In reviewing a final decision in a contested case in which an administrative law judge made a decision, in accordance with G.S. 150B-34(a), and the agency does not adopt the administrative law judge's decision, the court shall review the official record, de novo, and shall make findings of fact and conclusions of law. In reviewing the case, the court shall not give deference to any prior decision made in the case and shall not be bound by the findings of fact or the conclusions of law contained in the agency's final decision. The court shall determine whether the petitioner is entitled to the relief sought in the petition, based upon its review of theofficial record. The court reviewing a final decision under this subsection may adopt the administrative law judge's decision; may adopt, reverse, or modify the agency's decision; may remand the case to the agency for further explanations under G.S. 150B-36(b1), 150B-36(b2), or 150B-36(b3), or reverse or modify the final decision for the agency's failure to provide the explanations; and may take any other action allowed by law.

Gen. Stat. . 150B-51(c) (2005).
     Here, we previously determined that the trial court must review the record de novo and make appropriate findings of fact and conclusions of law. We are satisfied that the trial court has now made such findings and conclusions in its 28 March 2006 order. We now review whether those findings and conclusions were proper.
    We review a Superior Court's order reviewing an administrative agency action the same as other civil cases. N.C. Gen. Stat. . 150B-52 (2005). In reviewing an order from the Superior Court, we review the official record de novo. N.C. Gen. Stat. § 150B-51(c) (2005). This requires a two-step analysis. We must first determine whether the findings of fact are supported by substantial evidence. N.C. Gen. Stat. § 150B-52 (2005). “'Substantial evidence' means relevant evidence a reasonable mind might accept as adequate to support a conclusion.” N.C. Gen. Stat. . 150B-2(8b) (2005).            We then determine whether the conclusions are supported by the findings and correct as a matter of law. Lincoln v. N.C. Dep't. Of Health and Human Servs., 172 N.C. App. 567, 570, 616 S.E.2d 622, 624 (2005).
     Specifically, Judge Cashwell found, in relevant part, that Royal observed Officer Pope and believed she was a prostitute or was trying to act like a prostitute. He further found that although Royal engaged in conversation of a sexual nature with Officer Pope, Royal never offered to give Officer Pope money in exchange for oral sex. Based on these findings, Judge Cashwell concluded that there was no just cause supporting Royal's termination.
    On appeal, the Highway Patrol initially argues that the Superior Court erred by not considering whether the Highway Patrol had just cause to dismiss Royal for a violation of its policy on unbecoming conduct. We disagree.

    The Highway Patrol argues that the trial court based its decision on Royal's having not broken any laws, but ignored the SPC's determination that he engaged in conduct unbecoming an officer. The record, however, is clear that Judge Cashwell
considered and rejected both charges against Royal. Finding of Fact 12 clearly sets forth the charge against Royal for unbecoming conduct, and the factual allegation underlying that charge isidentical to the one underlying the charge that he violated the law by soliciting a crime against nature. Judge Cashwell concluded that the factual allegations forming the basis for both charges were unsubstantiated by the record. As such, this assignment of error is overruled.
    The Highway Patrol next contends that the trial court erred in finding the Highway Patrol did not have just cause to dismiss Royal for a violation of its policy requiring conformance to laws in that Royal committed the criminal offense of soliciting a crime against nature. However, Judge Cashwell in his findings of fact determined that there was insufficient evidence in the record to substantiate the commission of a crime. This finding was supported by the testimony of Officer Pope, who stated that she understood Royal wanted oral sex from her for $20, but that Royal never explicitly stated this desire. Determining that an “understanding” of a non- verbal “indication” was insufficient to support a finding that Royal solicited a crime against nature, Judge Cashwell concluded the allegations against Royal could not be substantiated by the record. After reviewing the record, we determine that the trial court's findings of fact are supported by substantial evidence, although there is evidence to the contrary.
    Specifically, Royal testified that he never intended to solicit a sex act for money and in fact never agreed to pay $20 fororal sex. Officer Pope also testified that Royal never voiced an offer of money for sex, but stated that he “nodded his head in a manner that indicated” he agreed to such an arrangement. Further, Royal seemed to admit soliciting a crime against nature during an Internal Affairs investigation. However, we have held that “[S]ubstantial evidence is such 'relevant evidence as a reasonable mind might accept as adequate to support a conclusion,' even if contradictory evidence may exist.” Cape Med. Transp., Inc. v. N.C. Dep't of Health & Human Servs., 162 N.C. App. 14, 22, 590 S.E.2d 8, 14 (2004) (citations omitted). Since there was substantial evidence in the record to support Judge Cashwell's findings, it is immaterial that there was contrary evidence. This assignment of error is overruled.
    The Highway Patrol lastly argues the trial court exceeded its authority in ordering Royal reinstated to a non-law enforcement position. North Carolina General Statute . 126-37 (1993) provides a mechanism for a wrongfully terminated employee to be reinstated:
        The State Personnel Commission is hereby authorized to reinstate any employee to the position from which the employee has been removed, to order the employment, promotion, transfer, or salary adjustment of any individual to whom it has been wrongfully denied or to direct other suitable action to correct the abuse which may include the requirement of payment for any loss of salary which has resulted from the improperlydiscriminatory action of the appointing authority.

Id. The North Carolina Administrative Code defines reinstatement as
        the return to employment of a dismissed employee, in the same or similar position, at the same pay grade and step which the employee enjoyed prior to dismissal. Reinstatement may also refer to the promotion of a demoted employee to the same pay grade and step as the employee was demoted from.

25 N.C.A.C. 1B.0428 (2006).
    The Highway Patrol, noting that Royal lost his law enforcement certification following his encounter with Officer Pope, contends there is nothing in the record to suggest whether the Highway Patrol has any non-law enforcement positions to which Royal could be reinstated. As previously stated, North Carolina General Statute . 150B-51(c) (2005) gives a trial court considerable discretion in ordering an employee's reinstatement. Here, the trial court had the authority to order Royal reinstated despite the loss of his law enforcement certification. This assignment of error is overruled. As we have determined Judge Cashwell's decision was correct, we need not address the Highway Patrol's argument that Judge Cashwell erred by determining that the Highway Patrol acted arbitrarily and capriciously.
    Affirmed.    Judges McCULLOUGH and GEER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***