FILEDOFFICE OF ADMINISTRATIVE HEARINGS

08/18/2021 11:59 AM

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STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 20 OSP 03329__________________________________________________________________

TABITHIA L. DAVIS, )Petitioner )

)v. )

) FINAL DECISIONN.C. DEPARTMENT OF ) PUBLIC SAFETY; NORTH )CAROLINA HIGHWAY PATROL, )

Respondent )__________________________________________________________________

This Contested Case was heard before Beecher R. Gray, Temporary

Administrative Law Judge, on March 2-4, 2021, in the Durham County

Courthouse Durham, North Carolina. The Parties stipulated on the record as a

preliminary matter that each Party received proper notice of hearing more than 15

days prior to the hearing under G.S. 150B-23 (b) and (c). Petitioner’s draft

Proposed Decision was filed in the OAH on 23 July 2021; Respondent’s draft

Proposed Decision was filed in the OAH on 13 August 2021. Both parties filed

multiple motions for extensions of time to submit draft Proposals, for reasons

which the undersigned, in the exercise of discretion, allowed as extraordinary

under the provisions of Rule 26 NCAC 03 .0118(b). Both Petitioner’s and

Respondent’s Proposed Decisions were considered in the development of this

Final Decision.

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APPEARANCES OF COUNSEL

PETITIONER: Law Office of John P. O’Hale, PAJohn P. O’Hale, Esq.Post Office Box 2383Smithfield, North Carolina 27577

The McGuinness Law FirmJ. Michael McGuinness Post Office Box 952 Elizabethtown, N.C. 28337

RESPONDENT: North Carolina Department of JusticeBryan Grant Nichols Norlan Graves Assistant Attorney GeneralsPost Office Box 629Raleigh, N.C. 27602

ISSUES

1. Whether Respondent DPS proved that it had just cause to terminate Petitioner's employment based upon the totality of all facts and circumstances.

2. Whether Respondent DPS offered substantial evidence to prove each element of the alleged truthfulness violation.

3. Whether an inaccurate statement predicated upon memory loss constitutes a willful truthfulness violation.

4. Whether Respondent DPS proved a violation of its excessive force policy sufficient for the imposition of discipline.

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5. Whether the alleged excessive force violation was subject to dismissal for insufficient evidence and the failure to provide evidentiary support for each element of the alleged offense.

Statutes and Rules in Issue

General Statutes Chapters 126, 150B, and Rules 26 NCAC Chapter 03.

EXHIBITS ADMITTED

Petitioner’s Exhibits 1-12 and Respondent’s Exhibits A-Y were admitted into the record in this contested case hearing.

WITNESSES

Respondent called and obtained testimony from Tabithia Davis, Bob Coble, Justin Gourley, Michael Shannon Whaley, Charles Victor Ward, and Glenn McNeill.

Petitioner called and obtained testimony from Jason Perdue, Dr. Moira Artigues, Joseph Gaskins, Don Cole, Larry Robinson, Sheri Oates, Joe Bright, Loretta Mainquist, and Tyrone Ross. Petitioner conducted an in depth cross-examination of Tabithia Davis.

FINDINGS OF FACT

BASED UPON careful consideration of the sworn testimony of the witnesses presented, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following Findings of Fact and Conclusions of Law. In making the Findings of Fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interest, bias, or prejudice the witness

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may have, the opportunity of the witness to see, hear, know, or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case.

1. The Petitioner, Tabithia Davis, was born in Georgetown, South Carolina, in December of 1980 and graduated from high school in 1999 (T pp. 64-65).

2. Prior to the Petitioner’s employment with the North Carolina State Highway Patrol, she worked in an insurance call center in South Carolina where she oversaw 350 employees (T p. 36). Petitioner is a college graduate and, while employed with the North Carolina State Highway Patrol, she furthered her education and was working on a Master’s degree. Following her separation from the Highway Patrol, the Petitioner obtained a Master’s degree in public administration (T pp. 35-36).

3. Petitioner always wanted to be a police officer (T p. 65). She entered the North Carolina Highway Patrol Training Academy in October of 2013 and graduated from patrol school in May of 2014 (T p. 65). Two weeks following her graduation from patrol school, Petitioner began her field training under the supervision of Troopers Matt Cape and Andrew Knight (T p. 68).

4. During patrol school, the Petitioner did not receive any specific training on the use of a flashlight as a weapon. However, she was trained in the use of an asp baton and the Highway Patrol policy characterizes both the asp baton and flashlight as impact weapons (T pp. 65-66).

5. The Petitioner believes that her field training process lasted four months (T p. 68). Upon her successful completion of her field training, she was placed on the road for a period of approximately two months (T p. 69). After spending two months working in that capacity, she was given a special assignment and was transferred to the State Capitol to

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perform security for the Capitol (T p. 69). She worked in that capacity for a period of one year (T p. 70).

6. Following Petitioner’s one-year special assignment at the State Capitol, she was then assigned to the Governor’s mansion where she worked until November of 2017 (T p. 70). Petitioner accumulated a substantial period of comp time while working at the Governor’s mansion. Following the completion of her assignment at the Governor’s mansion, she had approximately 1½ months off from work. The Petitioner returned to her regular duties as a State Trooper in February of 2018 (T p. 71).

7. The incident that gives rise to the instant case took place on April 3, 2018. Prior to that date, the Petitioner never had been involved in any physical altercation during the course of her employment as a North Carolina State Trooper (T pp. 71-72).

8. On April 3, 2018, the Petitioner was working her assigned second shift which she recalls being from a period of 3:00 p.m. until 2:00 a.m. (T p. 72). Sometime in the evening hours of that shift, Petitioner and Troopers Bumgardner and Blake went for a coffee break at the Starbucks coffee shop. Trooper Bumgardner left that break early and Blake and Petitioner remained. Petitioner heard on her patrol radio that Bumgardner reported that he was going to be out with an individual in the roadway. Davis and Blake exited the Starbucks coffee shop at which time Petitioner heard a radio call wherein Trooper Bumgardner asked for emergency assistance (T p. 73).

9. The Petitioner and Trooper Blake responded to Trooper Bumgardner’s location and both troopers activated the blue light and siren on their marked North Carolina Highway Patrol cars (T pp. 73-74). Petitioner recalls that it took approximately two minutes to arrive at their destination (T p. 74).

10. When Petitioner and Trooper Blake arrived at the scene, there were multiple vehicles in the highway; it was the Petitioner’s recollection that there were approximately seven Raleigh Police Officers at that

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location. Additionally, Troopers Bumgardner, Blake and the Petitioner were on scene (T p. 74).

11. Trooper Blake exited his vehicle and stationed himself in the middle of the roadway and the Petitioner placed herself to his right side (T p. 74). When Petitioner walked up to the area where Kyron Hinton was located, she could hear yelling or a “chant.” Also present at this time was a Wake County Sheriff’s Deputy who had a K-9 with him (T p. 74).

12. The Wake County Sheriff’s Deputy (identified as Deputy Broadwell) was issuing commands to Kyron Hinton. Mr. Hinton was in the travel portion of the highway. Petitioner knew that, under North Carolina General Statute 20-174.1, no person is allowed to stand in the highway so as to impede the regular flow of traffic (T p. 75).

13. When the Petitioner observed Kyron Hinton standing in the roadway, he had something in his hand and was focusing on the dog. Mr. Hinton was completely ignoring all the officers and was just chanting (T pp. 75-76).

14. Deputy Broadwell walked up to him and issued commands to Kyron Hinton. Deputy Broadwell told Mr. Hinton to get to the ground but Mr. Hinton disregarded the officer’s command. (T p. 76).

15. The Petitioner had no input whatsoever regarding Deputy Broadwell’s actions with his K-9. The incident happened really fast. When the deputy walked up to Mr. Hinton and issued his commands, he let the dog go when Mr. Hinton refused to follow his commands. (T p. 76).

16. The dog latched onto Mr. Hinton on his side or around his hip area. At that time, the deputy grabbed Mr. Hinton on the upper part of his body and started pulling Mr. Hinton to the ground. Once Mr. Hinton and the deputy were on the ground, everybody converged on the area. It was like a pile-up (T p. 77).

17. Petitioner approached Mr. Hinton who appeared to be on his back. Mr. Hinton was holding his own against everyone but was mainly focused on the dog; Mr. Hinton struck the dog. He punched the dog

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multiple times in his face. He also was pulling at the dog’s jaw and the skin on the dog. Eventually, the canine released Mr. Hinton or the dog was removed from Mr. Hinton (T p. 77).

18. Petitioner understood that it was her duty under North Carolina law to go to the aid of another officer who was involved in the confrontation. Petitioner knew that it was a crime under North Carolina law to assault a law enforcement dog. Petitioner was going to the aid of fellow officers who were involved in a confrontation with Kyron Hinton and at a time Kyron Hinton was assaulting a law enforcement dog. Numerous officers who were on the scene were not able to subdue or gain control over Kyron Hinton. Everyone was having difficulty. They were trying get Mr. Hinton’s arms at a time that Mr. Hinton had both his hands on the dog attacking the dog while the officers were pulling at Mr. Hinton’s arms (T pp. 78-82).

19. Petitioner has no recollection of striking Kyron Hinton with her flashlight (T p. 79).

20. On April 3, 2018, Sergeant Joseph Gaskins (now Lieutenant Gaskins) was the District First Sergeant for Wake County, North Carolina. Sergeant Gaskins was off-duty and at his residence on April 3, 2018, when he was notified by Line Sergeant Goswick of the incident involving Kyron Hinton. Goswick told Gaskins that no trooper utilized force in the encounter with Kyron Hinton (T pp. 245-246).

21. Later, Sergeant Gaskins viewed a video of the events in question taken from a Raleigh Police car and observed the Petitioner striking Hinton with a flashlight. Sergeant Gaskins telephoned the Petitioner and informed her that she needed to amend her Member’s Statement to reflect the new information and file a Use of Force report (T pp. 248-250).

22. When Sergeant Gaskins called the Petitioner, the Petitioner reacted with complete surprise and shock. The Petitioner’s response was memorable to Sergeant Gaskins because it appeared that the Petitioner was truly surprised by the Sergeant’s information that the Petitioner struck Mr. Hinton with a flashlight. It is Sergeant Gaskins’ genuine

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belief that the Petitioner did not know that she struck Kyron Hinton with her flashlight (T pp. 249-251).

23. When Sergeant Gaskins telephoned the Petitioner and informed her that, based upon his review of a Raleigh Police camera video, the Petitioner struck Kyron Hinton with her flashlight; the Petitioner initially thought that her First Sergeant was wrong, and she was in disbelief (T pp. 79-80). The Petitioner has no recollection of ever making a statement on April 3, 2018, to Trooper Gourley that she struck Kyron Hinton with a flashlight (T p. 93).

24. During his long career as a North Carolina State Trooper, then First Sergeant Gaskins had interviewed hundreds of people while performing investigations and doing collision reconstruction. Sergeant Gaskins believed Petitioner’s statement that she did not know she struck Kyron Hinton (T p. 250).

25. Lieutenant Whaley (now Captain Whaley) and Sergeant Chavis conducted an Internal Affairs investigation. Throughout the entire process, the Petitioner cooperated with Internal Affairs and, after viewing the video of her actions, she readily acknowledged that she struck Kyron Hinton in the head with her flashlight. However, Petitioner consistently maintained that she had no recollection of that event occurring (T pp. 93-193).

26. During the Internal Affairs investigation, no one ever suggested to the Petitioner that she should see a doctor or that she should consult a psychiatrist for a psychiatric evaluation (T p. 93). Notably, the Petitioner never was offered a polygraph examination (T p. 94).

27. Prior to the events of April 3, 2018, the Petitioner never had been disciplined by the Highway Patrol (T p. 93). The Petitioner was employed by the North Carolina Highway Patrol for more than two years and she meets the criteria for the career status of a state employee (T pp. 106-107).

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PETITIONER’S CHARACTER FOR TRUTHFULNESS

28. Jason Perdue is a retired North Carolina Highway Patrolman. Currently, he is employed as a State Capitol Police Officer. Mr. Perdue was employed by the North Carolina State Highway Patrol from 1995 until March of 2020 (T p. 128). Mr. Perdue was assigned to the Governor’s Mansion for twelve years under Governors Easley, Perdue, and McCrory (T p. 129). During his assignment at the Governor’s Mansion, Jason Perdue worked with the Petitioner for about one year (T p. 129).

29. Based upon his working relationship with the Petitioner, Mr. Perdue formed an opinion that the Petitioner was truthful (T p. 130).

30. District First Sergeant Joseph Gaskins was the Petitioner’s superior. First Sergeant Gaskins (now Lieutenant Gaskins) formed an opinion as to the Petitioner’s character for truthfulness. He had no reason to believe that the Petitioner was not truthful. She was smart, articulate, and a pleasure to work with (T p. 249).

31. Larry Robinson is a retired North Carolina State Highway Patrolman. Prior to his employment with the State Highway Patrol, Mr. Robinson spent 21½ years in the United States Army. He retired as a Sergeant First Class, Senior NCO (T p. 277).

32. During the last years of his career as a North Carolina State Highway Patrolman, Mr. Robinson was assigned to the Governor’s Mansion. Mr. Robinson served with the Petitioner for a period of one year at the Governor’s Mansion and, during that time, interacted with then Trooper Davis on a regular basis (T p 278).

33. Former Trooper Robinson, based on his interaction with her, found that Petitioner was extraordinarily honest, full of integrity, and truthful at all times (T p. 279).

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34. Sheri Oates is a resident of Raleigh, North Carolina and is employed by Spectrum. Ms. Oates is a friend of the Petitioner and has known the Petitioner for eight years (T pp. 427-428).

35. Ms. Oates has visited in the Petitioner’s home and the Petitioner has visited in Ms. Oates’ home. Based upon Ms. Oates’ long-term friendship with the Petitioner, she formed an opinion regarding the Petitioner’s character for truthfulness. Ms. Oates opined that the Petitioner is one of the most honest people that she knows (T pp. 428-429).

36. Loretta Mainquist resides in Louisburg, North Carolina, and was employed as a receptionist at the State Capitol building. She met Petitioner when the Petitioner was assigned to provide security at the State Capitol (T p. 430).

37. Ms. Mainquist had a working relationship with and developed a friendship with the Petitioner, whom she would see on a daily basis (T pp. 430-431).

38. Ms. Mainquist opined that the Petitioner is a good girl and one of the most truthful and very honest people that she knows. (T pp. 432-433).

39. Tyrone Ross retired from the Highway Patrol with the rank of Captain. He met the Petitioner when the Petitioner was in the Highway Patrol Basic School. Former Captain Ross recommended the Petitioner for a position at the State Capitol and also was familiar with the Petitioner when she was assigned to the Governor’s Mansion for approximately one year (T p. 434).

40. Former Captain Ross opined that he formed an opinion regarding the Petitioner’s character for truthfulness and testified:

She’s above board, I never have had a problem with her, whether it was in basic school or at the Capitol or the Governor’s Mansion.

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41. Captain Ross opined that the Petitioner was truthful (T p. 434-435).

42. Joe Bright, Jr. resides in Raleigh, North Carolina and retired from the North Carolina Highway Patrol with the rank of First Sergeant after a twenty-six-year career. Mr. Bright knows the Petitioner. He first came to know the Petitioner when she was a cadet and he was the Assistant Commandant at the Highway Patrol Basic School (T pp. 436-437).

43. Retired First Sergeant Bright opined that the Petitioner is a truthful person (T p. 437).

44. Glenn McNeill was the Commander of the North Carolina Highway Patrol. Mr. McNeill was employed by the Highway Patrol from May of 1994 until his retirement in 2021.

45. Mr. McNeill acknowledged that he knows the Petitioner, Tabithia Davis. Mr. McNeill is familiar with the Petitioner because former Captain Ross spoke highly of the Petitioner. Mr. McNeill had occasion to interact with the Petitioner when she was employed with the Highway Patrol and would speak with her. Former Colonel McNeill observed that the Petitioner always was “mannerable” (sic) and he had no issues with her whatsoever (T pp. 389-390).

46. This Court finds as a fact that the Petitioner Davis enjoys a good reputation for truthfulness and that she is believable, credible, and truthful. Petitioner Davis’ testimony and statements were credible and believable and are therefore entitled to substantial weight. Petitioner Davis acted in good faith in the performance of her duties.

EXPERT MEDICAL EVIDENCE OF DR. MOIRA ARTIGUES

47. Dr. Moira Artigues was qualified without objection as an expert witness in the fields of general psychiatry and forensic psychiatry (T p. 210) (FN1). Dr. Artigues is a general forensic psychiatrist in private

1 See Dr. Artigues’ CV identified as Petitioner’s Exhibit No. 5 (T pp. 208-209).

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practice. Dr. Artigues graduated from the Medical University of South Carolina and then completed a four-year residency at Duke University in psychiatry. Following her four-year residency, she completed a year of training in forensic psychiatry at the federal prison in Butner, North Carolina. Dr. Artigues is a licensed medical doctor whose North Carolina license is in good standing (T pp. 205-210).

48. Dr. Artigues read the Petition for Contested Case Hearing and the interviews conducted by Internal Affairs with the Petitioner. Moreover, Dr. Artigues met with the Petitioner on two separate occasions.

49. Dr. Artigues issued an opinion letter in this case on January 24, 2021. Dr. Artigues opined that there is ample evidence to support the Petitioner’s repeated contention that she did not recall striking Kyron Hinton during the incident that occurred on April 3, 2018. In her expert medical opinion, to a degree of medical certainty in accordance with her education, training, and clinical experience, as well as abundant medical literature, Dr. Artigues opined that it is highly likely that the Petitioner genuinely does not recall striking Mr. Hinton. (FN2)

50. Dr. Artigues’ expert opinion is based on the following:

A. The crime scene on 04/03/2018 was highly complex, both in terms of numbers of law enforcement personnel present and the intense level of activity of Mr. Hinton and around Mr. Hinton. Incidents involving this level of detail, complexity, and commotion challenge anyone’s recollection of details, due to the overwhelming nature of the stimulation and potential for distraction and loss of concentration.

B. Ms. Davis had little experience, either in her personal history or on the job, of the incidents of this level of emotional intensity. Ms. Davis only had been on

2 See report of Dr. Artigues introduced into evidence as Petitioner’s Exhibit 5 (T p. 212)

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patrol duty for about four months prior to being moved to duty at the Governor’s Mansion, a setting in which high-intensity incidents are rare. She only had been back on patrol for three months when the instant event occurred.

C. By her own report, she had not been party to an incident which effected this degree of emotional arousal on the job, a claim supported by the setting in which most of her NCHP career had taken place. She repeatedly asserted her lack of experience with this type of incident during her interviews with the NCHP and in her meeting with me.

D. High degrees of emotional arousal are well-known to cause lapses in memory. The way that Ms. Davis described her memory during the interview of 05/29/2018, as a “hit and miss” memory pattern, is consistent with the medical literature on traumatic memory as well as my clinical experience. This type of memory pattern, known as fragmented memory, in which a person recalls events in flashes of memory, is a hallmark of traumatic memory. A traumatic memory is any memory of an especially emotionally arousing event.

E. Much of the literature relating to memory fragmentation is associated with the study of posttraumatic stress disorder (PTSD), which is always preceded by emotionally arousing events. Among the symptoms of the criteria for both Acute Stress Disorder (ASD, the syndrome that often precedes the development of PTSD) and PTSD within the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) is “Inability to recall important aspects of the traumatic event(s).” The memory impairment associated with emotionally arousing events is well-established in the medical literature.

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F. While Ms. Davis did not have ASD and does not have PTSD, she did describe a feeling of being in “shock” after the events of 04/03/2018. She reported to me, as well as the interviewers from the NCHP, a loss of memory for other events of that night. For example, she said she had no recollection of driving back to the NCHP station, and little to no recollection of her interactions with others at the station. This is commonly seen after emotionally arousing events.

G. In retrospect, Ms. Davis felt she should have waited until she did not have the feeling of being in shock prior to making her statement.

H. Ms. Davis has repeatedly stated that she does not recall striking Mr. Hinton. When she was confronted with video and audio evidence supporting this claim, she did not attempt to deny or minimize her actions. Rather, she promptly took responsibility for actions she was told she had done. She has steadfastly asserted that she does not recall striking Mr. Hinton, in interviews with the NCHP and with Dr. Artigues.

51. It is Dr. Artigues’ expert opinion that it is very likely that Tabithia Davis is reporting genuine memory loss related to her striking Kyron Hinton during the evening of 4/3/2018.

52. There was no evidence offered by Respondent to refute Dr. Artigues’ professional opinions, diagnosis, and expertise.

53. The report, testimony, and expert opinions of Dr. Artigues were credible, believable, and helpful to a better understanding of the issues in this case, including issues regarding the memory and conduct of Petitioner Davis. Dr. Artigues’ expert medical evidence was highly relevant and probative of medical and forensic psychiatry issues pertinent to just cause factors in this case.

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TESTIMONY OF LIEUTENANT COLONEL CHARLES VICTOR WARD

54. Charles Victor Ward formerly was employed by the North Carolina Highway Patrol. He joined the Patrol in May of 1990 and retired with the rank of Lieutenant Colonel on October 1, 2019 (T pp. 281-283).

55. It is Lieutenant Colonel Ward’s recollection that the Highway Patrol was first notified of the incident involving the Petitioner and other State Troopers by way of a phone call from Raleigh Chief of Police Sandra Deck-Brown. Chief Deck-Brown notified Colonel McNeill of the incident (T pp. 302-303; T pp. 309-311).

56. Lieutenant Colonel Ward made the decision to fire the Petitioner (T pp. 322-324).

57. Lieutenant Colonel Ward watched the video of the events in question and agrees that Kyron Hinton was standing in the middle of the highway and that is a violation of North Carolina law. Lieutenant Colonel Ward acknowledged that he observed Kyron Hinton assaulting a law enforcement dog and that also is in violation of North Carolina law (T pp. 326-327). Lieutenant Colonel Ward also acknowledged that, under North Carolina law, there is a duty for a law enforcement officer to go to the assistance of another officer (T p. 327).

58. Lieutenant Colonel Ward acknowledged there was a North Carolina Highway Patrol policy that a trooper must obey the law and, if the Petitioner had not gone to the aid of her fellow officers, she possibly could have been disciplined for not obeying the law (T pp. 327-328).

59. Based upon Lieutenant Colonel Ward’s review of the video of the event in question, Lieutenant Colonel Ward acknowledged that it was the Wake County deputy who unleased the K-9 on Kyron Hinton and he further agreed that Mr. Hinton may have been under the influence of drugs or alcohol (T pp. 327-328). Lieutenant Colonel Ward was aware that Highway Patrol investigators reviewed the investigative report

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prepared by the North Carolina State Bureau of Investigation, but Ward does not believe he ever viewed that report (T pp 328-329).

60. Lieutenant Colonel Ward also was aware that Mr. Hinton had suffered injuries prior to the April 3, 2018, incident (T p. 329).

61. Lieutenant Colonel Ward agrees that, when State Troopers arrived on the scene, there were numerous officers present including Raleigh Police officers, a Wake County Sheriff’s deputy, and a State Trooper. Lieutenant Colonel Ward further acknowledges that when the officers arrived, they found Mr. Hinton to be displaying combative and nonresponsive actions and that Mr. Hinton was talking in tongues, rambling incoherently, and displaying what was described as either insane or superhuman strength (T p. 336).

62. Troopers Bumgardner, Davis, and Blake were confronted by an individual who was acting in the manner as described by Lieutenant Colonel Ward (T p. 336). The K-9 was released by the Wake County Sheriff’s Deputy and the Raleigh Police officers, the State Troopers, and the Wake County Sheriff’s deputies tried to subdue Mr. Hinton. A number of officers went to the aid of the Wake County Deputy and were trying to get Mr. Hinton under control. Lieutenant Colonel Ward agreed that the officers were under a duty to go to the assistance of fellow officers when the situation that they observed took place (T pp. 339).

63. Lieutenant Colonel Ward acknowledged that an assault on a law enforcement dog can be either a Class H felony, Class I felony, or a Class 1 misdemeanor depending on the force used against the dog. Ward also acknowledged that Mr. Hinton was assaulting a law enforcement dog and impeding traffic. Moreover, Ward agreed that Kyron Hinton had a significant criminal history (T pp. 339-341).

64. Lieutenant Colonel Ward admitted that, after the Petitioner finished her field training, within a short period of time, she was sent to work at the State Capitol and thereafter, she was sent to the Governor’s Mansion (T pp. 342-343). Lieutenant Colonel Ward understood that the Petitioner allegedly violated the truthfulness policy, but the Highway Patrol never requested that she submit to a medical evaluation or see a

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qualified psychiatrist. Moreover, the North Carolina Highway Patrol utilized polygraphs in employment examinations, but the Highway Patrol never requested the Petitioner to undergo a polygraph examination (T pp. 344-345). As a result of Lieutenant Colonel Ward’s training, he knows through studies that officers who have been involved in fights or shootings often have loss of short-term memory (T p. 348).

65. Lieutenant Colonel Ward believes that he may have looked at other cases involving troopers who may have used force, but he was unable to tell the Court which cases he examined or how many he reviewed (T pp. 352-353). Lieutenant Colonel Ward acknowledged that one of the reasons the Petitioner was dismissed from the Highway Patrol was based on the Petitioner’s use of her flashlight in striking Kyron Hinton. The reasons set forth in the dismissal indicated that the Petitioner’s use of force was not consistent with Trooper Davis’ training and was more than was reasonably necessary to effectively bring the incident under control and was not in strict conformance with the United States Constitution, State law, or Highway Patrol policy (T p. 366). The Petitioner’s personnel file revealed that she had never been disciplined before and that she had met all expectations (T p. 385).

66. Lieutenant Colonel Ward, in his decision-making process, never consulted the appropriate North Carolina General Statutes, Federal constitutional law or North Carolina case law (T pp. 385-386) Lieutenant Colonel Ward only consulted Highway Patrol policy pertaining to the use of force.

TESTIMONY OF COLONEL GLENN MCNEILL

67. Glenn McNeill joined the North Carolina Highway Patrol in 1993 and was named Colonel of the North Carolina Highway Patrol on February 2, 2017 (T p. 388).

68. Colonel McNeill first learned of the incident involving Kyron Hinton by way of a telephone call from Chief Deck-Brown of the Raleigh Police Department. Chief Deck-Brown told McNeill that a use of force incident had taken place involving multiple agencies and that it was

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being circulated on social media and that he needed to look at it because there were troopers present (T p. 391).

69. Colonel McNeill explained the process employed when terminating the trooper from the Highway Patrol and acknowledged that he upheld the decision to terminate Davis from the Highway Patrol (T pp. 395-405). Colonel McNeill received a telephone call from the Wake County District Attorney expressing concerns that the district’s troop leadership in Wake County was involved in systemic corruption, a cover-up, and that the District Attorney was concerned about the credibility of members involved in the Hinton case (T p. 413).

70. Colonel McNeill learned about Tabithia Davis from former Captain Ross. He received a glowing report concerning Tabithia Davis and, when this case came before Colonel McNeill for review, he was surprised and concerned about the case. Colonel McNeill never considered requesting the Petitioner to undergo a medical evaluation or a psychological evaluation or a psychiatric evaluation (T pp. 439-440). Colonel McNeill acknowledged that, under Highway Patrol policy, a violation of the truthfulness policy must be willful. That is, that an individual must know that what they are saying is not correct in order to constitute a willful misrepresentation (T pp. 440-441). Colonel McNeill never consulted any United States Supreme Court cases pertaining to the use of force, any North Carolina cases regarding the use of force, or any North Carolina General Statutes regarding a law enforcement officer’s use of force (T pp. 449-457). Colonel McNeill agreed that, under North Carolina law, an officer has the right to use such force as he or she may reasonably believe necessary in the proper discharge of his or her duties to effect subduing an individual or making an arrest (T p. 458).

71. Colonel McNeill also acknowledged that, under the law, an officer is presumed to be acting lawfully while in the exercise of his or her duties (T p. 459). He also agreed that, under North Carolina law, an officer has discretion to determine the amount of force required under the circumstances as they appear to him at the time the officer acted (T p. 459-460). Colonel McNeill requested, along with Chief Deck-Brown, that the Wake County District Attorney’s office request a SBI investigation regarding the use of force in the Hinton case. As of the date of the hearing

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in this case on March 4, 2021, Colonel McNeill indicated that the SBI investigation had not been concluded (T pp. 463-464). Colonel McNeill was aware that Kyron Hinton previously had been assaulted by three black males on April 1, 2018, at 1:22 a.m. at 500 Plaza Circle in Garner, North Carolina. Mr. Hinton was transported to Wake Medical Center as a result of his injuries in that attack. The Wake County Medical Center indicated that Mr. Hinton had multiple abrasions and contusions on his head and a one-centimeter laceration above his right eye. Mr. Hinton also had multiple signs of head and facial trauma. A computed tomography (CT) scan revealed a nasal bone fracture (T pp. 475-476).

72. Petitioner’s evidence and the testimonies of Petitioner’s witnesses were credible and believable.

73. Deputy SHP Commander Lt. Colonel C.V. Ward made the initial decision to terminate Petitioner’s employment. SHP Commander Glenn McNeill made the Final Decision to uphold Deputy Commander Ward’s decision to terminate Petitioner’s employment. Major Regan of the SHP issued a memo to the official decision makers in this case stating that “only termination is possible”.

CONCLUSIONS OF LAW

1. The parties properly are before the Office of Administrative Hearings. The parties were afforded proper and sufficient notice of hearing and the undersigned has jurisdiction to decide this contested State personnel case.

2. The alleged excessive force charge was dismissed upon Petitioner’s motion at the close of Respondent’s evidence. Respondent’s excessive force charge fails as a matter of law. Alternatively, Respondent’s excessive force charge has not been proven by a preponderance of the evidence.

3. Petitioner was charged with excessive force allegedly in violation of the Highway Patrol use of force policy. At the time of the subject incident, Petitioner was acting in the course and scope of her

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duties as a North Carolina State Trooper. Petitioner responded to the incident scene and began to assist in the apprehension and arrest of Mr. Hinton.

4. Petitioner specifically was requested to assist in Mr. Hinton’s apprehension based upon his course of actions including his resistance to being apprehended by a group of police officers. Petitioner had a legal duty to act to assist other police officers who were attempting to apprehend Mr. Hinton.

5. In the underlying incident, Petitioner used force by a flashlight, an instrument assigned to her by the Highway Patrol.

6. Numerous cases have demonstrated that there are special rules of law that apply to police conduct disputes involving use of force. E.g., Knox v. N.C. Criminal Justice Education and Training Standards Commission, 2014 WL 10794970 (May, ALJ). Knox provides an excellent review of police use of force principles. See Conclusions 23 – 30. Application of those principles here demonstrate that the force used was reasonable and appropriate, and not excessive in violation of policy or law.

7. The Supreme Court has explained that “[p]olice officers have a duty to apprehend lawbreakers.” Parish v. Hill, 350 N.C. 231, 513 S.E.2d 547, 550 (N.C. 1999); see State v. McMahan, 103 N.C. 379, 9 S.E. 489 (1889). “Police must pursue crime and constrain violence, even if the undertaking itself causes violence from time to time.” Menuel v. City of Atlanta, 25 F.3d 990, 997 (11th Cir. 1994).

8. The North Carolina appellate courts have long ago recognized that police officers are “called on to deal with violators of the law, and not infrequently to act in the presence of conditions importing serious menace . . .” State v. Dunning, 177 N.C. 559, 98 S.E.2d 530, 531 (1919); accord State v. Pugh, 101 N.C. 737, 7 S.E. 757 (1888). At least since 1841, the Court has a rich history of decisions recognizing the safety and legal interests of police officers as vital public servants with dangerous and legally risky jobs. E.g. State v. Stalcup, 2 Ired. 50, 24 N.C. 50, 1841

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WL 792 (N.C. 1841) (recognizing reasonable belief standard for excessive force claims).

9. The central issue in an alleged excessive force dispute is whether an objectively reasonable officer could have reasonably believed that the action taken was appropriate under the circumstances. See N.C.G.S. 15A-401(d) and the interpreting decisional law. E.g., Turner v. City of Greenville, 197 N.C. App. 562, 677 S.E.2d 480 (2009) (justification for police conduct depends upon what the officer “reasonably believes . . .”); Hunter v. Bryant, 502 U.S. 224, 227 (1991) (could have believed standard); Prior v. Pruett, 550 S.E.2d 166, 168 (N.C. App. 2001)(“could have believed” standard); Pittman v. Nelms, 87 F.3d 116, 120 (4th Cir. 1996)(could have believed standard).

10. Courts now routinely apply the “could have believed” standard in police conduct disputes. In Hunter v. Bryant, 502 U.S. 224, 227 (1991), the Supreme Court adopted the “could have believed” standard, which absolves the officer of liability, if a reasonable officer could have believed [the conduct in issue] to be lawful . . . ”

11. Our Court of Appeals explained that North Carolina law of use of force provides that "[a]n officer of the law has the right to use such force as he may reasonably believe necessary in the proper discharge of his duties to effect an arrest ... the officer is properly left with the discretion to determine the amount of force required under the circumstances as they appear to him at the time of the arrest." State v. Anderson, 40 N.C. App. 318, 321, 253 S.E.2d 248 (1979).

12. An officer "has discretion to determine the amount of force required under the circumstances as they appear to him at the time he acted." Todd v Creech, 23 N.C. App. 537, 209 S.E.2d 293, (1974); see Myrick v. Cooley, 91 N.C. App. 209, 371 S.E.2d 492 (1988).

13. North Carolina common law recognizes that “an officer is presumed to be acting lawfully while in the exercise of his official duties.” State v. Anderson, 253 S.E. 2d 48, 52 (N.C. App. 1979). The Supreme Court of North Carolina held: It is well settled that absent evidence to the contrary, it will always be presumed that public officials

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will discharge their duties in good faith and exercise their powers in accord with the spirit and purpose of the law. This presumption places a heavy burden on the party challenging the validity of public officials’ actions to overcome this presumption by competent and substantial evidence. Leete v. Cty. of Warren, 341 N.C. 116, 119, 462 S.E.2d 476, 478 (1995). Respondent’s evidence did not meet this “heavy burden” of proof. There was no sufficient evidence to overcome the presumption.

14. The reasonableness of arrest and force decisions are predicated upon what the officer on the scene perceived. E.g., Graham v. Connor, 490 U.S. 386, 395 (1989), which explained: “The reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

15. In Saucier v. Katz, 533 U.S. 194, 205 (2001), the Supreme Court reaffirmed the doctrine of mistaken beliefs as an insulating defense. As Saucier explained:

[P]olice officers are often forced to make split-second judgments - - in circumstances that are tense, uncertain, and rapidly evolving - - about the amount of force that is necessary in a particular situation, the reasonableness of the officer’s belief as to the appropriate level of force should be judged from that on-scene perspective. We set out a test that cautioned against the “20/20 vision of hindsight: in favor of deference to the judgment of reasonable officers on the scene. If an officer reasonably, but mistakenly believed that a suspect was likely to fight back, for instance, the officer would be justified in using more force than in fact was needed.”

16. The evaluation of use of force and arrest decisions involve an objective standard. Scott v. Harris, 550 U.S. 372, 381 (2007) (“The question we need to answer is whether Scott’s actions were objectively reasonable.”); Graham v. Connor, 490 U.S. 386, 396 (1989) (“The reasonableness of a particular use of force must be judged from the

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perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”).

17. The substantial evidence in this case reaffirms the principle that a law enforcement officer must aid and assist another officer who needs such assistance. In fact, N.C. Gen. Stat. § 20-114(b) states:

It shall be the duty of all sheriffs, police officers, deputy sheriffs, deputy police officers, and all other officers within the State to cooperate with and render all assistance in their power to the officers herein provided for, and nothing in this Article shall be construed as relieving said sheriffs, police officers, deputy sheriffs, deputy police officers, and other officers of the duties imposed on them by this Chapter.

18. Petitioner properly exercised the force related discretion afforded her by N.C.G.S. 15A-401(d) and decisional law. Petitioner reasonably could have believed that her use of her issued flashlight was appropriate under the totality of the circumstances. The evidence fails to demonstrate that Petitioner used excessive force under the totality of the existing circumstances confronting her.

19. Our Supreme Court has stated that every determination of whether a public employer’s decision to discipline its employee was supported by just cause “requires two separate inquiries: first, whether the employee engaged in the conduct the employer alleges, and second, whether that conduct constitutes just cause for the disciplinary action taken.” N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 665, 599 S.E. 2d 888, 898 (2004) (citation, quotation marks, and brackets omitted). “[T]he first of these inquiries is a question of fact . . . [and is] reviewed under the whole record test . . . [T]he latter inquiry is a question of law . . .[and] is reviewed de novo.” Carroll, 358 N.C. at 665-66, 599 S.E. 2d at 898.

20. In 2004, our Supreme Court decided Carroll and enunciated a multi-factored approach to analyze and decide just cause cases. Carroll and its progeny provide a mandatory analytical framework and

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methodology for state employers to fairly and properly investigate alleged policy or rule violations and impose discipline where there is just cause for such discipline. It is imperative that state employers follow and apply these principles so that disciplinary allegations can be fairly and properly considered with a resulting just conclusion and result.

THE WARREN FRAMEWORK AND WETHERINGTON FACTORS

21. Under the regulatory standard for “just cause” as set out in 25 N.C. Admin. Code C 01J.0604, a career State employee may be dismissed for grossly inefficient job performance or unacceptable personal conduct. 25 N.C. Admin. Code 01J.0604 (2019). “Just cause, like justice itself, is not susceptible of precise definition.” Carroll, 358 N.C. at 669, 599 S.E. 2d at 900. Warren held that “not every instance of unacceptable personal conduct as defined by the Administrative Code provides just cause for discipline.” Warren v. N.C. Dep’t of Crime Control & Pub. Safety, 221 N.C. App. 376, 382, 726 S.E. 2d 920, 925 (2012). In Warren, the Court of Appeals articulated a three-pronged approach to determine whether just cause exists to discipline an employee who has engaged in unacceptable personal conduct:

The proper analytical approach is to first determine whether the employee engaged in the conduct the employer alleges. The second inquiry is whether the employee’s conduct falls within one of the categories of unacceptable personal conduct provided by the Administrative Code. Unacceptable personal conduct does not necessarily establish just cause for all types of discipline. If the employee’s act qualifies as a type of unacceptable conduct, the tribunal proceeds to the third inquiry: whether that misconduct amounted to just cause for the disciplinary action taken.

Warren, 221 N.C. App. at 382, 726 S.E. 2d at 925.

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22. Warren was later appealed again and the Court of Appeals again applied the multi-factored commensurate discipline framework from Carroll. 267 N.C. App. 503, 833 S.E.3d 633 (2019).

23. Precedent from our Supreme Court also requires the review of certain analytical factors to determine whether unacceptable personal conduct warrants any discipline and the discipline imposed. In contemplating the just cause inquiry, a court must consider such factors as severity of the violation, the subject matter involved, the resulting harm, the trooper’s work history, and discipline imposed in other cases involving similar violations; collectively, the Wetherington factors.” Wetherington v. N.C. Dep’t of Crime Control and Pub. Safety, 368 N.C. 583, 592, 780 S.E. 2d 543, 548 (2015).

24. The Court of Appeals later heard Wetherington in a second appeal. 270 N.C. 161, 840 S.E.2d 812 (2020 Wetherington II). In Wetherington II, the Court of Appeals further stressed the importance and necessity of state employers to respect and fairly apply the just cause factors that our Supreme court mandated in Wetherington I. The undersigned has considered and applied the just cause factors as directed by the Supreme Court and Court of appeals.

25. Petitioner was a career State employee at the time of her dismissal, and therefore, entitled to the protections of the North Carolina State Personnel Act (N.C. Gen. Stat. §126-1 et seq.), and specifically the just cause provision of N.C. Gen. Stat. § 126-35.

26. N.C. Gen. Stat. § 126-35(a) provides that “[n]o career State employee subject to the State Human Resources Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.” Pursuant to N.C. Gen. Stat. § 126-35(d), in an appeal of a disciplinary action, the employer bears the burden of proving that “just cause” existed for the disciplinary action imposed with substantial evidence of each element of the charged offense.

27. Petitioner meets the threshold requirements for protection under the State Human Resource Act. Petitioner was a career State

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employee entitled to the protections of the North Carolina State Human Resource Act (N.C. Gen. Stat. 126-1 et. seq.).

28. N.C. Gen. Stat. 126-35(a) provides that “[n]o career state employee subject to the State personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.” NCDENR v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004) and its progeny provide the controlling just cause test. E.g., Wetherington v. N.C. Department of Public Safety, 780 S.E.2d 543 (N.C. 2015) (reaffirming Carroll and multi-factor just cause test; Wetherington v. N.C. Department of Public Safety, 270 N.C. App. 161, 840 S.E. 2d 812 (2020); Warren v. N.C. Dep't of Crime Control, 221 N.C. App 376, 726 S.E.2d 920, disc. review denied, 366 N.C. 408, 735 S.E.2d 175 (2012), 267 N.C. App. 503 (2019); N.C. Department of Public Safety v. Shields, 2016 WL 223682 (N.C. App. 2016), Bulloch v. N.C. Department of Crime Control and Public Safety, 732 S.E. 2d 373 (N.C. App. 2012), aff’g 05 O.S.P. 1178, 2010 WL 690232 (January 15, 2010); Beatty v. Jones, 721 S.E.2d 765 (N.C. App. 2012).

29. Carroll and its progeny provide that the first issue is whether the alleged misconduct actually occurred: “whether the employer engaged in the conduct the employer alleges.” 358 N.C. at 665; 599 S.E. at 898. The Respondent’s alleged untruthfulness charge fails this initial threshold issue. Petitioner was not willfully untruthful about a material matter; rather she experienced memory failure following a critical law enforcement encounter.

30. The employer’s burden is to prove the alleged misconduct with substantial evidence. “Just cause requires that an employer's decision be based on substantial evidence, which is ‘more than a scintilla or a permissible inference’ and cannot be established by ‘cherry picking’ the facts upon which the employer relies without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn.” Overton v. Goldsboro City Board of Education, 304 N.C. 312, 322, 283 S.E.2d 495, 501 (1981); Kandler v. Department of Correction, 80 N.C. App. 444, 451, 342 S.E.2d 910, 914 (1986); Thompson v. Wake County Board of Education, 292 N.C. 406, 414, 233 S.E.2d 538,

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544 (1977); Wiggins v. North Carolina Department of Human Resources, 106 N.C. App. 302, 306-07, 413 S.E.2d 3, 5-6 (1992).

31. In Carroll, the Supreme Court explained that just cause is a “flexible concept, embodying notions of equity and fairness, that only can be determined upon an examination of the facts and circumstances of each individual case.” 358 N.C. at 669. The Supreme Court concluded that not every violation of law gives rise to just cause for employee discipline.” 358 N.C. at 669. In Carroll, the Supreme Court explained that the fundamental question is whether the disciplinary action taken was just.” Id.

32. Traditional just cause analysis also requires consideration of whether the employer has conducted an appropriate and complete investigation of the totality of the relevant facts and circumstances. Bulloch, supra. Carroll requires consideration of the completeness and fairness of the underlying personnel investigation.

33. An inadequate, incomplete, or improper underlying personnel investigation may result in an arbitrary and capricious personnel decision. Scores of cases have condemned arbitrary and capricious public personnel decisions. E.g. Bulloch, supra; Weiman v. Updegraff, 344 U.S. 183, 192 (1952); Toomer v. Garrett, 155 N.C. App. 462 (2002); Johnson v. Branch, 364 F.2d 177 (4th Cir. en banc 1967). The Court of Appeals again condemned arbitrary personnel actions in Owens v. N.C. Department of Public Safety, 245 N.C, App. 230, 782 S.E.2d 787 (2016).

34. Applying the standards and principles of Carroll and its progeny to this case compels the conclusion that Respondent failed to carry its burden of proof of just cause for termination. Respondent’s termination of Petitioner was neither just, equitable, or fair.

35. While just cause is not susceptible of precise definition, our courts have held that it is “a flexible concept, embodying notions of equity and fairness, that only can be determined upon an examination of the facts and circumstances of each individual case.” NCDENR v. Carroll, 358 N.C. 649, 669, 599 S.E.2d 888, 900 (2004). The Court in Carroll

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explained that just cause requires misconduct “of a substantial nature and does not encompass technical violations…”

36. Carroll held that; “Determining whether a public employer had just cause to discipline its employee requires two separate inquires: First, whether the employee engaged in the conduct the employer alleges, and second, whether that conduct constitutes just cause for the disciplinary action taken.” NC DENR v. Carroll, 358 N.C. 649, 665, 599 S.E.2d 888, 898 (2004). Just cause analysis necessitates a careful weighing and balancing of various analytical factors identified by our appellate courts and by state personnel policy. The Supreme Court identified the following factors to be analyzed in just cause cases: the severity of the violation, the subject matter involved, the resulting harm, the trooper's work history, or discipline imposed in other cases involving similar violations. This approach is a logical extension of the Supreme Court’s seminal just cause case in Carroll. The Supreme Court in Wetherington reaffirmed the Carroll framework and formula for just cause decision making.

37. Whether just cause existed for disciplinary action against a career status State employee is a question of law, to be reviewed de novo. In conducting that review, this Court owes no deference to DPS’ just cause decision or its reasoning therefore and is free to substitute its judgment for that of the agency on whether just cause exists for the disciplinary action taken against the employee. Harris v. DPS, 252 N.C. App. 94, 798 S.E.2d 127, 135 (2017), affirmed per curiam, 370 N.C. 386 (2017).

38. Warren v. N.C. Dep't of Crime Control, 221 N.C. App 376, 726 S.E.2d 920, disc. review denied, 366 N.C. 408, 735 S.E.2d 175 (2012), 267 N.C. App. 503 (2019) (appeal after remand) established the “test” for review of just cause disciplinary action in unacceptable personal conduct cases. Warren’s test poses three questions:

a. Did the employee commit the conduct alleged by the agency employer?

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b. Does the employee's conduct fall within one of the categories of unacceptable personal conduct provided by the Administrative Code?

c. If the employee's act qualifies as a type of unacceptable conduct, did that misconduct amount to just cause for the disciplinary action taken?

Warren, 221 N.C. App. at 382-83, 726 S.E.2d at 925.

39. Application of the Warren test in these cases is now the settled law of North Carolina. See Harris, as well as Whitehurst v. East Carolina Univ., 257 N.C. App. 938, 811 S.E.2d 626 (2018).

40. The third Warren question is the critical one, given Carroll’s ruling that unacceptable personal conduct does not necessarily establish just cause for all types of discipline. Neither Warren nor Carroll (though Carroll gave several examples of employee actions that constituted unacceptable personal conduct) gave OAH specific guidance on how to determine whether the unacceptable personal conduct established justified the disciplinary action by the agency. The Supreme Court, however, provided such specific guidance in its earlier ruling in Wetherington emphasizing that “consideration of these factors is an appropriate and necessary component of a decision to impose discipline upon a career State employee for unacceptable personal conduct.” Wetherington at 592.

41. State employer decision-makers must consider and correctly apply the Wetherington factors:

a. The severity of the violation;b. The resulting harm [from the violation];c. The employee’s work history; and,d. The discipline imposed in other cases involving similar

violations. Id.

42. These considerations, known as the “Wetherington factors,” bear close resemblance to the “seven factors of just cause” in In re

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Enterprise Wire Co. & Enterprise Indep. Union, 46 Lab. Arb. Rep. (BNA) 359 (Mar 28, 1966).

43. Regardless of their antecedents, the Wetherington factors require, among other things, that State employers consider commensurate discipline – consistency with disciplinary action meted out to other employees in similar cases. In contrast with some older rulings suggesting that no harm to the agency from the employee’s conduct was required, Wetherington requires considering not only what the employee did (such as a policy violation) but also the actual effect that conduct had (allowing a prison escape contrasted with delaying a morning coffee break).

44. Applying these factors, the Highway Patrol’s truthfulness policy is of significant importance when there are willful misrepresentations about material matters.

45. Respondent failed to prove that the Petitioner’s failed memory caused any significant resulting harm to the agency. The “resulting harm” prong therefore weighs heavily in favor of the Petitioner.

46. The employee’s work history also weighs heavily in favor of the Petitioner Davis. Petitioner was a very good to outstanding employee of the Highway Patrol. She had no prior disciplinary history and was respected by her colleagues and her superiors. Petitioner’s record and reputation for truthfulness was well established and very good.

47. Also weighing in Petitioner’s favor is the “discipline in other cases” factor, which as noted amounts to a commensurate discipline consideration. The Court of Appeals has recently specifically found disparate treatment in Highway Patrol personnel decision making. Warren v. N.C. Dep't of Crime Control, 267 N.C. App. 503, 833 S.E.2d 633 (2019)

48. Under the totality of the circumstances, and under the de novo review of the just cause decision mandated by our appellate courts, the undersigned concludes that the Highway Patrol has failed to meet its burden of proving that just cause existed for Petitioner’s termination

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upon consideration of the factors enumerated in Wetherington and the concept of just cause being an equitable concept, motivated by considerations of equity and fairness.

49. In reaching this conclusion, the Court neither ignores nor minimizes the imperative that law enforcement officers should communicate truthfully. Communications must be truthful, and an examination of alleged untruthfulness in a State personnel case requires that each element of a truthfulness violation be proven by the respondent employer. Here, there was a failure of proof of a truthfulness violation because Petitioner’s inaccurate statement was based on her failed memory as opposed to a willful deceptive statement about a material matter.

50. Memory failure is a well-known human phenomenon. See, e.g, Kendra Cherry, The Psychology of Forgetting and Why Memory Fails; https://www.verywellmind.com/forgetting-about-psychology- 2795034 (“Forgetting is an all too common part of daily life. Sometimes these memory slips are simple and fairly innocuous, such as forgetting to return a phone call. Other times, forgetting can be much more dire and even have serious consequences, such as an eyewitness forgetting important details about a crime. Memory failures are an almost daily occurrence. Forgetting is so common that you probably rely on numerous methods to help you remember important information, such as jotting down notes in a daily planner or scheduling important events on your phone's calendar.”) See Schacter, Daniel L., Daniel T. Gilbert, and Daniel M. Wegner. "Chapter 6: Memory." Psychology; Second Edition; Worth, Incorporated, 2011. 245.

51. Law enforcement critical incidents are well known for causing memory loss. E.g., Matthew J. Sharps, Processing Under Pressure: Stress, Memory and Decision making in Law Enforcement (Looseleaf 2010) (“Memory loss … is frequently observed under conditions of acute stress.”) Substantial treatises demonstrate the broad range of problems and issues that are often caused by various law enforcement related actions including during the apprehension and arrest of subjects and when force becomes necessary. Seer, e.g., Urey W. Patrick & John C. Hall, In Defense of Self and Others: Issues, Facts and Fallacies – The

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Realities of Law Enforcement Use of Deadly Force; Chapter 6 and at pages 144-46, 150-54, 272, (2nd ed, 2010 Carolina Academic Press). Memory distortion can be common following law enforcement encounters. Id.

52. Here, the Respondent’s case fails at the initial threshold on the first issue as to whether or not it proved a violation of its truthfulness policy. Respondent failed to prove that Petitioner’s inaccurate statement was willfully inaccurate abut a material matter. Mistake or inadvertence does not constitute unacceptable personal conduct. Kelly v. N.C. Dep’t of Env. & Nat. Res., 192 N.C. App. 129, 134, 664 S.E.2d 625, 629 (2008) (finding no just cause where substantial evidence showed petitioners were mistaken and that their violations of work rules were “not intentional or deliberate.”) Cases involving untruthfulness may result in discipline “when the agency can show that the falsification was intentional, material, and meant to deceive and affected the agency’s operation.” I. Silver, Public Employee Discharge and Discipline, Volume I, Section 3.08[E], page 287 (3rd Ed. 2001), citing cases. A failed memory is not a matter of willful deception.

53. The Wetherington factors and the third prong of Warren lead to the inevitable conclusion – based on fairness and equity – that termination was not the “just” outcome in this case in any event. Our Court of Appeals and Supreme Court have recently affirmed lack of just cause to terminate in cases that present conduct more troublesome than the facts of this one. See Harris (no just cause to terminate correctional officer with no disciplinary record who punched a restrained inmate for no legitimate correctional purpose) and Whitehurst (ECU police officer failed to recognize purported subject had himself been severely assaulted, failed to secure scene, and failed to control witnesses). Inaccurate statements when predicated upon memory loss do not constitute the kind of intentional deception that the truthfulness policy is designed to govern.

54. This Court reached its conclusions in this case independently, based upon the evidence presented and analyzing the case under Carroll, Warren, Bulloch, Wetherington, Harris and related cases.

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55. Administrative Law Judge May recognized these points of untruthfulness law, including that an untruthfulness violation requires something that is significant and material, in Jacob Scott v. N.C. Department of Crime Control, 10 OSP 4582, 2013 WL 8116012. There, Judge May’s decision provides an excellent analytical model for proper just cause decision making in cases involving alleged untruthfulness. As Judge May explained, “some cases of untruthfulness warrant termination while others are appropriately remedied with discipline less than termination. E.g., Hager v. NCDOC, 03 OSP 1926, 2004 WL 3252142.” Scott at page 29, paragraph 2. Judge May explained how “a number of factors should be considered in determining the appropriate disciplinary penalty for discipline generally, including for untruthfulness.” Scott page 29, paragraph 27. Judge May further explained how “other cases have demonstrated how not every misrepresentation warrant termination.” Scott, page 29 at paragraph 30. (Emphasis added)

56. There are numerous mitigation factors that militate in Petitioner’s favor. Petitioner’s overall very good record and the underlying difficult apprehension of Mr. Hinton. The conduct of Mr. Hinton caused the underlying incident and the need for Petitioner’s assistance. Traumatic incidents where police officers must utilize force often become traumatic, which often contributes to failed memories.

57. The employer has not afforded appropriate consideration to the circumstances including the exigencies of the underlying police incident and the expected effects on police officers. In a treatise addressing law enforcement internal investigations, it is demonstrated how internal affairs and police management officials should be aware of the extensive studies regarding officer stress and how that can substantially impact mental confusion and lack of recollection. See Colaprete, Internal Investigations: A Practitioner’s Approach 33-46 (2007). Memory loss and “distortions” often follow a traumatic law enforcement event. Id. at 36. “52% of officers who suffered stress from a traumatic event had experienced diminished memory capacity.” Id. “Departments must avoid holding personnel to an unrealistic standard of recall....” Id. at 68. “A proven fact is that stress impacts an officer’s

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ability to accurately recall incidents.” Id. at 198. The expert testimony of Dr. Moira Artigues is consistent with these principles.

58. The failure to conduct a proper and complete investigation is a factor militating against just cause for termination. E.g. Bulloch v. NC DPS, 732 S.E.2d 373 (N.C. App. 2012); Colaprete, Internal Investigations: A Practitioner’s Approach (2007) at 83-108; Hein, Inside Internal Affairs (Looseleaf 2013). Petitioner was subjected to an incomplete investigation.

59. An application of all applicable just cause factors in this case militates very heavily against termination. Petitioner had earned a very good record and was highly respected. Multiple witnesses testified in her favor.

60. Based upon a review of all the evidence in this case, neither Lieutenant Colonel Ward or Colonel McNeill appropriately considered or applied the Wetherington factors enunciated by our Supreme Court as appropriate and necessary to determine whether a willful truthfulness violation occurred, and if so, what commensurate discipline would be appropriate.

61. The analysis conducted by Lt. Colonel Ward and Colonel McNeill was not sufficient or adequate under the Wetherington just cause analysis.

62. The Supreme Court in Wetherington reaffirmed various just cause factors for application in this case and DPS failed to correctly apply those factors. Colonel McNeill did not apply the enumerated Wetherington factors.

63. Since the Supreme Court in Wetherington enunciated the factors for consideration in truthfulness cases, more recent cases have applied that test and the Wetherington principles. See Belcher v. N.C.D.P.S., 858 S.E.2d 629 (2021); Donald Richardson v. N.C. S.B.I., 19 OSP 00828 (4/30/2021). Both Belcher and Richardson support Petitioner’s positions here.

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64. The undersigned has carefully weighed and balanced all of the evidence and interests of Petitioner and Respondent, including all factors in determining just cause and factors in mitigation and aggravation. The undersigned concludes that the totality of all the pertinent factors and all evidence militate heavily in Petitioner’s favor and that there was no adequate just cause for termination.

65. Respondent DPS failed to prove that it had just cause for the termination of Trooper Davis.

66. Respondent’s evidence was insufficient to prove that Petitioner committed a willful truthfulness violation or a violation of the policy prohibiting excessive force.

67. Respondent’s evidence was insufficient to prove that Petitioner had any intent to willfully deceive her employer about any material matter.

68. Petitioner did not use force that was unreasonably excessive.

69. Petitioner did not violate the Respondent’s policy prohibiting excessive force.

70. Petitioner did not violate Respondent’s policy prohibiting untruthfulness.

71. Respondent’s evidence was insufficient to rise to the required level to prove that there was just cause for Petitioner’s termination.

72. There was no just cause for termination of Petitioner’s employment as a State Trooper.

DECISION AND ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it hereby is ordered that: Respondent has failed to prove just cause for termination of employment. Petitioner’s dismissal is reversed, rescinded,

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and overruled, and shall be removed from her official personnel records and all other files. Petitioner is hereby reinstated to her position as a State Trooper; and that Petitioner shall recover all lost back pay from her termination until the date of reinstatement, all lost employee benefits including but not limited to restoring all lost benefits including retirement and leave that Petitioner would have accrued had she continued to be employed to the present including all retirement benefits; that Petitioner’s salary upon reinstatement shall be set at a level taking into account all pay and benefit raises that Petitioner would have been afforded; that Petitioner’s counsel shall be entitled to reasonable counsel fees; that Counsel shall present a petition for counsel fees and costs within forty five days of this decision, so that an Order can be issued with the attorney fee award.

NOTICE

This Final Decision is issued under the authority of N.C. Gen. Stat. § 150B-34. Pursuant to N.C. Gen. Stat. § 126-34.02, any party wishing to appeal the Final Decision of the Administrative Law Judge may commence such appeal by filing a Notice of Appeal with the North Carolina Court of Appeals as provided in N.C. Gen. Stat. § 7A-29(a).

The appeal must be filed within 30 days of receipt of this Final Decision. This Final Decision was served on the parties as indicated by the Certificate of Service attached to this Final Decision. The notice of appeal must also be filed with the Office of Administrative Hearings and served on all parties to the contested case hearing.

This the 18th day of August, 2021.

ABeecher R GrayTemporary Administrative Law Judge

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CERTIFICATE OF SERVICE

The undersigned certifies that, on the date shown below, the Office of Administrative Hearings sent the foregoing document to the persons named below at the addresses shown below, by electronic service as defined in 26 NCAC 03 .0501(4), or by placing a copy thereof, enclosed in a wrapper addressed to the person to be served, into the custody of the North Carolina Mail Service Center who subsequently will place the foregoing document into an official depository of the United States Postal Service.

John Peter O'HaleLaw Office of John P. O'Hale, P.A.kim@jackohale.com

Attorney For Petitioner

Bryan Grant NicholsNorth Carolina Department of Justicebnichols@ncdoj.gov

Attorney For Respondent

This the 18th day of August, 2021.

LGLisa J GarnerNorth Carolina Certified ParalegalN. C. Office of Administrative Hearings1711 New Hope Church RoadRaleigh, NC 27609-6285Phone: 984-236-1850