An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-1008
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 1 April 2014


NORTH CAROLINA DEPARTMENT OF
CORRECTION,
     Petitioner
     (Respondent below),

      v.                                      Wake County
                                              No. 12 CVS 002136
VIVIAN PARKER,
     Respondent
     (Petitioner below).


      Appeal by respondent           from order     entered 14 May 2013 by

Judge Howard E. Manning, Jr. in Wake                  County Superior Court.

Heard in the Court of Appeals 23 January 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Yvonne B. Ricci, for petitioner-appellee.

      Monteith & Rice, PLLC, by Charles E. Monteith, Jr. and
      Shelli Henderson Rice, for respondent-appellant.


      HUNTER, JR., Robert N., Judge.


      Vivian Parker (“Respondent” or “Parker”) appeals from the

14 May 2013 order upholding the State’s dismissal of her from

employment     with    the   North    Carolina     Department     of   Correction

(“DOC”).     Respondent argues that DOC did not have just cause to
                                           -2-
dismiss her from employment.               We disagree and affirm the order

of the superior court.

                            I. Facts & Procedural History

    On 28 October 2010, Parker filed a Petition for a Contested

Hearing    with    the     Office     of   Administrative            Hearings       (“OAH”)

alleging that DOC wrongfully discharged her without cause.                                The

OAH held a hearing on 8 June 2011.                      Evidence presented at that

hearing tended to show the following.

    Parker        began     working    for        DOC    in    October       2000    as    a

correctional officer at Pender Correctional Institution.                            Parker

was promoted to correctional sergeant after two years and was

promoted again in September 2008 to correctional lieutenant, the

position she held at the time of her dismissal.

    On     27    April     2010,    Parker    lived       at   724    Ivey    Street       in

Wallace.        Her adult     son, Brandon Huffin (“Brandon”), was on

probation, and his address of record was Parker’s home at 724

Ivey Street.

    Michael Moready (“Officer Moready”), a surveillance officer

for DOC, received complaints about drug activity in the area and

on 27 April 2010, he              went to 724 Ivey Street to conduct a

warrantless       search     of     what     he    believed      to      be    Brandon’s

residence.       When Officer Moready arrived at the house, Brandon
                                             -3-
was in the yard.         When Brandon asserted that 724 Ivey Street was

not his residence, Officer Moready called back to his office to

verify that 724 Ivey Street was listed as Brandon’s residence of

record,       which    it   was.        Michael      Glen   Tyndall     (“Detective

Tyndall”), a detective for the Duplin County Sheriff’s Office,

arrived    at    the    scene      as   Officer      Moready    was    talking   with

Brandon.

       When    Brandon      refused     to    let    officers   into    the   house,

Officer Moready let him know he would be arrested and handcuffed

him.    Parker then came out of the house, where Officer Moready

explained his presence.             Parker told Officer Moready that the

house was not Brandon’s residence.                  Officers described Parker as

confrontational and uncooperative in denying that the house was

Brandon’s residence.

       After Officer Moready explained to Parker that 724 Ivey

Street was Brandon’s address of record and that the probation

office had not been notified of any change in residence, Parker

said that Brandon did live at her house “sporadically.”                       Parker

then agreed to let officers come into the living room area,

where she said Brandon slept when he was at the house.

       Jason Douglas Debose (“Detective Debose”), a detective for

the Duplin County Sheriff’s Office, went into the house with
                                        -4-
Parker and Detective          Tyndall.        Parker pointed out the couch

where Brandon slept when he stayed there.                       While inside the

house, Detective Tyndall smelled marijuana, although Detective

Debose said he could not smell it.                     After Detective Tyndall

stated that he smelled marijuana, Parker told them to stop the

search and said that they “would have to get a warrant if [they]

wanted to continue.”

       While they waited for the warrant, Parker asked to go back

into   the   house.     Detectives       Debose   and    Tyndall    had    to    tell

Parker several times that she could not go back into the house,

and she was “very, very adamant about going into the house.”

       Tommy Huffin (“Tommy”), Parker’s brother, showed up in the

yard at the house and took photos of officers with his cell

phone.    Tommy pointed the phone at Detective Debose’s face, and

Detective Debose took the phone from him.                  Tommy insisted that

Detective    Debose    give    his    phone    back.     When    Parker    saw    the

confrontation,    she    told    Tommy    to    “shut    up.”      Tommy   reached

toward   his   waistline,       and   Detective    Debose       pulled    his    gun.

Detective    Tyndall    then    handcuffed      Tommy.       Detective     Tyndall

ordered everyone at the scene, including Parker, to be placed in

handcuffs for safety reasons.
                                      -5-
     After obtaining the warrant, officers searched the house

and found marijuana and drug paraphernalia in a bedroom along

with documentation such as release orders, a bank card, and

clothes in a rear bedroom.            Based on this evidence officers

concluded that Brandon stayed there.           In Parker’s room, officers

found   a   stolen     revolver   between     the   mattresses.      In    the

backyard, officers found a pound of marijuana beside a storage

shed.

     Parker   was    charged   with   resisting     arrest,   possession    of

marijuana, possession of a stolen firearm, and maintaining a

dwelling for controlled substances.              She pled no contest to

maintaining a dwelling on 13 April 2011, and the other charges

were dismissed.

     Parker notified her superior at DOC of her charges the same

day she was arrested.       Ricky Reagan Rivenbark (“Mr. Rivenbark”),

Assistant Superintendent of Custody and Operations for Pender

Correctional assigned Robert Lynn Norville (“Captain Norville”),

Correctional Captain in charge of Special Operations at Pender

Correctional,     to    conduct    the      investigation     into   Parker’s

conduct.    After investigation, Captain Norville concluded that

Parker “was belligerent when they were trying to do a search

warrant with her son at that residence.                [Her actions] were
                                             -6-
unbecoming of a state employee which . . . led to us feeling it

was unacceptable personal conduct.”

       Mr. Rivenbark recommended to the Superintendent that Parker

be dismissed for “actions and behavior . . . unbecoming of a

state     employee      and    .   .    .    detrimental          to    state        service.”

Specifically, Mr. Rivenbark noted that Parker was uncooperative

and    belligerent      with   law      enforcement         officers.           At    the   OAH

hearing,    Mr.    Rivenbark       testified         that    although      the       criminal

charges     against        Parker       were       not      the        reason        for    his

recommendation, they did cause him to lose trust in her.                                    DOC

dismissed Parker on 25 June 2010.

       At the OAH hearing, Parker testified on her own behalf and

presented    the       testimony       of    her   husband,        Bobby    Gene       Parker

(“Bobby”), and her mother, Vianne Pigford Newkirk (“Newkirk”).

Parker testified that Brandon was not living with her on 27

April 2010.       When asked about Brandon’s mail and clothing that

were    found     in   a   bedroom,         Parker    testified         that     there      was

clothing and mail in the house from many of her children who did

not live there because “[i]t’s a family house, and . . . they

come there . . . and leave something and then leave.”                                  Newkirk

testified that on that date, Brandon was living with her at 726

Bray Street.
                                            -7-
      Parker      testified     that    she    never    revoked       her   consent    to

search the house and that she never told the officers that they

would need a warrant to continue.                 She said that she asked to go

back into the house in order to get her clothes to go to work.

      Parker testified that she did not know about the guns or

marijuana in the house.             She testified that she pled no contest

to maintaining a dwelling because she was advised that she could

be found guilty of the charge even if she did not know the

marijuana was on her property.

      Bobby, who was not living with Parker at the time and did

not   arrive      on   27   April    2010     until    after    everyone     had     been

handcuffed, testified that he also had no knowledge of the guns

or marijuana in the house.               Newkirk testified that the stolen

revolver had been her husband’s gun and that she had put it

between Parker’s mattresses without Parker’s knowledge.

      On    26    September     2011,    Administrative         Law    Judge   Joe    L.

Webster filed a decision finding that DOC had not carried its

burden     of    proof   that   Parker’s       conduct    was    “just      cause”    for

termination and that even if it was “just cause,” DOC should not

have terminated Parker, but should have disciplined her in other

ways, recommending a 30-day suspension and training for Parker.

In his decision, Judge Webster found the following fact: “40. On
                                         -8-
April   13,     2011,    [Parker]    pled      no   contest     [to]     misdemeanor

maintain[ing        a]        vehicle/dwelling/place            for       controlled

substance[s].”           On   13    January     2012,    the     State     Personnel

Commission adopted Judge Webster’s decision.

       On 13 February 2012, DOC filed a petition for judicial

review with the Wake County Superior Court.                   On 14 May 2013, the

Wake    County    Superior      Court,    Judge      Howard     E.    Manning,   Jr.

presiding, issued its order reversing the decision of the State

Personnel     Commission      and   upholding       Parker’s    dismissal.       The

court found that “applying the whole record test, . . . Finding

of Fact No. 40 . . . in the Decision and Order of the State

Personnel Commission, was supported by the substantial evidence

of record and was not arbitrary or capricious.”                      The court went

on to state that

              it is undisputed that [Parker] pled no
              contest   to    misdemeanor   maintain[ing   a]
              vehicle/dwelling/place       for     controlled
              substance[s].       However, because of Ms.
              Parker’s position as a Lieutenant for the
              NCDOC there is a clear nexus between the
              drug    related     offense   to    which   she
              undisputedly    plead   no  contest    and  her
              position of trust and authority as a
              correctional lieutenant.     Further, Parker’s
              no contest plea to this drug related offense
              is sufficient to justify her dismissal for
              unacceptable     personal   conduct    and   is
              supported by the substantial evidence of
              record and just cause.
                                        -9-
Parker filed timely notice of appeal on 13 June 2013.

                     II. Jurisdiction & Standard of Review

       Respondent’s appeal from the superior court’s final

judgment lies of right to this Court.              N.C. Gen. Stat. § 7A-

27(b) (2013).

       “When reviewing a superior court order concerning an agency

decision, we examine the order for errors of law.”                      Warren v.

N.C. Dep’t of Crime Control & Pub. Safety, ___ N.C. App. ___,

___,    726   S.E.2d   920,    922   (2012).         “The    process    has     been

described as a twofold task: (1) determining whether the trial

court    exercised     the    appropriate      scope    of    review     and,    if

appropriate, (2) deciding whether the court did so properly.”

Amanini v. N.C. Dep’t of Human Res., 114 N.C. App. 668, 675, 443

S.E.2d    114,    118–19      (1994).         We   review     whether     conduct

constituted just cause for dismissal de novo.                 Warren, ___ N.C.

App. at ___, 726 S.E.2d at 923.

       The superior court may reverse or modify the decision of an

agency if

              the findings, inferences, conclusions, or
              decisions are:
              (1)    In    violation   of    constitutional
              provisions;
              (2) In excess of the statutory authority or
              jurisdiction of the agency or administrative
              law judge;
              (3) Made upon unlawful procedure;
                                    -10-
              (4) Affected by other error of law;
              (5) Unsupported by substantial evidence . .
              . in view of the entire record as submitted;
              or
              (6) Arbitrary, capricious, or an abuse of
              discretion.

N.C.   Gen.    Stat.   §   150B-51(b)   (2013).     For   subdivisions    (1)

through (4), the court uses a de novo standard of review.                N.C.

Gen. Stat. § 150B-51(c).          For subdivisions (5) and (6), the

court uses a whole record standard.         Id.

       In the present case, the superior court applied the whole

record test in finding that Finding of Fact No. 40 from the

State Personnel Commission decision was supported by substantial

evidence of record and was not arbitrary or capricious.                   See

N.C. Gen. Stat. §§ 150B-51(b)(5), (6).            It then applied de novo

review in reviewing the errors of law.            See N.C. Gen. Stat. §§

150B-51(b)(1)–(4).         As the superior court used the appropriate

standards, we will focus our analysis on the question of whether

it applied those standards properly.              See N.C. Gen. Stat. §

150B-51(c); Amanini, 114 N.C. App. at 675, 443 S.E.2d at 118–19.

                                  III. Analysis

       Parker argues that the superior court erred in concluding

that DOC had just cause to dismiss her from employment.                   We

disagree.
                                       -11-
       No career State employee subject to the N.C. State Human

Resources Act may be dismissed from employment unless it is with

just    cause.       N.C.   Gen.   Stat.     §   126-35(a)      (2013).        It    is

undisputed that Parker was a career State employee who could not

be     dismissed     without    just    cause.           “Unacceptable     personal

conduct” is a basis for dismissal under the just cause standard.

25 N.C. Admin. Code 1J.0604 (2012).

       There are three questions in determining whether a State

agency had just cause to discipline an employee: “(1) whether

the employee engaged in the conduct the employer alleges; (2)

whether     the    employee’s      conduct       falls     within    one   of       the

categories    of     unacceptable      personal    conduct      provided    by      the

North     Carolina     Administrative      Code;        and    (3)   whether     that

unacceptable personal conduct amounted to just cause for the

disciplinary action taken.”              Bulloch    v. N.C. Dep’t of Crime

Control & Pub. Safety, ___ N.C. App. ___, ___, 732 S.E.2d 373,

377 (2012) (citing Warren, ___ N.C. App. at ___, 726 S.E.2d at

925).

       The first question is whether Parker engaged in the conduct

alleged.     The superior court on review found that Finding of

Fact No. 40 of the State Personnel Commission’s decision was

supported    by    substantial     evidence       and    was   not   arbitrary       or
                                            -12-
capricious.          That finding stated, “On April 13, 2011, [Parker]

pled      no         contest     [to]          misdemeanor       maintain[ing                a]

vehicle/dwelling/place           for     controlled      substance[s].”             Parker

admitted       in    the   hearing      that    she    had    pled     no    contest         to

maintaining a dwelling, and a certified copy of the disposition

of that charge was introduced.                     See N.C. Gen. Stat. § 15A-

1022(c)      (2013)    (requiring       a   factual     basis    for    a    no    contest

plea).       At      the   hearing,     officers      testified      that        both   drug

paraphernalia and marijuana were found in and around Parker’s

home.     These facts are sufficient to show that Parker engaged in

maintaining a dwelling for controlled substances.

       The   next     question     is   whether       Parker’s    maintenance           of    a

dwelling       for    controlled      substances       constitutes      “unacceptable

personal conduct.”           As defined by the N.C. Administrative Code,

“unacceptable personal conduct” includes

               (a) conduct for which no reasonable person
               should expect to receive prior warning;

               (b) job-related conduct which constitutes a
               violation of state or federal law;

               (c) conviction of a felony or an offense
               involving    moral    turpitude that  is
               detrimental to or impacts the employee’s
               service to the State;

               (d) the willful violation                 of     known       or
               written work rules;
                                       -13-
            (e) conduct unbecoming a state employee that
            is detrimental to state service;

            (f) the abuse of client(s), patient(s),
            student(s) or a person(s) over whom the
            employee has charge or to whom the employee
            has a responsibility or an animal owned by
            the State;

            (g) absence from work after all authorized
            leave   credits and   benefits have   been
            exhausted; or

            (h) falsification of a state application or
            in other employment documentation.

25 N.C. Admin. Code 1J.0614 (2012).

      The   DOC    Personnel    Manual   lists    examples     of     unacceptable

personal conduct, including “[a]ctions which could result in a

conviction    of     a   felony,   misdemeanor,     or   alcohol/drug       related

offense including DWI,” “[f]ailure to cooperate with Federal,

State,      Local,       or    Departmental      officials       or     hindering

internal/external        investigations,”     and   “[v]iolations        of    law.”

The   Alcohol/Drug-Free        Work   Place   Policy     as   laid    out     in   the

Personnel Manual states the following:

            Possession of an illegal substance in any
            situation, at work or away from the work
            site   shall   be   cause  for   discipline.
            Possession of controlled substances, ie.
            Prescription medication or alcohol, must be
            in    compliance    with   existing    laws.
            Violations will result in discipline up to
            and including dismissal based on personal
            misconduct.
                                     -14-
           Employees who are arrested, detained, or
           served   a  warrant   for  any  alcohol/drug
           related incident, at the work site or away
           from the work site have 24 hours to file a
           written report of the situation with the
           work unit supervisor/manager, i.e. Warden,
           Superintendent, Judicial District Manager,
           etc. The work unit supervisor/manager shall
           make   a   recommendation   for  appropriate
           disciplinary action based on the facts of
           the   case   after  conducting  a   thorough
           investigation.

      Since Parker’s actions did result in a conviction of a

drug-related     misdemeanor,       it    is     clear        that    her    actions

constituted “unacceptable personal conduct” under DOC rules and

the Administrative Code.         We now turn to the third question of

whether Parker’s actions provided just cause for dismissal.

      “[W]here   an   employee      has    engaged      in     off-duty     criminal

conduct, the agency need not show actual harm to its interests

to demonstrate just cause for an employee’s dismissal.”                      Eury v.

N.C. Emp’t Sec. Comm’n, 115 N.C. App. 590, 611, 446 S.E.2d 383,

395   (1994).    Rather,     “the   agency      must     demonstrate        that   the

dismissal is supported by the existence of a                         rational nexus

between the type of criminal conduct committed and the potential

adverse impact on the employee’s future ability to perform for

the   agency.”    Id.   at   611,    446       S.E.2d    at    395–96.       Factors

considered in determining whether a rational nexus exists are:

           [1] the degree to which, if any, the conduct
                                       -15-
            may have adversely           affected       clients     or
            colleagues;

            [2] the relationship between the type of
            work performed by the employee for the
            agency and the type of criminal conduct
            committed;

            [3] the likelihood of recurrence of the
            questioned conduct and the degree to which
            the conduct may affect work performance,
            work quality, and the agency’s good will and
            interests;

            [4] the proximity or remoteness in time of
            the conduct to the commencement of the
            disciplinary proceedings;

            [5]    the   extenuating               or    aggravating
            circumstances,  if   any,              surrounding   the
            conduct;

            [6] the blameworthiness or praiseworthiness
            of the motives resulting in the conduct; and

            [7] the presence or absence of any relevant
            factors in mitigation.

Id. at 611, 446 S.E.2d at 396.

    Parker argues that DOC failed to show a rational nexus

between     Parker’s        criminal    charge        and     her    employment,

particularly      because    Correctional      Administrator        Michael    Bell

(“Bell”),   who    made     the   decision    to    dismiss   Parker,    did    not

testify at the hearing.

    We have found no authority for the proposition that the

decision maker must testify in order to establish a rational
                                             -16-
nexus.    In the present case, the superior court held “there is a

clear nexus between the drug related offense to which [Parker]

undisputedly plead no contest and her position of trust and

authority as a correctional lieutenant.”

    Mr. Rivenbark indicated in his testimony that the fact that

drugs were found in Parker’s home was one of the factors that

caused him to lose trust in Parker.                         He said that DOC has a

drug-free policy and that they have had a problem with staff

bringing drugs into Pender Correctional.                            He said that they

trust the lieutenants and captains to enforce the rules and

search   staff        as    they    come     in.     Parker’s       employment     records

indicate that as a part of the drug task force team, she was

involved in searching staff entering the facility.

    In    the        letter    from    DOC    to    Parker    informing      her     of   her

dismissal,      Bell       quoted     the    Drug-Free       Work    Place    Policy      and

listed the criminal charges against Parker before coming to the

conclusion       that       Parker’s         actions      constituted        unacceptable

personal conduct sufficient to warrant dismissal.                             The letter

noted    that    “[Parker’s]          actions      have   the   potential       to    bring

discredit       to    the     Department.”          Given    Parker’s     duties      as    a

lieutenant, including searching staff for drugs being brought

into the facility, Mr. Rivenbark’s testimony and the letter from
                                      -17-
DOC   show   a   rational   nexus    between   the   presence   of   drugs   at

Parker’s home and DOC’s loss of trust in her ability to perform

her   job    duties.    This    close    relationship     between    Parker’s

actions and her inability to continue in employment with DOC

provided just cause for her dismissal.

      Although Parker argues that she was not dismissed because

of the criminal charges, but based on her lack of cooperation

with officers, both Mr. Rivenbark’s testimony and the letter

from DOC indicate that the drugs and drug paraphernalia found at

Parker’s house were part of the basis for her dismissal.                As we

agree with the superior court that this alone was just cause for

dismissal, there is no need to review other allegations.

                                    IV. Conclusion

      For the foregoing reasons, the decision of the superior

court is

      AFFIRMED.

      Judges STROUD and DILLON concur.

      Report per Rule 30(e).
