             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-1018

                             Filed: 18 February 2020

Office of Administrative Hearings, No. 16 OSP 9787

THOMAS C. WETHERINGTON, Petitioner,

            v.

NC DEPARTMENT OF PUBLIC SAFETY, NC HIGHWAY PATROL, Respondent.


      Appeal by petitioner from order entered 17 May 2018 by Administrative Law

Judge Donald W. Overby in the Office of Administrative Hearings. Heard in the

Court of Appeals 7 August 2019.


      The McGuinness Law Firm, by J. Michael McGuinness; Law Offices of Michael
      C. Byrne, by Michael C. Byrne, for petitioner-appellant.

      Attorney General Joshua H. Stein, by Special Deputy Attorney General
      Tammera S. Hill, for respondent-appellee.

      Milliken Law, by Megan A. Milliken, for Southern States Police Benevolent
      Association and North Carolina Police Benevolent Association, amici curiae.

      Crabbe, Brown & James, LLP, by Larry H. James and Christopher R. Green,
      for National Fraternal Order of Police; Essex Richards, P.A., by Norris A.
      Adams, II, for North Carolina Fraternal Order of Police, amici curiae.

      Edelstein & Payne, by M. Travis Payne, for the Professional Fire Fighters and
      Paramedics of North Carolina, amicus curiae.

      Tin, Fulton, Walker & Owen, PLLC, by John W. Gresham, for the National
      Association of Police Organizations, amicus curiae.


      STROUD, Judge.
                     WETHERINGTON V. N.C. DEP’T OF PUB. SAFETY

                                           Opinion of the Court



          It is unlikely so many lawyers have ever before written so many pages because

of a lost hat. True, hats have caused serious problems in prior cases. Once a street

car passenger was blinded in one eye by a hat thrown by a man quarreling with

others.1 Lost and misplaced hats have been important bits of evidence in quite a few

murder and other felony cases.2 People have suffered serious injuries trying to catch

a hat.3 As in those cases, the real issue here is far more serious than an errant hat,

but that is where it started. Up to this point, this case includes over 1,000 pages of

evidence, testimony, briefs, and rulings from courts, from the agency level to the

Supreme Court and back to this Court for a second time.                        But we agree with

Respondent, this matter is not just about a hat. It is about the tension between the

statutorily protected rights of a law enforcement officer and proper discipline to

protect the integrity and reliability of the North Carolina State Highway Patrol.

          This case began in 2009 when Petitioner Wetherington, then a trooper with

the North Carolina State Highway Patrol, misplaced his hat during a traffic stop; he

then lied about how he lost his hat, which was later recovered, mostly intact.



1   Giblett v. Garrison, 232 N.Y. 618, 134 N.E. 595 (1922).

2 Sulie v. Duckworth, 743 F. Supp. 592, 598 (N.D. Ind. 1988), aff’d, 908 F.2d 975 (7th Cir. 1990);
Johnson v. State, 289 Ga. 106, 709 S.E.2d 768 (2011); Bower v. State, 5 Mo. 364 (1838); People v. Baker,
27 A.D. 597, 50 N.Y.S. 771, (N.Y. App. Div. 1898); Thomas v. State, 171 Tex. Crim. 54, 344 S.W.2d 453
(1961);Wilson v. State, 63 Tex. Crim. 81, 138 S.W. 409 (1911); Nelson v. State, 52 Wis. 534, 9 N.W. 388
(1881).

3Rosenberg v. Durfree, 87 Cal. 545, 26 P. 793 (1891); Gulf, C. & S.F. Ry. Co. v. Newson, 45 Tex. Civ.
App. 562, 102 S.W. 450 (1907).

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                WETHERINGTON V. N.C. DEP’T OF PUB. SAFETY

                                   Opinion of the Court



Respondent terminated Petitioner’s employment as a trooper based upon its “per se”

rule that any untruthfulness by a state trooper is unacceptable personal conduct and

just cause for dismissal. See N.C. Gen. Stat. § 126-35 (2017). In the first round of

appellate review, the North Carolina Supreme Court concluded, “Colonel Glover’s use

of a rule requiring dismissal for all violations of the Patrol’s truthfulness policy was

an error of law,” and remanded for Respondent to make a decision on the proper legal

basis “as to whether petitioner should be dismissed based upon the facts and

circumstances and without the application of a per se rule.” Wetherington v. N.C.

Dep’t of Pub. Safety, 368 N.C. 583, 593, 780 S.E.2d 543, 548 (2015) (hereinafter

Wetherington I), aff’d as modified, 231 N.C. App. 503, 752 S.E.2d 511 (2013). In 2015

on remand, based upon the same evidence and facts, Respondent again determined

Petitioner engaged in unacceptable personal conduct and there was just cause for his

dismissal. Because Respondent failed to consider the factors as directed by the

Supreme Court on remand, we again reverse and conclude as a matter of law, on de

novo review, that Petitioner’s unacceptable personal conduct was not just cause for

dismissal. In accord with North Carolina General Statute § 126-34.02(a), we remand

to the Office of Administrative Hearings for entry of a new order imposing some

disciplinary action short of dismissal and reinstating Petitioner to the position from

which he was removed.

                                  I.     Background



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                                  Opinion of the Court



      The full factual and procedural history of this case leading up to remand can

be found in Wetherington I, 368 N.C. 583, 780 S.E.2d 543. By the time of remand

from the Supreme Court, Colonel Randy Glover, who had originally terminated

Petitioner’s employment, had retired. In March 2013, Colonel William Grey became

the Commander of the North Carolina State Highway Patrol responsible for

considering the appropriate discipline for Petitioner’s violation of the truthfulness

policy on 28 March 2009.      Col. Grey did not provide notice or a pre-dismissal

conference to Petitioner, and he reviewed the existing record. On 20 May 2016, Col.

Grey sent a termination letter to Petitioner. The letter states:

             Pursuant to the decision of the North Carolina Supreme
             Court filed on 18 December 2015, this case has been
             remanded back to the North Carolina Highway Patrol for
             me to determine, based upon the facts and circumstances
             of this case, whether you should be dismissed from the
             Highway Patrol, as previously determined by Colonel
             Glover, or whether you should be reinstated.

             This letter serves as notification of my decision to uphold
             your dismissal. My decision is based on my review of the
             Report of Investigation and attached documents, my
             viewing of the video recording of your interview with
             Internal Affairs and the evidence presented by you during
             your pre-dismissal conference.

             This case has been remanded for me to review based on a
             determination that Colonel Glover’s earlier decision to
             dismiss you from the Highway Patrol was premised on a
             “misapprehension of the law, namely that he had no
             discretion over the range of discipline he could administer.”
             Accordingly, I review this case with an open mind and with
             the full understanding that the range of discipline to be


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  WETHERINGTON V. N.C. DEP’T OF PUB. SAFETY

                    Opinion of the Court



administered, if any, is within my discretion and based on
the unique facts and circumstances of your case.

Your dismissal was based on evidence that you provided
contradictory statements about an incident in which you
lost your campaign hat during a traffic stop, thereby
violating the Highway Patrol’s truthfulness policy. That
policy, at all relevant times, stated, in pertinent part:
“Members shall be truthful and complete in all written and
oral communications, reports, and testimony. No member
shall willfully report any inaccurate, false, improper, or
misleading information.”

....

Consistent with the mandate of the North Carolina
Supreme Court, I have reviewed the record with the
understanding that I have discretion in determining what,
if any, level of punishment is most appropriate based on
the facts and circumstances of this case. I have considered
the entire range of disciplinary actions available under
state law. In that regard, I have taken into consideration
the fact that you had been employed by the Highway Patrol
as a Cadet and as a State Trooper from June 2007 until the
time of your dismissal on August 4, 2009 that you did not
have any disciplinary actions prior to the time of your
dismissal and that your overall performance rating and
work history since being sworn as a Trooper in November
2007 was “Good.”

I am also mindful that, pursuant to Brady v. Maryland, 373
U.S. 83 (1963), prosecutors have constitutional obligation
to disclose evidence favorable to the defendant. “Favorable
evidence” includes evidence that is exculpatory as well as
information that could be used to impeach the testimony of
a prosecution witness. Giglio v. U.S., 405 U.S. 150 (1972).
Consistent with this Constitutional obligation, law
enforcement agencies have a duty to disclose information
to prosecutors, including a summary of Internal Affairs
findings and other applicable conduct that bears on the


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                     WETHERINGTON V. N.C. DEP’T OF PUB. SAFETY

                                          Opinion of the Court



                 credibility of any witness who may testify. In federal court,
                 the United States Attorney, in each of the three North
                 Carolina districts, routinely requires the Highway Patrol
                 to disclose, in writing, potential Giglio issues for each and
                 every case in which a Trooper may testify. Several District
                 Attorneys have adopted similar policies based on an
                 understanding that the credibility of the judicial system
                 rests on the foundation that public servants possess
                 integrity that is beyond reproach and can be trusted to
                 testify truthfully in every case.             Despite these
                 Constitutional concerns, I understand that not every
                 violation of the Highway Patrol’s truthfulness policy
                 warrants dismissal.

                 Based upon the facts and circumstances of this case, as
                 described above, I have no confidence that you can be
                 trusted to be truthful to your supervisors or even to testify
                 truthfully in court or at administrative hearings. Given
                 that you were willing to fabricate and maintain a lie about
                 such an insignificant fact as losing a campaign cover4 as
                 part of an attempt to cover up the fact that you did not wear
                 it during an enforcement contact, I have no confidence that
                 you would not alter material facts in court in an attempt to
                 avoid evidence from being suppressed or for the purpose of
                 obtaining a conviction. Even if my confidence in your
                 ability to testify truthfully had not been lost, your ability
                 to perform the essential job functions of a Trooper is
                 reparably limited due to the Highway Patrol’s duty to
                 disclose details of the internal investigation to prosecutors,
                 as discussed above. If you were to return to duty with the
                 Highway Patrol I could not, in good conscience, assign you
                 to any position where you may potentially have to issue a
                 citation, make an arrest or testify in a court of law or
                 administrative proceeding. There are no Trooper positions
                 available within the Highway Patrol that do not include
                 these essential job functions, accordingly, any assignment
                 would compromise the integrity of the Highway Patrol and
                 the ability of the State to put on credible evidence to


4   Campaign cover is another term for the official hat worn by State Highway Patrol troopers.

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               WETHERINGTON V. N.C. DEP’T OF PUB. SAFETY

                                   Opinion of the Court



            prosecute its cases.

            For the above-stated reasons, I do not find any level of
            discipline, short of dismissal, to be appropriate in your
            case. Your violation of the Highway Patrol’s truthfulness
            policy, while over a trivial matter, does not negate the fact
            that your false story was created by you with
            premeditation and deliberation to lie to your supervisor
            and you continued to lie to your supervisor for a period of
            weeks and only decided to tell the truth after being
            confronted with compelling evidence that your story was
            untruthful.     Additionally, there was no coercion, no
            trickery and no other mitigating circumstance present to
            mitigate or even explain your misconduct. Instead, the
            evidence shows that your fabricated an elaborate story
            merely because you were afraid you would possibly be
            reprimanded for leaving your patrol vehicle without your
            cover. As indicated above, I simply have no confidence
            that, if allowed to return to the Highway Patrol, you can be
            trusted to testify truthfully and having considered all
            mitigating factors and lesser levels of discipline, I have
            concluded that the appropriate level of discipline in this
            case is Dismissal from the North Carolina Highway Patrol.

            The obligations outlined above under Brady and Giglio, as
            well as the high standards expected of each member of the
            Highway Patrol, preclude me, in my capacity as Patrol
            Commander, from ever allowing you to testify in court as a
            representative of the Highway Patrol. Therefore it is my
            decision to uphold your dismissal.

      Petitioner received a final agency decision from Frank Perry, Secretary of the

North Carolina Department of Public Safety, by a letter dated 31 August 2016. The

letter stated the North Carolina Department of Public Safety Employee Advisory

Committee convened and upheld his dismissal for the same reasons as stated in Col.

Grey’s letter. Having exhausted his administrative remedies for a second time,


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                                      Opinion of the Court



Petitioner filed a second contested case petition with the Office of Administrative

Hearings (“OAH”) to challenge his termination. Petitioner filed motions for judgment

as a matter of law, for judgment on the pleadings, and for summary judgment. These

were all denied by Administrative Law Judge Donald W. Overby. A contested case

hearing was held on 29-30 January 2018 before ALJ Overby.

       At the 2018 hearing, all of the exhibits and testimony from the 2009 hearing

were admitted. The only new witnesses were Melvin Tucker, an expert witness for

Petitioner, and Col. Grey, who testified regarding his decision-making process after

remand from the Supreme Court.5 Col. Grey testified that he did not draft or prepare

Petitioner’s termination letter. Col. Grey also testified that he did not review the

Supreme Court’s decision or this Court’s prior decision before making his

determination regarding Petitioner’s termination:

              Q. Okay. Now, at that point -- well, I would presume that
              you would have been provided the supreme court decision
              that, sort of, dumped this back in your lap?

              A. I never saw the supreme court decision.

              Q. Oh.

              A. I didn’t review it.

              Q. Okay. All right.· Did anyone provide you the court of
              appeals decision in the case right before it reached the
              supreme court?


5At the time of the hearing, Col. Grey had been retired from the Highway Patrol for approximately
one year.

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                                 Opinion of the Court



            A. And I don’t know -- I do -- I saw the OAH information,
            but I don’t know that -- you know, I don’t recall reviewing
            the court of appeals stuff.

Col. Grey was asked about this again on cross examination:

            Q. Colonel, you did share with us earlier that you did not
            read the supreme court decision; but didn’t you become
            aware through some source that the entire court of appeals
            and the superior court found there was no just cause for
            Trooper Wetherington’s termination?

            MS. HILL: Objection.

            BY MR. MCGUINNESS:

             Q. Did you become aware of that?

            THE COURT: Overruled.

            THE WITNESS: I did. At some point I understood that, I
            think, correct me if I’m wrong, Mr. McGuinness, that OAH
            was in favor of the organization, superior court and court
            the appeals was in favor of Mr. Wetherington, and the
            supreme court remanded it back to the agency. Am I right?

            BY MR. MCGUINNESS:

            Q. I believe you are. And I guess it just makes me curious
            as to why in light of the history of the case and the concerns
            that you’ve articulated that -- that you didn’t get into the
            supreme court decision and see what particular factors
            that they thought was most important, not myself or Miss
            Hill, but the supreme court. In your, obviously, your course
            of actions, but you chose not to get into that, apparently?

            A. That’s correct.




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                                  Opinion of the Court



      In an order entered 17 May 2018, ALJ Overby conducted de novo review of

whether just cause existed for Petitioner’s termination and affirmed the decision to

terminate Petitioner concluding in part:

                    38. 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’s 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.

                    39. Respondent met its burden of proof and
             established by substantial evidence that it had just cause
             to dismiss Petitioner from employment with the State
             Highway Patrol for unacceptable personal conduct.

                    40. The Respondent has not exceeded its authority
             or jurisdiction; acted erroneously; failed to use proper
             procedure; acted arbitrarily or capriciously; and has not
             failed to act as required by law or rule.

(Citations omitted.) Petitioner timely appealed to this Court.

                       II.    Preliminary Procedural Issues

      We first note that during the long pendency of this case, the procedure for this

appeal has changed.

      A.     Jurisdiction

      The appeal process under North Carolina General Statute Chapter 126, Article

8 for Petitioner’s case changed as of 21 August 2013, when amendments to North

Carolina General Statute Chapter § 126-34.02 became effective.


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               WETHERINGTON V. N.C. DEP’T OF PUB. SAFETY

                                 Opinion of the Court



                   Once a final agency decision is issued, a potential,
            current, or former State employee may appeal an adverse
            employment action as a contested case pursuant to the
            method provided in N.C. Gen. Stat. § 126-34.02 (2015). As
            relevant to the present case, N.C. Gen. Stat. § 126-34.02(a)
            provides:
                   (a) [A] former State employee may file a
                   contested case in the Office of Administrative
                   Hearings under Article 3 of Chapter 150B of
                   the General Statutes. . . . In deciding cases
                   under this section, the [ALJ] may grant the
                   following relief:
                       (1) Reinstate any employee to the
                       position from which the employee has
                       been removed.
                       (2) Order the employment, promotion,
                       transfer, or salary adjustment of any
                       individual to whom it has been
                       wrongfully denied.
                       (3) Direct other suitable action to
                       correct the abuse which may include
                       the requirement of payment for any
                       loss of salary which has resulted from
                       the improper action of the appointing
                       authority.
                   One of the issues, which may be heard as a contested
            case under this statute, is whether just cause existed for
            dismissal, demotion, or suspension. As here, “[a] career
            State employee may allege that he or she was dismissed,
            demoted, or suspended for disciplinary reasons without
            just cause.” N.C. Gen. Stat. § 126-34.02(b)(3). In such
            cases, “the burden of showing that a career State employee
            was discharged, demoted, or suspended for just cause rests
            with the employer.” N.C. Gen. Stat. § 126-34.02(d). In a
            contested case, an “aggrieved party” is entitled to judicial
            review of a final decision of an administrative law judge
            [ALJ] by appeal directly to this Court. N.C. Gen. Stat. §
            126-34.02(a); N.C. Gen. Stat. § 7A-29(a).

Harris v. N.C. Dep’t of Pub. Safety, 252 N.C. App. 94, 98, 798 S.E.2d 127, 131-32,


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                WETHERINGTON V. N.C. DEP’T OF PUB. SAFETY

                                   Opinion of the Court



aff’d, 370 N.C. 386, 808 S.E.2d 142 (2017) (alterations in original).

       The amendments in 2013 eliminated one step in appellate review, so there was

no Superior Court review of the OAH decision after remand by the Supreme Court,

as there was in Wetherington I. Neither party has raised any challenges to the

procedure on remand. Petitioner timely appealed the ruling from the OAH to this

Court pursuant to North Carolina General Statute § 126-34.02(a) and North Carolina

General Statute § 7A-29(a). See Peterson v. Caswell Developmental Ctr., ___ N.C.

App. ___, ___, 814 S.E.2d 590, 593 (2018) (“An appeal lies with this Court of a final

decision of the Office of Administrative Hearings pursuant to N.C. Gen. Stat. § 7A-29

(2017).”).

       B.    Standard of Review

                    Section 150B-51 of our State’s Administrative
             Procedure Act (APA) establishes the scope and standard of
             review that we apply to the final decision of an
             administrative agency. The APA authorizes this Court to
             affirm or remand an ALJ’s final decision, but such a
             decision may be reversed or modified only
                    if the substantial rights of the petitioners may
                    have been prejudiced because 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 [ALJ];
                    (3) Made upon unlawful procedure;
                    (4) Affected by other error of law;
                    (5) Unsupported by substantial evidence
                    admissible under G.S. 150B-29(a), 150B-30,
                    or 150B-31 in view of the entire record as
                    submitted; or


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  WETHERINGTON V. N.C. DEP’T OF PUB. SAFETY

                     Opinion of the Court



       (6) Arbitrary, capricious, or an abuse of
       discretion.
The particular standard applied to issues on appeal
depends upon the nature of the error asserted. “It is well
settled that in cases appealed from administrative
tribunals, questions of law receive de novo review, whereas
fact-intensive issues such as sufficiency of the evidence to
support an agency’s decision are reviewed under the whole-
record test.”
       To that end, we review de novo errors asserted under
subsections 150B-51(b)(1)-(4). Under the de novo standard
of review, the reviewing court “considers the matter anew
and freely substitutes its own judgment[.]”
       When the error asserted falls within subsections
150B-51(b)(5) and (6), this Court must apply the “whole
record standard of review.” Under the whole record test,
       [the reviewing court] may not substitute its
       judgment for the agency’s as between two
       conflicting views, even though it could
       reasonably have reached a different result
       had it reviewed the matter de novo. Rather,
       a court must examine all the record
       evidence—that which detracts from the
       agency’s findings and conclusions as well as
       that which tends to support them—to
       determine whether there is substantial
       evidence to justify the agency’s decision.
 “‘Substantial evidence’ means relevant evidence a
reasonable mind might accept as adequate to support a
conclusion.”
       “In a contested case under the APA, as in a legal
proceeding initiated in District or Superior Court, there is
but one fact-finding hearing of record when witness
demeanor may be directly observed.” It is also well
established that
       [i]n an administrative proceeding, it is the
       prerogative and duty of [the ALJ], once all the
       evidence has been presented and considered,
       to determine the weight and sufficiency of the
       evidence and the credibility of the witnesses,


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                                   Opinion of the Court



                    to draw inferences from the facts, and to
                    appraise conflicting and circumstantial
                    evidence. The credibility of witnesses and the
                    probative value of particular testimony are for
                    the [ALJ] to determine, and [the ALJ] may
                    accept or reject in whole or part the testimony
                    of any witness.
             Our review, therefore, must be undertaken “with a high
             degree of deference” as to “‘[t]he credibility of witnesses and
             the probative value of particular testimony[.]’” As our
             Supreme Court has explained, “the ALJ who conducts a
             contested case hearing possesses those institutional
             advantages that make it appropriate for a reviewing court
             to defer to his or her findings of fact.”

Brewington v. N.C. Dep’t of Pub. Safety, 254 N.C. App. 1, 12-13, 802 S.E.2d 115, 124-

25 (2017) (alterations in original) (citations omitted), review denied, 371 N.C. 343,

813 S.E.2d 857 (2018).

      The primary issue on appeal is whether the OAH erred in upholding Col.

Grey’s determination of “just cause” to terminate Petitioner’s employment.

                   Career state employees are entitled to statutory
             protections, including the protection from being
             discharged, suspended, or demoted without “just cause.”
             This Court established a three-part analysis to determine
             whether just cause existed for an employee’s adverse
             employment action for 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.


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                                  Opinion of the Court



                    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. Just cause must be determined
                    based “upon an examination of the facts and
                    circumstances of each individual case.”
                    Here, only the third prong of the analysis is at issue,
             as the ALJ concluded, and Petitioner did not appeal, the
             first two findings that Petitioner had engaged in the
             alleged unacceptable personal conduct and that conduct
             fell within one of the provided categories.

Peterson, ___ N.C. App.at ___, 814 S.E.2d at 593 (citation omitted) (quoting Warren

v. N.C. Dep’t of Crime Control, 221 N.C. App. 376, 383, 726 S.E.2d 920, 925 (2012)).

      Here, as in Peterson, only the “third inquiry” is challenged on appeal, and we

review the conclusion of “just cause” de novo. “Under the de novo standard of review,

the trial court considers the matter anew and freely substitutes its own judgment for

the agency’s.” Wetherington I, 368 N.C. at 590, 780 S.E.2d at 546 (citation and

brackets omitted).

      C.     Law of the Case

      This case’s long history adds another layer of complication. Our review of the

order on appeal is guided both by the standard of review and by the prior rulings in

this case under the law of the case doctrine.

             According to the doctrine of the law of the case, once an
             appellate court has ruled on a question, that decision
             becomes the law of the case and governs the question both
             in subsequent proceedings in a trial court and on
             subsequent appeal.


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                                  Opinion of the Court




Weston v. Carolina Medicorp, 113 N.C. App. 415, 417, 438 S.E.2d 751, 753 (1994)

(citing Transportation, Inc. v. Strick Corp., 286 N.C. 235, 210 S.E.2d 181 (1974)).

      The law of the case doctrine applies only to the issues decided in the previous

proceeding.

              In North Carolina courts, the law of the case applies only
              to issues that were decided in the former proceeding,
              whether explicitly or by necessary implication, but not to
              questions which might have been decided but were not.
              “[T]he doctrine of the law of the case contemplates only
              such points as are actually presented and necessarily
              involved in determining the case.”

Goldston v. State, 199 N.C. App. 618, 624, 683 S.E.2d 237, 242 (2009) (alteration in

original) (quoting Hayes v. Wilmington, 243 N.C. 525, 536, 91 S.E.2d 673, 682 (1956)),

aff’d by an equally divided court, 364 N.C. 416, 700 S.E.2d 223 (2010).

      In his Petition for a Contested Case Hearing filed after Col. Grey issued his

determination on remand, Petitioner argued, “The law of the case controls[,]” citing

to Wetherington I. In Wetherington I, the Supreme Court notably did not reverse or

vacate either the Superior Court’s order or this Court’s opinion, which was affirmed

as modified. See Wetherington I, 368 N.C. at 593, 780 S.E.2d at 548-49. In addition,

the Superior Court’s order and this Court’s opinion reversed ALJ Gray’s order which

was on appeal in Wetherington I. The Supreme Court instead held:

                     Nevertheless, the superior court determined that
              petitioner’s conduct did not constitute just cause for
              dismissal, and the Court of Appeals affirmed that


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                                  Opinion of the Court



             determination. Because we conclude that Colonel Glover’s
             use of a rule requiring dismissal for all violations of the
             Patrol’s truthfulness policy was an error of law, we find it
             prudent to remand this matter for a decision by the
             employing agency as to whether petitioner should be
             dismissed based upon the facts and circumstances and
             without the application of a per se rule. As a result, we do
             not decide whether petitioner’s conduct constitutes just
             cause for dismissal.
                    Accordingly, the decision of the Court of Appeals is
             modified and affirmed, and the case is remanded to the
             Court of Appeals with instructions to that court to remand
             to the Superior Court, Wake County for subsequent
             remand to the SPC and further remand to the employing
             agency for additional proceedings not inconsistent with
             this opinion.

Id. at 593, 780 S.E.2d at 548 (citation omitted). Therefore, the Supreme Court

modified this Court’s opinion in Wetherington I only regarding this Court’s holding,

which was, “The superior court did not err in concluding that Petitioner’s conduct did

not constitute just cause for dismissal.” 231 N.C. App. at 513, 752 S.E.2d at 517.

      As ALJ Overby noted, the basic facts as to the traffic stop in 2009, the loss of

the hat, and Petitioner’s statements about it were determined in Wetherington I. The

remand by the Supreme Court did not limit Respondent’s options on remand but gave

Respondent the opportunity to develop additional evidence as to those events in 2009,

to amend its charges against Petitioner, and to present additional substantive

evidence at another contested case hearing. See Wetherington I, 368 N.C. at 593, 780

S.E.2d at 548-49. Since the Supreme Court was considering a legal issue, the holding

and open-ended remand gave Respondent at least two options. One option was for


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                                  Opinion of the Court



Respondent to pursue amended charges or consider additional evidence on remand,

if it determined the facts required further development. See N.C. Dep’t of Env’t &

Nat. Res. v. Carroll, 358 N.C. 649, 674-75, 599 S.E.2d 888, 904 (2004) (“Ordinarily,

when an agency fails to make a material finding of fact or resolve a material conflict

in the evidence, the case must be remanded to the agency for a proper finding.”).

Another option, which Respondent elected, was to proceed upon the same evidence

and facts as established in Wetherington I regarding the events in 2009 and to make

a new determination of “whether petitioner’s conduct constitutes just cause for

dismissal” based upon the specific factors as directed by the Supreme Court. See

Wetherington I, 368 N.C. at 593, 780 S.E.2d at 548.

      D.     Adjudicated Facts

      At the second contested case hearing, no new substantive evidence regarding

the facts surrounding the loss of the hat was presented. The transcripts and exhibits

from the first hearing were all admitted into evidence. In the order, ALJ Overby

noted that both the Court of Appeal and Supreme Court in Wetherington I had quoted

“fifteen specific findings of fact” from the prior order which were not “successfully

challenged on appeal” in Wetherington I and “thus are conclusively established on




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                                         Opinion of the Court



appeal.”6 “[T]he established and settled facts of the underlying events for which

Petitioner was terminated” quoted by the Supreme Court in Wetherington I are:

                      5. On March 29, 2009, Petitioner, while on duty,
               observed a pickup truck pulling a boat and made a traffic
               stop of that truck on U.S. 70 at approximately 10:00 pm.
               During that traffic stop, Petitioner discovered two loaded
               handguns in the truck and smelled the odor of alcohol
               coming from the interior of the truck. The two male
               occupants of the truck were cooperative and not
               belligerent. Petitioner took possession of the handguns. At
               the conclusion of that traffic stop, Petitioner proceeded to a
               stopped car that had pulled off to the side of the road a
               short distance in front of the truck and boat trailer.

                      6. Petitioner testified that he first noticed his hat
               missing during his approach to the car parked in front of
               the truck. Petitioner heard a crunch noise in the roadway
               and saw a burgundy eighteen-wheeler drive by.

                      7. Petitioner testified that after the conclusion [of]
               his investigation of the stopped car, he looked for his hat.
               Petitioner found the gold acorns from his hat in the right
               hand lane near his patrol vehicle. The acorns were
               somewhat flattened.

                       ....

                      9. After searching for, but not locating his hat,
               Petitioner contacted Sergeant Oglesby, his immediate
               supervisor, and told him that his hat blew off of his head
               and that he could not find it.


6 These findings were in ALJ Beecher Gray’s order based upon the 2009 hearing. It is true that these
findings are the “established and settled facts,” although the Superior Court and this Court reversed
ALJ Gray’s order in Wetherington I based upon de novo review of the “just cause” conclusion. Petitioner
challenges some of these “adjudicated facts” on appeal as unsupported by substantial evidence. There
are good arguments both ways on whether this Court would be able to review those facts on appeal or
if they are part of the law of the case. But based upon our analysis of the case, we need not address
this portion of Petitioner’s argument.

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                     Opinion of the Court




      ....

       11. Trooper Rink met Petitioner on the side of the
road of U.S. 70. Trooper Rink asked Petitioner when he
last saw his hat. Petitioner said he did not know. . . .
Petitioner said that he was going down the road . . . and
was putting something in his seat when he realized he did
not have his hat. Petitioner then indicated that he turned
around and went back to the scene of the traffic stops and
that is when he found the acorns from his hat. Petitioner
was very upset and Trooper Rink told Petitioner that
everybody loses stuff and that if Petitioner did not know
what happened to his hat, then he should just tell his
Sergeants that he didn’t know what happened to it.
Petitioner replied that it was a little late for that because
he already had told his Sergeant that a truck came by and
blew it off of his head.

      ....

      13. The testimony of Trooper Rink provides
substantial evidence that Petitioner did not know what
happened to his hat, was untruthful to Sergeant Oglesby
when he said it blew off of his head, and that Petitioner’s
untruthfulness was willful.

      ....

       15. The next day, March 30, 2009, Sergeant Oglesby
and several other members of the Patrol looked for
Petitioner’s hat.

       16. Sergeant Oglesby had a detailed conversation
with Petitioner on the side of the road regarding how the
hat was lost. During the conversation, Petitioner remained
consistent with his first statement to Sergeant Oglesby
from the night of March 29, 2009 as he explained to
Sergeant Oglesby that a gust of wind blew his hat off of his
head. Petitioner continued stating that the wind was


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                                         Opinion of the Court



               blowing from the southeast to the northwest. Petitioner
               said he turned back towards the direction of the roadway
               and saw a burgundy eighteen[-]wheeler coming down the
               road so he could not run out in the roadway and retrieve
               his hat. Petitioner then heard a crunch and did not see his
               hat anymore.

                       ....

                    18. Petitioner was not truthful to Sergeant Oglesby
               on March 30, 2009, when he explained how he lost his hat.

                       ....

                       20. Petitioner testified that, approximately three to
               four days after the loss of the hat, he suddenly realized that
               the hat did not blow off of his head, but that he had placed
               the hat on the light bar of his Patrol vehicle and it blew off
               of the light bar. Petitioner never informed any supervisors
               of this sudden realization.

                      21. Approximately three weeks after the hat was
               lost, Petitioner received a telephone call from Melinda
               Stephens, during which Petitioner was informed that her
               nephew, the driver of the truck and boat trailer on March
               29, 2009, had Petitioner’s hat.

                     22. Petitioner informed Sergeant Oglesby that his
               hat had been found.

                      23. Petitioner’s hat subsequently was returned to
               Sergeant Oglesby. When returned, the hat was in good
               condition and did not appear to have been run over.7



7 As noted in Finding 7, “Petitioner found the gold acorns from his hat in the right hand lane near his
patrol vehicle. The acorns were somewhat flattened.” Wetherington I, 368 N.C. at 586, 780 S.E.2d at
544. When the hat was recovered, the acorns were missing from the hat, but it was not crushed. Thus,
the hat had not been run over by an eighteen-wheeler—at least not to the point the hat was destroyed.
There was some debate at the hearing over whether a hat without acorns is in “good condition.” For
purposes of this opinion, we assume so.

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                      Opinion of the Court



       24. Due to the inconsistencies in Petitioner’s
statements and the condition of the hat, First Sergeant
Rock and Sergeant Oglesby called Petitioner to come in for
a meeting. During the meeting, First Sergeant Rock asked
Petitioner to clarify that the hat blew off of his head and
that the hat was struck by a car. Petitioner said yes. First
Sergeant Rock then pulled Petitioner’s hat out of the
cabinet and told Petitioner that his story was not feasible
because the hat did not appear to have been run over. At
that point, Petitioner broke down in tears and said he
wasn’t sure what happened to his hat. He didn’t know if it
was on the trunk lid of the truck, the boat, or behind the
light bar, and blew off. Petitioner stated that he told
Sergeant Oglesby that the hat blew off his head because he
received some bad counsel from someone regarding what
he should say about how the hat was lost.

       25. During his meeting with First Sergeant Rock
and Sgt. Oglesby, Petitioner was untruthful when he told
First Sergeant Rock that the hat blew off of his head
because by Petitioner’s own testimony, three days after
losing his hat he realized that he placed it on his light bar.
However, three weeks after the incident, in the meeting
with First Sergeant Rock and Sergeant Oglesby he
continued to claim that the hat blew off of his head. It
wasn’t until First Sergeant Rock took the hat out and
questioned Petitioner more that Petitioner admitted that
the hat did not blow off of his head, but blew off of the light
bar. Therefore, even if Petitioner was confused on March
29, 2009, as he claims, he still was being untruthful to his
Sergeants by continuing to tell them that the hat blew off
of his head . . . .

      ....

      33. Petitioner’s untruthful statements to First
Sergeant Rock and Sergeant Oglesby were willful and were
made to protect himself against possible further reprimand
because of leaving the patrol vehicle without his cover.



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                                          Opinion of the Court



Wetherington I, 368 N.C. at 585-88, 780 S.E.2d at 544-46 (alterations in original).

                           III.     New Findings of Fact on Remand

        ALJ Overby made additional findings of fact regarding Col. Grey’s

consideration on remand. Many of these findings did not exist before remand and

were not addressed in Wetherington I, although some are essentially reiterations of

the “adjudicated facts” regarding events in 2009 and some are actually conclusions of

law. We will refer to these new findings as the “remand findings” to distinguish them

from the “adjudicated facts.” Petitioner challenges some of the remand findings as

unsupported by substantial evidence.8

                       8. Col. Grey’s termination letter is very specific
                about what he reviewed in making his decision. He
                considered the Report of Investigation and attached
                documents, the video recording of Petitioner’s interview
                with Internal Affairs, and the evidence presented by
                Petitioner during his pre-dismissal conference.

                       9. In the letter, Col. Grey recognizes that he has
                discretion to administer any level of punishment. He
                acknowledges mitigating factors, including Petitioner’s
                work history.

                       10. There are four enumerated facts that the
                Colonel recites as the basis of his decision to terminate.
                Those facts, as set forth in the letter, are consistent with
                the Facts as found by ALJ Gray. Within the four
                enumerated facts, Col. Grey states his conclusions
                regarding the facts as he recites the proven facts as the
                basis for his decision.


8Petitioner challenges Findings 15, 17, 18, 28, 29, 30, 32, 34, 35, 36, 47, 48, 60, 62, 64, 65, and 66. We
address the arguments as to specific findings as appropriate below.

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                     Opinion of the Court



       11. Col. Grey states that Petitioner violated the
Patrol’s truthfulness policy by making contradictory
statements (plural) about how he lost his campaign cover.

      ....

      14. Col. Grey did not write the termination letter,
and he does not know who wrote the letter. It was given to
him to sign.

       15. It is not of consequence that Col. Grey did not
write the dismissal letter. By signing the letter, he is
taking full responsibility and ownership for its contents.
Likewise, Col. Grey did not need to be fully aware of Col.
Glover’s testimony because Col. Grey was reviewing the
file and drawing his own conclusions from the full record in
the hearing.

       16.    Trooper Wetherington’s employment was
terminated based on the allegations of untruthfulness.
Petitioner’s untruthful statements were about where his
hat was physically located when it was blown away from
his care and control.

       17. Wetherington initially stated his hat blew off his
head and became lost during a traffic stop, and that is what
he reported to his supervisor, Sergeant Oglesby, knowing
that statement not to be true.

       18. From the Adjudicated Facts of this case,
Petitioner Wetherington sought counsel from someone who
suggested what he should say about the lost hat, after
which he called Sgt. Oglesby. He then talked with Trooper
Rink who counseled him to tell the truth, but Petitioner
told Trooper Rink that it was too late because he had
already told Sgt. Oglesby a story that was not true.
Petitioner continued to maintain his untrue statements
until confronted with the return of his campaign cover, i.e.,
hat.



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                     Opinion of the Court



      19. According to Petitioner Wetherington, he had a
sudden realization three to four days later of the hat’s
actual location when he lost it but never informed any of
his superiors of that revelation.

       20. It has been practically a universally held
opinion, including Col. Grey, that the underlying premise
of a lost campaign cover in and of itself was not a
significant violation. The issue pertains to Petitioner’s
untruthfulness.

      ....

       23. The remand hearing before the undersigned
primarily focused on Col. Grey’s decision, including his
application of the just cause factors required by North
Carolina’s just cause law. Two witnesses testified at the
remand hearing on January 29 and 30, 2018, Col. William
Grey for the Respondent and retired Chief Melvin Tucker
for Petitioner.

      ....

       25. At the time of the hearing, Col. Grey was still
familiar with the policies of the SHP. The policy on
truthfulness, he remembered, was fairly simple: “You’re
just required to be truthful in all your communications
whether they’re oral or written at all times.”

       26. As the commander of the SHP, Col. Grey felt that
truthfulness was paramount, not just for the SHP, but for
all law enforcement:

      [Y]ou gotta have trust that a person is
      credible, has moral courage to step up and do
      the right thing and is going to be honest and
      forthright in all their communications…. You
      take people’s freedoms, you’re gonna charge
      them with stuff and in a worst case scenario,
      you can-you can take their life, if the situation


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                     Opinion of the Court



      calls for it, so you got [to] be sure that person
      is always aboveboard and forthright.

       27. During his tenure as Colonel, Col. Grey
disciplined members of SHP. He gave the full range of
discipline from written warnings to days off to dismissals.
In making his decision to discipline a member, it was Col.
Grey’s practice to review the entire case, including the
internal affairs investigation and the member’s work
history, and he would make a decision based on the totality
of the circumstances surrounding the case.

       28. Col. Grey received this case after the Supreme
Court ruled to remand the matter for decision. Col. Grey
never read the Supreme Court decision in this contested
case; however, it was explained to him. As he understood
the Supreme Court ruling, he was to review the case as if
for the first time and make his decision from the evidence
presented.

       29. Col. Grey did not have to read the Supreme Court
decision to understand the full import of all of its holdings.
The provisions of the decision were explained to him in
sufficient detail for him to properly consider the provisions
of the Supreme Court decision in conducting the review
and making his decision in this contested case.

       30. Over the course of a few days, Col. Grey reviewed
the recordings, transcripts, internal investigation report,
and pre-disciplinary information, as well as Petitioner’s
work history and disciplinary history. Col. Grey treated
this case like any other case coming to him for the first
time.

       31. Col. Grey did not know Petitioner and had never
worked with him at SHP. Col. Grey did not speak with
Petitioner during his review of Petitioner’s case. This was
not unusual since he did not usually speak with members
prior to issuing discipline. He would only review the
information presented to him after the pre-disciplinary


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                     Opinion of the Court



conference just as he did with Petitioner’s case.

        32. Col. Grey determined Petitioner’s dismissal was
appropriate based on Petitioner's violation of the
truthfulness policy. It was not a “spontaneous lie.” Rather,
Petitioner “had time to think about it, he thought about it,
and then he called his sergeant and told him a lie, knowing
that it was untrue, and then he changed his story from his
first statement to a second statement.” It was not until he
was confronted with the truth that Petitioner finally
admitted: “Okay, I’m not telling the truth.”

      33. Col. Grey considered evidence of mitigation, as
well as all other forms of discipline available to him, but
decided that dismissal was the most appropriate discipline
given Petitioner’s conduct. Col. Grey made his decision
without regard for what the Secretary of the Department
of Public Safety or anyone else wanted. He was not
pressured to dismiss Petitioner.

        34. Col. Grey did not feel that the matter was “just
about a hat.” Instead, the Colonel was bothered that
Petitioner was willing to go to such lengths to lie about an
event when there was not “a whole lot on the line there.”
Had Petitioner been truthful and confessed that he simply
did not know what happened to his hat, the Colonel likely
would not have known about it, because it would not rise
to the level of his review. Petitioner would most likely have
been given a written warning or a counseling.

       35. Col. Grey felt that the fact that Petitioner had
just concluded a “high-intensity” yet routine traffic stop
does not negate the fact that Petitioner intentionally lied
to his sergeant about how he lost his hat. Col. Grey also
felt that the fact that Petitioner was a relatively new
trooper does not negate the fact that he intentionally lied
to his sergeant and continued to maintain the lie. While it
might be expected that less experienced troopers will make
more technical mistakes, the same cannot be said for moral
mistakes, according to Col. Grey.


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                     Opinion of the Court




       36. The fact that Petitioner was willing to lie about
such a relatively small thing as losing his hat caused Col.
Grey to lose confidence in the integrity of Petitioner. This
is consistent with the findings in the Recommended
Decision by Judge Gray, which speaks of the widely held
position with the Highway Patrol and not just Colonel
Glover’s position of a per se violation. For Col. Grey to
reach that conclusion is not a new allegation, but a finding
based upon the facts and circumstances existing in the
2009 case as found by Judge Gray.

....
       52. The transcript of the first OAH hearing shows
that Trooper Wetherington was 23 years old at the time of
the first hearing. He graduated from New Bern High
School in 2005. Wetherington was a volunteer firefighter
and an American Red Cross Instructor. Wetherington
graduated from the Highway Patrol Academy in 2007.

       53. According to that transcript, Wetherington was
not previously disciplined by SHP. Wetherington was
rated as one of the highest producers while in the field
training program. His work and conduct history revealed
exemplary service and conduct.          In his 2008-2009
evaluation, Trooper Wetherington was rated as good or
very good in every rating category. Judge Gray found that
Wetherington’s overall performance rating in 2008 was “3,”
which was average.         Colonel Grey was aware of
Wetherington’s work history.

      54. The Employee Advisory Committee report found
that Wetherington was a very “devoted, dedicated”
Trooper, and unanimously recommended reinstatement.
Colonel Grey was aware of the Committee report.

        55. The record of this contested case reflects that
several laypersons and some of Wetherington’s supervisors
testified before Judge Gray in the first hearing at OAH.
They testified to Wetherington’s excellent work


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                     Opinion of the Court



performance, character, and conduct. This Tribunal did not
hear their testimony and therefore is unable to assess the
credibility of their individual testimonies by taking into
account the appropriate factors generally used for
determining credibility. Their testimony is considered and
given the appropriate weight.

        56. Likewise, seven letters were written on
Petitioner’s behalf. Two of the authors also appeared and
testified before Judge Gray. The letters have been
considered.

       57. The circumstances of the traffic stop wherein the
hat was lost was also considered by Col. Grey and the
undersigned. It is noted that there were two occupants in
the truck he stopped, that there was an odor of alcohol, and
that there were two guns in the truck. The guns were
removed, and the occupants were cooperative and were
released without incident.

...

      58. Disparate treatment is a factor which may be
considered in assessing discipline.

      59. The issue of disparate treatment was raised in
the OAH hearing before Judge Gray in 2009. Judge Gray
made specific Findings of Fact concerning disparate
treatment.

      60. In 2009, Judge Gray, in Finding No. 43, found
that substantial evidence existed that “since at least 2002
all members of the Patrol with substantiated violations of
truthfulness have been dismissed.”

       61. Judge Gray concluded then that it was not
incumbent on the Highway Patrol to look back through
history to find a lowest common denominator for assessing
punishment from the historical point forward. There is no
evidence of cases of disparate treatment more recent in


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                     Opinion of the Court



time before this Tribunal for determining the most recent
punishment by the Patrol for violation of the truthfulness
policy; however, this Tribunal is not going to reach back
into history in order to compare Petitioner’s case with
similar cases from several years ago, without any recent
cases for comparison, and especially cases decided by Col.
Grey.

       62. This current case was decided by Col. Grey in
2016. It is not fair or reasonable to hold the Highway
Patrol to a standard set by disposition of its worse cases
from many years before. Col. Grey decided the case based
upon his thorough review of the totality of facts and
circumstances of this case, including how he had disposed
of cases during his tenure as Colonel.          Col. Grey
acknowledged that he reviewed only cases decided during
his tenure.

...

      63. Petitioner Wetherington contends that Col.
Grey’s reliance on the Brady and Giglio cases is
tantamount to inserting a new allegation of sorts that
should not have been brought into consideration in this
current review on remand.

       64. The undersigned excluded evidence on the Brady
and Giglio cases, at least in part, out of an abundance of
caution, to avoid evidence that would indeed constitute a
totally new allegation not within the purview of the
original charge sheet. On further review, Col. Grey’s
reliance on Brady and Giglio was not ill-founded. Brady
was decided by the Supreme Court of the United States in
1963, and Giglio was decided by the Supreme Court of the
United States in 1973, well before even the first hearing in
OAR on this matter.

      65. Assuming arguendo that Col. Grey should not
have referenced specifically to those cases, Col. Glover had
considered the impact of findings of untruthfulness with


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                                   Opinion of the Court



             Highway Patrol Troopers as reflected in his testimony.
             Further, in upholding Col. Glover’s decision to terminate
             Petitioner, Secretary Reuben Young referenced the effect
             of a Trooper having his honesty, integrity and truthfulness
             questioned, especially from the witness stand. Thus, Col.
             Grey’s reliance on the impact of loss of credibility for
             untruthfulness would have been in keeping with the initial
             determinations in this case, including Col. Glover’s
             testimony in the first hearing before OAR.

                    66. Col. Grey’s reliance on the Brady/Giglio factors
             was directly related to Petitioner’s actions which were the
             cause of his termination, and referenced in Col. Glover’s
             very abbreviated dismissal letter and the original Charge
             Sheet.

(Citations and parentheticals omitted) (alterations in finding 26 in original.)

                                   IV.    Just Cause

      Petitioner first argues on appeal that DPS did not follow the instructions from

the North Carolina Supreme Court regarding factors to consider on remand.

Respondent contends that “[d]espite the numerous argument headings in Petitioner’s

brief, there is solely one issue before this Court: the existence of just cause to affirm

Petitioner’s dismissal.” We review whether just cause existed to terminate Petitioner

de novo. See Peterson, ___ N.C. App. at ___, 814 S.E.2d at 593.

      As this Court noted in Warren v. North Carolina Department of Crime Control:

                    We conclude that the best way to accommodate the
             Supreme Court’s flexibility and fairness requirements for
             just cause is to balance the equities after the unacceptable
             personal conduct analysis. This avoids contorting the
             language of the Administrative Code defining unacceptable
             personal conduct. The proper analytical approach is to first


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                                   Opinion of the Court



             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. Just cause must be
             determined based “upon an examination of the facts and
             circumstances of each individual case.”

221 N.C. App. 376, 382-83, 726 S.E.2d 920, 925 (2012) (footnote omitted) (quoting

Carroll, 358 N.C. at 669, 599 S.E.2d at 900).

      In Wetherington I, the Supreme Court noted Col. Glover’s testimony that

             because petitioner’s conduct “was obviously a violation of
             the truthfulness policy,” dismissal was required, and he
             repeatedly asserted that he “had no choice” to impose any
             lesser punishment.       After petitioner’s counsel asked
             Colonel Glover whether, “when there is a substantiated or
             adjudicated finding of untruthfulness . . . [a trooper] would
             necessarily need to be terminated,” Colonel Glover
             reiterated that if “that’s the violation, again . . . I have no
             choice because that’s the way I view it.” Petitioner’s
             counsel then asked, “[D]oes that mean if you find a
             substantiated or adjudicated violation of the truthfulness
             policy . . . that you don’t feel like that gives you any
             discretion as Colonel to do anything less than
             termination?” Colonel Glover agreed with that statement.

368 N.C. at 592, 780 S.E.2d at 548 (alterations in original). The Supreme Court then

noted that the “truthfulness policy” applies to a wide range of communications,

whether related to the trooper’s duties or not, but as Col. Glover described his



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                                 Opinion of the Court



application of that policy, any untruthful or inaccurate statement, in any context,

required termination:

                   As written, the truthfulness policy applies to “all
            written and oral communications,” and it applies to a wide
            range of untruthful, inaccurate, “improper,” or
            “misleading” statements. Nothing in the text of the policy
            limits its application to statements related to the trooper’s
            duties, the Patrol’s official business, or any other
            significant subject matter.          Notwithstanding the
            potentially expansive scope of this policy, Colonel Glover
            confirmed that he could not impose a punishment other
            than dismissal for any violation, apparently regardless of
            factors such as 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. We emphasize 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.

Id.

      The Supreme Court rejected the “per se” rule of dismissal for any violation of

the truthfulness policy. Id. at 593, 780 S.E.2d at 548. Although Respondent had

discretion in choosing an appropriate punishment for violation of the policy, that

discretion was to be guided by consideration of certain factors outlined by the

Supreme Court. Specifically, on remand, DPS was required to consider

            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. We
            emphasize that consideration of these factors is an
            appropriate and necessary component of a decision to
            impose discipline upon a career State employee for


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                                         Opinion of the Court



               unacceptable personal conduct.

Id. at 592, 780 S.E.2d at 548. The Supreme Court also noted that Respondent should

consider a “range of disciplinary actions” and not just termination:

               While dismissal may be a reasonable course of action for
               dishonest conduct, the better practice, in keeping with the
               mandates of both Chapter 126 and our precedents, would
               be to allow for a range of disciplinary actions in response to
               an individual act of untruthfulness, rather than the
               categorical approach employed by management in this case.

Id. at 593, 780 S.E.2d at 548 (emphasis added).

       On remand, the Supreme Court did not limit DPS to relying on the existing

record. Id. The ALJ found that “[t]he Supreme Court’s directive is specifically

sending this matter back to the agency to make a determination based on the facts

and circumstances of this case. The directive does not indicate that an entirely new

investigation should be undertaken.” We agree the Supreme Court did not direct “an

entirely new investigation” but it also did not preclude Respondent from conducting

further investigation or from developing additional evidence as needed to address the

factors as directed by the Supreme Court.9 In any event, Respondent elected to rely



9 Since the Supreme Court was reviewing “just cause” de novo, it could have performed that review
based upon the existing record in Wetherington I without remand, but because Respondent had
erroneously applied a “per se” rule of dismissal, the Supreme Court gave Respondent the opportunity
on remand to develop the record as to the additional factors it had directed Respondent to consider
and to exercise its discretion accordingly. We also agree with the ALJ that if Respondent had
considered new evidence, “then such new allegations would have necessitated procedural due process,
including, among other things, written notice and an opportunity to be heard in a pre-dismissal
conference.” But Respondent elected to rely on the existing record, so another pre-dismissal conference
was not required.

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only on the existing record, so all the evidence and facts as to the events in 2009 are

exactly the same as considered by this Court and the Supreme Court in Wetherington

I. Only the findings on remand as to Col. Grey’s decision are new, and many of these

findings are actually reiterations of the 2009 “adjudicated facts” or conclusions of law,

which we will review as such.

      Petitioner argues, and ALJ Overby found, that Col. Grey did not read either

the opinions issued by the Court of Appeals or Supreme Court in Wetherington I:

                    28. Col. Grey received this case after the Supreme
             Court ruled to remand the matter for decision. Col. Grey
             never read the Supreme Court decision in this contested
             case; however, it was explained to him. As he understood
             the Supreme Court ruling, he was to review the case as if
             for the first time and make his decision from the evidence
             presented.

                    29. Col. Grey did not have to read the Supreme Court
             decision to understand the full import of all of its holdings.
             The provisions of the decision were explained to him in
             sufficient detail for him to properly consider the provisions
             of the Supreme Court decision in conducting the review
             and making his decision in this contested case.

(Parenthetical omitted.)

      Based upon Col. Grey’s letter, his testimony, and the above findings, it is

apparent that Col. Grey “review[ed] the case as if for the first time and ma[de] his

decision from the evidence presented.” It is not apparent that he considered the

factors as directed by the Supreme Court, as we discuss in more detail below. We

acknowledge that it is possible for an opinion to be “explained to” someone, but we


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                                    Opinion of the Court



cannot discern from Col. Grey’s letter and testimony he “understood the full import

of all of its holdings,” since he did not address the factors as directed by the Supreme

Court.

         The ALJ interpreted the Supreme Court’s opinion as requiring consideration

of as few as one of the listed factors, based upon the word “or” in one sentence. Those

factors, sometimes referred to as the “Wetherington factors,” as articulated by the

Supreme Court are “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.” Id. at 592, 780 S.E.2d at 548 (emphasis added).

                      26. It is important to note that the Supreme Court
               uses the word “or.” The usual and customary use of “or”
               indicates an alternative and oftentimes, as here,
               alternatives in a listing. If there is a choice between two
               items, then “or” would mean an alternative choice for
               either item. While the Supreme Court notes that it is
               appropriate and necessary to consider those factors, the
               use of “or” negates any mandatory findings or conclusions
               based on all of those factors.

                      27. Assuming arguendo that there is a requirement
               to give consideration to all of those factors, Col. Grey did,
               in fact, consider each of the Wetherington factors in
               reaching his decision to terminate Petitioner.

         This interpretation of the “Wetherington factors” is not supported the text of

Wetherington I or by later cases applying it. Although the factors as quoted in ALJ

Overby’s order are accurate, they are taken out of the context of the sentence in the

case. Reading the Supreme Court’s instruction in context, the “or” in this sentence


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                                  Opinion of the Court



must be read as “and” when applied to the factors which should be considered. The

Supreme Court stated:

             Notwithstanding the potentially expansive scope of this
             policy, Colonel Glover confirmed that he could not impose a
             punishment other than dismissal for any violation,
             apparently regardless of factors such as 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. We emphasize 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.

Id. (emphases added). The Supreme Court explained that Col. Glover could not

“impose a punishment other than dismissal for any violation” without regard for

these factors. Id. The Court then directed 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.” Id. (emphasis added). Other

cases from this Court have interpreted Wetherinton I as requiring consideration of

any factors for which evidence is presented. See Brewington, 254 N.C. App. at 25,

802 S.E.2d at 131 (“Although the primary holding in Wetherington was that public

agency decision-makers must use discretion in determining what disciplinary action

to impose in situations involving alleged unacceptable personal conduct, the Court

did identify factors that are ‘appropriate and necessary component[s]’ of that

discretionary exercise.” (alterations in original)); accord Blackburn v. N.C. Dep’t of

Pub. Safety, 246 N.C. App. 196, 784 S.E.2d 509 (2016). Thus, Respondent was


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                                         Opinion of the Court



directed to consider all of these factors, at least to the extent there was any evidence

to support them. Respondent could not rely on one factor while ignoring the others.

        ALJ Overby determined that “Col. Grey did, in fact, consider each of the

Wetherington factors in reaching his decision to terminate Petitioner.” But upon

examination of his letter, we can find consideration of only two factors. We will

address each factor as directed by the Supreme Court. Since we are to review “just

cause” for dismissal de novo, we will review the factors based upon the “adjudicated

fact” and the “remand facts.”10

        A.      The Severity of the Violation

        Although Col. Grey’s letter uses more words than Col. Glover’s did to describe

Petitioner’s untruthfulness regarding losing his hat, the basic facts have not changed

and were established in 2009, as quoted above. But Petitioner’s untruthful statement

regarding losing his hat was not a severe violation of the truthfulness policy. It did

not occur in court and it did not affect any investigation, prosecution, or the function

of the Highway Patrol. It was about a matter—exactly how Petitioner lost his hat—

all parties concede was not very important.

        Col. Grey considered the very insignificance of the subject matter an indication

of the severity of the violation, indicating Petitioner could not be trusted in any



10 By relying on the existing findings, we are essentially viewing the facts in the light most favorable
to Respondent. Petitioner has challenged some of the findings on appeal, but we need not consider
those challenges based upon our holding.

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                                   Opinion of the Court



context. His letter to Petitioner stated, “Based upon the facts and circumstances of

this case, as described above, I have no confidence that you can be trusted to be

truthful to your supervisors or even to testify truthfully in court or at administrative

hearings.” ALJ Overby agreed that “Petitioner’s lie was neither insignificant nor

immaterial. Because the Petitioner chose to continue to lie about an insignificant

event, his credibility is called into question all the more.”     This reading of the

truthfulness policy sounds exactly like Col. Glover’s “per se” rule—rejected by the

Supreme Court—that any untruthful statement, even if the subject matter does not

involve an investigation or official business, and no matter how insignificant the

subject, requires dismissal, and no discipline short of dismissal will suffice. In fact,

based on ALJ Overby’s logic, the more “insignificant” the subject matter of the lie, the

more Petitioner’s credibility is called into question. Thus, a lie about a significant

matter, such as untruthful testimony about a criminal investigation in court, would

be a severe violation requiring dismissal because untruthfulness in that context

obviously undermines the very mission of the Highway Patrol, while a lie about an

insignificant matter must also result in dismissal because a trooper who would lie

about something so insignificant cannot be trusted in any context, according to Col.

Grey. This interpretation of the truthfulness policy is functionally indistinguishable

from the “per se” dismissal rule applied by Col. Glover in Wetherington I and rejected

by the Supreme Court.



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                                  Opinion of the Court



      Respondent made a similar argument seeking to embellish the severity of

Petitioner’s untruthfulness in Wetherington I, and this Court noted:

                    Respondent contends in its brief that Petitioner
             “made up an elaborate lie full of fabricated details”
             regarding the “specific direction of the wind, the specific
             color of the truck and the noise he heard when the truck
             ran over his hat.” However, neither the ALJ nor the SPC
             made findings indicating that the wind, truck’s color, or
             “crunch noise” were untruthful.          Rather, the lie or
             “untruth” lay only in the hat’s location when Petitioner
             misplaced it. The ALJ found that Petitioner “didn’t know
             if it was on the trunk lid of the truck, the boat, or behind
             the light bar, and blew off.” The findings do not support
             Respondent’s characterization of Petitioner’s statements as
             an “elaborate lie full of fabricated details[.]”

Wetherington I, 231 N.C. App. at 511, 752 S.E.2d at 516 (alteration in original)

(emphasis added).

      On remand, there are no new facts and no new evidence which would allow us

to come to any new conclusion regarding the severity of Petitioner’s lie than this

Court did in Wetherington I. Col. Grey relied only on the existing record. This Court

has previously determined “the lie or ‘untruth’ lay only in the hat’s location when

Petitioner misplaced it,” id., and the Supreme Court did not modify this portion of

this Court’s opinion but instead affirmed it. See Wetherington I, 368 N.C. at 593, 780

S.E.2d at 509.

      B.     The Subject Matter Involved




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                                    Opinion of the Court



      Col. Grey’s letter notes the subject matter involved, the loss of the hat, but

gives no consideration to this particular factor other than the fact that Petitioner lied

about the location of the hat.         He characterizes the subject matter of the

untruthfulness appropriately as “over a trivial matter.”         Again, this particular

violation of the truthfulness policy had no potential effect on any investigation or

prosecution.    Nor would the subject matter—or even Petitioner’s untruthfulness

about it—bring the Highway Patrol into disrepute, as some violations may. For

example, in Poarch v. North Carolina Department of Crime Control & Public Safety,

this Court affirmed a trooper’s termination for just cause based on unacceptable

personal conduct where the trooper was engaged in an extra-marital affair and

“admitted to specific instances of sexual relations with Ms. Kirby, including sex in a

Patrol car, sex behind a Patrol car, and sex in a Patrol office.” 223 N.C. App. 125,

131, 741 S.E.2d 315, 319 (2012). This Court noted the trooper’s misconduct, even

committed when he was off duty, may harm the Patrol’s reputation:

                      After reviewing the record, we find the distinction
               between on duty and off duty based on the Patrol’s radio
               codes to be of little significance in this case where
               petitioner was in uniform and the use of patrol facilities is
               so intertwined with the acts of misconduct. Furthermore,
               we find respondent’s argument persuasive that if any
               member of the public would have witnessed petitioner’s
               misconduct, where petitioner was in uniform and using
               patrol facilities, they would assume that petitioner was on
               duty to the detriment of the Patrol’s reputation.

Id.


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                                  Opinion of the Court



      ALJ Overby appropriately noted the importance of truthfulness by law

enforcement officers:

                    36. The world in which we live has become more
             tolerant and accepting of untruthfulness and outright lies.
             While it may be acceptable in some comers, it is not
             acceptable for everyone. With some occupations, there is a
             higher expectation for honesty and integrity, e.g., the
             judiciary and law enforcement officers. Those with power
             and authority have a greater responsibility.

                     37. The citizens of North Carolina and the public at
             large, including anyone visiting our state, deserve and
             expect honesty from the State Highway Patrol and law
             enforcement officers in general. It does not require any
             imagination at all to understand how devastating it would
             be if the Patrol tolerated and fostered a reputation for lack
             of honesty among its personnel. Yet it remains of
             paramount consideration that each case rises and falls on
             the particular facts and circumstances of this particular
             case. Not every case of untruthfulness merits termination.

      We agree, and our Supreme Court was also well aware in Wetherington I that

Petitioner had lied and of the importance of truthfulness by law enforcement officers.

It was established in Wetherington I that (1) “the employee engaged in the conduct

the employer alleges,” and (2) “the employee’s conduct falls within one of the

categories of unacceptable personal conduct provided by the Administrative Code.”

Warren, 221 N.C. App. at 383, 726 S.E.2d at 925. Tonly issue left on remand in this

case was whether Petitioner’s lie, which is unacceptable personal conduct, “amounted

to just cause for the disciplinary action taken. Just cause must be determined based




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                                    Opinion of the Court



‘upon an examination of the facts and circumstances of each individual case.’” Id.

(quoting Carroll, 358 N.C. at 669, 599 S.E.2d at 900).

       The facts as to the unacceptable personal conduct—the lie about the hat—are

the same now as in Wetherington I. The Supreme Court could have rejected prior

cases requiring consideration of various factors and a balancing of equities and

adopted the “per se” rule for truthfulness for Troopers with the Highway Patrol as

applied by Col. Glover, but it did not. Neither this Court nor the Supreme Court

endorses untruthfulness of any sort by a law enforcement officer, but that is not the

question presented here. The Supreme Court did not suggest that the Highway

Patrol should “tolerate[] and foster[] a reputation for lack of honesty among its

personnel” but only that some instances of untruthfulness may call for some

discipline short of dismissal. The question is whether this lie, in this context, justifies

dismissal, without consideration of any lesser discipline, upon consideration of all of

the applicable factors. Neither Col. Glover nor Col. Grey actually conducted this full

analysis. Col. Grey applied essentially the same “per se” rule as to truthfulness as

did Col. Glover; he just used different words to describe it.

       C.     The Resulting Harm

       The third factor is “the resulting harm” from the violation. Col. Grey spends

most of his letter discussing the potential harm to the agency from any untruthfulness

by an officer, including a discussion of the requirements of Brady v. Maryland, 373



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                                          Opinion of the Court



U.S. 83, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 31 L. Ed.

2d 104 (1972). We agree, as noted above, that law enforcement officers must uphold

the highest standards of truthfulness, particularly in the course of their official

duties, and we appreciate the legal requirements for law enforcement agencies to

disclose exculpatory evidence to defendants. Yet our Supreme Court was also well-

aware of the requirements of Brady and Giglio when it decided Wetherington I. In

support of its position, which the Supreme Court accurately characterized as a “per

se” rule of dismissal for any violation of the truthfulness policy, Respondent made the

same argument to the Supreme Court in Wetherington I.11 But even considering the

requirements of Brady and Giglio, our Supreme Court still rejected a “per se” rule of

termination for untruthfulness. Although Col. Grey states he was not applying a per

se rule, it is difficult to discern what sort of untruthfulness, in any context, by a

trooper would not lead to termination, without even any consideration of lesser

discipline. Respondent’s counsel at oral argument agreed that a statement of this



11 Respondent argued in its brief to this Court in Wetherington I, “From this point forward, in every
criminal case in which Petitioner is associated, the judicial finding of untruthfulness here and the facts
supporting that conclusion must be disclosed to the defendant. The United States Supreme Court in
Brady v. Maryland, held that the prosecution must turn over all evidence which may favor the
defendant.” Before the Supreme Court, Respondent argued, “The Court of Appeals next dismissed
concerns that in the future every district attorney would have to produce the record of Wetherington’s
falsehoods in response to any defendants’ demands for exculpatory evidence in accordance with their
rights under Brady v. Maryland. The Court of Appeals did not find that the Patrol’s concerns were not
legitimate. In fact, there are reported cases in which courts have order[ed] the prosecution to produce
officer personnel files in response to Brady. However, the Court of Appeals found that Petitioner’s
history of untruthfulness would not bar him from testifying in court and SPC had not presented any
argument that it was likely that defense counsel would use the information to impeach Wetherington
or that the impeachment would cause a jury to disregard his testimony.” (Citations omitted.)

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                                  Opinion of the Court



sort regarding a missing hat does not compare to perjury while testifying in court or

dishonesty in the investigation of a crime—the actual issues addressed by Brady and

Giglio. It is easy to understand the resulting harm to the agency from a trooper’s

intentional lie about substantive facts in sworn testimony or in the course of his

official duties. But Respondent has never been able to articulate how this particular

lie was so harmful. Respondent failed to develop or present any additional facts on

remand which could lead to a different determination.

      D.     The Trooper’s Work History

      According to the letter, Col. Grey did give cursory consideration to Petitioner’s

work history. He stated:

             I have taken into consideration the fact that you had been
             employed by the Highway Patrol as a Cadet and as a State
             Trooper from June 2007 until the time of your dismissal on
             August 4, 2009 that you did not have any disciplinary
             actions prior to the time of your dismissal and that your
             overall performance rating and work history since being
             sworn as a Trooper in November 2007 was “Good.”

The ALJ made these findings regarding Petitioner’s work history:

                    53. According to that transcript, Wetherington was
             not previously disciplined by SHP. Wetherington was
             rated as one of the highest producers while in the field
             training program. His work and conduct history revealed
             exemplary service and conduct.          In his 2008-2009
             evaluation, Trooper Wetherington was rated as good or
             very good in every rating category. Judge Gray found that
             Wetherington’s overall performance rating in 2008 was “3,”
             which was average. Colonel Grey was aware of
             Wetherington’s work history.


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                                  Opinion of the Court




                   54. The Employee Advisory Committee report found
             that Wetherington was a very “devoted, dedicated”
             Trooper, and unanimously recommended reinstatement.
             Colonel Grey was aware of the Committee report.

                     55. The record of this contested case reflects that
             several laypersons and some of Wetherington’s supervisors
             testified before Judge Gray in the first hearing at OAH.
             They testified to Wetherington’s excellent work
             performance, character, and conduct. This Tribunal did
             not hear their testimony and therefore is unable to assess
             the credibility of their individual testimonies by taking into
             account the appropriate factors generally used for
             determining credibility. Their testimony is considered and
             given the appropriate weight.

(Parentheticals omitted.)

      ALJ Overby goes into more detail than did Col. Grey, but nothing in

Petitioner’s work history would support termination. He had no prior disciplinary

actions and a “good” performance rating and work history. This factor could only

favor some disciplinary action short of termination. See Whitehurst v. E. Carolina

Univ., 257 N.C. App. 938, 947-48, 811 S.E.2d 626, 634 (2018) (“Whitehurst’s

discipline-free work history is also relevant to this just cause analysis. . . . .

Whitehurst was subject to regular performance reviews by ECU and generally

received above average ratings. Jimmy Cannon, an ECU police sergeant who worked

with Whitehurst for roughly twelve years, testified that ‘He’s been an outstanding

peer to work with especially when it comes to his knowledge of police procedures and

police work in general. He’s one of the best . . . that I’ve worked with[.]’ Whitehurst


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                                  Opinion of the Court



had worked for ECU for twelve years, with no disciplinary action. This factor also

mitigates against a finding that just cause existed to dismiss Whitehurst from

employment based on his conduct the night of 17 March 2016.” (second and third

alterations in original)).

       E.     Discipline Imposed in Other Cases Involving Similar Violations

       Col. Grey’s letter did not mention any consideration of discipline imposed in

other cases for similar violations. In his testimony, he stated he considered only

violations occurring during his tenure as Commander, which began in March 2013.

ALJ’s Overby’s order includes several findings regarding disparate treatment:

                    58. Disparate treatment is a factor which may be
              considered in assessing discipline.

                    59. The issue of disparate treatment was raised in
              the OAH hearing before Judge Gray in 2009. Judge Gray
              made specific Findings of Fact concerning disparate
              treatment.

                    60. In 2009, Judge Gray, in Finding No. 43, found
              that substantial evidence existed that “since at least 2002
              all members of the Patrol with substantiated violations of
              truthfulness have been dismissed.”

                     61. Judge Gray concluded then that it was not
              incumbent on the Highway Patrol to look back through
              history to find a lowest common denominator for assessing
              punishment from the historical point forward. There is no
              evidence of cases of disparate treatment more recent in
              time before this Tribunal for determining the most recent
              punishment by the Patrol for violation of the truthfulness
              policy; however, this Tribunal is not going to reach back
              into history in order to compare Petitioner’s case with


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                                  Opinion of the Court



             similar cases from several years ago, without any recent
             cases for comparison, and especially cases decided by Col.
             Grey.

                    62. This current case was decided by Col. Grey in
             2016. It is not fair or reasonable to hold the Highway
             Patrol to a standard set by disposition of its worse cases
             from many years before. Col. Grey decided the case based
             upon his thorough review of the totality of facts and
             circumstances of this case, including how he had disposed
             of cases during his tenure as Colonel.          Col. Grey
             acknowledged that he reviewed only cases decided during
             his tenure.

(Parenthetical omitted.)

      We first note that the finding as to discipline since 2002 is not relevant to Col.

Grey’s decision, as he testified, and the ALJ found, he did not consider any

disciplinary actions prior to his tenure which began in 2013. In addition, the findings

from the 2009 hearing seem to reflect a per se rule of dismissal for any

untruthfulness. ALJ Gray found that “since at least 2002 all members of the Patrol

with substantiated violations of truthfulness have been dismissed.” This finding is

consistent with application of the “per se” dismissal rule Col. Glover applied, and our

Supreme Court rejected in Wetherington I. On remand, Col. Grey did not consider

this history but acknowledged that he reviewed only cases decided during his tenure,

which began in 2013, four years after Petitioner’s termination. He did not describe

the “untruthfulness” in any of those instances or the discipline imposed. Our record

reveals no instances of disciplinary actions for untruthfulness which arose during



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                                     Opinion of the Court



Col. Grey’s tenure before his decision regarding Petitioner in 2016. Col. Grey did not

identify any other violations during his tenure he may have compared to Petitioner’s

situation, and certainly did not identify any similar violations of the truthfulness

policy.

          Based upon the same evidence and facts, this Court analyzed this issue in

Wetherington I. Regarding discipline imposed in other cases, the unanimous panel of

this Court held:

                      As the superior court observed in its order, the
                dissenting member of the SPC concluded that “the
                dismissal of Petitioner did not fit the violation and was not
                necessary to uphold the integrity of the truthfulness policy.
                In short, the punishment did not fit the offense.” In view
                of the commensurate discipline approach described in
                Warren and applied in Carroll, we agree. Petitioner’s
                conduct in this case did not rise to the level described in
                Kea and Davis. Rather, Petitioner’s conduct and the
                existence of extenuating circumstances surrounding the
                conduct make this case comparable to Carroll, in which our
                Supreme Court concluded that the Commission lacked just
                cause to discipline the petitioner.

Wetherington I, 231 N.C. App. at 513, 752 S.E.2d at 517 (citation omitted).

          This Court recently affirmed reversal of the Highway Patrol’s dismissal of a

trooper for unacceptable personal conduct. Warren v. N.C. Dep’t of Crime Control,

___ N.C. App. ___, 833 S.E.2d 633 (2019). The trooper drove “his Patrol-issued

vehicle” to a party at a private residence after consuming alcohol and with an open




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                                    Opinion of the Court



bottle of vodka in the trunk of his vehicle. Id. at ___, 833 S.E.2d at 635. This Court

noted this dismissal was based upon disparate treatment.

                     Respondent contends that petitioner’s conduct was
              especially egregious so as to warrant termination.
              However, our review of the disciplinary actions respondent
              has taken for unbecoming conduct typically resulted in
              either: a temporary suspension without pay, a reduction
              in pay, or a demotion of title. In fact, where the conduct
              was equally or more egregious than that of petitioner (i.e.,
              threats to kill another person, sexual harassment, assault),
              the employee was generally subjected to disciplinary
              measures other than termination.
                     While petitioner certainly engaged in unacceptable
              personal conduct, termination is inconsistent with
              respondent’s treatment of similar conduct and, other
              factors mitigate just cause for the punishment. Petitioner
              had an excellent work history and tenure of service, and
              there was no evidence that petitioner’s actions resulted in
              harm. Thus, taking into consideration all of the factors and
              circumstances in this case as suggested by Wetherington,
              we conclude the superior court properly determined there
              is no just cause for petitioner’s termination based on his
              conduct.

Id. at ___, 833 S.E.2d at 638.

       Again, Respondent had the opportunity on remand to address disciplinary

actions of other employees who violated the truthfulness policy, since Col. Glover did

not consider this factor in applying the “per se” rule in Petitioner’s initial termination.

Col. Grey had the opportunity to note factors in other disciplinary cases which

support dismissal for Petitioner’s violation, but he did not. Wetherington I, 368 N.C.

at 592, 780 S.E.2d at 548. We agree that Col. Grey need not “look back through



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                                   Opinion of the Court



history to find a lowest common denominator for assessing punishment” but he must

consider if there is some relevant denominator in the Highway Patrol’s prior history

for comparison. Although there is no particular time period set for this factor, we

find no legal basis for relying only upon disciplinary actions during a particular

commander’s tenure. If this were the rule, during the first week, or month, or any

time period of a new colonel’s tenure until a disciplinary action based upon a

particular violation has occurred, there would be no history at all, and the disparate

treatment factor would have no meaning.             For a new commander, disparate

treatment would by definition be impossible, if he can ignore all relevant prior history

for the agency in imposing discipline.

      Thus, Col. Grey failed to consider most of the factors our Supreme Court

directed were “necessary” in this case. The only factor he clearly addressed was

Petitioner’s work history, which would favor discipline short of dismissal. The

Supreme Court stated: “We emphasize 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 I, 368 N.C. at 592,

780 S.E.2d at 548 (emphasis added).         Instead, he considered only his personal

assessment of the importance of Petitioner’s untruthful statements, and although his

letter was longer, his consideration was substantively no different from Col Glover’s.

As this Court noted in Wetherington I: “The findings do not support Respondent’s



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characterization of Petitioner’s statements as an ‘elaborate lie full of fabricated

details[.]’” Wetherington I, 231 N.C. App. at 511, 752 S.E.2d at 516 (alteration in

original).

                                  V.      Disposition

       Our Courts rarely grant parties in cases two bites at the apple, but Respondent

here has already had the opportunity for two bites. There is no basis for further

remand other than for the appropriate remedy. Upon our de novo review of the

existence of just cause, we reverse ALJ Overby’s conclusion that “Respondent met its

burden of proof and established by substantial evidence that it had just cause to

dismiss Petitioner from employment with the State Highway Patrol for unacceptable

personal conduct.” However, Respondent has established that some disciplinary

action short of dismissal should be imposed. We also reverse the ALJ’s conclusion

that “Respondent has not exceeded its authority or jurisdiction; acted erroneously;

failed to use proper procedure; acted arbitrarily or capriciously; and has not failed to

act as required by law or rule.” We hold that Respondent failed to use proper

procedure on remand and failed to act as required by law or rule in that it should

have considered the factors as directed by the Supreme Court. We therefore remand

for the ALJ to enter an order granting Petitioner relief under North Carolina General

Statute § 126-34.02.    Specifically, the ALJ shall order an appropriate level of

discipline, in accord with the law regarding disparate treatment, followed by



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reinstatement and “other suitable action to correct the abuse which may include the

requirement of payment for any loss of salary which has resulted from the improper

action of the appointing authority.” N.C. Gen. Stat. § 126-34.02(a) (2017).

                     Under subsection (a)(3) of the statute, the ALJ has
             express statutory authority to “[d]irect other suitable
             action” upon a finding that just cause does not exist for the
             particular action taken by the agency. Under the ALJ’s de
             novo review, the authority to “[d]irect other suitable action”
             includes the authority to impose a less severe sanction as
             “relief.”
                     Because the ALJ hears the evidence, determines the
             weight and credibility of the evidence, makes findings of
             fact, and “balanc[es] the equities,” the ALJ has the
             authority under de novo review to impose an alternative
             discipline. Upon the ALJ’s determination that the agency
             met the first two prongs of the Warren standard, but just
             cause does not exist for the particular disciplinary
             alternative imposed by the agency, the ALJ may impose an
             alternative sanction within the range of allowed
             dispositions.

Harris, 252 N.C. App. at 109, 798 S.E.2d at 138 (alterations in original) (citation

omitted).

                                  VI.    Conclusion

      Upon de novo review of the existence of just cause, the ALJ’s order affirming

Petitioner’s dismissal is reversed and we remand to the ALJ for further proceedings

consistent with our directive above.

      Reversed and Remanded.

      Judges BRYANT and DIETZ concur.



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