                                 NO. COA13-1388

                      NORTH CAROLINA COURT OF APPEALS

                              Filed:   5 August 2014


DOMINICK MAZZEO,
     Plaintiff,

    v.                                     Mecklenburg County
                                           No. 13-CVS-12639
CITY OF CHARLOTTE,
     Defendant.


    Appeal by defendant from order entered 29 August 2013 by

Judge   James   W.   Morgan    in   Mecklenburg    County   Superior   Court.

Heard in the Court of Appeals 9 April 2014.


    Office of the City Attorney, by Catherine L. Cooper and
    Mark H. Newbold, for defendant-appellant.

    Goodman, Carr, Laughrun, Levine & Greene, PLLC, by Miles S.
    Levine, for plaintiff-appellee.


    DAVIS, Judge.


    Defendant City of Charlotte (“the City”) appeals from the

trial court's 29 August 2013 order finding that Dominick Mazzeo

(“Plaintiff”) is entitled to a Civil Service Board hearing in

connection with the termination of his employment with the City.

After careful review, we affirm.

                              Factual Background
                                       -2-
    Plaintiff was hired by the City on 30 May 2007 and assigned

to the Charlotte Douglas International Airport (“CDIA”) as an

Airport     Safety     Officer   (“ASO”).      On    19   June    2007,       after

receiving his general certification in law enforcement, he was

administered     the     oath    of   office   and   sworn   in    as     a    law

enforcement     officer.         Throughout    his   employment,     Plaintiff

received annual Performance Reviews and Development assessments

(“PRDs”).     These PRDs were reviewed and signed by officers of

the Charlotte-Mecklenburg Police Department (“CMPD”).

    Effective on 15 December 2012, the City Manager ordered the

consolidation of all airport safety officers into the CMPD.                     As

a result, Plaintiff was transferred to the CMPD, retaining his

“rank, salary, longevity, and relevant benefits.”                  Because of

the consolidation, the City required Plaintiff to take a new

oath of office as an officer with the CMPD, which he did on 4

January 2013.

    On 14 June 2013, Plaintiff received a letter from the CMPD

terminating his employment for a “work rule violation.”                   He was

then given a packet of information describing his appeal rights

to the Charlotte-Mecklenburg Civil Service Board (“the Board”).

Section 4.61 of the Charlotte City Charter provides members of

the City’s police and fire departments who have been employed
                                           -3-
for longer than 12 months with the right to have the Board

review      various      types        of    personnel         actions,          including

termination.

      On    18   June   2013,     Plaintiff      appealed     his    termination        to

Rodney     Monroe,    the    CMPD’s    Chief     of    Police.       His   appeal       was

denied by letter dated 25 June 2013.                    Plaintiff then attempted

to file an appeal to the Board asking the Board to review his

termination.         However, he was told that he did not, in fact,

qualify     for      civil    service      protection         because      he     was    a

probationary CMPD employee on the date of his termination due to

the fact that he did not become a sworn officer of the CMPD

until the December 2012 consolidation.

      Plaintiff’s attorney subsequently filed a written request

on 26 June 2013 asking the Board to review his termination.                              In

an   undated      letter,    an   attorney       for    the   City    explained         its

rationale for classifying Plaintiff as a probationary employee:

             It is true that Mr. Mazzeo became an
             employee of the City of Charlotte in 2007.
             As a City employee who worked at the airport
             as an airport safety officer, he was not
             entitled to Civil Service protection under
             the City’s Charter provisions. Rather, like
             all other non-sworn City employees whose
             employment is terminated, he was entitled to
             a pre-termination hearing and also to file a
             grievance   through  the   City’s  grievance
             process.
                                -4-
         In December of 2012, through a functional
         consolidation, all airport safety officer
         positions   were   moved    from   the   City’s
         aviation    department     to    the     police
         department.    Following that consolidation,
         [Plaintiff] became a “sworn officer” . . .
         entitled to the protection of the Civil
         Service Board in December, 2012, when his
         application    for   hire    to   the    police
         department   was   approved   by   the   Board.
         Accordingly, on the date of his termination,
         June 14, 2013, he was still subject to the
         police department’s 12-month probationary
         period and considered an “exception” . . .
         to   Civil   Service    provisions    requiring
         terminated officers be given a hearing
         before the Board.

    Plaintiff filed a complaint in Mecklenburg County Superior

Court seeking a declaration that he was entitled to a hearing

before the Board regarding his termination.    The case was heard

by the trial court without a jury on 26 August 2013.         On 29

August 2013, the trial court issued an order determining that

Plaintiff was entitled to a hearing before the Board.      The City

filed a timely notice of appeal.

                              Analysis

    Section 4.61 of the Charlotte City Charter provides, in

pertinent part, as follows:

         (f) Definitions.    The terms “officer or
         employee” or “officer,” as used in this
         Article, shall mean sworn officers with
         regard to the police department and shall
         mean uniformed personnel with regard to the
         fire department.
                                     -5-


              . . . .

              (j) Appeal hearings.      Upon receipt of a
              citation for termination from either chief
              or upon receipt of notice of appeal for a
              suspension from any civil service covered
              police officer or firefighter, the Board
              shall hold a hearing not less than 15 days
              nor more than 30 days from the date the
              notice of appeal, or the citation, is
              received by the Board. . . .

              . . . .

              (t) Exceptions.      The provisions of this
              Article pertaining to civil service coverage
              of officers and employees of the fire and
              police departments . . . shall not apply to
              an officer of the police or fire department
              until he or she has been an officer of the
              respective   department   for  at   least   12
              months. During such 12-months’ probationary
              period, he or she shall be subject to
              discharge by the chief of such department
              under   rules    promulgated   with    respect
              thereto, such rules to be approved by the
              [City] Council.

2000 N.C. Sess. Laws ch. 4, § 4.61.

       “[W]here a declaratory judgment action is heard without a

jury and the trial court resolves issues of fact, the court's

findings   of    fact   are   conclusive    on   appeal   if   supported   by

competent evidence in the record, even if there exists evidence

to the contrary, and a judgment supported by such findings will

be affirmed.”        First Union Nat'l Bank v. Ingold, 136 N.C. App.

262,   264,    523   S.E.2d   725,   727   (1999).    The      trial   court’s
                                    -6-
conclusions of law are reviewable de novo on appeal.               Carolina

Power & Light Co. v. City of Asheville, 358 N.C. 512, 517, 597

S.E.2d 717, 721 (2004).

    In   its   29   August   2013   order,   the   trial   court   made   the

following findings of fact:

          1.   That the Plaintiff, Dominick Mazzeo, is
          a citizen and resident of Mecklenburg County
          and was hired as a Charlotte Douglas
          International Airport (CDIA) Officer on May
          30, 2007.

          2.   That the Plaintiff's badge            number   at
          the time of his hire was 3636.

          3.   That   on   December     15,   2012,   the
          Charlotte   Mecklenburg     Police   Department
          acquired,   merged    and    consolidated   all
          Charlotte   Douglas    International    Airport
          (CDIA) Safety Officers into one organization
          to   be    controlled     by    the   Charlotte
          Mecklenburg Police Department, part of the
          City of Charlotte[.]

          4.   That at the time of the consolidation
          and thereafter, the Plaintiff retained his
          same    rank,    badge    number,  employee
          identification number and salary.

          5.   That the City of Charlotte required all
          CDIA Officers to be "re-sworn."

          6.   That the Plaintiff was re-sworn as an
          officer   with   the   Charlotte    Mecklenburg
          Police    Department-Airport     Division    on
          January 4, 2013.

          7.   That a review of the oath of office by
          the   undersigned  finds   the   oaths  are
          identical pre-take over and post-take over
                      -7-
by the City of Charlotte.

8.   That at the time of his employment with
the CDIA Police, the Plaintiff had his
Performance Review and Development (PRD)
signed off by supervisors of the Charlotte
Mecklenburg Police Department, even though
at the time he was under the ultimate
authority of the Aviation Department with
respect to hiring, discipline and firing.

9.   From and after the time of the merger,
when the Plaintiff became an employee of the
Charlotte Mecklenburg Police Department, he
was under the authority of the Charlotte
Mecklenburg   Police  Department    Chain   of
Command for all purposes and required to
follow    Charlotte     Mecklenburg     Police
Department policies and procedures.

10. That the Plaintiff received a letter on
June 13 [sic], 2013 from the Charlotte
Mecklenburg Police Department terminating
his    employment    from   the    Charlotte
Mecklenburg     Police    Department-Airport
Division.

11. That    the   Plaintiff    appealed his
termination to Charlotte Mecklenburg Police
Department Chief Rodney Monroe requesting a
Civil Service Hearing by the Charlotte-
Mecklenburg Civil Service Board.

12. That the Plaintiff was informed that he
was not entitled to an appeal to the Civil
Service Board as he was a "probationary
employee."

13. That under the City Charter, to be
considered   for  a   Civil   Service Board
hearing,    an   officer    must   be  "non
probationary."

14.   That   the   merger   by   the   City   of
                                   -8-
              Charlotte-Charlotte     Mecklenburg   Police
              Department   and    the   Charlotte  Douglas
              International Airport Police Division did
              not substantially change the nature and
              character of the Plaintiff's employment with
              the City of Charlotte.

       The trial court then made the following conclusion of law:

              . . . [T]hat, notwithstanding the provisions
              of the Charlotte City Charter Section 4.61
              (t), any changes in the nature and character
              of the Plaintiff's employment with the City
              of   Charlotte    after    the   departmental
              consolidation on December 15, 2012, were not
              substantive enough to have resulted in his
              being classified as a probationary employee
              with   the   Charlotte   Mecklenburg   Police
              Department, and he therefore should be and
              is entitled to a hearing before the City of
              Charlotte Civil Service Board regarding his
              termination from the Charlotte Mecklenburg
              Police Department-Airport Division.

       Defendant challenges only findings of fact 6 and 14. Thus,

findings of fact 1-5 and 7-13 are binding on appeal.       Koufman v.

Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (“Where no

exception is taken to a finding of fact by the trial court, the

finding is presumed to be supported by competent evidence and is

binding on appeal.”).

       Specifically, Defendant challenges the portion of finding

of fact 6 stating that Plaintiff was “re-sworn as an officer

with    the     Charlotte-Mecklenburg    Police   Department   Airport

Division on January 4, 2013,” claiming that this finding is
                                        -9-
unsupported by the evidence.           The City argues that there was “no

evidence    before    the    Court     indicating    that   the   second    oath

somehow ‘endowed’ [an] Airport Safety Officer with civil service

protection in 2007.”         The City further argues the record lacks

“credible    evidence    that    Plaintiff     was   ever   sworn    in    as   an

Airport    Safety    Officer    with    the   Charlotte-Mecklenburg        Police

Department until January, 2013.”

    We are satisfied that competent evidence existed to support

finding of fact 6.          Plaintiff presented as exhibits during the

hearing both the oath of office he was administered on 19 June

2007 and the oath administered on 4 January 2013.                   The content

of both oaths is identical:

            I, Dominick Mazzeo, do solemnly swear (or
            affirm) that I will support and maintain the
            Constitution and laws of the United States
            and the Constitution and laws of North
            Carolina not inconsistent therewith; that I
            will be alert and vigilant to enforce the
            criminal laws of this State; that I will not
            be influenced in any matter on account of
            personal bias or prejudice; that I will
            faithfully   and  impartially   execute   the
            duties of my office as a law enforcement
            officer according to the best of my skill,
            abilities, and judgment; so help me, God.

    Moreover, on both occasions the oath was administered by

the Deputy City Clerk of the City of Charlotte.              Thus, competent

evidence exists to support the trial court's finding of fact 6.
                                        -10-
    Defendant next challenges finding of fact 14 which states

that “the merger by the City of Charlotte-Charlotte Mecklenburg

Police     Department      and    the   Charlotte          Douglas      International

Airport Police Division did not substantially change the nature

and character of the Plaintiff’s employment with the City of

Charlotte.”     While the City argues that “[o]nly after December

15, 2012 did all Airport Safety Officers, including Plaintiff,

come under the chain of command of the CMPD,” the trial court’s

finding is supported by evidence of record that Plaintiff had

been — at least to some degree — under the supervision of the

CMPD since shortly after his initial hire date in 2007.                        During

the hearing, Plaintiff introduced into evidence his PRDs, dating

back to June 2008, which were signed by ranking officers of the

CMPD, including a captain with the CMPD.

    Finding of fact 14 is further supported by evidence of a

five percent (5%) contribution made by the City to Plaintiff’s

“Police ER 401k” that is reflected on both (1) Plaintiff’s pre-

consolidation       pay    stub   for   the    pay    period      beginning    on   17

November     2012    and     ending     on     23    November      2012;    and     (2)

Plaintiff’s    post-consolidation            pay    stub    for   the    pay   period

beginning on 15 December 2012 and ending on 21 December 2012.
                                          -11-
Pursuant     to    N.C.     Gen.        Stat.    §   143-166.50(e)1,         the     City

contributes       five    percent       (5%)    of   sworn      officers’    bi-weekly

earnings to the “Police ER 401k.”                 The fact that the City’s five

percent (5%) contribution was made to Plaintiff both prior to

and after the consolidation supports the trial court’s finding

that the merger did not materially alter Plaintiff’s employment

status with the City.             Similarly, evidence was presented that

Plaintiff    was    enrolled       in    the    “Police    Retirement       Plan”    both

before and after the consolidation.

      Furthermore, as noted by the trial court in finding of fact

4   (which   the    City   does     not    challenge       on   appeal),     after    the

consolidation, Plaintiff retained his same rank, badge number,

employee identification number, and salary.                        Thus, finding of

fact 14 is supported by competent evidence.

      Finally, Defendant challenges the trial court’s conclusion

of law “that . . . any changes in the nature and character of

the Plaintiff’s employment with the City of Charlotte after the

departmental       consolidation         on     December     15,   2012,     were     not

1
  N.C. Gen. Stat. § 143-166.50(e) states, in pertinent part, that
“on and after July 1, 1988, local government employers of law
enforcement officers shall contribute an amount equal to five
percent   (5%)   of   participating   local   officers'   monthly
compensation to the Supplemental Retirement Income Plan to be
credited to the designated individual accounts of participating
local officers.”
                                        -12-
substantive enough to have resulted in his being classified as a

probationary       employee     with   the     Charlotte         Mecklenburg    Police

Department . . . .”          The City argues that “[o]nly after December

15, 2012 did all Airport Safety Officers, including Plaintiff,

come under the chain of command of the CMPD . . . [such that]

their   one    year    probationary       period     set    out     in   the    Charter

started on December 15, 2012.”

       We   hold    that    the   trial     court’s    conclusion          of   law   is

supported by its findings of fact.                  The trial court’s findings

established that:           (1) Plaintiff retained his same rank, badge

number,     employee    identification       number,       and    salary    after     the

consolidation; (2) Plaintiff took identical oaths of office both

upon his initial hiring in 2007 and after the consolidation in

2012; (3) from the time he was originally assigned to the CDIA

until the date of his dismissal, Plaintiff had his PRDs reviewed

and signed by supervising officers of the CMPD; and (4) the City

contributed to his law enforcement 401k                     account in the same

amount both before and after the consolidation.

       Therefore, we conclude that the trial court's findings of

fact    support       its    legal     conclusion      that        any   changes      in

Plaintiff’s        employment     as    a    result        of     the    departmental

consolidation       were    insufficient       to   classify        Plaintiff    as    a
                                   -13-
“probationary”   employee    for    purposes   of   §4.61(t)   of   the

Charlotte City Charter.     As such, the trial court did not err in

determining that Plaintiff is entitled to a hearing before the

Civil Service Board with regard to his termination.

                              Conclusion

    For the reasons stated above, the trial court’s 29 August

2013 order is affirmed.

    AFFIRMED.

    Judges ELMORE and McCULLOUGH concur.
