             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA16-913

                               Filed: 20 June 2017

Office of Administrative Hearings, No. 15 OSP 07614

CHRISTINE N. BREWINGTON, Petitioner,

            v.

NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, STATE BUREAU OF
INVESTIGATION, Respondent.


      Appeal by petitioner from final decision entered 29 March 2016 by Senior

Administrative Law Judge Fred G. Morrison, Jr. in the Office of Administrative

Hearings. Heard in the Court of Appeals 3 April 2017.


      The McGuinness Law Firm, by J. Michael McGuinness, for petitioner-
      appellant.

      Attorney General Joshua H. Stein, by Special Deputy Attorney General J. Joy
      Strickland, for respondent-appellee.

      Essex Richards, P.A., by Norris A. Adams, II, for amicus curiae North Carolina
      State Lodge of the Fraternal Order of Police.


      ZACHARY, Judge.


      Petitioner Christine N. Brewington appeals from a Final Decision of the North

Carolina Office of Administrative Hearings, which concluded that respondent North

Carolina Department of Public Safety (DPS), State Bureau of Investigation (SBI) had

just cause to dismiss Brewington from her position as a Special Agent with the SBI.
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                  Opinion of the Court



For the reasons that follow, and after careful analysis, we affirm the decision of the

administrative law judge.

                                  I. Background

      Brewington began working as a Special Agent for the SBI in 1998, and she held

that position until her dismissal in June 2015. Prior to her dismissal, Brewington

was working in the Diversion and Environmental Crimes Unit. On 3 September

2014, Brewington was assigned to conduct interviews with several employees of a

pharmacy located in Lillington, North Carolina.           The assignment required

Brewington to work with Elizabeth Collier, an investigator with the North Carolina

Pharmacy Board, in connection with a drug diversion case. This was Collier’s first

case as an investigator with the Pharmacy Board.

      After concluding the interviews between 1:45 and 2:00 p.m., Brewington and

Collier drove separately to a nearby restaurant called the Sports Zone, where

Brewington had dined on prior occasions, for a working lunch. While there, Martha

Sullivan waited on Brewington and Collier’s table.        Sullivan would usually fix

Brewington a beverage known as a “Sprite Delight,” unless Brewington requested

something else to drink. Brewington described the Sprite Delight as a non-alcoholic

beverage, pinkish in color, which contained “cranberry juice . . . along with pineapple

juice or grapefruit juice.” Brewington recalled that she ordered her “usual drink[,]” a

Sprite Delight, during her 3 September 2014 lunch with Collier.



                                         -2-
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                  Opinion of the Court



      According to Collier, Brewington ordered “what appeared to be a cocktail[,]”

which was pink and was served in a “stemmed bowl-type glass, goblet style.”

Brewington drank the beverage as she and Collier ate lunch. Collier also observed

that Brewington ordered a second drink at the end of the meal that had the same

appearance.   Toward the end of the meal, Brewington’s friend, Mike Mansfield,

arrived at the Sports Zone and joined Brewington and Collier. Brewington recalled

that Mansfield ordered a beer immediately after he sat down, but Collier did not

observe Mansfield order any food or drinks and indicated that she would have

remembered seeing beer on the table. According to Brewington, she did not consume

any alcohol during lunch, but “throughout the time that we were there, [Mansfield]

continued to order another beer. I do recall him ordering a mixed drink, but I don’t

know what the mixed drink was.”

      Shortly after Mansfield’s arrival, Collier prepared to leave the restaurant.

Because the Pharmacy Board authorized its representatives to pay for meals they

shared with members of other state agencies, Collier offered to pay for Brewington’s

lunch. However, before she paid the bill, Collier informed Brewington that while she

could pay for the food, she could not use her Pharmacy Board credit card to pay for

alcohol. Brewington did not attempt to argue with or correct Collier’s impression that

the beverages Brewington had ordered contained alcohol. Collier “made a point to

separate [the alcohol] from [her] portion of the bill[,]” paid for one order of loaded



                                         -3-
                         BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                        Opinion of the Court



potato chips and one order of fish tacos at 3:28 p.m., and then left the restaurant

“pretty much right after” paying the bill.

       Brewington remained at the restaurant with Mansfield for approximately

thirty minutes after Collier’s departure.             Mansfield had forgotten his wallet, so

Brewington offered to “pay for his meal or whatever he had ordered, and he could just

pay [her] back at a later date.” At 3:57 p.m., Brewington used her personal credit

card to pay for one order of loaded potato chips, “3 Coors Light” beers (totaling $9.87),

and “2 Special Mixed Drink 7[’s]” (totaling $15.98).

       Eight months after her 3 September 2014 lunch with Brewington, Collier

audited a SBI Diversion School course. After diversion classes had concluded, Collier

attended a social dinner with a group of course participants, one of whom was SBI

Special Agent Steven1 Smith.           During a conversation regarding professionalism,

Collier mentioned to Special Agent Smith that she had observed Brewington consume

alcohol during their lunch at the Sports Zone. Collier recalled that the incident “just

kind of came up in conversation.” Special Agent Smith informed Collier that he would

have to report the issue of Brewington’s alleged misconduct to his supervisor, as the

SBI has a strict policy that prohibits the consumption of alcohol by on-duty agents.2

Once Special Agent Smith reported Collier’s allegations to his supervisor, the issue


       1  Special Agent Smith’s first name appears as both “Steven” and “Stephen” in the record. We
use the former spelling because that is how Collier spelled it at Brewington’s contested case hearing.
        2 An exception to this rule is when an agent is working in an undercover capacity and becomes

involved in an unavoidable situation where consumption of alcohol is necessary.

                                                -4-
                         BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                         Opinion of the Court



worked its way through the SBI’s chain of command. Eventually, the Special Agent

in Charge of the SBI’s Special Investigations Unit, Kanawha Perry, was assigned to

investigate the incident.

       By letter dated 11 May 2015, Special Agent in Charge Perry notified

Brewington that she was the subject of an internal investigation. However, the letter

contained an error as to the date of the incident: “The nature of the allegation is as

follows: Unacceptable Personal Conduct based on an allegation that in or around

January 2015 you consumed an alcoholic beverage while on duty.” (Emphasis added).

Special Agent in Charge Perry and Assistant Special Agent in Charge Cecil Cherry

interviewed Brewington on 20 May 2015. Prior to the beginning of the interview,

Special Agent in Charge Perry advised Brewington of her Garrity rights3 and

corrected the date of the alleged offense date to 3 September 2014. After the date in

question was correctly identified, Brewington stated that she did not need extra time

to prepare for the interview. Because SBI policy generally prohibits the use of tape

recorders during non-custodial interviews, Special Agent in Charge Perry took notes

on Brewington’s answers and used these notes to generate a typewritten report.




       3  In Garrity v. New Jersey, the United States Supreme Court held that statements elicited as
a result of compelling a choice between self-incrimination and loss of a public job are inadmissible in
criminal proceedings. 385 U.S. 493, 500, 17 L. Ed. 2d 562, 567 (1967) (“We now hold the protection of
the individual under the Fourteenth Amendment against coerced statements prohibits use in
subsequent criminal proceedings of statements obtained under threat of removal from office, and that
it extends to all, whether they are policemen or other members of our body politic.”).

                                                 -5-
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                   Opinion of the Court



      According to Special Agent in Charge Perry’s report, Brewington was asked if

she took any prescription medications that affected her ability to use a firearm; in

response, she identified five medications that she was taking to control various health

conditions, and she stated that none of the medicines affected her cognitive abilities

or her ability to use a firearm.     The agents then proceeded to ask Brewington

questions concerning what occurred at the Sports Zone on 3 September 2014.

Brewington indicated that she drank two Sprite Delights; that she did not consume

any alcohol; that Mansfield arrived near the end of the lunch; that “she [could not]

recall what Mansfield had to drink or eat”; that Mansfield “usually gets water”; and

that Mansfield “ ‘rarely’ dr[ank] a beer or two and she [could not] recall if he bought

a beer that day.”

      Later in the interview, the agents produced Brewington’s 3 September 2014

receipt from the Sports Zone. Brewington confirmed that her credit card was used to

pay the bill, and that her signature appeared on the receipt. Brewington also agreed

that based on the price of the two mixed drinks (approximately $8.00 apiece), the

drinks must have contained alcohol. However, after explaining that Sullivan never

charged her for Sprite Delights, Brewington maintained that she had not ordered any

alcohol and that it was possible that Mansfield had ordered the two mixed drinks and

the three beers listed on the receipt.




                                          -6-
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                  Opinion of the Court



      At that point in the interview, Assistant Special Agent in Charge Cherry

obtained Mansfield’s cell phone number from Brewington, went to another room, and

called Mansfield. Upon his return to the interview room, Assistant Special Agent in

Charge Cherry reported that, according to Mansfield, no alcohol was ordered at the

lunch, but if he did consume an alcoholic drink at the Sports Zone, it would have been

a beer. After considering Mansfield’s statement to Assistant Special Agent in Charge

Cherry and noticing certain discrepancies in Brewington’s statements, Special Agent

in Charge Perry informed Brewington that she would be required to undergo a

polygraph examination. The results of that examination included a determination

that Brewington had answered the following question untruthfully: “Did you drink

any alcohol at lunch on September 3, 2014? (Answer: ‘No’)[.]” The polygraph report

also contained statements that Brewington made during a post-examination

interview:

             [Special Agent] Brewington was interviewed post
             examination by [Assistant Special Agent in Charge] Smith.
             [Special Agent] Brewington stated that her memory was
             affected by some of her medical conditions. She further
             stated that she possibly could have consumed a sip of
             alcohol from her companion’s drink and she could not
             remember. After thinking about the incident further,
             [Special Agent] Brewington stated she was “sure” she did
             not consume any alcohol at lunch on that particular date
             and time.

      By letter dated 3 June 2015, the SBI notified Brewington that she was required

to attend a pre-disciplinary conference with SBI Special Agent in Charge W. Ty


                                         -7-
                    BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                 Opinion of the Court



Sawyer. The specific allegations to be discussed were that Brewington had consumed

alcohol while on official duty and had been untruthful during the internal

investigation. Among the conference’s purposes were to allow Brewington to present

facts that would counter the allegations or support her case and to respond with any

information that was relevant to the question of whether disciplinary action, up to

and including dismissal, was proper. The pre-disciplinary Conference was held on 10

June 2015.    The next day, the SBI issued a letter informing Brewington of

“Management’s decision . . . to dismiss [her] effective June 11, 2015, based on

Unacceptable Personal Conduct.”        The dismissal decision was based upon

Brewington’s consumption of alcoholic beverages while on duty, and her

untruthfulness during the internal investigation process.

      After receiving the dismissal letter, Brewington appealed the SBI’s decision to

the DPS’s Employment Advisory Committee (EAC). As part of the grievance process,

Brewington submitted two “Employee/Witness” forms requesting that Sullivan and

Mansfield be permitted to appear as voluntary witnesses at the EAC Hearing. This

request was denied. On 25 August 2015, the EAC heard Brewington’s appeal, and

considered the internal investigation file, the polygraph examination report, and

other statements and evidence that Brewington presented on her own behalf. The

EAC also considered the statements that Sullivan and Mansfield gave to the SBI. In

a memorandum dated 7 September 2015, the EAC “found that [while] the dismissal



                                        -8-
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                  Opinion of the Court



letter specified that Ms. Brewington was dismissed for consuming alcohol, . . . the

evidence presented during the hearing indicated that she purchased alcohol on duty.”

The EAC concluded that this distinction was significant.          Although the EAC

recognized that “both purchasing and consuming alcohol on duty . . . constituted

Unacceptable Personal Conduct[,]” it ultimately recommended that Brewington’s

dismissal be overturned.

      Once EAC’s memorandum was issued, the SBI’s Deputy Director, Janie

Sutton, was charged with issuing a final recommendation to SBI Director B.W.

Collier concerning Brewington’s dismissal.       In carrying out this responsibility,

Deputy Director Sutton considered the internal investigation file, spoke with Special

Agent in Charge Perry and his staff, consulted with the SBI’s legal counsel, and

reviewed the EAC’s memorandum.           Deputy Director Sutton also spoke with

Brewington’s immediate supervisor and reviewed the portion of Brewington’s

personnel file that pertained to three previous disciplinary actions. Brewington had

been given written warnings for “Unsatisfactory Job Performance” in August 2013

and September 2014, respectively, for failing to “properly store and secure evidence”

that was under her control and for failing to “complete criminal investigative reports

and case assignments in a timely manner.” On 4 March 2015, Brewington was

demoted from the position of “Agent III to Agent II” for, inter alia, failure to comply

with certain North Carolina criminal discovery statutes (by neglecting to turn over



                                         -9-
                       BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                   Opinion of the Court



certain discoverable materials to the appropriate District Attorneys’ Offices in several

cases) and for a continuing failure to timely complete investigative reports and

activities. After completing her independent inquiry into the matter and conferring

with Director Collier, Deputy Director Sutton recommended that Brewington’s

dismissal be upheld.

      On 28 September 2015, Director Collier issued the SBI’s final agency decision,

which upheld Brewington’s dismissal. Director Collier’s decision was based upon the

following rationale:

             The facts indicate that you not only violated SBI policy and
             procedure by consuming alcoholic beverages during the
             work day; but you were not truthful during the internal
             investigation process, which is also a violation of SBI policy
             and procedure. Each of the offenses standing alone is just
             cause for your dismissal for [unacceptable] personal
             conduct, especially in light of your disciplinary history.
             You could just as well be dismissed for unsatisfactory job
             performance. . . .

             Given the fact that you have been given multiple
             opportunities to conform your performance and conduct to
             the expected norms of this organization, and you have
             failed to do so, I do not believe that another demotion or
             even a suspension or written warning will serve any
             additional purpose.

      On 21 October 2015, Brewington filed a petition for a contested case hearing

in the OAH.     The case was heard on 11 and 12 January 2016 before Senior

Administrative Law Judge (ALJ) Fred G. Morrison, Jr. In a Final Decision entered

29 March 2016, ALJ Morrison made the following pertinent findings of fact:


                                          - 10 -
        BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                       Opinion of the Court



14. Collier recalled a man arriving toward the end of her
lunch with Petitioner, who stayed at the table briefly but
he did not sit down or order food and drinks. Collier left
shortly after the man arrived. Collier’s recollection of her
interaction with this man is consistent with Petitioner’s
oral statements to Special Agent in Charge Kanawha Perry
(SAC Perry) made during her May 20, 2015, investigative
interview that her friend Michael Mansfield arrived near
the end of Collier’s and her lunch after Collier and she had
already eaten their lunch and that “Mansfield met Collier
just before she left.”

15. Collier did not remember seeing the man order mixed
drinks or drink beer, or there being any beer on the table
during her time at lunch. She only recalls seeing the two
mixed drinks ordered by Petitioner while they ate lunch
together. Collier opined that had the man sat down and
ordered and consumed beer she would have remembered it.
Collier’s testimony in this regard is credible.

...

22. Petitioner’s testimony that Mansfield arrived at the
restaurant “around three o’clock, if not a little before” . . . ;
that Mansfield came in about midway through her meal
with Collier and sat down while they finished their meal. .
. ; and that Mansfield ordered a beer as soon as he sat down
and then “continued to order another beer” while Petitioner
and Collier were finishing their meal . . . is not credible in
that it conflicts with the statements made by Petitioner to
SAC Perry listed in Finding of Fact 14 and with Collier’s
testimony listed in Findings of Fact 14 and 15. Collier’s
testimony is more credible.

23. Petitioner’s testimony that her friend Mike Mansfield
ordered and consumed all of the alcoholic beverages listed
on the Sports Zone receipt that she paid with her debit card
is not credible, in that it is not reasonable to believe that
Mansfield ordered and/or consumed three beers and two
mixed alcoholic drinks in the approximate 30 minute time


                              - 11 -
                   BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                Opinion of the Court



           period between 3:28 p.m. when Collier paid her bill and left
           the restaurant, and 3:57 p.m. when Petitioner paid her bill.

           24. It is more likely than not that Mansfield ordered and
           drank the three beers while Petitioner drank her second
           mixed drink after Collier left the restaurant. . . .

           28. It is more likely than not that Petitioner drank alcoholic
           beverages while armed and on official duty on September
           3, 2014, and made untrue statements to SBI agents during
           the course of her investigative interview on May 20, 2015.
           ...

           31. Based on all of the information that she reviewed,
           Sutton recommended to Director Collier that Petitioner be
           dismissed. Director Collier adopted that recommendation
           and designated authority to Sutton to sign the agency’s
           final agency decision dismissing her. She was dismissed
           from the SBI for unacceptable personal conduct for
           consuming alcohol while on duty and being untruthful
           when questioned about the matter during the internal
           investigation. . . .

           32. Sutton, on behalf of the SBI, considered the seriousness
           of the offenses and Petitioner’s disciplinary history which
           included multiple written warnings (for unsatisfactory
           work performance) and a recent demotion (for
           unacceptable personal conduct and unsatisfactory job
           performance) in determining the appropriate sanction for
           Petitioner’s unacceptable personal conduct. Based on these
           considerations, Sutton determined that Petitioner’s
           conduct warranted dismissal and she continued to hold
           that position on behalf of the SBI at hearing.

Based on these and other findings, ALJ Morrison concluded that “substantial

evidence” presented at the hearing established that Brewington “consumed an

alcoholic beverage during her September 3, 2014 lunch” with Collier, and that



                                       - 12 -
                    BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                  Opinion of the Court



Brewington “made untrue statements to SBI agents during her investigative

interview on May 20, 2015[.]” ALJ Morrison then concluded that DPS had shown by

the preponderance of the evidence that it had just cause to terminate Brewington for

unacceptable personal conduct.

      Brewington now appeals from ALJ Morrison’s Final Decision.

                             II. 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. Harris v. N.C. Dep’t of Pub. Safety, No. COA16-341, __ N.C.

App. __, __, 798 S.E.2d 127, 133, 2017 WL 900037 (Mar. 7, 2017). The APA authorizes

this Court to affirm or remand an ALJ’s final decision, N.C. Gen. Stat. § 150B-51(b)

(2015), 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


                                         - 13 -
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                  Opinion of the Court




             (6) Arbitrary, capricious, or an abuse of discretion.

Id. 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.” N. Carolina Dep’t of Env’t & Nat. Res. v. Carroll, 358 N.C. 649,

659, 599 S.E.2d 888, 894 (2004) (brackets, quotation marks and citation omitted).

      To that end, we review de novo errors asserted under subsections 150B-

51(b)(1)-(4). N.C. Gen. Stat. § 150B-51(c) (2015). Under the de novo standard of

review, the reviewing court “considers the matter anew and freely substitutes its own

judgment[.]” Carroll, 358 N.C. at 660, 599 S.E.2d at 895 (citation, internal quotation

marks, and brackets omitted).

      When the error asserted falls within subsections 150B-51(b)(5) and (6), this

Court must apply the “whole record standard of review.” N.C. Gen. Stat. § 150B-51(c)

(2015). 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.



                                         - 14 -
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                   Opinion of the Court



Carroll, 358 N.C. at 660, 599 S.E.2d at 895 (internal citations and quotation marks

omitted). “ ‘Substantial evidence’ means relevant evidence a reasonable mind might

accept as adequate to support a conclusion.” N.C. Gen. Stat. § 150B-2(8c) (2015).

      “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.” Carroll, 358 N.C. at 662, 599 S.E.2d at 896

(citation and internal quotation marks omitted). 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, 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.

City of Rockingham v. N.C. Dep’t of Envt. & Natural Res., Div. of Water Quality, 224

N.C. App. 228, 239, 736 S.E.2d 764, 771 (2012). 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[.]’ ” N.C. Dep’t of Pub. Safety v. Ledford,

__ N.C. App. __, __, 786 S.E.2d 50, 64 (2016) (citation omitted), review allowed, __

N.C. __, 792 S.E.2d 152 (2016). As our Supreme Court has explained, “the ALJ who

conducts a contested case hearing possesses those institutional advantages that make




                                          - 15 -
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                  Opinion of the Court



it appropriate for a reviewing court to defer to his or her findings of fact.” Carroll,

358 N.C. at 662, 599 S.E.2d at 896 (internal citation and quotation marks omitted).

                                  III. Just Cause

      Brewington’s overarching argument on appeal is that ALJ Morrison erred in

concluding that DPS had just cause to dismiss Brewington from employment.

However, Brewington’s attack on DPS’s just cause determination, and on ALJ

Morrison’s consideration of it, takes many different forms. As such, we begin with an

explanation of North Carolina’s essential just cause principles.

      Brewington was a career State employee subject to the North Carolina Human

Resources Act. Our legislature has determined that “[n]o career State employee

subject to the . . . Act shall be discharged, suspended, or demoted for disciplinary

reasons, except for just cause.” N.C. Gen. Stat. § 126-35(a) (2015). Under the North

Carolina Administrative Code, “just cause” for the disciplinary action taken may be

established upon a showing of an employee’s “unacceptable personal conduct.” 25

NCAC 1J.0604(b)(2) (2016). Unacceptable personal conduct is defined, in pertinent

part, as

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

             (d) the willful violation of known or written work rules; [or]

             (e) conduct unbecoming a state employee that is
             detrimental to state service[.]


                                         - 16 -
                      BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                    Opinion of the Court




25 NCAC 1J.0614(8) (2016).

      “Just cause, like justice itself, is not susceptible of precise definition.” Carroll,

358 N.C. at 669, 599 S.E.2d at 900 (citations and quotation marks omitted). Properly

understood, just cause is a “flexible concept, embodying notions of equity and fairness,

that can only be determined upon an examination of the facts and circumstances of

each individual case.” Id. (citation and quotation marks omitted). “Inevitably, this

inquiry requires an irreducible act of judgment that cannot always be satisfied by the

mechanical application of rules and regulations.” Id.

      In Carroll, our Supreme Court declared that every determination of whether a

public employer’s decision to discipline its employee was supported by just cause

“requires two separate inquiries: first, whether the employee engaged in the conduct

the employer alleges, and second, whether that conduct constitutes just cause for the

disciplinary action taken.” Id. at 665, 599 S.E.2d at 898 (citation, quotation marks,

and brackets omitted). “[T]he first of these inquiries is a question of fact . . . [and is]

reviewed under the whole record test. . . . [T]he latter inquiry is a question of law . .

. [and] is reviewed de novo.” Id. at 665-66, 599 S.E.2d at 898.

      This Court has addressed “the subject of commensurate discipline” in the

context of unacceptable personal conduct and the just cause framework. Warren v.

N. Carolina Dep’t of Crime Control & Pub. Safety, 221 N.C. App. 376, 379, 726 S.E.2d

920, 923 (2012). After examining the flexible just cause standard enunciated in


                                           - 17 -
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                    Opinion of the Court



Carroll, the Warren Court determined that “not every instance of unacceptable

personal conduct as defined by the Administrative Code provides just cause for

discipline.” Id. at 382, 726 S.E.2d at 925. The Warren Court then articulated a three-

pronged approach to determine whether just cause exists to discipline an employee

who has engaged in unacceptable personal conduct:

             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
             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.

Id. at 382-83, 726 S.E.2d at 925.

                                    IV. Discussion

      A. Substantial Evidence to Support Just Cause Determination (Whole

      Record Test)

      In her first challenge to ALJ Morrison’s Final Decision, Brewington makes a

series of arguments to support one principal assertion: that substantial evidence did




                                           - 18 -
                       BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                   Opinion of the Court



not exist to justify her termination. We address each of Brewington’s arguments in

turn.

        1. Brewington’s Motion to Dismiss

        Brewington contends that ALJ Morrison erred when he denied Brewington’s

motion to dismiss at the close of DPS’s evidence. This argument is based upon a

single sentence taken from ALJ Morrison’s comments on DPS’s opposition to

Brewington’s motion: “I’m not entirely convinced you’ve shown just cause for her

termination . . . .”

        In focusing on this one sentence, Brewington fails to provide crucial context.

The relevant exchange was as follows:

              Mr. McGuinness: The Petitioner would respectfully move
              to dismiss the case against her at this juncture, Your
              Honor. . . . Our position is simple. The totality of the
              evidence and the light most favorable to the Respondent
              does not establish just cause as a matter of law. Thank
              you.

              The Court: Do you want to comment on it?

              Ms. Strickland: I just want to state, Judge, I believe at this
              stage that we have shown just cause and the light most
              favorable to the Respondent’s evidence and ask that you
              deny that motion.

              The Court: Well, you haven’t gone -- you know, I’m not
              entirely convinced you’ve shown just cause for her
              termination, so therefore, you know, I want to hear from
              the Petitioner, really. I think in a case like this I deserve
              to. I’m having to hear this case and I’m not a polygraph or
              anything like that. You weigh the evidence and determine


                                          - 19 -
                      BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                    Opinion of the Court



               credibility you’ve been talking about.

               And there -- you know, I just deny your motion, and we’ll
               take about 10 minutes.

A careful review of ALJ Morrison’s brief ruling on Brewington’s motion to dismiss

reveals a measured approach. ALJ Morrison was not entirely convinced that DPS

had shown just cause. Consequently, ALJ Morrison expressed to the parties that due

to the nature of the case, Brewington’s side of the story would be crucial to the

credibility determinations he would invariably have to make. Given this context, we

conclude that ALJ Morrison properly denied Brewington’s motion to dismiss.

      2. Challenges to ALJ Morrison’s Findings of Fact

      Brewington next argues that the following findings of fact contained in ALJ

Morrison’s Final Decision were not supported by substantial evidence: 11, 14, 15, 22,

23, 24, 28, 31, 32. Brewington also maintains that findings 23 and 24 contain

speculation.

      We first note that the majority of ALJ Morrison’s findings are not challenged

and therefore are conclusively established 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.”) (citation omitted). In addition, because finding of fact 11 is

the only finding that Brewington challenges with a specific argument, issues




                                           - 20 -
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                  Opinion of the Court



concerning the remaining challenged findings have been abandoned. N.C. R. App. P.

28(b)(6) (2015).

      Finding of fact 11 reads as follows:

             During the lunch, Petitioner ordered two Special Mixed
             Drinks which contained alcohol. They were pink in color
             mixed drinks which were served in a “stemmed bowl-type
             glass -- goblet style.” Petitioner drank one of the drinks
             while eating lunch with Collier and ordered the second one
             prior to Collier leaving the restaurant.

Brewington cites Sullivan’s statement to the SBI, in which Sullivan stated “she had

never served SA Brewington an alcoholic beverage.” This quotation was contained in

Brewington’s Exhibits 1 (the EAC Report) and 14 (the SBI’s summary of Sullivan’s

statement), both of which were offered into evidence before ALJ Morrison.

Brewington then asserts that her “evidence on this point was direct and corroborated

by two eye witnesses.” We presume that the “two eyewitnesses” to whom Brewington

refers are Sullivan and Mansfield.       The EAC Report contained an excerpt of

Mansfield’s telephonic statement to the SBI, in which Mansfield indicated that no

alcohol was ordered on 3 September 2014; that he did not remember consuming

alcohol that day because he rarely did so; and that if he did consume alcohol, it would

have been one beer.    After citing this evidence, Brewington asserts that “DPS’s

evidence on [her alleged consumption of alcohol] is assumption, speculation, and

inference, which is irrational to accept when nothing has disproved the direct

evidence.”


                                         - 21 -
                        BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                       Opinion of the Court



       As an initial matter, we recognize a significant flaw in Brewington’s argument:

Exhibit 1 was only before ALJ Morrison in a limited capacity, and ALJ Morrison

granted DPS’s motion to exclude Exhibit 14 from evidence. When DPS objected to

Exhibit 1 and moved to redact “hearsay statements”—presumably those of Sullivan

and Mansfield—contained in the EAC Report, ALJ Morrison noted that he would “not

find any facts based on [the report,]” and he overruled the objection. ALJ Morrison

then clarified that he would consider Exhibit 1 “for the fact that [Brewington] went

through the grievance procedure and she appealed [to] the [EAC], but then it went to

the Director of the SBI, and the Director of the SBI issued [inaudible].”

       As to Exhibit 14, DPS argued that Sullivan’s statement to the SBI should be

excluded because she had not testified at the OAH hearing, and because her

statement contained inadmissible hearsay.4 ALJ Morrison excluded the exhibit from

evidence, but he did not address the issue of hearsay in his ruling. Rather, ALJ

Morrison explained that he would not allow Exhibit 14 into evidence because:

               What . . . concerns me about that is that -- the paragraphs
               -- she didn’t remember if she served alcohol to Brewington,
               Liz, or Mike that day, but she said if alcohol was served,
               then Mike would have been the one drinking the alcohol
               that day.

               And that’s -- I mean -- and plus if she was waiting on them,
               she’s the one that gave them the ticket, the check, and took
               the credit card, you assume, and charged them for three

       4 DPS’s counsel did not expressly argue that the report should be excluded based upon hearsay
grounds, but that was the clear implication. Furthermore, Brewington’s counsel made arguments
against excluding Sullivan’s statement on hearsay grounds.

                                               - 22 -
                         BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                         Opinion of the Court



               beers and two mixed drinks. So I’m not going to allow that
               one in. [T p 315]

Thus, ALJ Morrison determined that Sullivan’s statement was inconsistent and not

credible.

       Our review of ALJ Morrison’s rulings on Exhibit 1 and Exhibit 14 reveals that

his consideration, if any, of portions of Sullivan’s and Mansfield’s statements (as set

forth in Exhibit 1) was extremely limited, and that he did not consider Sullivan’s full

statement (as set forth in Exhibit 14) at all. Because Brewington does not specifically

challenge these rulings,5 any issues related to those exhibits are abandoned. N.C. R.

App. P. 28(b)(6). Therefore, Brewington’s reliance on the aforementioned exhibits in

challenging finding of fact 11 is misplaced.

       We now turn to the merits of Brewington’s challenge to ALJ Morrison’s

findings. Brewington specifically takes issue with the portion of finding of fact 11

stating that she “ordered two Special Mixed drinks which contained alcohol” and then

consumed them. The core of Brewington’s argument, however, is that any finding

that she consumed alcohol during lunch on 3 September 2014 is speculative at best

and unsupported by substantial evidence. In other words, no evidence before ALJ

Morrison proved that Brewington consumed alcohol.                       It bears repeating that




       5 In at least two sections of her brief, Brewington does take issue with ALJ Morrison’s decision
to exclude Sullivan’s statement from evidence. However, Brewington focuses on exceptions to the
hearsay rule, and she does not make a specific, substantive argument as to why ALJ Morrison’s
exclusion of Exhibit 14 and the reasons he gave in support of that ruling were erroneous.

                                                - 23 -
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                   Opinion of the Court



“ ‘[s]ubstantial evidence’ means relevant evidence a reasonable mind might accept as

adequate to support a conclusion.” N.C. Gen. Stat. § 150B-2(8c). Thus, we are not

required to determine whether the evidence proved that Brewington consumed

alcohol, but whether it adequately supported ALJ Morrison’s inference in this regard.

This is a critical distinction. It also appropriate to note that “the ‘whole record’ test

is not a tool of judicial intrusion; instead, it merely gives a reviewing court the

capability to determine whether an administrative decision has a rational basis in

the evidence.” Carroll, 358 N.C. at 674, 599 S.E.2d at 903 (citation and quotation

marks omitted).    With these principles in mind, we conclude that the following

constitutes substantial evidence in support of finding of fact 11.

      Assistant Special Agent in Charge Cherry interviewed Collier on three

occasions regarding her recollection of what occurred at the Sports Zone on 3

September 2014. According to the written summaries of those interviews, Collier

observed Brewington order two “ ‘girly’ fruity” cocktail-style drinks during lunch. The

drinks, pinkish in color, were served in “goblet stemware glass[es].” Based on the

drink’s appearance, Collier assumed that it was an alcoholic beverage. Consequently,

after reviewing the lunch bill, Collier informed Brewington that she would pay for

the food but that her Pharmacy Board credit card could not be used to purchase

alcohol. Brewington did not indicate that the drinks she had ordered were non-

alcoholic. As Collier prepared to leave, a “white male” (Mansfield) arrived at the



                                          - 24 -
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                  Opinion of the Court



Sports Zone and sat down with Brewington. Collier’s testimony at the OAH hearing

was materially consistent with the account that she gave to Assistant Special Agent

in Charge Cherry.

      According to the written summary of Brewington’s interview with SBI

investigators, she: drank a Sprite Delight but did not consume any alcohol; indicated

that “Mansfield met Collier just before she left”; doubted that she paid for anything

that Mansfield ate or drank; stated that Mansfield “rarely” drank a beer or two; and

did not recall if Collier had paid for the lunch. However, after she was shown her 3

September 2014 receipt from the Sports Zone, Brewington agreed that her credit card

was used to pay for two mixed drinks and three beers,    though she maintained that

she did not review her bill before leaving the Sports Zone.

      In contrast, at the OAH hearing, Brewington testified that Mansfield arrived

sometime in the middle of her meal with Collier, and that Mansfield ordered a beer

when he sat down and ordered another beer during the meal. Brewington also

recalled that Mansfield ordered some kind of mixed drink. Collier testified, however,

that she did not recall any beer on the table, and if there had been, she would have

remembered seeing it.

      In assessing all of this record evidence, ALJ Morrison noted the inconsistencies

between Brewington’s interview and her testimony.         ALJ Morrison also found

Collier’s testimony regarding the timing of Mansfield’s arrival and whether Mansfield



                                         - 25 -
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                   Opinion of the Court



ordered any alcohol before Collier’s departure to be more credible. Based on this

assessment, ALJ Morrison found in finding of fact 23 that Brewington’s testimony

that Mansfield

             ordered and consumed all of the alcoholic beverages listed
             on the Sports Zone receipt . . . is not credible, in that it is
             not reasonable to believe that Mansfield ordered and/or
             consumed three beers and two mixed alcoholic drinks in
             the approximate 30 minute time period between 3:28 p.m.
             when Collier paid her bill and left the restaurant, and 3:57
             p.m. when Petitioner paid her bill.

      After carefully reviewing the record and the Final Decision, we conclude that

finding of fact 11 as well as other findings stating that Brewington consumed alcohol

during her lunch with Collier are supported by substantial evidence.           Although

evidence on the issue of Brewington’s alcohol consumption was conflicting, it was for

ALJ Morrison to resolve those conflicts, weigh the evidence, assess witness

credibility, and draw inferences from the facts. Carroll, 358 N.C. at 674, 599 S.E.2d

at 904. ALJ Morrison’s resolution of the material conflicts in the evidence has a

rational basis in the evidence presented, and we reject Brewington’s argument to the

contrary.

      3. Conclusion of Law No. 8

      Brewington also challenges conclusion of law no. 8 in ALJ Morrison’s Final

Decision, which states: “The following, per G.S. 150B-2(8c), constitutes substantial

evidence . . . that Petitioner consumed an alcoholic beverage during her September



                                          - 26 -
                       BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                    Opinion of the Court



14, 2014, lunch[.]”     According to Brewington, the nine subparagraphs listed in

support of this conclusion are irrelevant, speculative, or favorable to Brewington.

         After a careful review of Brewington’s contentions, we conclude that it is

unnecessary for us to address her individual attacks on each subparagraph listed in

support of conclusion of law no. 8. Some of the subparagraphs were not material to

the conclusion that Brewington consumed alcohol on 14 September 2014. In addition,

the subparagraphs that are material to this conclusion are restatements of findings

that ALJ Morrison made in the “Findings of Fact” section of the Final Decision. None

of those findings have been successfully challenged, and ALJ Morrison’s findings

support the conclusion that Brewington consumed alcohol while on duty. As such,

we reject her argument.

         B. Brewington’s Integrity Evidence (Whole Record Test)

         Brewington next argues that ALJ Morrison failed to consider “substantial

testimony from seven witnesses and dozens of pages of exhibits” concerning her

reputation for honesty and integrity. Beyond that, Brewington simply summarizes

portions of testimony given by her character witnesses. This argument is without

merit.

         In the preamble to his Final Decision, ALJ Morrison specifically stated that:

               In making the FINDINGS OF FACT, the undersigned
               Senior Administrative Law Judge has weighed all the
               evidence and has assessed the credibility of the witnesses
               by taking into account the appropriate factors for judging


                                           - 27 -
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                   Opinion of the Court



             credibility, including, but not limited to the demeanor of
             the witness, any interests, bias, or prejudice the witness
             may have, the opportunity of the witness to see, hear, know
             or remember the facts or occurrences about which the
             witness testified, whether the testimony of the witness is
             reasonable, and whether the testimony is consistent with
             all other believable evidence in the case.

Finding of fact 2 states, in part, that “[d]uring her career [Brewington] received very

favorable performance ratings in the area of Integrity . . . and five character witnesses

testified concerning her reputation for honesty.”         The rest of finding of fact 2

acknowledges that Brewington “received several written warnings for inadequate job

performance and unacceptable personal conduct[,]” and that she was demoted in

March 2015. ALJ Morrison’s findings then addressed the material issues in the case:

whether Brewington consumed alcohol on 3 September 2014 and whether she was

forthright with SBI agents during the internal investigation interview on 20 May

2015. Testimony from the character witnesses was relevant to these issues. But the

probative value of the character testimony, if any, was for ALJ Morrison to determine,

and he had the prerogative to “accept or reject [that evidence] in whole or part[.]”

City of Rockingham, 224 N.C. App. at 239, 736 S.E.2d at 771.

      Furthermore, the gravamen of Brewington’s argument, as we understand it, is

that ALJ Morrison did not consider this evidence. Yet the portions of the Final

Decision cited above reveal that the character evidence was considered, though not

to the extent (or to the positive effect) that Brewington would have preferred. ALJ



                                          - 28 -
                         BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                         Opinion of the Court



Morrison assessed the credibility of the witnesses and considered evidence that

bolstered as well as detracted from Brewington’s reputation for honesty and integrity.

In addition, ALJ Morrison noted at the OAH hearing that none of Brewington’s

character witnesses had any knowledge concerning the events of 3 September 2014.

We cannot say that ALJ Morrison’s findings concerning Brewington’s character

evidence were legally deficient.6 Even assuming that ALJ Morrison should have

made more extensive findings on this evidence, it would not require reversal of the

Final Decision.

       C. Incomplete Fact Finding (Whole Record Test)

       Brewington next argues that ALJ Morrison failed to make sufficiently detailed

findings of fact on all of the relevant issues before him.                    The centerpiece of


       6  In another section of her brief, Brewington repeats her argument that ALJ Morrison failed
to properly consider her character evidence, including Brewington’s past SBI performance
evaluations—completed by her supervisors—in which she scored high integrity ratings. We reject this
contention for the reasons stated above. Brewington further argues that Deputy Director Sutton
engaged in an arbitrary and incomplete decision-making process because she did not consider
Brewington’s previous high integrity ratings before issuing a dismissal recommendation to Director
Collier.
         The record, however, belies any contention that Deputy Director Sutton’s decision was
arbitrary or based on inadequate methodology. Deputy Director Sutton testified that while she had
no reason to dispute “a particular supervisor’s findings” as to Brewington’s integrity, the SBI’s
“personnel evaluation system . . . required subjectivity in that you have to be familiar with the
employee[,]” and that in her experience, Brewington’s reputation for honesty and integrity among her
colleagues was “bad.”       Deputy Director Sutton further testified that the most appropriate
considerations for her “extended beyond . . . the dimension of integrity” because her primary tasks
were to investigate the allegations of on-duty alcohol consumption and whether dismissal would be an
appropriate disciplinary action. In her discretion, Deputy Director Sutton determined that “given
what [she] was trying to accomplish,” she “did not feel that anything prior to the disciplinary actions
and the [internal] investigation . . . would shed light on the current decision to be made.” In sum, we
reject Brewington’s assertion that Deputy Director Sutton’s dismissal recommendation was arbitrary
and legally deficient under well-established just cause principles because of her decision not to
consider Brewington’s past evaluations for integrity.

                                                - 29 -
                       BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                     Opinion of the Court



Brewington’s argument is a list of nine “areas of fact”—unsupported by specific

arguments—“where there was significant evidence before the Court in Brewington’s

favor but where . . . ALJ [Morrison] made no findings[,]” including “[t]he admitted

incompleteness of the [SBI’s internal] investigation[, t]he admitted spoliation of

evidence by the failure to record all evidence[,] . . . [t]he failure to consider the totality

of all evidence[,] . . . [t]he failure to consider the admitted arbitrariness in [DPS’s]

investigation[,] . . . [and t]he failure to allow the statement of Martha Sullivan in the

internal affairs file into evidence.” In another section of Brewington’s brief, she

makes a similar argument, asserting that the findings of fact “in numerous areas

lacked sufficient detail, were erroneous and [were] not predicated upon substantial

evidence.”

       We reject these contentions for several reasons. To begin, the essence of this

argument is simply that ALJ Morrison should have made more findings and drawn

more inferences in Brewington’s favor. Brewington also fails to explain how and

when the SBI acknowledged deficiencies in or the arbitrariness of its investigation.

Instead, Brewington cites the proposed Final Decision that her counsel submitted to

ALJ Morrison following the contested case hearing.                 The proposed decision

necessarily contains Brewington’s own view of the record, and ALJ Morrison was not

obligated to find facts based on it.          Finally, this Court has recognized that

administrative agencies and ALJs “need not make findings as to every fact which



                                            - 30 -
                        BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                   Opinion of the Court



arises from the evidence and need only find those facts which are material to the

settlement of the dispute.” Craven Reg’l Med. Auth. v. N. Carolina Dep’t of Health &

Human Servs., 176 N.C. App. 46, 60, 625 S.E.2d 837, 845 (2006); see Collins v. N.

Carolina Dep’t of Health & Human Servs., 179 N.C. App. 652, 634 S.E.2d 641 (2006)

(observing that an ALJ “is not required . . . to find facts as to all credible evidence”

because “[t]hat requirement would place an unreasonable burden on the [ALJ,]” and

that, instead, the ALJ “must find those facts which are necessary to support its

conclusions of law”).

      D. Just Cause Factors Contained in the State Personnel Manual (De

      Novo)

      Brewington’s next argument is that ALJ Morrison was required to make

findings on each and every just cause factor set forth in Section 7 of the North

Carolina Personnel Manual. According to Brewington, our Supreme Court “embraced

this approach” in Wetherington v. N. Carolina Dep’t of Pub. Safety, 368 N.C. 583, 780

S.E.2d 543 (2015).

      In Wetherington, a trooper with the North Carolina State Highway Patrol was

dismissed for allegedly violating the agency’s truthfulness policy. Id. at 584, 780

S.E.2d at 544. Critically, the trooper’s commanding officer testified “at the OAH

hearing . . . that he decided to dismiss petitioner not based upon consideration of the

facts and circumstances of petitioner’s conduct, but instead because of his erroneous



                                          - 31 -
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                   Opinion of the Court



view that any violation of the [Highway] Patrol’s truthfulness policy must result in

dismissal.” Id. at 592, 780 S.E.2d at 547-48. In other words, the superior officer felt

that he had no discretion in determining what sanction to impose for a violation of

the agency’s truthfulness policy, “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.” Id. at 592,

780 S.E.2d at 548.        The Wetherington Court, however, “emphasize[d] 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[,]” and held that the trooper’s termination was made under a

misapprehension of the law:

             The approach employed by Colonel Glover in applying a
             fixed punishment of dismissal for any violation is
             antithetical to the flexible and equitable standard
             described in Carroll and is at odds with both the ALJ’s and
             the SPC’s finding of fact that Colonel Glover exercised
             discretion in reaching his decision to dismiss petitioner.

             Application of an inflexible standard deprives management
             of discretion. 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.

             As such, by upholding respondent’s use of a per se rule of
             mandatory dismissal for all violations of a particular


                                          - 32 -
                         BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                         Opinion of the Court



               policy, the SPC failed to examine the facts and
               circumstances of petitioner’s individual case as required by
               this state’s jurisprudence.

Id. at 592-93, 780 S.E.2d at 548.

       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. Id. at 593, 780 S.E.2d at 548.

       Here, Brewington argues that ALJ Morrison failed to consider the factors set

out in Wetherington.7 After a careful review of ALJ Morrison’s Final Decision, we

conclude that the Wetherington factors were sufficiently addressed. ALJ Morrison’s

findings addressed the severity of the alleged misconduct (the SBI’s alcohol

consumption and truthfulness policies are mandatory), the subject matter, the

resulting harm, and the positive and negative portions of Brewington’s work history.

ALJ Morrison did not make a specific finding on the discipline imposed in other cases

involving similar violations, but his findings that Deputy Director Sutton “considered

the totality of circumstances regarding this disciplinary issue” and spoke “to several




       7 Brewington’s specific argument is that Wetherington indicates that an ALJ must address
each and every factor listed in the State Personnel Manual concerning just cause for disciplinary
action. We refuse to read such a bright line rule into the Wetherington decision. Nevertheless, it
appears that the Wetherington factors are virtually identical to the ones listed in the State Personnel
Manual.

                                                - 33 -
                      BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                  Opinion of the Court



SBI employees prior to recommending a decision to . . . Director Collier[,]” were

sufficient. We also note that, by way of comparison, the issue in Wetherington was

whether the trooper had lied about losing his “campaign hat,” id. at 585, 780 S.E.2d

at 544, whereas Brewington was accused of lying about drinking alcohol while on

official duty.   Accordingly, for the reasons stated above, we reject Brewington’s

argument on this issue.

      E. Adequacy of the SBI’s Internal Investigation (De Novo)

      Next, Brewington argues that the SBI’s internal investigation into Collier’s

allegations was “defective because of inadequate methodology and effort[.]”

Brewington’s specific target is the summary of her internal investigation interview.

Referring to the method that Special Agent in Charge Perry used to record the content

of that interview as the SBI’s “rough note interview process[,]” Brewington asserts

that this interrogation technique produced a “cursory investigation” and led to the

“spoliation of evidence.” The essence of this argument is that Special Agent in Charge

Perry’s typewritten summary of Brewington’s internal investigation interview was

defective because the interview was not recorded on tape or video. According to

Brewington, “a simple tape recorder would have preserved all evidence.”

      We conclude that Brewington’s contentions have no basis in law or fact. As

Special Agent in Charge Perry explained at the OAH Hearing, SBI policy precludes

agents from recording non-custodial interviews, such as ones that involve internal



                                         - 34 -
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                 Opinion of the Court



investigations.   Brewington does not identify any laws requiring that internal

investigations concerning law enforcement personnel actions be recorded in any

specific fashion, and we are aware of none.

      Furthermore, during the interview, Special Agent in Charge Perry—a veteran

SBI agent and head of the SBI’s Special Investigation Unit—took handwritten notes

on Brewington’s responses as she gave them. Assistant Special Agent in Charge

Cherry, who was present during the entire interview, confirmed that Special Agent

in Charge Perry’s typewritten summary was an accurate reflection of Brewington’s

answers to the questions posed.     Brewington fails to specify what evidence or

information was lost or destroyed due to the method by which her interview was

documented, and we decline to speculate on this issue. Accordingly, this argument is

without merit.

      F.   Alleged    Arbitrariness     of    the       Internal   Investigation   and

      Brewington’s Termination (Whole Record Test)

      Brewington’s next argument is based on her disclosure to Special Agent in

Charge Perry and Assistant Special Agent in Charge Cherry that she was prescribed

certain medications for multiple medical conditions. Citing this Court’s decision in

Bulloch v. N. Carolina Dep’t of Crime Control & Pub. Safety, 223 N.C. App. 1, 732

S.E.2d 373 (2012), Brewington contends that the SBI “should have used available

testing to determine if [she] was experiencing a relevant medical, psychological,



                                        - 35 -
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                   Opinion of the Court



alcohol related or other issue.” Brewington holds the position that the internal

investigation and her eventual termination were arbitrary and capricious.

      In Bulloch, the petitioner had been diagnosed with depression and bipolar

disorder during his tenure with the North Carolina State Highway Patrol. Id. at 2,

732 S.E.2d at 376. Sometime after being taken off of his depression medication and

placed on lithium to treat his bipolar condition, the petitioner’s employment was

terminated due to an incident during which he held his girlfriend’s arm behind her

back until she cried, threatened to kill himself, and then fired a round from his service

weapon into his bedroom floor. Id. In the contested case hearing in the OAH, an ALJ

concluded that just cause did not exist to support the petitioner’s termination for

unacceptable personal conduct because the decision was, inter alia, “arbitrary and

capricious because it failed to consider a known, underlying medical condition[.]” Id.

at 3, 732 S.E.2d at 376 (internal quotation marks omitted). The State Personnel

Commission (SPC) adopted this conclusion.

      On appeal to this Court, the Department of Public Safety argued that the SPC’s

conclusion concerning the petitioner’s medical condition was erroneous. The Bulloch

Court recognized the general rule that whether just cause exists for termination

depends “upon an examination of the facts and circumstances of each individual

case.” Id. at 7, 732 S.E.2d at 379 (citation omitted). The Court then concluded that

the record as well as the relevant findings “clearly support[ed] the SPC’s conclusion



                                          - 36 -
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                  Opinion of the Court



that the underlying causes of [the petitioner’s] conduct were not fully considered by

the Department before termination.” Id. at 15, 732 S.E.2d at 383.

      Unlike the situation in Bulloch, there is no indication that Brewington’s

medical conditions or the medicines she takes to control them were related to the

conduct that caused her dismissal.        Specifically, there is no suggestion that

Brewington’s medical conditions or medications resulted in her alleged consumption

of alcohol while she was on duty or affected her ability to be forthright during the

internal investigation.    Consequently, Bulloch is inapposite and we reject

Brewington’s argument to the contrary.

      G. Due Process of Law (De Novo)

      Brewington next argues that she was denied due process of law in two ways.

First, Brewington contends that she was not given sufficient notice of the date of her

alleged offense. Second, Brewington asserts that the EAC’s refusal to allow her to

present live witness testimony from Sullivan and Mansfield during her internal

grievance hearing impeded her right to “present a defense.” Once again, we are not

persuaded.

      It is well established that career State employees enjoy a property interest in

continued employment. This property interest is created by state law, N.C. Gen. Stat.

§ 126-35(a), and is guaranteed by the Due Process Clauses of the Fifth and the

Fourteenth Amendments to the United States Constitution. Peace v. Employment



                                         - 37 -
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                  Opinion of the Court



Sec. Comm’n of N. Carolina, 349 N.C. 315, 322, 507 S.E.2d 272, 277-78 (1998);

Leiphart v. North Carolina School of the Arts, 80 N.C. App. 339, 348-349, 342 S.E.2d

914, 921, cert. denied, 349 S.E.2d 862, 318 N.C. 507 (1986); Pittman v. Dep’t Of Health

And Human Servs., 155 N.C. App. 268, 272-73, 573 S.E.2d 628, 632 (2002), overruled

on other grounds sub nom. Pittman v. N. Carolina Dep’t Of Health And Human Servs.,

357 N.C. 241, 580 S.E.2d 692 (2003). “The touchstone of due process is protection of

the individual against arbitrary action of government[.]” Wolff v. McDonnell, 418

U.S. 539, 558, 41 L. Ed. 2d 935, 952 (1974) (citation omitted).       The doctrine of

procedural due process restricts governmental actions that “deprive individuals of

‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the

Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332, 47 L. Ed.

2d 18, 31 (1976).

      “The fundamental premise of procedural due process protection is notice and

the opportunity to be heard.” Peace, 349 N.C. at 322, 507 S.E.2d at 278 (citing

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 84 L. Ed. 2d 494, 503 (1985)).

“Moreover, the opportunity to be heard must be ‘at a meaningful time and in a

meaningful manner.’ ” Id. (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 14 L. Ed.

2d 62, 66 (1965)). This Court has summarized these essential requirements as

follows:

             Under federal due process an employee’s property interest
             in continued employment is sufficiently protected by a pre-


                                         - 38 -
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                   Opinion of the Court



             termination opportunity to respond, coupled with post-
             termination administrative procedures. Further, the
             federal due process concern for fundamental fairness is
             satisfied if the employee receives oral or written notice of
             the charges against him, an explanation of the employer’s
             evidence, and an opportunity to present his side of the
             story. To interpret the minimal protection of fundamental
             fairness established by federal due process as requiring
             more than this . . . would intrude to an unwarranted extent
             on the government’s interest in quickly removing an
             unsatisfactory employee.

Owen v. UNC-G, 121 N.C. App. 682, 686, 468 S.E.2d 813, 816 (1996) (internal

citations and quotation marks omitted). However, these general federal due process

protections must be satisfied in addition to the more specific notice requirements of

N.C. Gen. Stat. § 126-35(a), which provides:

             No career State employee . . . shall be discharged . . . except
             for just cause. In cases of such disciplinary action, the
             employee shall, before the action is taken, be furnished
             with a statement in writing setting forth the specific acts
             or omissions that are the reasons for the disciplinary action
             and the employee’s appeal rights.

This Court has held that the written notice required by section 126-35(a) must

include a sufficiently particular description of the “incidents [supporting disciplinary

action] . . . so that the discharged employee will know precisely what acts or omissions

were the basis of his discharge.” Employment Security Comm. v. Wells, 50 N.C. App.

389, 393, 274 S.E.2d 256, 259 (1981).       This “statutory requirement of sufficient

particularity[,]” Owens, 121 N.C. App. at 687, 468 S.E.2d at 817, cannot be satisfied

if the public employer fails to provide names, dates, or locations, as this information


                                          - 39 -
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                   Opinion of the Court



is necessary to allow the employee “to locate [the] alleged violations in time or place,

or to connect them with any person or group of persons.” Wells, 50 N.C. App. at 393,

274 S.E.2d at 259.

      In the present case, it was initially reported that the incident at the Sports

Zone occurred in July 2014. Furthermore, the letter notifying Brewington that she

was the subject of an internal investigation incorrectly identified the date in question

as being “in or around January 2015.” Even so, Special Agent in Charge Perry

explicitly dispelled any confusion concerning the date of the alleged offense when he

notified Brewington that Collier’s allegations pertained to the lunch that took place

on 3 September 2014. Special Agent in Charge Perry made this clarification before

questioning Brewington, and she neither asked for more time to prepare for the

interview nor indicated that she was confused as to the date of the allegations. By

the time that Brewington received the letter requiring her attendance at the pre-

disciplinary conference, there was no confusion as to the date that corresponded to

Collier’s allegations. The notice given to Brewington concerning the date of the

alleged conduct was not constitutionally infirm, as the initial erroneous dates did not

impede her ability to respond at a meaningful time. Brewington’s pre-termination

due process rights were not compromised. Furthermore, because section 126-35(a)’s

sufficient particularity requirement was met well before the pre-disciplinary

conference occurred, Brewington’s ability to fully prepare for the conference was not



                                          - 40 -
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                  Opinion of the Court



prejudiced.

      Brewington’s second argument is that she was deprived “of the procedural due

process protection provided by the State’s internal grievance system” when the EAC

refused to allow live testimony from Mansfield and Sullivan. Given the statutory

post-termination procedures afforded Brewington, we discern no due process

violation of any kind. Precedent from our Supreme Court indicates that a career

State employee’s procedural due process rights, at least as they pertain to post-

termination procedures, are fully protected by the opportunities to pursue a contested

case hearing before an ALJ in the OAH and to obtain judicial review of the ALJ’s

Final Decision in the appellate division. See Peace, 349 N.C. at 327, 507 S.E.2d at

280-81 (observing that “[a] terminated State employee may avail himself not only of

administrative review incorporating full discovery of information and an evidentiary

hearing, but may also obtain judicial review of the final agency decision[,]” and

concluding “that this procedure fully comports with the constitutional procedural due

process requirements mandated by the Fourteenth Amendment, and no additional

safeguards are needed to avoid erroneous deprivation”) (emphasis added). Moreover,

nothing suggests that the denial of Brewington’s request to present live testimony

before the EAC deprived her of a fair hearing. Indeed, the SBI’s written summaries

of Mansfield’s and Sullivan’s statements were considered by the EAC and were cited

in its memorandum recommending the reversal of Brewington’s dismissal.



                                         - 41 -
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                  Opinion of the Court



Consequently, we conclude that the EAC hearing fully met procedural due process

requirements.

      Nonetheless, Brewington further contends that ALJ Morrison “erroneously did

not admit [Sullivan’s statement to the SBI] despite [the fact] that it was part of the

investigation and admissible under [various exceptions to the rule against hearsay.]”

As explained above, however, Sullivan’s statement was not excluded from the OAH

evidentiary record on hearsay grounds; rather, the statement was excluded due to

ALJ Morrison’s concerns over the credibility and probative value of the statement

itself. Brewington does not specifically challenge this ruling on appeal, and even if

she did, procedural due process concerns would not be implicated. The record reveals

that while Brewington subpoenaed Sullivan to testify at the OAH proceeding,

Sullivan did not appear at the contested case hearing. As such, Brewington was in

no way denied the right to present a defense.

      H. SBI Director’s Failure to Testify at OAH Hearing (De Novo)

      Next, Brewington argues that Deputy Director Sutton’s testimony at the OAH

hearing was insufficient to establish which just cause factors were considered by

Director Collier.   More specifically, Brewington contends that because Director

Collier—who was the ultimate decision-maker responsible for Brewington’s

dismissal—did not testify, “the ALJ and this Court were deprived of Director Collier’s

consideration, if any, of the required just cause factors[.]” We are not persuaded.



                                         - 42 -
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                   Opinion of the Court



      Our research reveals no absolute requirement that the person who makes the

final decision to discipline a public employee must testify at a contested case hearing.

Furthermore, if Director Collier had been unavailable to make the final

determination upholding Brewington’s dismissal, Deputy Director Sutton would have

been authorized to make the decision herself. Deputy Director Sutton’s testimony

was also particularly relevant, as she was responsible for both reviewing the

information concerning Brewington’s alleged unacceptable personal conduct and

consulting with Director Collier to reach a decision in the matter. The 11 June 2015

letter informing Brewington of her dismissal, which was signed by Deputy Director

Sutton on behalf of Director Collier, explained the specific considerations that led to

the SBI’s decision. Brewington’s counsel was free to cross-examine Deputy Director

Sutton on these issues, and he did so extensively. The record is replete with the

factors that resulted in Brewington’s dismissal, and the Final Decision reflects ALJ

Morrison’s consideration of them. As a result, ALJ Morrison was presented with all

the information that was necessary to determine whether Brewington’s actions

constituted just cause for her dismissal. Brewington’s argument is without merit.

                                   V. Conclusion

      In closing, we recognize that this case has raised concerns in the law

enforcement community, a group worthy of all citizens’ gratitude and respect. In its

amicus brief, the Fraternal Order of Police contends that Brewington was deprived



                                          - 43 -
                     BREWINGTON V. N.C. DEPT. OF PUB. SAFETY

                                  Opinion of the Court



of fundamental due process protections when Mansfield and Sullivan were not

allowed to testify at the EAC hearing, as well as when ALJ Morrison excluded

Sullivan’s statement from evidence in the contested case hearing. The Fraternal

Order of Police also urges us to hold that the decision-maker of a public employer

must consider all pertinent just cause factors contained in the State Personnel

Manual before disciplining a public employee. We have addressed these issues above.

      Even so, we acknowledge that this case involved accusations that ultimately

had to be proved or disproved through a large body of conflicting evidence. ALJ

Morrison was charged with making credibility determinations, drawing inferences,

and finding material facts. After a careful review of the record, we conclude that ALJ

Morrison’s findings, which are supported by substantial evidence, support his

conclusions that Brewington consumed alcohol while on duty and that she was

untruthful during the SBI’s internal investigation. We further conclude that, under

the circumstances of this case, Brewington’s violations of SBI policy constituted just

cause for her dismissal based on unacceptable personal conduct. Accordingly, we

affirm ALJ Morrison’s Final Decision in its entirety.

      AFFIRMED.

      Judge HUNTER, JR. concurs.

      Chief Judge McGee concurs by separate opinion.




                                         - 44 -
 No. COA16-913 – Brewington v. N.C. Dept. of Pub. Safety


      McGEE, Chief Judge, concurring with separate opinion.


      I fully concur in the result, but write separately to note that I disagree with

the statement of law that “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.” Although the majority opinion correctly cites

Harris v. N.C. Dep't of Pub. Safety, __ N.C. App. __, __, 798 S.E.2d 127, 132 (2017), in

support of this statement of law, I dissented from the majority opinion in Harris, and

Harris is currently on appeal to our Supreme Court. As I more fully discussed in

Harris, I believe N.C. Gen. Stat. § 126-34.02 provides “adequate procedure for judicial

review” of the decision of the ALJ and, for this reason, N.C. Gen. Stat. § 150B-51 does

not apply. Id. at __, 798 S.E.2d at 140-41 (citing N.C. Gen. Stat. § 150B-43 (2015)).
