An administrative law judge has upheld the firing of a state Highway Patrolman accused of sharing an inappropriate photo with a bank teller.

Ronald Gene Ezzell Jr. had been with the Highway Patrol for 19 years when he was fired on Feb. 19, 2009. He was accused of sharing an inappropriate photo through a teller window at a bank.

The incident took place in Kinston in October 2008. The photo was a laminated photo of a naked boy with a large private part superimposed onto this body.

Here is a copy of the ruling issued Wednesday:

The
STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF DUPLIN 09 OSP 2588

RONALD GENE EZZELL, JR.,
Petitioner,

v.

NORTH CAROLINA STATE
HIGHWAY PATROL,
Respondent.

DECISION

This contested case was heard by Senior Administrative Law Judge Fred G. Morrison Jr. on July 13, 2009, in Raleigh, North Carolina.

APPEARANCES

For Petitioner: William Woodward Webb and James Hawes
The Edmisten & Webb Law Firm
Post Office Box 1509
Raleigh, NC 27602

For Respondent: Tamara S. Zmuda
Assistant Attorney General
North Carolina Department of Justice
9001 Mail Service Center
Raleigh, NC 27699

ISSUE
Whether Respondent had just cause to terminate Petitioner's employment with the State Highway Patrol for unbecoming/unacceptable personal conduct.

FINDINGS OF FACT

1. Petitioner Ronald Gene Ezzell, Jr. was an employee of the North Carolina State Highway Patrol for 19 years prior to his dismissal on February 19, 2009. Petitioner had received numerous awards and commendations for his service on the Patrol.

2. On October 28, 2008, Petitioner was on-duty, in full uniform, and driving a Patrol vehicle while conducting a financial transaction at the drive-through lane of the State Employees Credit Union on Vernon Avenue in Kinston, N.C. While at the drive-through, Petitioner placed in the canister and sent through the tube to the female teller a check to be cashed, his SECU identification card, and a laminated photograph of a little boy standing in a yard, naked with a large penis superimposed on his body. It was an actual photograph of a little boy and a humongous penis, not a cartoon.

3. First Sergeant C.L. Johnston of the Patrol learned about the transaction from his secretary, who had heard about it at a non-patrol function. Sergeant Johnston then filed a complaint which resulted in an Internal Affairs investigation. The State Employees Credit Union branch manager, two tellers involved in the transaction, First Sergeant Johnston and his secretary, and Petitioner were interviewed. Petitioner destroyed the laminated photograph the day following his IA interview "so it would not get him in trouble again," though policy required him to give it to the investigator.

4. The North Carolina State Highway Patrol Policy Manual Directive H.4 Section V states that "only the Commander's Office may impose disciplinary action for Personal Conduct violations classified as serious by the Unit Commander of Internal Affairs." On January 13, 2009, at the conclusion of the Internal Affairs investigation, Major W.R. Scott concluded that a Serious Personal Conduct violation had been substantiated and recommended to the Commander/Colonel that Petitioner be suspended without pay for ten (10) workdays.

5. On February 13, 2009, Colonel Walter J. Wilson, Jr. rejected Major Scott's recommendation and directed that steps be taken to dismiss Petitioner from the Patrol for unacceptable personal conduct based upon a violation of State Highway Patrol Policy Manual Directive H.1, Section V, which states, "Members shall conduct themselves at all times, both on and off duty, in such a manner as to reflect most favorably upon the Highway Patrol and in keeping with the high standards of professional law enforcement. Unbecoming conduct shall include any conduct that constitutes unacceptable personal conduct pursuant to State Personnel Policy and any conduct which tends to bring the Patrol into disrepute, or which reflects discredit upon any member(s) of the Patrol, or which tends to impair the operation and efficiency of the Patrol or of a member, or which violates Patrol policy."

6. Colonel Wilson has known Petitioner since 1992 when he served as Trooper Ezzell's First Sergeant in Jacksonville. They were friends and he is well aware of Petitioner's work record with the Patrol. Under Patrol policy Colonel Wilson had discretion to impose a lesser discipline instead of a dismissal "when all of the surrounding circumstances and the past work record of a member being disciplined appears to warrant such a reduction in the level of disciplinary action and one or more of the following mitigating factors is present: the property damage was minor, the physical injury was negligible, no disciplinary action has been taken against the member in the past, [and/or] there are other mitigating circumstances which the Commander's Office considers to be significant in the individual case at hand." He chose not to do so after reviewing the Report of Investigation, Pre-Dismissal Conference documents, Major Scott's report, and remembering the fact that in July 2008 he had admonished Petitioner for making inappropriate remarks to a 17-year-old female waitress. He had not administered a lesser sanction in any similar or comparable case during his tenure.

7. On February 23, 2009, Petitioner filed an appeal of grievance to the Secretary of the Department of Crime Control and Public Safety. A five member Employee Advisory Committee, including three females, heard Petitioner's appeal on March 6, 2009. The Committee's report to the Secretary concluded that Petitioner demonstrated unbecoming conduct and should be disciplined, but recommended that the discipline be a demotion from Master Trooper to Trooper, in addition to 10-days suspension from work without pay. The Committee thought that Petitioner's 19 years of service, on the job accomplishments, and the need for his skills as a helicopter pilot in the Patrol's Aviation Unit merited some discipline less than termination.

8. The North Carolina State Highway Patrol Policy Manual Directive H.4 Section XIV outlines the appeal process for members who have faced disciplinary action. Section XIV provides the following: "Upon receiving the recommendations of the Employee Advisory Committee, the Secretary shall determine whether or not to uphold or change the Commander's Office decision as to whether or not the type of violation charged was appropriate and uphold or reduce the disciplinary action taken in the case. The Secretary shall not be bound by the recommendation of the committee, but shall consider its report. The decision shall be based upon evidence and recommendations that addressed the charge(s) forming the basis for the appeal." Secretary Reuben Young complied with this policy in deciding to reject the Committee's recommendation and affirm the Colonel's decision to dismiss Petitioner. He found Petitioner's conduct to be deplorable, offensive, beyond the bounds of decency, and outside a trooper's responsibility. The Secretary concluded that Petitoner's prior commendable service did not justify demotion or suspension without pay in lieu of dismissal. He found the charge and disciplinary action appropriate.

9. On April 15, 2009, Petitioner Ezzell filed a Petition for Contested Case Hearing with the Office of Administrative Hearings, alleging that the Respondent unjustifiably dismissed him and in the process acted erroneously, exceeded its authority or jurisdiction, failed to use proper procedure, acted arbitrarily or capriciously, or failed to act as required by law or rule. Petitioner admits sending the photograph, contending that it was shared in a joking manner without intent to offend the tellers who felt disgusted and uncomfortable upon receiving it. He classifies his action as "poor judgment" and "not appropriate," but not being sufficient to justify dismissal.

CONCLUSIONS OF LAW

1. Petitioner was a career state employee at the time of his dismissal. Because he is entitled to the protections of the North Carolina State Personnel Act, and has alleged that Respondent lacked just cause for his dismissal, the Office of Administrative Hearings has jurisdiction to hear his appeal and issue a Decision to the State Personnel Commission. N.C. Gen. Stat. §§ 126-1 et seq., 126-35, 126-37(a) (2007).

2. N.C. Gen. Stat. § 126-35(a) provides that "No career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause." In a career state employee's appeal of a disciplinary action, the department or agency employer bears the burden of proving that "just cause" existed for the disciplinary action. N.C. Gen. Stat. § 126-35(d) (2007).

3. N.C. Gen. Stat. § 14-190.17(a)(2) states that a person commits second degree exploitation of a minor if, knowing the character or content of the material, he "distributes, transports, exhibits, receives, sells, purchases, exchanges, or solicits material that contains a visual representation of a minor engaged in sexual activity." In its definition of "sexual activity," N.C. Gen. Stat. § 14-190.13(5)(g) includes "the lascivious exhibition of the genitals or pubic area of any person." Further, N.C. Gen. Stat. § 14-190.13(6)(a) defines "sexually explicit nudity" as the showing of "uncovered, or less than opaquely covered, human genitals, pubic area, or buttocks, or the nipple or any portion of the areola of the human female breast." It is a felony to possess, distribute or exhibit such material.

4. 25 N.C. Admin. Code 1I.2301(c) enumerates two grounds for disciplinary action, including dismissal based upon just cause: (1) unsatisfactory job performance, including grossly inefficient job performance; and (2) unacceptable personal conduct. 25 N.C. Admin. Code 1J.0614(i)(1, 2, 4, 5) defines "unacceptable personal conduct" as conduct for which no reasonable person should expect to receive prior warning; job-related conduct which constitutes a violation of state or federal law; willful violation of known or written work rules; or conduct unbecoming a state employee that is detrimental to state service. Petitioner's conduct with the photograph was unacceptable personal conduct.

5. The North Carolina State Highway Patrol Policy Manual Directive H.1, Section V defines "Unbecoming Conduct" as follows: "Unbecoming conduct shall include any conduct that constitutes unacceptable personal conduct pursuant to State Personnel Policy and any conduct which tends to bring the Patrol into disrepute, or which reflects discredit upon any member(s) of the Patrol." Petitioner's conduct violated this patrol policy.

6. 25 N.C. Admin. Code 1J.0604(a) states that "When just cause exists, the only disciplinary actions provided for under this Section are:
a. Written warning;
b. Disciplinary suspension without pay;
c. Demotion; and
d. Dismissal."
State Personnel policy further provides that "The degree and type of action taken shall be based upon the sound and considered judgment of the employing agency---."

7. N.C. Dep't. of Envtl. and Natural Res. v. Carroll, 358 N.C. 649, 669, 599 S.E.2d 888, 900 (2004), held that the fundamental question in determining just cause is "whether the disciplinary action taken was ‘just.' Inevitably, this inquiry requires an irreducible act of judgment that cannot always be satisfied by the mechanical application of rules and regulations." The specific facts and circumstances in each case control the determination.

8. Respondent has met the burden of persuading me by the greater weight of the evidence presented that it had just cause to discipline Petitioner. Of the four possible sanctions (written warning, disciplinary suspension without pay, demotion and dismissal), Colonel Wilson and Secretary Young chose to terminate Petitioner's employment. While I may have decided to impose a lesser sanction based upon the maxim, "Justice tempered with mercy," for a veteran trooper, I am not convinced that these officials acted erroneously, exceeded their authority or jurisdiction, acted arbitrarily or capriciously, or failed to act as required by law or rule in deciding to fire Petitioner. Thus, their judgment must stand.

DECISION

Respondent's decision to terminate Petitioner's employment should be left undisturbed.

ORDER AND NOTICE

The North Carolina State Personnel Commission will make the Final Decision in this contested case. N.C. Gen. Stat. § 150B-36(b), (b1), (b2), and (b3) enumerate the standard of review and procedures the agency must follow in making its Final Decision, and adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge.

Pursuant to N.C. Gen. Stat. § 150B-36(a), before the agency makes a Final Decision in this case, it is required to give each party an opportunity to file exceptions to this decision, and to present written arguments to those in the agency who will make the Final Decision. N.C. Gen. Stat. 150B-36(b)(3) requires the agency to serve a copy of its Final Decision on each party, and furnish a copy of its Final Decision to each party's attorney of record and to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714.

This the 5th day of August, 2009.

Fred G. Morrison Jr.
Senior Administrative Law Judge