Williams v. Davie County

120 N.C. App. 160
CourtCourt of Appeals of North Carolina
DecidedSeptember 5, 1996
DocketNo. COA94-901
StatusPublished

This text of 120 N.C. App. 160 (Williams v. Davie County) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Williams v. Davie County, 120 N.C. App. 160 (N.C. Ct. App. 1996).

Opinion

COZORT, Judge.

In this case the petitioner, a deputy sheriff of Davie County assigned to work with state and federal agencies on drug conspiracies, was fired for failing to inform the sheriff that he had discovered unauthorized wiretaps on phones in the sheriffs department. State and federal agents had instructed petitioner not to discuss the wiretaps with anyone in the sheriffs department. After his dismissal, petitioner filed for unemployment benefits. The Employment Security Commission denied petitioner’s claim, ruling that petitioner’s failure to disclose the discovered wiretaps to his superiors amounted to misconduct which made petitioner ineligible for benefits. The superior court affirmed. We hold the court erred in affirming the Commission’s conclusion that petitioner’s actions constituted misconduct disqualifying petitioner from benefits.

The essential facts are undisputed. Petitioner was a detective with fourteen years’ experience in the Davie County Sheriff’s Department. Part of his duties included working with Internal Revenue Service (I.R.S.) and State Bureau of Investigation (S.B.I.) agents, who used sheriff’s department facilities to investigate drug conspiracies. For about three years the I.R.S. and S.B.I. conducted an investigation of a drug conspiracy involving several people in Davie County. During this investigation, an informant implicated petitioner’s supervisor, Lt. John Stephens, in the petitioner’s presence. One of the lead federal agents conducting the investigation, I.R,S. Special Agent Ted Warren, told petitioner not to disclose this information.

On 2 March 1993 petitioner and another sheriff’s detective, Arthur Ebright, found a recording device on Lt. Stephens’ telephone which they suspected might be illegally recording third-party telephone conversations. Ebright testified he and petitioner entered Lt. Stephens’ office that night because they thought the people who cleaned the [162]*162office had left it open, and the officers wanted to secure the office and lock the door. Ebright stated the two saw the tape recorder under a table near Lt. Stephens’ desk, between one of the table’s cross braces and the floor. Ebright and petitioner told federal agents about the recorder the next night. Ebright testified he unlocked the door to Stephens’ office and went in the office with Sgt. Tommy Grubb of the sheriff’s department, federal agents, and the petitioner. The recorder was still underneath the desk and was hooked to three phone lines. Sgt. Grubb opened Stephens’ middle desk drawer and removed a tape. The officers listened to the tape and determined it was a recording of third-party conversations.

S.B.I. Special Agent Robert Risen testified that petitioner played the tapes for him in petitioner’s car, and that a call Risen made to the Forsyth County Sheriffs Department was recorded on the tape. Risen testified petitioner told him petitioner could not tell the sheriff about the recorder because the sheriff would not do anything about it. Risen told petitioner he was going to talk to I.R.S. Special Agent Warren that afternoon. Special Agent Warren testified he thought it was possible some of the recorded conversations were linked to the investigation he was conducting. Warren testified the sheriff’s officers and the federal investigators talked about what to do after discovering the recorder and tapes, but that no one was sure what should be done or who should be told about the phone tap. After talking to Warren, Risen wrote a memo to the special agent in charge of the S.B.I.’s Hickory office, who contacted the S.B.I.’s assistant director, who contacted the Federal Bureau of Investigation (F.B.I.). In a written discharge report filed with the Employment Security Commission petitioner stated that he received a telephone call on 6 March 1993 from an agent who told him not to take any actions regarding the telephone recordings, since the issue was in the hands of the F.B.I. On 8 March, F.B.I. Agent Dennis Baker called petitioner and told him not to discuss the phone tap with anyone. On 9 March, the F.B.I. served a search warrant on Davie County Sheriff William Wooten and confiscated the tapes and recorder.

Sheriff Wooten testified he asked petitioner to resign. When petitioner refused, the sheriff fired him. The sheriff testified his reasons for firing petitioner included tensions between petitioner and his supervisor, petitioner’s failure to follow the chain of command, and statements petitioner made to the media. In response to the Employment Security Commission’s request for information, the Davie County Finance Office listed as reasons for separation: [163]*163“Disloyalty to the Sheriff. Failing to keep the Sheriff informed of a clandestine investigation involving his supervisor. Illegal search of supervisor’s office on two occasions, involving four other departments.”

On 17 June 1993, petitioner applied to the Employment Security Commission for unemployment benefits. An adjudicator for the Commission determined petitioner was disqualified for benefits under N.C. Gen. Stat. § 96-14(2) because he was discharged for misconduct connected to his work. Petitioner appealed the ruling, and the parties presented arguments at a 22 July 1993 hearing. The appeals referee affirmed the adjudicator’s decision, making the following pertinent findings of fact:

3. Claimant was discharged from this job for failing to follow departmental policy. The claimant discovered in his immediate superior’s office a tape recorder that was being use [sic] to wiretap phone conversations there at the sheriff’s department. He was concerned as to whether or not this was legal. He discovered the wiretap by accident. He did tell another deputy about this. He also told an SBI agent. The SBI agent then notified an IRS agent. The claimant was aware the IRS agent had been notified.
4. The claimant never notified the sheriff or the chief deputy about the wiretap. He was aware that under the department’s chain of command proper procedure would be to go to either of them with a complaint about his immediate superior. That policy was contained in the policy and procedures manual for the sheriff’s department. The claimant was familiar with this.
5. The claimant never notified anyone in his chain of command. The department only learned of the situation when a search warrant was served on it by the FBI. This occurred some nine days after the initial discovery of the wiretap.

The appeals referee concluded that petitioner’s failure to notify the proper authorities within his chain of command of the discovery of the phone tap was a violation of departmental policy, amounting to misconduct. Petitioner appealed, and Deputy Commissioner James Haney affirmed the appeals referee’s decision. Petitioner petitioned for judicial review of the Commission’s decision in Davie County Superior Court. Judge F. Fetzer Mills affirmed the Commission’s decision. Petitioner appealed to this Court.

[164]*164The standard of review for a decision by the Employment Security Commission is whether (1) the evidence before the Commission supports its findings of fact and (2) the facts found by the Commission sustain its conclusions of law. Reco Transportation, Inc. v. Employment Security Comm., 81 N.C. App. 415, 418, 344 S.E.2d 294, 296, disc. review denied, 318 N.C. 509, 349 S.E.2d 865 (1986).

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Intercraft Industries Corp. v. Morrison
289 S.E.2d 357 (Supreme Court of North Carolina, 1982)
Miller v. Guilford County Schools
303 S.E.2d 411 (Court of Appeals of North Carolina, 1983)
Reco Transportation, Inc. v. Employment Security Commission of North Carolina
344 S.E.2d 294 (Court of Appeals of North Carolina, 1986)
Miller v. Guilford County Schools
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Bluebook (online)
120 N.C. App. 160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-davie-county-ncctapp-1996.