Trooper's Missing Hat Leads To Employment Lawsuit | Eastern North Carolina Now

    Publisher's note: The author of this post is Michael Lowrey, who is a contributor for the Carolina Journal, John Hood Publisher.

N.C. Supreme Court disallows inflexible termination rules

    RALEIGH     A State Highway Patrol trooper's hat worth $50 lost almost seven years ago has evolved into a closely watched case about the conditions under which state employees can be fired. And despite a December ruling by the state's highest court, the matter remains far from settled.

    On March 29, 2009, State Highway Patrol Trooper Thomas Wetherington pulled over a pickup truck towing a boat trailer. He then drove a short distance to examine a car that had pulled over to the side of the road.

    At the conclusion of these stops, Wetherington did not have his trooper hat, so he was out of uniform when conducting these professional duties. A subsequent search of the area by Wetherington and other Highway Patrol officers failed to locate the hat. When questioned about the incident by his supervisor, Wetherington said that a gust of wind blew off his hat into the path of a burgundy 18-wheel truck. He said that he then heard a crunching noise and did not see the hat again.

    That statement wasn't accurate. Three weeks later, the mother of the driver of the pickup Wetherington pulled over called the trooper, saying that she had his hat, which was returned to his supervisor and was in good condition.

    Wetherington's statement also contradicted what he said to another trooper while searching for the hat - that he didn't know what happened to it.

    After an internal affairs investigation, Wetherington was fired for violating the Highway Patrol's truthfulness policy, which states:

• Members shall be truthful and complete in all written and oral communications, reports, and testimony. No member shall willfully report any inaccurate, false, improper, or misleading information.

    Wetherington challenged his dismissal. Though an administrative law judge and the State Personnel Commission determined the dismissal was supported by just cause, Superior Court Judge Howard Manning did not agree, finding Wetherington's actions were unacceptable personal conduct that did not rise to the level of a firing offense. The N.C. Court of Appeals agreed with Manning's assessment.


    By the time the time the N.C. Supreme Court heard oral arguments in May 2015, Wetherington's plight was well known in public safety circles, and a total of five friend-of-the-court briefs had been filed in the case by various public safety and state personnel organizations including the Fraternal Order of Police and the Professional Fire Fighters and Paramedics of North Carolina.

    For its part, the Supreme Court reached a rather different conclusion than either the State Personnel Commission or Manning.

    "Because it appears that the official who dismissed [Wetherington] proceeded under a misapprehension of the law, namely that he had no discretion over the range of discipline he could administer, we now modify and affirm the opinion of the Court of Appeals," wrote Justice Barbara Jackson for the Supreme Court.

    Jackson noted that Col. Randy Glover, then head of the Highway Patrol, testified before the administrative law judge that he felt he literally had no other option but to fire Wetherington, that termination was the only appropriate penalty for any confirmed act of untruthfulness:

• 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 [a] rule of mandatory dismissal for all violations of a particular policy, the [State Personnel Commission] failed to examine the facts and circumstances of petitioner's individual case as required by this state's jurisprudence. For these reasons, we conclude that the superior court correctly reversed the [commission's] decision.

    Even so, Wetherington may not get back his job.

    "Because we conclude that Colonel Glover's use of a rule requiring dismissal for all violations of the patrol's truthfulness policy was an error of law, we find it prudent to remand this matter for a decision by the employing agency as to whether petitioner should be dismissed based upon the facts and circumstances and without the application of a per se rule," wrote Jackson.

• "As a result, we do not decide whether petitioner's conduct constitutes just cause for dismissal."

    The case is Wetherington v. N.C. Department of Public Safety, (22PA14).