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Ruling raises questions about patrol's investigator

Posted November 10, 2008
Updated November 11, 2008

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— A judge's ruling last week that a demoted state trooper should be reinstated to his prior rank raises new questions about a former internal affairs investigator whose probe the judge characterized as unfair and inadequate.

The North Carolina Highway Patrol, however, says that at this point, it is not looking into the investigator's actions.

The case focused on a voicemail message that involved a racial slur and was left on former patrol Lt. Virgil Lessane's cell phone in 2006.

Lessane said he received the message of a recorded conversation between two people he believed were then-1st Sgt. Mitch Foard and another trooper, Capt. Phillip Jones.

Administrative Law Judge Joe Webster ruled Friday, however, that Foard should be reinstated with full pay and benefits, retroactive to 2006, because the voicemail recording could not be verified and there was insufficient evidence to cost Foard his job.

Webster said the investigation was not objective, in part, because Capt. Ken Castelloe never asked to hear the original voicemail and never interviewed Lessane.

Castelloe had testified that he knew it was Foard's voice on the recording and that no evidence was going to convince him otherwise.

During the investigation, Castelloe told Foard he had a tape of the voicemail authenticated but later testified that was not true. Some of the experts who testified alluded that the tape and its message could have been spliced together.

Webster also found Lessane's credibility to be in question, saying he had knowingly violated Highway Patrol rules and deceived his superiors. That should have been a factor when officials were deciding whether to demote Foard.

"A poor-quality tape recording that cannot be validated and the origin of which is essentially unknown, provided by a person whose credibility is suspect, does not constitute substantial evidence to support the demotion that was carried out in this case," Webster wrote.

Foard, who has been with the Highway Patrol since 1985, Webster noted, had never received any formal discipline and had above-standard ratings on performance evaluations prior to his demotion.

Although the judge concluded the investigation ignored very substantial credibility issues, the Highway Patrol says Castelloe's credibility and rank remain intact.

"We're not going to comment about the administrative law judge's findings and comments," Capt. Everett Clendenin said Monday.

"(Capt. Castelloe) was overseeing the investigation, and it's my understanding that there's no internal investigation into what the judge wrote into his findings," Clendenin said.

Castelloe, who headed the Internal Affairs Unit, was reassigned last year following a minor traffic wreck in which he was involved after concerns about how he handled the wreck.

Webster's recommendation now goes to the state personnel commission, which could rule on the matter as early as Dec. 11.


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  • wegsbabygirl Nov 12, 2008

    mydadsaid..he didn't tell the truth either..in my book that with~holding the truth is well, a lie. In his report he said the tape had been authenticated, but under oath, admitted it had not been..hummm..so why is a written untruth not a lie? Get the OAH ruling and read all the details for yourself..it's all there in black & white. One would think you are Ken Castello, Clendenin, or one of the others involved in this coverup..shame on you and your dad for believing the HP.

  • mydadsaid Nov 12, 2008

    Interesting WRAL removed the lie comment from the story. The media has a history of getting the facts wrong. I bet he never lied. Someone told WRAL he lied and the reporter ran with it before gathering the facts. Shame on the critics for jumping to conclusions.

  • mydadsaid Nov 11, 2008

    Boris: Fair enough; I still believe that Colonel Wilson will get things straight. The story tonight said he will meet with attorneys to see if any wrong doing occurred. I think he will do what is right. I know him and actually worked with him in Greenville. He is as straight as an arrow and always goes by the book.

  • MaggieGC Nov 11, 2008

    New story tonight:http://www.wral.com/news/local/story/3941713/
    Col Wilson will now review to see if Castelloe's "investigation was a rush to judgment." "He has requested to meet with the attorney generals (sic) that represented the Highway Patrol during the hearing to discuss with them the proceeding and obtain a copy of the transcript." Judge Joe Webster's OAH ruling was pretty clear and he called it like it was (and by the way, in case anyone is wondering if the Honorable Judge could be labeled a racist.he is African-American) Again, these 2 good men (and yes I know there are others, but we are talking about Mitch Foard and Phil Jones)need to be given back what was UNFAIRLY and UNETHICLY taken from them. Phil would have liked to remain in and go on up the ranks, and there were rumors that Major was in his reach..oh and guess who else was vying for Major..CASTELLOE..maybe he wanted comptetion out of the way? Just my opinion.

  • D Kaine Nov 11, 2008

    Like you I just pass though the blogs, but where there is smoke there is fire. This revelation did not just occur.. The man charged with investigating alleged troopers misdeeds is not giving them a fair chance, because he has lied. And no I'm am not a law enforcement officer in NC, and have always taken responsibility for the decisions I've made..

  • native_son_2 Nov 11, 2008

    It is clear from this investigation that the NCSHP not only took action based on LIES, but to this date has leadership that is not adult enough to admit their serious mistakes even now that the judge has clearly spelled them out. Both Foard and Jones deserve nothing less than a full apology from both Patrol leaders and Governor Easley, and a commitment by the patrol to pursue criminal charges against Lessane for making a false report.

  • mydadsaid Nov 11, 2008

    Boris: You are funny; maybe challenged a bit, I'm just a person passing through the blogs. I'm not a law enforcement officer but I do work with them. I have the upmost respect for the troopers and think people unfairly criticize the organization because a small number of them have made poor decisions. Maybe you are one of those??

  • D Kaine Nov 11, 2008

    Clendenin's no comment has sparked many comments..... You can tell the truth it isn't hard, although it may be against your natural inclination.

  • D Kaine Nov 11, 2008

    mydaddysaid are you Clendenin trying to figure out who is posting comments so you can "create" something to drag them through the mud too?

  • D Kaine Nov 11, 2008

    mydaddysaid from reading your comments it sounds to me as if you are either a high ranking member of the Highway Patrol or a relative of a high ranking member. You have to admit right is right and wrong is wrong, and it is clear that change has to be made to ensure the integrity of this organization. How can the public believe anything released by "baghdad bob" Clendenin or the patrol when command staff members are Caught telling lies?