Ruling raises questions about patrol's investigator
Posted November 10, 2008
Updated November 11, 2008
Raleigh, N.C. — 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.