State panel hears demoted trooper's case
Posted December 11, 2008
Raleigh, N.C. — A judge who ordered a state trooper restored to his previous rank did not consider that the trooper admitted using a racial slur, a state attorney argued Thursday.
Representing the state Highway Patrol, attorney Ashby T. Ray told the nine-member North Carolina Personnel Commission that Trooper Mitch Foard, demoted from first sergeant, never made an adamant denial that he left the slur on a colleague's voicemail in 2006.
In fact, he apologized for it, Ashby said.
"He said, 'I'm not going to sit here and say that's not me,'" Ray said. "He went on to say, 'I made a terrible mistake, you know, a bad judgment call, a bad judgment error.'"
The Highway Patrol demoted Foard after an internal affairs investigation found that his voice was the one on the recording.
Administrative Law Judge Joe Webster ruled last month that Foard should be reinstated as a first sergeant with full pay and benefits because the investigation was flawed and a rush to judgment.
Foard maintains he did not make the slur. During Thursday's hearing, his attorney, M. Travis Payne, said the apology was taken out of context and that it resulted from intimidation.
"(Foard) said several times early on in the interview, 'That is not my voice. There wasn't a racial slur.' And it was only upon repeated, repeated, repeated, repeated statements from Capt. (Ken) Castelloe (that he apologized)," Payne said.
"It was late in the interview that he said what was read today," he continued. "In part, he was apologizing that the whole situation even happened."
Citing, in part, interrogation tactics and the quality of the recording, Webster had said that he found the investigation was not objective.
Castelloe, head of internal affairs at the time, never asked to hear the original voicemail and never interviewed Lt. Virgil Lessane, the trooper who made the claim.
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 that the tape and its message could have been spliced together.
"It was a tape that is inaudible. It is not a conversation. It is a series of unconnected statements," Payne said during Thursday's hearing, adding that Castelloe ignored multiple witnesses who said the voice on the recording was not Foard's.
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, Webster said.
"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.
It is ultimately up to the commission to decide whether Foard should be reinstated. A decision could come in the next few months. The panel will also decide whether he should be placed back in his original post in the southern part of the state.
After Thursday's hearing, Foard said he was pleased with Webster's decision and that the truth has come out.
"It's been very difficult on us listening to testimony," he said. "It is hard to hear things that have been said, that I think, have been stretched out a bit."
"I sill love the Highway Patrol. I've never lost my love for the Highway Patrol," he continued. "It is in my heart and will always be in my heart."