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State panel hears demoted trooper's case

Posted December 11, 2008

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— 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."


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  • wegsbabygirl Dec 12, 2008

    repoort.."The sad part is that the NC Attorney General's Office is backing the Patrol." What about Easley and Beatty~they also have contributed by allowing the former command staff and Castello to wrongfully prosecute (using our hard-earned taxpayer $$) Foard & Phil Jones over the false claims and down right lies of an uncrediable person (Lessane). Come on Personnel Commision..give the man his rank back..clear both of their names and ensure that no more of our money is wasted on an investigation that should have been stopped over 2 yrs ago before the lives of 2 good men were ruined!! Hopefully the upcoming change in the mansion will bring about change in the corrupt Archdale building!

  • repoort Dec 12, 2008

    Castelloe is a pure joke !!! The sad part is that the NC Attorney General's Office is backing the Patrol. Not only is the Archdale crowd shady, take a look at the AG's Office. Talk about politics and who is sleeping with who. Attorney Ray with the AG's Office is simply doing what he is told. Where is Roy Cooper ?

  • leo-nc Dec 12, 2008

    Funny. I have a camera in my car. Wrong again ifc. Of course, this has become the norm for you.

  • rcl2058 Dec 12, 2008

    why isn't the HP more interested in doing what is right than they are in circleing the wagons and protecting Castello and putting up smoke screens? if the public does something wrong, they give them a citation or arrest them, but if one of their superiors (Castello) does something wrong, they put their public spokesman on TV to justify or explain those actions to the public. Does the HP really expect the public to believe Castello performed his duties correctly? It is obvious that Castello has no investigative skills and the HP had him in charge of internal affairs!!!!

  • ifcdirector Dec 11, 2008

    Only law enforcement agency with no cameras in their cars. Wonder what the objection is to that? I have learned over many years to never, ever trust any of these characters. They have their own agenda and the laws of the land do not apply. If you get stopped by any of them make sure to tape everything if you can. Sad to say but they are not to be trusted.

  • lizard Dec 11, 2008

    At least he didn't kick the lieutenant.

  • commonsenseisnotcommon Dec 11, 2008

    My question is why is it going to take the Personnel Commission "several months" to make a decision? I wish they would make the decision to give him his job and rank back with back pay before Christmas. What a present that would be!

  • imacoppiceman Dec 11, 2008

    So should the State have the authority to fire you from YOUR JOB based on what someone thinks you might have said? Think about it before you run off at the mouth...

  • imacoppiceman Dec 11, 2008

    So now it's politically acceptable to prosecute/persecute someone on what you THINK they said, give me a freakin' break......

  • illegals--GO HOME Dec 11, 2008

    If anyone that knows much about the complaining trooper, Lesane, you would know he is not ever very credible. I am so sorry that trooper lost his job and very glad a law judge said he should have never been fired. People who get caught up in some of these things through IA know how much of a strangle-hold they put on you until you fess up to keep any semblance of a job!! They should fire some of the supervisors who carried out this travesty of justice!!!