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State panel upholds trooper's demotion

Posted February 4, 2009
Updated February 5, 2009

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— The State Personnel Commission has reversed an administrative law judge's ruling that a state trooper demoted for using a racial slur should be reinstated to his former rank.

In a ruling released Wednesday, the commission modified the findings Administrative Law Judge Joe Webster made in November. It upheld the action against Mitch Foard based on his admission to an internal affairs investigator that it was his voice on a tape.

The Highway Patrol demoted Foard from first sergeant to trooper after an investigation determined he left a slur on a colleague's voice mail in 2006. Foard maintains he didn't utter the slur.

Webster raised questions about the Highway Patrol's investigation of Foard, citing interrogation tactics and the quality of a recording of the voice mail message.

In particular, Webster noted that Capt. Ken Castelloe, the former head of internal affairs for the Highway Patrol, never asked to hear the original voice mail and never interviewed Lt. Virgil Lessane, the trooper who made the claim.

The Personnel Commission noted that Foard's discipline was not based on recordings or interviews that support the charge, but on his admission that he made the statements.

The commission included quotes from Foard's interview with internal affairs in its 80-page ruling. Among them:

"[Y}ou're exactly right. Yes, sir, that is me."

"I made a terrible mistake ... you know. I mean, I made a bad judgment call, bad judgment error."

The report noted that Castelloe and other investigators "reasonably believed that their investigation into whether it was his voice on the tape was complete."

The commission modified and/or deleted several of Webster's findings, saying he had taken Castelloe's testimony out of context or that his findings did not "fully and and accurately reflect the substantial evidence presented."

The report called some of Webster's language "deceptive and misleading."

In conclusion, the commission found that the Highway Patrol had applied the proper test for whether demotion was warranted -- that of whether Foard engaged in the activity of which is his accused.

The report finds, "There can be no doubt that if Petitioner (Foard) did engage in the activity of which he was accused that it would give Respondent (the state Department of Crime Control and Public Safety) just cause to demote (him)."

The investigation conducted by the Highway Patrol was reasonable, the commission found, deleting Webster's finding that it "was not fair and objective ... and particularly the officers in Internal Affairs did not keep an open, skeptical and 'suspicious' mind."

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  • MaggieGC Feb 4, 2009

    Gov. Perdue..do what Easley wouldn't..stop the states WASTE of our tax money and admit this was a poor excuse of an investigation on the part of the HP IA. 1st Sgt Foard and Capt Phil Jones need to be exonerated and the real criminal Lessane brought up on charges of ILLEGAL WIRE TAPING or at least filing a false report and wrongful accusation!!

  • MaggieGC Feb 4, 2009

    Nobody:Audio and Video recordings don't lie, except those provided by Virgil Lesanne for this case as proved by NC State Linguistics Professor Rodman .The State Personnel Commission has not only reduced the credibility of a Judge,but also Professor Rodman who testified the “crucial phrase,(the“n”word)that there are probably 3 different voices” OAH ruling #161& #163 “is not a single contiguous,continuous,or coherent recording”and #175 “he indicated that this also leads him to the conclusion that the voice on the tape saying the crucial phrase (“n” word) IS NOT that of Mitch Foard”. How can the Personnel Commission look at the OAH ruling, read the facts, and still say the HP met its“burden of evidence for demoting Foard”? Who is paying off whom here? Castelloe was transferred out of IA for covering up his own “minor accident” aka A LIE.Was he demoted? NO Lessane had a violation while still a Lt in the HP that was a FELONY.Was he demoted or punished? NO Gov Per

  • any1butcarolina0405 Feb 4, 2009

    where in the law does it say you can't say anything racist? I have PERSONALLY heard wake county's former sherrif baker say some pretty racist things about his white coworkers, don't believe he ever got demoted, in fact the guy that reported him was hush hushed then magically fired. weird.

  • billyd6210 Feb 4, 2009

    Show me a trustworthy NC State Trooper & I'll show you a NC State Trooper with a short career.

    Bullies with badges.

  • JustOneGodLessThanU Feb 4, 2009

    aintbackingdwn, the government (as well as most evolved work places) has rules about what bigotry one can spew. I guess the fact that I have to even say this, indicates there is still work to do on the racial front.

  • aintbackingdwn Feb 4, 2009

    I would think voicemail would be treated no different than an email. A racial slur while not polite, isn't criminal. He might as well have said I don't like you because your hair is gray or whatever. To release the contents of email or voicemail intended between two parties unless a crime is committed should put the person releasing it in legal limbo.
    Come one little children get over the name calling.

  • wegsbabygirl Feb 4, 2009

    scorekeep..No real investigation took place so how can any decision be made? WELL SAID!!! Now, the State Personnel Commision has sided with the botched up investigation by Castelloe and the cover-up by Easley and Beatty of their "good-ole boys" in the HP. If the Personnel Commision thinks the HP met “the burden of proof for demoting Foard”, then what does that say for Judge Webster? So basically, they are calling him a liar..humm. Gov Perdue, time for you to step in and do the right thing..Easley wouldn’t admit mistakes were made by “the boys”, can you? When will this nonsense end? Give Foard back his rank and stop the spending of tax dollars to “cover-up” something that didn’t happen (the slur), and the botched up investigation Castelloe did.

  • gordonbabe Feb 4, 2009

    And this happened when exactly? And over something he may or may not have said? Either provide the tape... or he didn't do it. MOVE ON!

  • scorekeep Feb 4, 2009

    From the info,in the article,, he was demoted because someone SAID he did something. The state is simply afraid of what may happen if nothing is done. No real investigation took place so how can any decision be made?

  • candace710 Feb 4, 2009

    If the head of IA with the HP never interviewed the perosn who made this claim and never listened to the original of the tape how could he demote the trooper?

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