State panel upholds trooper's demotion
Posted February 4, 2009
Updated February 5, 2009
Raleigh, N.C. — 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."