NO. COA13-1388
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
DOMINICK MAZZEO,
Plaintiff,
v. Mecklenburg County
No. 13-CVS-12639
CITY OF CHARLOTTE,
Defendant.
Appeal by defendant from order entered 29 August 2013 by
Judge James W. Morgan in Mecklenburg County Superior Court.
Heard in the Court of Appeals 9 April 2014.
Office of the City Attorney, by Catherine L. Cooper and
Mark H. Newbold, for defendant-appellant.
Goodman, Carr, Laughrun, Levine & Greene, PLLC, by Miles S.
Levine, for plaintiff-appellee.
DAVIS, Judge.
Defendant City of Charlotte (“the City”) appeals from the
trial court's 29 August 2013 order finding that Dominick Mazzeo
(“Plaintiff”) is entitled to a Civil Service Board hearing in
connection with the termination of his employment with the City.
After careful review, we affirm.
Factual Background
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Plaintiff was hired by the City on 30 May 2007 and assigned
to the Charlotte Douglas International Airport (“CDIA”) as an
Airport Safety Officer (“ASO”). On 19 June 2007, after
receiving his general certification in law enforcement, he was
administered the oath of office and sworn in as a law
enforcement officer. Throughout his employment, Plaintiff
received annual Performance Reviews and Development assessments
(“PRDs”). These PRDs were reviewed and signed by officers of
the Charlotte-Mecklenburg Police Department (“CMPD”).
Effective on 15 December 2012, the City Manager ordered the
consolidation of all airport safety officers into the CMPD. As
a result, Plaintiff was transferred to the CMPD, retaining his
“rank, salary, longevity, and relevant benefits.” Because of
the consolidation, the City required Plaintiff to take a new
oath of office as an officer with the CMPD, which he did on 4
January 2013.
On 14 June 2013, Plaintiff received a letter from the CMPD
terminating his employment for a “work rule violation.” He was
then given a packet of information describing his appeal rights
to the Charlotte-Mecklenburg Civil Service Board (“the Board”).
Section 4.61 of the Charlotte City Charter provides members of
the City’s police and fire departments who have been employed
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for longer than 12 months with the right to have the Board
review various types of personnel actions, including
termination.
On 18 June 2013, Plaintiff appealed his termination to
Rodney Monroe, the CMPD’s Chief of Police. His appeal was
denied by letter dated 25 June 2013. Plaintiff then attempted
to file an appeal to the Board asking the Board to review his
termination. However, he was told that he did not, in fact,
qualify for civil service protection because he was a
probationary CMPD employee on the date of his termination due to
the fact that he did not become a sworn officer of the CMPD
until the December 2012 consolidation.
Plaintiff’s attorney subsequently filed a written request
on 26 June 2013 asking the Board to review his termination. In
an undated letter, an attorney for the City explained its
rationale for classifying Plaintiff as a probationary employee:
It is true that Mr. Mazzeo became an
employee of the City of Charlotte in 2007.
As a City employee who worked at the airport
as an airport safety officer, he was not
entitled to Civil Service protection under
the City’s Charter provisions. Rather, like
all other non-sworn City employees whose
employment is terminated, he was entitled to
a pre-termination hearing and also to file a
grievance through the City’s grievance
process.
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In December of 2012, through a functional
consolidation, all airport safety officer
positions were moved from the City’s
aviation department to the police
department. Following that consolidation,
[Plaintiff] became a “sworn officer” . . .
entitled to the protection of the Civil
Service Board in December, 2012, when his
application for hire to the police
department was approved by the Board.
Accordingly, on the date of his termination,
June 14, 2013, he was still subject to the
police department’s 12-month probationary
period and considered an “exception” . . .
to Civil Service provisions requiring
terminated officers be given a hearing
before the Board.
Plaintiff filed a complaint in Mecklenburg County Superior
Court seeking a declaration that he was entitled to a hearing
before the Board regarding his termination. The case was heard
by the trial court without a jury on 26 August 2013. On 29
August 2013, the trial court issued an order determining that
Plaintiff was entitled to a hearing before the Board. The City
filed a timely notice of appeal.
Analysis
Section 4.61 of the Charlotte City Charter provides, in
pertinent part, as follows:
(f) Definitions. The terms “officer or
employee” or “officer,” as used in this
Article, shall mean sworn officers with
regard to the police department and shall
mean uniformed personnel with regard to the
fire department.
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. . . .
(j) Appeal hearings. Upon receipt of a
citation for termination from either chief
or upon receipt of notice of appeal for a
suspension from any civil service covered
police officer or firefighter, the Board
shall hold a hearing not less than 15 days
nor more than 30 days from the date the
notice of appeal, or the citation, is
received by the Board. . . .
. . . .
(t) Exceptions. The provisions of this
Article pertaining to civil service coverage
of officers and employees of the fire and
police departments . . . shall not apply to
an officer of the police or fire department
until he or she has been an officer of the
respective department for at least 12
months. During such 12-months’ probationary
period, he or she shall be subject to
discharge by the chief of such department
under rules promulgated with respect
thereto, such rules to be approved by the
[City] Council.
2000 N.C. Sess. Laws ch. 4, § 4.61.
“[W]here a declaratory judgment action is heard without a
jury and the trial court resolves issues of fact, the court's
findings of fact are conclusive on appeal if supported by
competent evidence in the record, even if there exists evidence
to the contrary, and a judgment supported by such findings will
be affirmed.” First Union Nat'l Bank v. Ingold, 136 N.C. App.
262, 264, 523 S.E.2d 725, 727 (1999). The trial court’s
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conclusions of law are reviewable de novo on appeal. Carolina
Power & Light Co. v. City of Asheville, 358 N.C. 512, 517, 597
S.E.2d 717, 721 (2004).
In its 29 August 2013 order, the trial court made the
following findings of fact:
1. That the Plaintiff, Dominick Mazzeo, is
a citizen and resident of Mecklenburg County
and was hired as a Charlotte Douglas
International Airport (CDIA) Officer on May
30, 2007.
2. That the Plaintiff's badge number at
the time of his hire was 3636.
3. That on December 15, 2012, the
Charlotte Mecklenburg Police Department
acquired, merged and consolidated all
Charlotte Douglas International Airport
(CDIA) Safety Officers into one organization
to be controlled by the Charlotte
Mecklenburg Police Department, part of the
City of Charlotte[.]
4. That at the time of the consolidation
and thereafter, the Plaintiff retained his
same rank, badge number, employee
identification number and salary.
5. That the City of Charlotte required all
CDIA Officers to be "re-sworn."
6. That the Plaintiff was re-sworn as an
officer with the Charlotte Mecklenburg
Police Department-Airport Division on
January 4, 2013.
7. That a review of the oath of office by
the undersigned finds the oaths are
identical pre-take over and post-take over
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by the City of Charlotte.
8. That at the time of his employment with
the CDIA Police, the Plaintiff had his
Performance Review and Development (PRD)
signed off by supervisors of the Charlotte
Mecklenburg Police Department, even though
at the time he was under the ultimate
authority of the Aviation Department with
respect to hiring, discipline and firing.
9. From and after the time of the merger,
when the Plaintiff became an employee of the
Charlotte Mecklenburg Police Department, he
was under the authority of the Charlotte
Mecklenburg Police Department Chain of
Command for all purposes and required to
follow Charlotte Mecklenburg Police
Department policies and procedures.
10. That the Plaintiff received a letter on
June 13 [sic], 2013 from the Charlotte
Mecklenburg Police Department terminating
his employment from the Charlotte
Mecklenburg Police Department-Airport
Division.
11. That the Plaintiff appealed his
termination to Charlotte Mecklenburg Police
Department Chief Rodney Monroe requesting a
Civil Service Hearing by the Charlotte-
Mecklenburg Civil Service Board.
12. That the Plaintiff was informed that he
was not entitled to an appeal to the Civil
Service Board as he was a "probationary
employee."
13. That under the City Charter, to be
considered for a Civil Service Board
hearing, an officer must be "non
probationary."
14. That the merger by the City of
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Charlotte-Charlotte Mecklenburg Police
Department and the Charlotte Douglas
International Airport Police Division did
not substantially change the nature and
character of the Plaintiff's employment with
the City of Charlotte.
The trial court then made the following conclusion of law:
. . . [T]hat, notwithstanding the provisions
of the Charlotte City Charter Section 4.61
(t), any changes in the nature and character
of the Plaintiff's employment with the City
of Charlotte after the departmental
consolidation on December 15, 2012, were not
substantive enough to have resulted in his
being classified as a probationary employee
with the Charlotte Mecklenburg Police
Department, and he therefore should be and
is entitled to a hearing before the City of
Charlotte Civil Service Board regarding his
termination from the Charlotte Mecklenburg
Police Department-Airport Division.
Defendant challenges only findings of fact 6 and 14. Thus,
findings of fact 1-5 and 7-13 are binding on appeal. Koufman v.
Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (“Where no
exception is taken to a finding of fact by the trial court, the
finding is presumed to be supported by competent evidence and is
binding on appeal.”).
Specifically, Defendant challenges the portion of finding
of fact 6 stating that Plaintiff was “re-sworn as an officer
with the Charlotte-Mecklenburg Police Department Airport
Division on January 4, 2013,” claiming that this finding is
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unsupported by the evidence. The City argues that there was “no
evidence before the Court indicating that the second oath
somehow ‘endowed’ [an] Airport Safety Officer with civil service
protection in 2007.” The City further argues the record lacks
“credible evidence that Plaintiff was ever sworn in as an
Airport Safety Officer with the Charlotte-Mecklenburg Police
Department until January, 2013.”
We are satisfied that competent evidence existed to support
finding of fact 6. Plaintiff presented as exhibits during the
hearing both the oath of office he was administered on 19 June
2007 and the oath administered on 4 January 2013. The content
of both oaths is identical:
I, Dominick Mazzeo, do solemnly swear (or
affirm) that I will support and maintain the
Constitution and laws of the United States
and the Constitution and laws of North
Carolina not inconsistent therewith; that I
will be alert and vigilant to enforce the
criminal laws of this State; that I will not
be influenced in any matter on account of
personal bias or prejudice; that I will
faithfully and impartially execute the
duties of my office as a law enforcement
officer according to the best of my skill,
abilities, and judgment; so help me, God.
Moreover, on both occasions the oath was administered by
the Deputy City Clerk of the City of Charlotte. Thus, competent
evidence exists to support the trial court's finding of fact 6.
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Defendant next challenges finding of fact 14 which states
that “the merger by the City of Charlotte-Charlotte Mecklenburg
Police Department and the Charlotte Douglas International
Airport Police Division did not substantially change the nature
and character of the Plaintiff’s employment with the City of
Charlotte.” While the City argues that “[o]nly after December
15, 2012 did all Airport Safety Officers, including Plaintiff,
come under the chain of command of the CMPD,” the trial court’s
finding is supported by evidence of record that Plaintiff had
been — at least to some degree — under the supervision of the
CMPD since shortly after his initial hire date in 2007. During
the hearing, Plaintiff introduced into evidence his PRDs, dating
back to June 2008, which were signed by ranking officers of the
CMPD, including a captain with the CMPD.
Finding of fact 14 is further supported by evidence of a
five percent (5%) contribution made by the City to Plaintiff’s
“Police ER 401k” that is reflected on both (1) Plaintiff’s pre-
consolidation pay stub for the pay period beginning on 17
November 2012 and ending on 23 November 2012; and (2)
Plaintiff’s post-consolidation pay stub for the pay period
beginning on 15 December 2012 and ending on 21 December 2012.
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Pursuant to N.C. Gen. Stat. § 143-166.50(e)1, the City
contributes five percent (5%) of sworn officers’ bi-weekly
earnings to the “Police ER 401k.” The fact that the City’s five
percent (5%) contribution was made to Plaintiff both prior to
and after the consolidation supports the trial court’s finding
that the merger did not materially alter Plaintiff’s employment
status with the City. Similarly, evidence was presented that
Plaintiff was enrolled in the “Police Retirement Plan” both
before and after the consolidation.
Furthermore, as noted by the trial court in finding of fact
4 (which the City does not challenge on appeal), after the
consolidation, Plaintiff retained his same rank, badge number,
employee identification number, and salary. Thus, finding of
fact 14 is supported by competent evidence.
Finally, Defendant challenges the trial court’s conclusion
of law “that . . . any changes in the nature and character of
the Plaintiff’s employment with the City of Charlotte after the
departmental consolidation on December 15, 2012, were not
1
N.C. Gen. Stat. § 143-166.50(e) states, in pertinent part, that
“on and after July 1, 1988, local government employers of law
enforcement officers shall contribute an amount equal to five
percent (5%) of participating local officers' monthly
compensation to the Supplemental Retirement Income Plan to be
credited to the designated individual accounts of participating
local officers.”
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substantive enough to have resulted in his being classified as a
probationary employee with the Charlotte Mecklenburg Police
Department . . . .” The City argues that “[o]nly after December
15, 2012 did all Airport Safety Officers, including Plaintiff,
come under the chain of command of the CMPD . . . [such that]
their one year probationary period set out in the Charter
started on December 15, 2012.”
We hold that the trial court’s conclusion of law is
supported by its findings of fact. The trial court’s findings
established that: (1) Plaintiff retained his same rank, badge
number, employee identification number, and salary after the
consolidation; (2) Plaintiff took identical oaths of office both
upon his initial hiring in 2007 and after the consolidation in
2012; (3) from the time he was originally assigned to the CDIA
until the date of his dismissal, Plaintiff had his PRDs reviewed
and signed by supervising officers of the CMPD; and (4) the City
contributed to his law enforcement 401k account in the same
amount both before and after the consolidation.
Therefore, we conclude that the trial court's findings of
fact support its legal conclusion that any changes in
Plaintiff’s employment as a result of the departmental
consolidation were insufficient to classify Plaintiff as a
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“probationary” employee for purposes of §4.61(t) of the
Charlotte City Charter. As such, the trial court did not err in
determining that Plaintiff is entitled to a hearing before the
Civil Service Board with regard to his termination.
Conclusion
For the reasons stated above, the trial court’s 29 August
2013 order is affirmed.
AFFIRMED.
Judges ELMORE and McCULLOUGH concur.