City of Asheville v. Aly

NO. COA13-720

NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

CITY OF ASHEVILLE,
Petitioner

v. Buncombe County
No. 10 CVS 5296
ROGER S. ALY,
Respondent

Appeal by petitioner from order entered 4 January 2013 by

Judge James U. Downs in Buncombe County Superior Court. Heard

in the Court of Appeals 20 November 2013.

Ward and Smith, P.A., by Rendi L. Mann-Stadt, and Office of
the City Attorney, by Kelly Whitlock, for petitioner-
appellant.

Adams, Hendon, Carson, Crow and Saenger, P.A., by Robert C.
Carpenter and John C. Hunter, for respondent-appellee.

DAVIS, Judge.

Petitioner City of Asheville (“the City”) appeals from the

trial court’s order finding that the termination of Respondent

Roger S. Aly (“Respondent”) from his employment with the City of

Asheville Police Department (“APD”) was not justified. After

careful review, we affirm the trial court’s order.

Factual Background
 -2-
In July 2009, while employed by the APD as a police

officer, Respondent rented a laptop computer for his personal

use from a rental store called Aaron’s. The rental agreement

stated the computer was “rent to own,” meaning that after a

certain number of payments, Respondent would have the option of

purchasing the computer. During the rental period, Respondent

used the computer to access his personal email, download

photographs, and back up his Blackberry cell phone.

In December 2009, Respondent returned the computer to

Aaron’s. He testified that before doing so, he attempted to

remove the files that he had downloaded onto the computer by

highlighting the files, moving them into the “recycling bin,”

and selecting “empty.” He further testified that, unbeknownst

to him, this procedure failed to remove the files that

Respondent had imported from his cell phone and downloaded onto

the computer. These files contained, in part, various pictures

of Respondent’s family, friends, pets, and fellow APD officers

in uniform. However, other files contained pictures of nude

women and racially offensive images.

In March 2010, Janice Farmer (“Ms. Farmer”) went to Aaron’s

to rent a computer for her son. The computer that Ms. Farmer

rented was the computer that had previously been rented by
 -3-
Respondent. While using the computer’s webcam to post a picture

on a website, Ms. Farmer’s son discovered the images that

Respondent had downloaded, including the pictures of nude women

and the racially offensive images. Ms. Farmer contacted the

Buncombe County Sheriff’s Office and was referred to Detective

Jeff Sluder (“Detective Sluder”). She described to Detective

Sluder the offensive images her son had found on the computer

and then turned the computer over to him.

Detective Sluder proceeded to extract the images from the

computer and recognized some of the pictures as depicting APD

officers. Because of this, he notified the APD. Detective

Anthony Johnson (“Detective Johnson”), the computer crimes

investigator for the APD, retrieved the computer from Detective

Sluder and conducted a forensic analysis of the computer’s hard

drive, discovering approximately 360 images on the computer.

Out of these 360 images, Detective Johnson found 16 to be

offensive. None of these 16 images depicted officers of the

APD. Detective Johnson also determined that none of the images

were illegal.

On 9 April 2010, Lieutenant Sean Pound (“Lt. Pound”) of the

APD Office of Professional Standards notified Respondent that an

employee misconduct complaint had been filed against him and
 -4-
that an internal investigation would ensue. He then provided

Respondent with a copy of an APD internal incident report and a

letter evidencing the complaint.

At the conclusion of the investigation, Lt. Pound found “no

indication that [Respondent] had distributed the [offensive]

photos to anyone else” and forwarded the results of the internal

investigation to APD Chief William Hogan (“Chief Hogan”). On 1

June 2010, Chief Hogan conducted a pre-disciplinary conference

with Respondent. At the conference, Respondent explained that

the computer had been solely for personal use and that the

inappropriate images were from emails and texts sent to him by

friends. At the conclusion of the pre-disciplinary conference,

Chief Hogan placed Respondent on suspension with pay.

On 10 June 2010, Chief Hogan terminated Respondent’s

employment with the APD. Respondent appealed his termination to

the Asheville City Manager, who upheld the termination.

Respondent then appealed to the Asheville Civil Service Board

(“the Board”) pursuant to his rights under the Asheville Civil

Service Act, 2009 N.C. Sess. Laws ch. 401, § 8. (“the Civil

Service Act”).

On 20 September 2010, the Board held a hearing to determine

whether Respondent’s termination was justified. Following the
 -5-
hearing, the Board found that Respondent’s failure to “prevent

the inappropriate images from becoming public through the return

of the computer to Aaron’s . . . violated one or more of the

City’s policies and the rules of conduct of the APD, but [that]

the violations were not so severe as to warrant termination.”

Based on this finding, the Board concluded that “the termination

of [Respondent] by the City of Asheville was not justified and

should be rescinded and the City should take such steps as are

necessary for a just conclusion of the matter before the board.”

The City appealed the decision of the Board to Buncombe

County Superior Court for a trial de novo as provided for under

§ 8(g) of the Civil Service Act. In its petition for review of

the Board’s decision, the City did not request a jury trial, and

on 10 December 2012, a bench trial took place before the

Honorable James U. Downs.

At the conclusion of the trial, Judge Downs issued an

order (1) finding that the termination of Respondent’s

employment was not justified; and (2) ordering that Respondent

“be immediately reinstated as Senior Police Officer of the

Asheville Police Department with the restoration of all back pay

due and all other rights as if the termination had not
 -6-
occurred.” The City filed a timely notice of appeal to this

Court.

Analysis

I. Overview of the Civil Service Act

Originally enacted by the General Assembly in 1953, the

Civil Service Act provides a system of civil service protection

for employees of the City, establishing the Board and charging

it with the duty to make rules for “the appointment, promotion,

transfer, layoff, reinstatement, suspension and removal of

employees in the qualified service.” 1953 N.C. Sess. Laws ch.

757, § 4. While the Civil Service Act — as originally enacted —

did not provide a mechanism for judicial review of the Board’s

decisions, Jacobs v. City of Asheville, 137 N.C. App. 441, 443-

44, 528 S.E.2d 905, 907 (2000), our Supreme Court held in 1964

that:

[i]n view of the provisions of the statute
creating the Civil Service Board of the City
of Asheville, and the procedure outlined in
Section 14 thereof, we hold that a hearing
pursuant to the provisions of the Act with
respect to the discharge of a classified
employee of the City of Asheville by said
Civil Service Board, is a quasi-judicial
function and is reviewable upon a writ of
certiorari issued from the Superior Court.

In re Burris, 261 N.C. 450, 453, 135 S.E.2d 27, 30 (1964). In

1977, the General Assembly formally amended the Civil Service
 -7-
Act to authorize an appeal of the Board’s decisions to superior

court for a trial de novo. Jacobs, 137 N.C. App. at 444-45, 528

S.E.2d at 907-08; see also 1977 N.C. Sess. Laws ch. 415, §8.

Section 8 of the Civil Service Act provides, in pertinent

part, as follows:

(a) Whenever any member of the classified
service of the City is discharged . . . that
member shall be entitled to a hearing before
the Civil Service Board to determine whether
or not the action complained of is
justified. . . .

(b) Any member of the classified service of
the City who desires a hearing shall file
his or her request for hearing with the City
Clerk within 10 days after learning of the
act or omission of which he or she complains
but not before the member shall have
exhausted his or her remedy provided by the
grievance procedures established by
ordinance or policy of the City and the
grievance procedure shall be concluded
within 30 days. . . . Upon receipt of notice
as required in this section, the City Clerk
shall set the matter for hearing before the
Civil Service Board at a date not less than
five nor more than fifteen days from the
Clerk's receipt of such notice. . . .

. . . .

(e) At such hearing, the burden of proving
the justification of the act or omission
complained of shall be upon the City . . . .

(f) The Civil Service Board shall render its
decision in writing within ten days after
the conclusion of the hearing. If the Board
determines that the act or omission
 -8-
complained of is not justified, the Board
shall order to rescind [sic] whatever action
the Board has found to be unjustified and
may order the City to take such steps as are
necessary for a just conclusion of the
matter before the Board. Such decision shall
contain findings of fact and conclusions,
and shall be based on competent, material,
and substantial evidence in the record.
Upon reaching its decision, the Board shall,
in writing, immediately inform the City
Clerk and the member requesting the hearing
of the Board's decision.

(g) Within ten days of the receipt of notice
of the decision of the Board, either party
may appeal to the Superior Court Division of
the General Court of Justice for Buncombe
County for a trial de novo. The appeal
shall be effected by filing with the Clerk
of the Superior Court of Buncombe County a
petition for trial in superior court,
setting out the fact[s] upon which the
petitioner relies for relief. If the
petitioner desires a trial by jury, the
petition shall so state. Upon the filing of
the petition, the Clerk of the Superior
Court shall issue a civil summons as in [a]
regular civil action, and the sheriff of
Buncombe County shall serve the summons and
petition on all parties who did not join in
the petition for trial. . . . Therefore, the
matter shall proceed to trial as any other
civil action.

2009 N.C. Sess. Laws ch. 401, § 8 (alterations in original).

II. Standard of Review

In this appeal, we are reviewing the judgment entered by

the trial court following a de novo trial conducted pursuant to

§ 8(g) of the Civil Service Act. “A de novo proceeding pursuant
 -9-
to a specific statutory mandate requires [the] judge or jury to

disregard the facts found in an earlier hearing or trial and

engage in independent fact finding.” N.C. Dep't of Env't &

Natural Res. v. Carroll, 358 N.C. 649, 661, 599 S.E.2d 888, 895

(2004). A trial de novo is a “new trial on the entire case —

that is, on both questions of fact and issues of law — conducted

as if there had been no trial in the first instance.” Id.

This Court has previously explained the scope of a de novo

trial under the Civil Service Act as follows:

[T]rial de novo vests a court with full
power to determine the issues and rights of
all parties involved, and to try the case as
if the suit had been filed originally in
that court. . . . This means that the court
must hear or try the case on its merits from
beginning to end as if no trial or hearing
had been held by the Board and without any
presumption in favor of the Board's
decision.

Jacobs, 137 N.C. App. at 445, 528 S.E.2d at 908 (internal

citations and quotation marks omitted).

Therefore, “[t]he applicable standard of review on appeal

where, as here, the trial court sits without a jury, is whether

competent evidence exists to support the trial court's findings

of fact and whether the conclusions reached were proper in light

of the findings. Competent evidence is evidence that a

reasonable mind might accept as adequate to support the
 -10-
finding.” In re Adams, 204 N.C. App. 318, 320–21, 693 S.E.2d

705, 708 (2010) (citation omitted). “‘[F]indings of fact made

by the trial judge are conclusive on appeal if supported by

competent evidence, even if . . . there is evidence to the

contrary.’” Sisk v. Transylvania Cmty. Hosp., Inc., 364 N.C.

172, 179, 695 S.E.2d 429, 434 (2010) (quoting Tillman v.

Commercial Credit Loans, Inc., 362 N.C. 93, 100-01, 655 S.E.2d

362, 369 (2008)). “Conclusions of law drawn by the trial court

from its findings of fact 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).

III. Application of § 8 of the Civil Service Act

As noted above, § 8(a) of the Civil Service Act states in

pertinent part as follows: “Whenever any member of the

classified service of the City is discharged, . . . that member

shall be entitled to a hearing before the Civil Service Board to

determine whether or not the action complained of is justified.”

2009 N.C. Sess. Laws ch. 401, § 8 (emphasis added).

The essence of the parties’ dispute in this appeal centers

on how the term “justified” — which is undefined in the Act —

should be construed. Our appellate courts have on several prior
 -11-
occasions determined whether the termination of an employee of

the City was justified under the Civil Service Act.

In In re Burris, 263 N.C. 793, 140 S.E.2d 408 (1965), our

Supreme Court addressed the issue of whether the discharge of an

employee in Asheville’s Tax Department was justified by the fact

that he had acquired an interest in real property which the City

was attempting to purchase for its own use in association with

its airport. Id. at 794, 140 S.E.2d at 409. Our Supreme Court

upheld the dismissal, holding that “[w]here an employee

deliberately acquires an interest adverse to his employer, he is

disloyal, and his discharge is justified.” Id. at 794, 140

S.E.2d at 410.

In Warren v. City of Asheville, 74 N.C. App. 402, 328

S.E.2d 859, disc. review denied, 314 N.C. 336, 333 S.E.2d 496

(1985), a police officer employed by the City was accused of

making a homosexual advance towards a fellow officer while off

duty. The accused officer was ordered to take a polygraph

examination. After he refused, he was terminated by the chief

of police. Id. at 403-04, 328 S.E.2d at 861.

He appealed his termination under the Civil Service Act,

and a jury ultimately rendered a verdict in his favor. The

trial court denied the City’s motion for a directed verdict,
 -12-
motion for judgment notwithstanding the verdict, and motion for

a new trial. Id. at 405, 328 S.E.2d at 861-62. We affirmed the

trial court’s ruling, holding that the jury could have

rationally concluded the firing was not justified in light of

evidence that the department planned to inquire during the

polygraph test into highly personal topics about the employee

that were not specifically related to the charges against him.

Id. at 408, 328 S.E.2d at 863.

However, in neither of these cases were we called upon to

provide a definition of the term “justified” as used in § 8 of

the Civil Service Act. “The primary objective of statutory

interpretation is to ascertain and effectuate the intent of the

legislature.” McCracken & Amick, Inc. v. Perdue, 201 N.C. App.

480, 485, 687 S.E.2d 690, 694 (2009), disc. review denied, 364

N.C. 241, 698 S.E.2d 400 (2010). Thus, as a general rule,

courts should give “the language of the statute its natural and

ordinary meaning unless the context requires otherwise.”

Turlington v. McLeod, 323 N.C. 591, 594, 374 S.E.2d 394, 397

(1988).

Respondent argues that in order for a termination to be

“justified” under the Civil Service Act, “just cause” must exist

under the standard set out by the General Assembly in the State
 -13-
Personnel Act, which governs the dismissal of State employees.

See N.C. Gen. Stat. § 126-35(a) (“No career State employee . . .

shall be discharged . . . except for just cause.”). However,

nowhere in the Civil Service Act has the General Assembly

expressly indicated that the term “justified” was intended to be

synonymous with “just cause.” Therefore, principles of

statutory construction require that we assume the General

Assembly would have made clear in the Civil Service Act its

intent that the “just cause” standard be utilized had it

intended for that standard to apply. See 3A Norman J. Singer,

Sutherland Statutory Construction § 66:3 at 3 (7th ed. Supp.

2013) (“When the legislature uses a term or phrase in one

statute or provision but excludes it from another, courts do not

imply an intent to include the missing term in that statute or

provision where the term or phrase is excluded.”).

The City, conversely, urges us to apply an interpretation

of the term “justified” that is far more deferential to its

personnel decisions. It argues that “[t]he only job protection

intended in the ‘justified’ standard is the assurance that the

employee will not be disciplined for an arbitrary reason based

on politics or membership in a particular class.”
 -14-
We likewise reject this proposed definition. Nothing in

the language of § 8 suggests a legislative intent to confer upon

the City such broad authority to discharge its employees.

Moreover, the City’s proposed definition is inconsistent with

this Court’s recognition in Jacobs that the Civil Service Act

“recognizes the interest of the employee in [his] continued

employment, and guarantees full protection of [his] due process

rights prior to termination of that employment.” Jacobs, 137

N.C. App. at 449, 528 S.E.2d at 910.

It is well established that “[i]n the absence of a

contextual definition, courts may look to dictionaries to

determine the ordinary meaning of words within a statute.”

Perkins v. Arkansas Trucking Servs., Inc., 351 N.C. 634, 638,

528 S.E.2d 902, 904 (2000). The American Heritage Dictionary

defines “justify” as “to demonstrate or prove to be just, right,

or valid.” American Heritage Dictionary 738 (3rd ed. 1993). We

believe that this definition is consistent with the

Legislature’s use of the term “justified” in § 8(a) of the Civil

Service Act. Therefore, we must now apply this definition in

reviewing the trial court’s order. In its order, the trial

court made the following findings of fact:

1. Prior to his termination the
respondent, Roger Aly, was a Senior Ashville
 -15-
Police Department officer working as a
patrol officer.

2. During 2009 the respondent rented a
computer on a rent to own basis; however,
since he could no longer afford the
payments, he returned the computer without
wiping the computer clean of any and all
images from the computer.

3. Thereafter in early 2010, an
[individual] rented the same computer and
while using it found numerous unidentified
nude images and images that were racially
insensitive, offensive and inflammatory.
There were in addition many images of the
respondent, his family and friends that were
not offensive or illegal in any way.

4. The [individual] and his mother
referred the images to the Buncombe County
Sheriff’s Department who conducted an
investigation which eventually led to the
respondent because many of the un-offensive
images showed the respondent and others in a
police uniform.

5. During all aspects of any
investigation, including internal affairs,
the respondent freely admitted all images
were his, the nudes and racial ones having
been sent to him unsolicited on his
blackberry by friends. The respondent
neither solicited nor ask [sic] his friends
to stop sending them; however, while the
respondent did transfer the said images to
the rented computer, he did not ever forward
them on to anyone else. The respondent did
not approve of the images in controversy,
but he took no steps to erase them or wipe
them off the computer when he returned it.

6. In addition a computer forensic
specialist who performed a forensic analysis
 -16-
on the computer found 360 images in the
"documents" folder which included images of
the respondent in uniform, family photos,
and the pornographic and racially
inflammatory pictures and cartoons, which
Detective Johnson concluded were
intentionally and purposely saved on the
computer; however, a fact finder could also
conclude that all such images were
negligently kept and saved since none had
been forwarded to anyone else.

7. After all intradepartmental
investigations were completed the then Chief
of Police, William A. Hogan, essentially
concluded that the respondent had violated
the Asheville Police Department personnel
policy, same said department's code of
conduct, and the City's Ethics Policy
because the respondent had "neglectfully”
failed to prevent the inappropriate images
from becoming public. As a result the
respondent's employment with Asheville
Police Department was terminated.

The trial court then made the following conclusions of law:

1. The respondent’s conduct of failing to
take all appropriate measures to erase the
inappropriate images as opposed to keeping
them on a rented computer amounted to
negligence as opposed to violating any law.

2. While the respondent’s conduct of
opening each one of the images in question,
presumably viewing it or them, not erasing
any of them and not requesting the sender(s)
to refrain from sending him anymore, none of
the aforesaid actions amounted to the
respondent violating any law.

3. While the Respondent’s conduct taken as
a whole or in segments with regard to the
inappropriate images could have been deemed
 -17-
to having been a violation of the Asheville
Police Department’s personnel policy, the
code of conduct and/or the City’s Ethics
Policy, such was not so severe as to warrant
the Respondent being terminated from
employment.

4. The City was not justified in
terminating the Respondent’s employment.

Petitioner only challenges the trial court’s finding of

fact 6. Thus, findings of fact 1-5 and 7 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, Petitioner challenges the portion of finding

of fact 6 stating that “a fact finder could also conclude that

all such images were negligently kept and saved,” claiming that

this aspect of the finding is unsupported by the evidence. The

City points to Detective Johnson’s testimony stating his belief

that the images he found on the computer were “intentionally

saved” in that (1) they were saved to a specific folder; and (2)

based on Detective Johnson’s training and experience, it was a

“very active thing to save pictures from the BlackBerry to the

computer.” The City also argues that the only evidence

supporting the proposition that the images were not
 -18-
intentionally saved was Respondent’s own testimony in responding

“no” when asked if he knew “how those images ended up on [his]

computer.”

We are satisfied that competent evidence existed to support

the challenged portion of finding of fact 6. Respondent

testified that he would “back up his personal phone to the

desktop” in order to save his contacts and information in the

event they were accidently deleted because of a previous

Blackberry “catastrophic failure [where he] lost a lot of

information that took [him] a great deal of time to get back.”

He also testified that he was unaware that the offensive images

and emails at issue were being copied to his rental computer as

a result of the backup. He stated that the only images he

intentionally saved were “photographs of [his] kids or [himself]

or events, parties, that kind of thing . . . .” In addition, he

answered in the negative when asked if he “intentionally saved

any emails containing pictures of naked women . . . pornographic

images . . . or racist images on the computer.”

It is well-settled that “[f]indings of fact made by the

trial judge are conclusive on appeal if supported by competent

evidence, even if . . . there is evidence to the contrary.”

Sisk, 364 N.C. App. at 179, 695 S.E.2d at 434 (internal
 -19-
citations and quotation marks omitted). Accordingly,

Respondent’s testimony on this issue serves as competent

evidence to support the trial court’s finding that a fact finder

could conclude that the inappropriate photographs and images

remained stored on the computer at the time he returned it as a

result of negligence rather than intent on his part. Therefore,

the trial court’s finding on this issue is binding on appeal.

The City then challenges the trial court’s conclusion of

law 4 that “[t]he City was not justified in terminating the

Respondent’s employment.” The City argues that the termination

was, in fact, justified based on its determination that

Respondent’s actions had violated various policies issued by the

City of Asheville and affected the City’s credibility,

reputation, image, and effectiveness in the community. However,

our only task is to determine whether the trial court’s findings

of fact support its conclusions of law. Woodring v. Woodring,

164 N.C. App. 588, 590, 596 S.E.2d 370, 372 (2004). It “is not

the function of this Court to reweigh the evidence on appeal.”

Garrett v. Burris,___ N.C. App. ___, ___, 735 S.E.2d 414, 418

(2012), aff'd per curiam, 366 N.C. 551, 742 S.E.2d 803 (2013).

We believe the trial court’s conclusion that Respondent’s

termination was not justified is supported by its findings of
 -20-
fact. First, Respondent rented a personal computer that was

never used for work or during work hours. Second, with regard

to the offensive images found on the computer, the undisputed

evidence was that he only came into possession of the

inappropriate pictures and images through unsolicited emails

received from others. Third, he testified that he did not

intend to save the offensive images on the computer. Fourth,

the investigation completed by Detective Johnson revealed no

criminal activity by Respondent resulting from his possession of

these images. Finally, there was no evidence that Respondent

disseminated the photos or intentionally sought to have them

viewed by a third party.

Based on these facts, a fact finder could rationally have

found that he was discharged for conduct amounting to mere

negligence in failing to “wipe” his rented computer before its

return. Therefore, we conclude the trial court’s findings of

fact support its ultimate conclusion that the City was not

justified in terminating Respondent’s employment.1

IV. Award of Reinstatement and Benefits

1
We also note that our review of the APD Personnel Ordinance
reveals no policy that specifically governs the use of an
employee’s personal computer. Nor does the City contend that
any such policy existed.
 -21-
In its final argument, the City contends that the trial

court exceeded its authority in ordering that Respondent be

fully reinstated to his former rank and receive all back pay

due. We disagree.

Section 8(f) of the Civil Service Act provides broad

authority for the award of a remedy to an employee of the City

who has been the subject of unjustified personnel action:

. . . If the Board determines that the act
or omission complained of is not justified,
the Board shall order to rescind [sic]
whatever action the Board has found to be
unjustified and may order the City to take
such steps as are necessary for a just
conclusion of the matter before the Board. .
. .

2009 N.C. Sess. Laws ch. 401, § 8(f).

We believe this broad conferral of power to the Board in

crafting a remedy for an unjustified termination encompasses the

power to award reinstatement and back pay. Moreover, the City

has failed to make any persuasive argument as to why a superior

court conducting a de novo hearing pursuant to the Civil Service

Act does not possess this same authority.

We also note that in Warren the trial court ordered the

plaintiff to be “reinstated with full back pay and benefits”

after concluding that his discharge had not been justified.

Warren, 74 N.C. App. at 405, 328 S.E.2d at 861. We affirmed the
 -22-
trial court’s order in its entirety, id. at 410, 328 S.E.2d at

864, thereby implicitly upholding the trial court’s award of

back pay.

While the authority of the trial court in Warren to award

reinstatement and back pay was not expressly discussed in our

decision, we believe — as explained above — that the trial

court’s award of these remedies is not inconsistent with the

language utilized by the General Assembly in the Civil Service

Act.

Thus, we hold that the trial court here likewise acted

within its authority in ordering the City to reinstate

Respondent to his former rank with full back pay. Accordingly,

the City’s argument on this issue is overruled.

Conclusion

For the reasons stated above, we affirm the trial court’s

order.

AFFIRMED.

Judges ELMORE and McCULLOUGH concur.