Although the case involving North Carolina Highway Patrol Trooper Thomas Wetherington appears to invite smiles because it focuses on his uniform hat (see “Side Bar” below), in fact it addresses a formidably tough ethical question.  What standards of truthfulness should be expected of our law enforcement officers?  And when one is untruthful, what factors should be considered in determining the appropriate penalty?  In addition, who should have the greater say in assessing that penalty, the law enforcement agency’s internal affairs process or the courts?

The story is long even when related in skeletal form, so hold on to your…  No, I won’t say it.  This case has already spawned too many bad puns and creaky jokes.

The Hat:  Fact or Fiction

It began when Trooper Wetherington lost his hat during a routine traffic stop in 2009.  He told his supervisor that his hat had blown off his head during the stop, that he thought it had been run over by a semi, and that he had been unable to find it.  However, he admitted to fellow Trooper Rink that he really did not know what had happened to the hat.  When Trooper Rink suggested that he just explain what happened, Trooper Wetherington responded that it was too late because of his earlier inconsistent statement to his supervisor.  When questioned again by that supervisor, Trooper Wetherington stood by his original statement that his hat had blown off.

Trooper Wetherington’s troubles escalated when one of the drivers involved in the original stop returned the hat to the Highway Patrol.  It was essentially undamaged and showed no signs of having been squashed by a truck.  Questioned again by senior Highway Patrol officers, Trooper Wetherington initially stuck by his story that the hat had blown off, but when he was shown the returned hat, he admitted that his story was untruthful.

Following an internal investigation, Trooper Wetherington was dismissed from the Highway Patrol for violating its truthfulness policy.

Side Bar:  I was on the Supreme Court when Wetherington was decided.  I don’t believe it violates any confidentiality understandings to mention that we discussed nomenclature.  Chief Justice Parker thought troopers’ hats might be called “bonnets.”  Recalling my days in the Navy, I suggested “cover” but added that we referred to our Marine drill instructor’s similar headgear as a “Smoky the Bear hat”—at least when he was out of earshot.  (Like other wild animals, a drill instructor can be dangerous when provoked.)  Since no one was sure, we settled on “hat.”

First Contested Case Hearing and Appeal

Trooper Wetherington filed a petition for a contested case hearing in the Office of Administrative Hearings.  After conducting a hearing, an administrative law judge filed a recommended decision upholding the firing.  The State Personnel Commission determined that the dismissal was supported by just cause.

Trooper Wetherington then filed for judicial review in Superior Court, Wake County.  That court reversed the State Personnel Commission, concluding that the Commission’s findings of fact were supported by the evidence but that the conduct did not provide just cause for dismissal.  The Highway Patrol appealed to the Court of Appeals, which reversed the trial court.  Wetherington, 231 N.C. App. 503, 752 S.E.2d 511 (2013).  The Supreme Court allowed discretionary review and modified and affirmed the Court of Appeals decision.  Wetherington, 368 N.C. 583, 780 S.E.2d 543 (2015).

The Supreme Court concluded that the Colonel of the Highway Patrol (its highest officer) was unaware of his responsibility to exercise discretion in deciding on an appropriate penalty for Trooper Wetherington’s transgressions, mistakenly believing instead that any violation of the Patrol’s truthfulness policy required dismissal.  The opinion stated that while dismissal could be a penalty for untruthfulness, it was not necessarily the only option.  The Supreme Court then listed factors that should be considered to guide the Highway Patrol’s exercise of discretion in determining the appropriate punishment.  The Supreme Court ordered the case remanded all the way back to the Highway Patrol for reconsideration of the range of available penalties in light of the case’s facts and circumstances.

Remand and Subsequent Appeal

A new Colonel was in place when the remanded case arrived.  That Colonel issued a lengthy and comprehensive letter noting that he had discretion in how to handle the matter. In his letter, the Colonel balanced Trooper Wetherington’s otherwise unblemished record and the triviality of the underlying instance against the importance of truthfulness in all matters by those in law enforcement who testify under oath in court and the lack of mitigating factors in Trooper Wetherington’s untruthfulness in this incident.  The Colonel then upheld the earlier dismissal decision.

Trooper Wetherington thereafter received a final agency decision letter from the North Carolina Department of Public Safety upholding the dismissal for the reasons stated in the Colonel’s letter.  Trooper Wetherington filed a second contested case petition with the Office of Administrative Hearings and the matter was heard before an administrative law judge.  At the hearing, the Colonel who had reinstated the trooper’s dismissal testified that he had not read the Supreme Court opinion. The ALJ reviewed the matter de novo and affirmed, finding that the Highway Patrol had established by substantial evidence that it had just cause to dismiss the Trooper.

Due to a change in the applicable procedural statutes, Trooper Wetherington then appealed directly to the Court of Appeals.  In a fifty-four page opinion, that court reviewed de novo the lower court’s finding that “just cause” existed for the dismissal and concluded as a matter of law that the Trooper’s unacceptable personal conduct was not just cause for dismissal.  The Court of Appeals reversed the ALJ, remanding the matter to the Office of Administrative Hearings for imposition of disciplinary action short of dismissal.  Wetherington, No. COA18-1018.

This long history of this case illustrates and illuminates the complexity of the underlying issue.  Troopers and other law enforcement officers give sworn testimony that can result in imprisonment and even execution.  Their honesty must be beyond question.  Yet troopers and others make human mistakes.  Where does the balance lie?  And which entity is best suited to apply that balance—the courts or law enforcement administration?

Honor codes can be absolute.  For instance, the West Point honor code for budding officers is straightforward:  “A cadet will not lie, cheat, steal, or tolerate those who do.”  Yet even this code allows for sanctions other than dismissal from the Academy.

It appears to me that the Court of Appeals in this latest opinion was troubled by the Colonel’s admission at the hearing before the ALJ that he had not read the Supreme Court opinion with its list of factors that were to guide the Colonel’s decision, nor had he drafted the letter of dismissal.  Although the ALJ found that the Colonel was not required to have read the opinion to know its import, the Court of Appeals was unsympathetic, interpreting this testimony as indicating that the Colonel was reimposing a bright line rule that any violation of the Patrol’s truthfulness policy would result in dismissal.  Other sanctions may better fit the crime.  In short, both the Supreme Court and the Court of Appeals have embraced the idea that while honesty is of critical importance, not every sin is mortal.

Your thoughts?  Please feel free to chime in below.

— Bob Edmunds