Can a state employee be fired for having unauthorized software on his computer? And can his discharge be upheld even if a majority of the State Personnel Commission doesn’t vote to uphold it? The answer, according to a ruling by the N.C. Court of Appeals on April 18, is yes.

Joseph Teague was an engineer with the N.C. Department of Transportation. From 1998 to 2000, Teague’s responsibilities included computer security and software licensing. A random scan of his computer in April 2001 uncovered 19 unauthorized software applications. Teague was ultimately fired for violating the department’s Internet and computer usage policies.

Teague contested his dismissal. An administrative law judge ruled in favor of the department. The State Personnel Commission heard Teague’s case in February 2003. The eight members participating split 4-4 on whether to adopt the ALJ’s findings. The commission’s decision noted that “G.S. 150B-44 provides the following: If an agency subject to Article 3 of this Chapter has not made a final decision within [the time limit specified in the statute], the agency is considered to have adopted the [ALJ’s] recommended decision as the agency’s final decision.”

The commission’s nondecision was the basis of additional appeals by Teague. The engineer argued that by voting and failing to obtain a majority to uphold the ALJ’s decision, the commission action “was in fact a final decision that DOT failed to carry its burden of showing just cause for Teague’s dismissal.” Teague’s argument was based upon state law requiring that the State Personnel Commission has the burden of showing that a discharge was for just cause.

The Court of Appeals, however, was not persuaded. The court noted that state law requires that the State Personnel Commission issue a detailed ruling within 60 days. The commission did not do so.

“We have determined that the Commission failed to issue a final decision within the meaning of N.C.G.S. § 150B-36(b),” Judge Linda McGee wrote for the court.

“In order to protect Teague from unreasonable delay, N.C.G.S. § 150B-44 provided Teague the remedy of making the ALJ’s recommended decision the final decision of the agency, so the administrative appeals process could continue. This situation, in which an administrative agency failed to issue a final decision within the statutorily prescribed period, is the situation N.C.G.S. § 150B-44 was intended to remedy.”

Teague’s other argument, that his firing was not for just cause, was also rejected by the Court of Appeals.

“Unacceptable personal conduct includes ‘the willful violation of known or written work rules[.]’ Our Court has held that a willful violation of known or written work rules occurs when an employee ‘willfully takes action which violates the rule and does not require that the employee intend [the] conduct to violate the work rule.’”

The court found that substantial evidence existed that he had indeed violated the department’s Internet and computer usage policies.

The case is Teague v. N.C. Dep’t of Transp., (05-522).
http://www.aoc.state.nc.us/www/public/coa/opinions/2006/050522-1.htm target=_blank>http://www.aoc.state.nc.us/www/public/coa/opinions/2006/050522-1.htm

Michael Lowrey is associate editor of Carolina Journal.