STATE OF NORTH CAROLINA. CITY OF ASHEVILLE BEFORE THE CIVIL SERVICE BOARD. COUNTY OF BUNCOMBE ORDER INRE: MARK BYRD, GRIEVANT ‘THIS CAUSE coming on for hearing before the Civil Service Board for the City of Asheville, which hearing was called to order at 8:30 a.m. on the 17" day of July, 2019 in room 623 of the City Hall building, upon the matter of the appeal of Mark Byrd (the "Grievant”) from his dismissal from the position with the Asheville Police Department (the “Grievance”), And it further appearing to the Board that the City was represented by Sabrina Rockoff and Murphy Fletcher, and that the Grievant was represented by John C, Hunter, WHEREAS after the presentation of witnesses by the City and examination by both parties, the examination of documents provided by the parties, having heard the arguments of counsel, after questioning by the Board’s members and due deliberation in closed session, by a vote of four in favor and Ms. Goins opposed, the Board makes the following: FINDINGS OF FACT 1) The Grievant was informed of his dismissal from his position of captain with the Asheville Police Department (APD) by a letter dated July 12, 2018, issued by the then- cuitent Chief of Police Tammy Hooper. ‘The letter cited as the basis for termination the alleged violations of City policy and APD Rules of Conduct below. 2) Grievant allegedly violated the City's Ethics Policy D - Honesty and APD Rule of Conduct I-11 = Truthfulness, based upon four incidents: a. An investigation conducted by APD’s Professional Standards Section centered on statements made by the Grievant in an earlier Professional Standards investigation to the effect that he had been made aware of alleged improprieties in that matter by means of an anonymous note. The Grievant was unable to produce the note or explain its ultimate disposition; the Professional Standards investigator testified that he concluded the Grievant was being untruthful about the existence of the anonymous note, and that instead Grievant had most likely been informed of the alleged imptoprieties through another APD officer who had informed the Grievant's wife of the matter, and that therefore the Grievant was being untruthful, The Professional Standards report cited “preponderance of the evidence” that this was the case. Chief Hooper concurred in this assessment and cited it as @ reason for termination. (cS; 00069845.00Cx }b, During the Professional Standards investigation, the Grievant was allegedly untruthful in stating that he had requested a criminal investigation into an incident of potential misconduct by an APD officer on August 25, 2017 in the presence of Chief Hooper and Professional Standards staff, when in fact Grievant did not make that recommendation until mid-December 2017. ©. The Professional Standards investigation concluded that, in a second instance of potential misconduct by an APD officer, Grievant was allegedly untruthful about requesting a criminal investigation earlier than December, 2017. d. Grievant allegedly was untruthful in stating that in early November 2017 he made Human Resources officials aware of concems that he had about investigations into the two incidents of potential misconduct, 3) Grievant allegedly violated APD Rules of Conduct P-12 ~ Supervisory Cooperation and P-2 — Unsatisfactory Job Performance, based upon statements made to lieutenants in an email dated March 13, 2018 to the effect that Grievant was “lacking and need[ing] more clear direction” and that “Little to no information is being shared with me about departmental operations and plans;” and an email dated March 16, 2018 that allegedly “expressed frustration and disdain for the APD’s senior leaders and command staff, and even implied that senior commanders were not being truthful.” 4) Grievant allegedly violated the same APD Rules of Conduct in responding to a question. from a subordinate sergeant concerning staffing changes in the Downtown Unit (*DTU”). ‘The sergeant allegedly asked whether the staffing changes had been made in reaction to ‘comments made to Chief Hooper by a lieutenant. Grievant was allegedly aware that this hhad not been the reason for staffing changes, but stated only that he was unaware of the licutenant’s involvement, that Chief Hooper had given him a “strong recommendation” that the changes be made, and did not explain further, CONCLUSIONS 1) With respect to finding 2.2,, there is insufficient evidence in the record to establish that Grievant wes untruthful concerning the anonymous letter. The evidence did not tend to prove one way or the other whether the letter existed; moreover, neither the Professional Standards investigation not any other evidence introduced tended to show any motive for Grievant to be untruthful about the matter. The investigator's conclusion based on the “preponderance of the evidence” that Grievant leamed of the matter through other means was not substantiated, and did not include any attempt to interview others who might have had knowledge concerning this conclusion, 2) With respect to finding 2.b., the evidence introduced did not substantiate the allegation that Grievant claimed to have requested, in the presence of Chief Hooper, a criminal investigation nor did the Professional Standards investigation seek to further clarify the Grievant's account of statements related to the first misconduct incident. (C5; 00069545.D00x }3) With respect to finding 2.c., the evidence introduced did not substantiate the allegation that Grievant was untruthful in claiming that he had called for a criminal investigation into the second misconduct incident; the evidence tended to show that Grievant did make comments in the Professional Standards investigation to the effect that he had called for such investigation, but neither the Professional Standards investigation nor any other evidence sufficiently demonstrated that such statements were false. 4) With respect to finding 2.4,, although the evidence showed that both the Grievant and Human Resources officials may have been confused about the exact date — whether November or December — that the Grievant expressed concems regarding these investigations, the evidence clearly showed that he did express such concerns in a December 2017 interview with Human Resources, 5) As to all findings 2. thru 2.d,, the evidence presented made no showing that Grievant made inaccurate statements to either to his own advantage ot to the disadvantage of others. 6) With respect to finding 3, the evidence tended to establish that the Grievant's communications with subordinate lieutenants could have been viewed as violating the Supervisory Cooperation rule and/or the Unsatisfactory Job Performance rule, Even s0, these violations were relatively mild in tenor, were arguably intended to convey necessary information to subordinates, and did not particularly single out anyone within the chain of command. No evidence was presented showing that, prior to his pre~ disciplinary conference, the Grievant was ever questioned about his statements in. the emails to clarify the context or his intent. Even if substantiated, these violations did not Justify the Grievant’s termination, 7) With respect to finding 4, there was insufficient evidence in the record to establish that the Grievant violated any policy or rule in his communications concerning the DTU staffing matter. 8) Based on the information listed in Items 1-7 above, the City was not justified terminating the Grievant's employment. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that pursuant to Section 8(f) of the Civil Service Act, the City’s action of dismissing the Grievant from employment is rescinded. ‘this, the2t day of August, 2019. CIVIL SERVICE BOARD OF THE CITY OPASHEVILLE, ¢€:00063845,D00x }