Mazzeo v. City of Charlotte

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.