South Carolina Cases July 16, 2024: Brisbon v. S.C. Criminal Justice Acad.

Case Description

1

FINAL ORDER AND DECISION

The Honorable Robert L. Reibold, Administrative Law Judge.

STATEMENT OF THE CASE

This matter is before the South Carolina Administrative Law Court (Court or ALC) upon the appeal of George Brisbon (Appellant) from a final agency decision issued by the Law Enforcement Training Council (LETC or Council) of the South Carolina Criminal Justice Academy (SCCJA or Respondent) permanently denying Appellant a law enforcement certification. This Court has jurisdiction pursuant to S.C. Code Ann. Section 1-23-600(D) (Supp. 2023); see also S.C. Code Ann. § 1-23-505(2) (Supp. 2023). After careful consideration, the Court affirms the final decision of the LETC.

FACTUAL BACKGROUND

In 2019, the Charleston Police Department conducted an internal affairs investigation of an officer suspected of charging improper administrative fees when arranging for himself and other officers to fill off-duty employment assignments, such as providing security at concerts and other events. During the course of this investigation, the police department began to suspect that Appellant may have been involved in similar conduct.

Captain Anthony Cretella was instructed to and did open an investigation into Appellant's conduct. Captain Cretella interviewed Appellant multiple times. He also interviewed Linda McCormick, the manager of the Thomas Bennett House, about her dealings with Appellant regarding off-duty security jobs. Ms. McCormick later provided a written statement to Cretella for use in proceedings before the LETC.

2

The record reflects that Appellant had received permission from his supervising officer to receive administrative fees when arranging off-duty security for the South Carolina Ports Authority. However, Appellant's supervisor and the police department have denied that Appellant had permission to charge such fees when arranging off-duty employment for other events like church functions, tennis matches, and movie industry jobs. While Appellant was not criminally charged, the police department later terminated Appellant's employment and submitted a PCS of Separation form regarding Appellant to the Academy, resulting the administrative proceedings which are now on review.

PROCEDURAL HISTORY

The Charleston Police Department terminated Appellant's employment and submitted a PCS of Separation form for Appellant to the Criminal Justice Academy on February 13, 2020. The form alleged that Appellant has committed misconduct by charging and accepting improper administrative fees for off-duty employment. On February 18, 2020, Appellant was served with the misconduct allegation and requested a contested case hearing, which was held on February 28, 2023.

During the contested case hearing Appellant's attorney objected to State's Exhibit #12, a letter by Linda McCormick, describing Appellant's misconduct while providing off-duty security services for the Governor Thomas Bennett House. The Hearing Officer ordered briefs on the admissibility of Ms. McCormick's letter and admitted the letter into evidence. On June 9, 2023, the Hearing Officer's Findings and Recommendation, hearing transcript and exhibits were sent to the parties. Appellant filed a Motion in Opposition to the Findings and Recommendations on June 29, 2023. On October 18, 2023, the parties were notified that the Law Enforcement Training Council (LETC) would meet to render a Final Agency Decision in Appellant's case and vote on a Final Agency Decision. On October 30, 2023, the LETC met to discuss Appellant's case and vote on a Final Agency Decision. After considering the recommendation, hearing transcript, exhibits, and all comments, the LETC voted to find misconduct and permanently deny Appellant a law enforcement certification. The Final Agency Decision was signed January 29, 2024, and a letter notifying the parties of the Final Agency Decision was sent January 30, 2024.

Appellant filed a Notice of Appeal on February 29. 2024. The Notice of Assignment was filed on March 7, 2024. On April 19, 2024, Respondent filed the Record of Appeal. Appellant

3

filed his brief on May 17, 2024 and Respondent filed its brief on June 6, 2024. Finally, Appellant filed a Reply brief was filed on June 14, 2024.

ISSUES ON APPEAL

Appellant's brief raises a single issue on appeal: Did the hearing officer err by admitting the unsworn statement of Linda McCormick into evidence over the objections of counsel?

STANDARD OF REVIEW

The Respondent is an "agency" under the Administrative Procedures Act (APA). See S.C. Code Ann. §§ 1-23-310(2), -505(2), -600(A), (E)(Supp. 2023). Accordingly, the APA's standard of review governs appeals from decisions of the Respondent. See id . §§ 1-23-380 & -600(E) (Supp. 2023). The standard used by appellate bodies to review agency decisions is provided by Section 1-23-380(5) of the South Carolina Code (Supp. 2023). That section states:

The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

§ 1-23-380(5); see also § 1-23-600(E) (directing administrative law judges to conduct appellate review in the same manner prescribed in § 1-23-380).

A decision is supported by "substantial evidence" when the record as a whole allows reasonable minds to reach the same conclusion as the agency. Friends of the Earth v. Pub Serv. Comm'n of S.C ., 387 S.C. 360, 366, 692 S.E.2d 910, 913 (2010). The fact that the record presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency's findings from being supported by substantial evidence. Waters v. S.C. Land Res. Conservation Comm'n , 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996). In applying the substantial

4

evidence rule, "a reviewing court will not overturn a finding of fact by an administrative agency 'unless there is no reasonable probability that the facts could be as related by a witness upon whose testimony the finding was based.'" Sea Pines Ass'n for Prot. of Wildlife, Inc. v. S.C. Dep't of Natural Res ., 345 S.C. 594, 603-04, 550 S.E.2d 287, 292 (2001) (quoting Lark v. Bi-Lo, Inc ., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (1981)). When the evidence conflicts on an issue, the court's substantial evidence standard of review defers to the findings of the fact-finder. Risher v. S.C. Dep't of Health & Envtl. Control , 393 S.C. 198, 210, 712 S.E.2d 428, 435 (2011).

DISCUSSION

The hearing officer admitted into evidence a written statement from Linda McCormick (McCormick Statement). The statement was submitted as part of Exhibit 12 and contains a discussion of Ms. McCormick's dealings with Appellant. In the McCormick Statement, Ms. McCormick states the following:

She serves as the manager of the Governor Thomas Bennett House, an historical site in Charleston, South Carolina. McCormick indicates that beginning in 2018 she dealt with Appellant in her role as manager in order to obtain security for special events at the Bennett House.

Appellant arranged to have off-duty personnel provide security at those events for a rate of $25 per hour, a rate which later increased to $30 per hour. When Appellant personally worked at these events, he received the same hourly rate as would any off-duty officer. However, there came a point at which Appellant informed McCormick that the police department required the Bennett House to pay him an additional monthly fee of $150 for his services in coordinating the supply of off-duty personnel. McCormick was never charged an administration fee by anyone other than Appellant and was misled into believing that all private parties utilizing off-duty officers were required to pay the administrative fees. McCormick attached copies of invoices related to the monthly fee to her statement.

Appellant argues that this statement should not have been admitted for two reasons. First, Appellant contends that the McCormick Statement was not properly authenticated. Second, he argues that the statement did not meet the requirements of the public records exception for hearsay, Rule 803(8), SCRE. Respondent disagrees with both of these propositions, and also presents a third argument. According to Respondent, even if the McCormick Statement was improperly admitted, the result below must be affirmed because admission of the statement did not substantially prejudice Appellant. Each of these arguments will be addressed below.

5

I. The McCormick Statement was properly authenticated.

Authentication is the process of presenting competent evidence of the genuineness of a document and its execution by the party by whom it purports to be executed Williams v. Milling-Nelson Motors, 209 S.C. 407, 409, 40 S.E.2d 633(1946). It is a condition precedent to the admission of evidence. State v. Hall , 437 S.C. 107, 117, 876 S.E.2d 328, 333 (Ct. App. 2022) (evidence must be authenticated or identified in order to be admissible); s ee also Rule 901(a), SCRE.

However, the standard for authentication of a writing or letter is not strict and a party need not rule out any possibility the evidence is not authentic. Hall , 437 S.C. at 117-18, 876 S.E.2d at 333-34 (citing State v. Green , 427 S.C. 223, 230, 830 S.E.2d 711, 714 (Ct. App. 2019) (citation omitted), aff'd as modified , 432 S.C. 97, 851 S.E.2d 440 (2020)). "The court decides whether a reasonable jury could find the evidence authentic; therefore, the proponent need only make 'a prima facie showing that the 'true author' is who the proponent claims it to be.'" State v. Green , 427 S.C. 223, 230, 830 S.E.2d 711, 714 (Ct. App. 2019), aff'd as modified, 432 S.C. 97, 851 S.E.2d 440 (2020) (quoting United States v. Davis , 918 F.3d 397, 402 (4th Cir. 2019)). Once the trial court determines the prima facie showing has been met, the evidence is admitted, and the [fact finder] decides whether to accept the evidence as genuine and, if so, what weight it carries. Id. ( citing Rule 104(b), SCRE; see United States v. Branch , 970 F.2d 1368, 1370-72 (4th Cir. 1992)). This prima facie showing may be made by circumstantial evidence. As our supreme court explained in State v. Hightower :

Like any other material fact, the genuineness of a letter may be established by circumstantial evidence if its tenor, subject-matter, and the parties between whom it purports to have passed make it fairly fit into an approved course of conduct, and manifests the probability that the subject-matter of its contents was known only to the apparent writer and the person to whom it was written,-these circumstances justify its admission.

221 S.C. 91, 105, 69 S.E.2d 363, 370 (1952). A writing may also be authenticated if it is made in reply to an earlier communication from a source known to be genuine. Green , 427 S.C. at 232, 830 S.E.2d at 715.

6

Appellant is correct that the McCormick Statement is unsworn and no witness was presented who could testify regarding the execution of the statement. However, upon review, the Court believes that sufficient circumstantial evidence existed to authenticate the McCormick Statement. Captain Cretella testified at the hearing and discussed the information he learned from Ms. McCormick. This testimony is consistent with the content of the McCormick statement. Cretella also testified that he asked Ms. McCormick to write the statement and that the statement, Exhibit 12, is what he received from Ms. McCormick in an email communication. The charts which were attached to the statement contained information regarding Appellant history of work with the Bennett House that only Ms. McCormick, the Bennett House manager, is likely to know. Copies of emails between Ms. McCormick and Appellant were also attached to the statement. Again, Ms. McCormick is the only person other than Appellant who is likely to have had access to those email messages.

Accordingly, the Court does not believe that the hearing officer committed an abuse of discretion in concluding that the McCormick Statement had been sufficiently authenticated. State v. Washington, 379 S.C. 120, 123-24, 665 S.E.2d 602, 604 (2008) ("A ruling on the admissibility of evidence is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion.").

II. The McCormick Statement does not qualify as a public record under Rule 803(8), SCRE.

Appellant next argues that the McCormick Statement should not be considered a public record for purposes of the hearsay exception contained in Rule 803(8), SCRE. This rule provides an exception to the hearsay rule for:

(8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement

7

personnel; provided , however , that investigative notes involving opinions, judgments, or conclusions are not admissible. Accident reports required by S.C. Code Ann. §§ 56-5-1260 to -1280 (1991) are not admissible as evidence of negligence or due care in an action at law for damages.

Rule 803(8), SCRE.

Appellant argues that the McCormick Statement does not qualify as a public record. According to Appellant, the statement is neither a document setting forth the activities of the office or agency, or, in this case, the Charleston police department nor a document containing either information regarding matters observed pursuant to a duty imposed by law or matters observed by law enforcement officers.

Appellant also generally attacks admissibility on the ground that the McCormick Statement is simply not the type of document the public records exception was meant to include. He contends that the statement is not the type of document on which the public has a right to rely because no one witnessed the signature of the letter and it was not created by the Charleston police department.

Respondent argues that the McCormick statement should qualify as a public record. It suggests that the Agency had a statutory duty to investigate and report misconduct. See S.C. Code Ann. § 23-23-150(B)(1) (2022). Respondent further states that Captain Cretella spoke to Ms. McCormick as part of his investigation of the Appellant and asked Ms. McCormick to make the statement. Finally, Respondent notes that the statement does not involve opinions, judgments, or conclusions which are textually not within the ambit of the public records hearsay exception under Rule 803(8).

After careful review of the record and the parties' arguments on this issue, the Court concludes that the hearing officer erred in ruling that the McCormick statement was admissible under the public records exception.

As one commentator has stated:

The public records exception to the hearsay rule is based on the rationale that records made by public officials in the ordinary course of their duties evidence strong indicia of reliability, and that the documents are sufficiently reliable because they represent the outcome of governmental process and are relied upon for nonjudicial purposes. The exception is predicated on the presumption that public officials perform their duties properly, effectively and impartially, without motive to falsify. The objective of the exception is to eliminate the calling of each witness involved in the preparation of the record and to substitute the record of the transaction instead.

8

32A C.J.S. Evidence § 1079 (May 2024 update) .

Accordingly, Rule 803(8) does not provide a blanket hearsay exception for documents obtained in a police investigation. The exception is instead textually limited to the following two alternative conditions: (1) that the document sets forth the activities of the office or agency; or (2) that the document sets forth matters (i) observed pursuant to a duty imposed by law and (ii) for which there was a duty to report. Rule 803(8), SCRE.

The McCormick Statement does not satisfy these conditions. Respondent argues that the statement was obtained as part of an investigation by the Charleston police department, but the statement does not set forth the activities of the police department. It sets forth the activities of the Bennett House. The statements also does not set forth matters observed by Captain Cretella or any other police officer. It sets forth matters observed by Ms. McCormick who had no legal duty to observe or report said matters. The Court therefore concludes that the hearing officer erred in admitting the McCormick Statement into evidence over objection pursuant to Rule 803(8), SCRE.

This result would not change even if Captain Cretella had himself prepared a written report incorporating the content of the McCormick Statement. See MSC Mediterranean Shipping Co . SA Geneva v. Metal Worldwide Shipping Co., SA , 884 F.Supp.2d 1277, 1282 (S.D.Fla. 2012) (reports of the Indian Customs Department did not contain factual findings of the Customs Department but rather statements from witnesses at the accident scene. These records do not fall into the public records exception to the hearsay rule because they consist of a collection of statements from a witness as opposed to the agent's own observations and knowledge); State v. Jhun , 927 P.2d 1355, 1363 (Haw. 1996) (cases from several jurisdictions indicate that when a police report simply records a witness's statement, absent a hearsay exception for the witness's statement, the police report cannot be admitted into evidence); State v. York, 685 N.E.2d 261, 264 (Ohio App. 4 Dist.1996) (a police report generally constitutes a public record for purposes of 803(8), but the statements made therein must be either the firsthand observations of the official making the report or those of one with a duty to report to a public official. All persons furnishing and recording information must be under an official duty to do so. If the supplier of information is not under a duty to do so, an essential link in Evid.R. 803(8)(b) is broken.").

9

III. Appellant was not prejudiced by the improper admission of the McCormick Statement.

Respondent argues that the decision below should nevertheless be affirmed because Appellant's substantial rights were not prejudiced by the admission of the statement. See SCALC Rule 40(A) (the administrative law judge may affirm any ruling, order or judgment upon any ground(s) appearing in the Record). It is true that to warrant reversal based on the admission of evidence an appellant must "prove both the error of the ruling and the resulting prejudice." Fowler v. Nationwide Mut. Fire Ins. Co ., 410 S.C. 403, 408, 764 S.E.2d 249, 251 (Ct. App. 2014) (emphasis added). In this context, prejudice means that there is a reasonable probability that the determination of the fact finder, the hearing officer, was influenced by the improperly admitted evidence. See id.

The content of the McCormick Statement bears upon the primary issues considered below - whether Appellant was engaging in the charging of improper administrative fees in connection with off-duty work. As a result, the Court concludes that a presumption of prejudice exists in this case. Mali v. Odom, 295 S.C. 78, 84, 367 S.E.2d 166, 170 (Ct.App.1988) ("[T]he admission of incompetent evidence having some probative value upon a material issue of fact in the case is ordinarily presumed to be prejudicial").

However, the record demonstrates that the McCormick Statement was largely cumulative to other evidence admitted either without objection or for which no appeal was taken. For example, Exhibit 9, entered without objection, is a chart listing all of jobs Appellant had at the Bennett House and the invoice amount submitted by Appellant. The chart also displays the $150 monthly administrative fee which Appellant charged the Bennett House. An exact copy of Exhibit 9 was one of the attachments to the McCormick Statement.

Exhibit 10, also admitted into evidence, contains an email from Ms. McCormick dated October 8, 2019 to Sergeant Lee Mixon at the Charleston police department asking whether the Bennett House would still be required to pay the $150 monthly administrative fee. The same exhibit contains a second email from Ms. McCormick in which she asks Captain Cretella whether the fees that Appellant charged were unauthorized.

Exhibit 11 is an email from Sergeant Mixon to Captain Cretella in which Mixon states that Appellant confirmed he was not authorized to charge administrative fees to the Bennett House.

Exhibit 14 is an investigative summary signed by Cretella in which Cretella states that

10

Appellant has been working at the Bennett House for almost a year (as of the date of the summary) and that the prior officer handling off-duty assignments for the Bennett House did not charge an administrative fee and that Appellant received $150 each month to manage to the Thomas Bennett House after Appellant took over the off-duty assignments.

Finally, Captain Cretella testified to a number of the details set forth in the McCormick Statement without objection specifically that Appellant was paid $150 per month regardless of whether he works them all himself or not. (R at 125-129)

Because the information contained in the McCormick Statement is cumulative of other evidence in the record, any presumption of prejudice is defeated; there is no prejudice. See Conway v. Charleston Lincoln Mercury Inc., 363 S.C. 301, 307-08, 609 S.E.2d 838, 842 (Ct. App. 2005) ("When improperly admitted evidence is merely cumulative, no prejudice exists, and therefore, the admission is not reversible error.") (citing Creech v. South Carolina Wildlife Marine Res. Dept., 328 S.C. 24, 35, 491 S.E.2d 571, 576 (1997)).

In conclusion, it is the opinion of the Court that the McCormick Statement was properly authenticated but was nevertheless inadmissible hearsay because the requirements of Rule 803(8), SCRE were not satisfied. However, the improper admission of the statement was not prejudicial to Appellant, as the statement was largely cumulative to other evidence in the record before the hearing officer.

ORDER

IT IS HEREBY ORDERED that this decision below is AFFIRMED.

AND IT IS SO ORDERED .