South Carolina Cases November 07, 2024: Sewell v. S.C. Criminal Justice Acad.

Case Description

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ORDER

Ralph King Anderson, III Chief Administrative Law Judge

This matter comes before the South Carolina Administrative Law Court (ALC or Court) pursuant to an appeal by Matthew Sewell (Appellant) from the decision of the Law Enforcement Training Council (LETC), which permanently denied Appellant's law enforcement certification in the State of South Carolina due to a finding of misconduct. The ALC has jurisdiction to hear this matter pursuant to section 23-23-150 of the South Carolina Code (Supp. 2023) and subsection 1-23-600(E) of the South Carolina Code (Supp. 2023). Upon consideration of the briefs and the Record, the LETC's decision is affirmed.

BACKGROUND

Appellant was formerly employed by the Travelers Rest Police Department (Department) as a police officer. During November of 2022, while working dispatch, Kayla Campbell, Telecommunications Operator and Reserve Officer for the Department, overheard Appellant on the radio that he was "10-10, 10-36 on Main Street." Seconds later, she heard Appellant's voice coming from the patrol room. Importantly, Main Street is approximately a quarter mile from the

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Department and is not visible from the patrol room. Astonished, Officer Campbell confronted Appellant in the patrol room where she inquired "aren't you supposed to be on Main Street?" Appellant responded, "don't be a Miller." Officer Campbell reported the incident to her supervisor, Ms. Teresea Igleheart, who also overheard Appellant call in a "10-10 on Main Street" while also observing him in the patrol room, as well as to Captain Dan Kobler and Sergeant Aiken. In early December of 2022, an investigation into Appellant's whereabouts ensued. Captain Kobler was assigned to oversee the investigation. Additionally, Chief Benjamin Ford, Chief of Police at the Department, requested placement of an external global position signal (GPS) device on Appellant's patrol vehicle. On December 7, 2022, Officer Jennifer Land installed the GPS device (device) on Appellant's vehicle where it remained mounted until December 15, 2022.

The following information was collected during the investigation from the external GPS device of Appellant's patrol vehicle and the Department's record of Appellant's incident dispositions report:

• December 7, 2022, patrol vehicle recorded at City Fire, which is next door to the Department's patrol station.

December 7, 2022 - Incident by Disposition Record
9:21 p.m.	North Poinsett and South Main Street	Business Check

Notably, North Poinsett and South Main Street are not visible from City Fire.

• December 7, 2022, starting at 9:33 p.m., patrol vehicle recorded at 226 Main Street for 2 hours, 26 minutes, and 52 seconds in duration.

December 7, 2022 - Incident by Disposition Record
9:43 p.m.	Willis Gas Station, 1 South Poinsett Hwy	Business Check
10:10 p.m.	North Main Street and South Main Street	Security Check
11:37 p.m.	Farmhouse Tacos - 164 South Main Street	Business Check
11:52 p.m.	Tankersley Grading - 503 North Main Street	Business Check

Farmhouse Tacos and 226 Main Street are separated by a wooden privacy fence. Furthermore, 503 North Main Street is approximately a mile from 226 Main Street.

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• December 8, 2022, at 1:25 a.m., patrol vehicle recorded at a vacant building at the intersection of Poinsette and Main Street for 2 hours, 37 minutes, and 39 seconds.

December 8, 2022 - Incident by Disposition Record
1:41 a.m.	Village Appartements, at Village Circle	Security Check
2:05 a.m.	Subdivision - The Ridge	Security Check
2:45 a.m.	Gateway Park - 115 Henderson Drive	Business check

The Ridge is located 1.1 miles from where the patrol vehicle was located.

• December 8, 2022, at 3:42 a.m., patrol vehicle recorded at a strip mall, 305 Main Street, for 2 hours, 35 minutes, and 19 seconds.

	December 8, 2022 -Incident by Disposition Record
4:42 a.m.	Farmhouse Tacos - 164 South Main Street	Business check
6:13 a.m.	North Main Street and South Main Street	Business check

According to Captain Kobler, Farmhouse Tacos is "up the street, on the other side … of a privacy fence" from the strip mall and North Main and South Main Street are approximately a mile to a mile and a quarter from the strip mall.

• December 8, 2022, at 9:53 p.m., patrol vehicle recorded at Travelers Rest Animal Hospital, 17 Tubbs Mountain Road for 1 hour and 23 minutes.

Time	Address	Incident Disposition
10:03 p.m.	6711 State Park Road	Business Check
10:48 p.m.	Subdivision - 125 Pinestone	Business Check

• December 9, 2022, starting around 12:32 a.m., patrol vehicle recorded at the Department patrol station, 125 Trailblazer Drive, for approximately 2 hours.

December 9, 2022 - Incident by Disposition Record
Time	Address	Incident Disposition
2:15 a.m.	235 Trailblazer Drive	Security Check

• December 9, 2022, starting at 2:53 a.m., patrol vehicle recorded at Antique Rustiques, 226 Main Street, for 1 hour and fifty-eight minutes.

December 9, 2022 - Incident by Disposition Record
Time	Address	Incident Disposition
3:42 a.m.	164 South Main Street	Business Check

Significantly, there is a wooden privacy fence between the business check location and the business that cannot be seen from Appellant's vehicle.

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• December 9, 2022, patrol vehicle recorded at Tractor Supply, 552 Roe Center Court.

December 9, 2022 - Incident by Disposition Record
Time	Address	Incident Disposition
	Walgreens Pharmacy - 100 Little Texas Road	Security Check

There are six lanes of highway and two ditches between the Walgreens and the Tractor Supply.

Captain Kobler conducted his own investigation, interviewing multiple officers and dispatchers, including Appellant. On December 14, 2022, Captain Kobler memorialized his findings from the investigation, concluding that there was sufficient proof and evidence to sustain the original complaint. Additionally, Captain Kobler found Appellant to be in violation of Department policies 302.1 III(A), (F)(2), (G)(7), (L)(1)-(2), and (M)(1)-(2).

Following review of Captain Kobler's report, Chief Ford met with Appellant to discuss the complaint, investigation and corollary recommendation that he be terminated immediately for his actions. Appellant was informed that GPS records of his location did not coincide with the locations of his reported incident dispositions, alluding that he lied about his locations while on patrol. Appellant disclosed that he did not believe it was a big deal because he was just down the road and asked to resign in lieu of termination. With the acquiescence of the Department, Appellant submitted his resignation effective December 14, 2022.

On December 15, 2022, the Department submitted a personal change in status report of separation form (PCS form) to the Criminal Justice Academy's Certification Unit. The separation action was listed as misconduct as defined under section 23-23-150 of the South Carolina Code and/or regulation 37-025 of the South Carolina Code of Regulations (Supp. 2023). The PCS form further described Appellant's misconduct as "willfully making a false, misleading, incomplete, deceitful, or incorrect statements to a law enforcement officer, a law enforcement agency, or representative of the agency, except when required by departmental policy or by the laws of this State." On December 20, 2022, the Academy served Appellant with the misconduct allegation, notifying him of his right to a contested case hearing prior to the Department entering a Final Agency Decision on the allegation of misconduct. Afterwards, Appellant timely requested a

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contested case hearing, which was held on July 6, 2023. Appellant was represented by counsel and Sergeant Thomas Aiken prosecuted the case on behalf of the Department.

On October 11, 2023, the Hearing Officer issued findings and recommendations. The Hearing Officer concluded that a preponderance of the evidence established that Appellant willfully made false, misleading, incomplete, deceitful, or incorrect statements regarding his patrol activity on at least two occasions. In reaching his conclusion, the Hearing Officer acknowledged that Appellant had presented credible evidence that he had travelled to some of the subject locations on foot and thus determined that the majority of the incidents alleged by the Department were inconclusive and that the evidence failed to establish that Appellant's statements were false or misleading in violation of section 23-23-150 of the South Carolina Code.

Nevertheless, the Hearing Officer further found that a preponderance of the evidence established that on two occasions, Appellant made statements concerning his location and patrol activity which were not corroborated by GPS data on his patrol vehicle and for which Appellant was unable to account for his specific location during the times in question. As such, the Hearing Officer concluded that the Department met its burden of proof to show that on two specific occasions Appellant made false statements. Specifically, Appellant falsely called out a "10-36, 10-10" on Main Street even though he was in the Department's patrol room. Additionally, the Hearing Officer found that the second incident of misconduct occurred when Appellant called a "10-36" or "business check" for Walgreens Pharmacy at 100 Little Texas Road while his patrol vehicle was recorded as parked at a Tractor Supply. Based upon this finding, the Hearing Officer further concluded that the Department proved that Appellant falsely reported a security check on the Tractor Supply while parked at the Walgreens Pharmacy, a check which Captain Kobler and Appellant each acknowledged was not plausible.

Further, the Hearing Officer found that the evidence in the record did not support Appellant's averment that the GPS data was defective and/or that it falsely portrayed the location of his patrol vehicle. Finally, the Hearing Officer considered Appellant's exit interview, finding that "[w]hile Sewell produced witness testimony bolstering his credibility and reputation for truthfulness in a general sense, none of the evidence put forth during his case in chief [was]

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sufficient to overcome Ford's specific and detailed recollection of their final conversation" where Appellant admitted to and apologized for lying.

Based upon these findings, the Hearing Officer concluded that the evidence adduced at trial reasonably supported the Department's allegation that Appellant lied about his patrol activity on at least two occasions, and that his lies were willfully false, misleading, incomplete, deceitful, or incorrect statements as defined under subsection 23-23-150(A)(3)(i). Pursuant to regulation 37-107, the Hearing Officer recommended the LETC issue a final agency decision finding that the Department met its burden to show that Appellant committed misconduct and that the LETC impose such sanction as it deems fitting and appropriate.

On February 26, 2024, the LETC met to discuss Appellant's case. After considering the Hearing Officer's recommendations, the transcript, exhibits, testimony of Detective Aiken and Appellant and arguments from Appellant's counsel, the LETC voted unanimously to adopt the Hearing Officer's recommendations. Pursuant to its authority under regulation 37-108(A) of the South Carolina Code of Regulations (2015 & Supp. 2023), the LETC permanently denied Appellant law enforcement certification. The Final Agency Decision was issued on March 5, 2024. Appellant then filed a Notice of Appeal with this Court.

ISSUES ON APPEAL

1. Whether the LETC erred in considering Sergeant Aiken's February 26, 2024 testimony?

2. Whether it was error to charge Appellant with a policy violation?

3. Whether the Hearing Officer erred in denying Appellant's Motion for a directed verdict?

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4. Whether it was error to allow Sergeant Aiken to prosecute the case on behalf of the Department?

STANDARD OF REVIEW

According to subsection 23-23-150(D) of the South Carolina Code (Supp. 2023), the LETC enters the final agency decision. "Review by an administrative law judge of a final decision in a contested case, heard in the appellate jurisdiction of the Administrative Law Court, must be in the same manner as prescribed in Section 1-23-380 for judicial review of final agency decisions . . . ." S.C. Code Ann. § 1-23-600(E) (Supp. 2023). Subsection 1-23-380(5) of the South Carolina Code (Supp. 2023) provides the standard used by appellate bodies to review agency decisions. See § 1-23-600(D) (directing administrative law judges to conduct appellate review in the same manner prescribed in section 1-23-380). That section states:

The court may reverse or modify the decision [of an agency] 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).

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, when considered as a whole, 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 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)).

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When applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct. Rodney v. Michelin Tire Co ., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996). Furthermore, the reviewing court is prohibited from substituting its judgment for that of the agency as to the weight of the evidence on questions of fact. Grant v. S.C. Coastal Council , 319 S.C 348, 353, 461 S.E.2d 388, 391 (1995). Finally, the party challenging an agency action has the burden of proving convincingly that the agency's decision is unsupported by substantial evidence. Waters , 321 S.C. at 226, 467 S.E.2d at 917.

DISCUSSION

Did the Law Enforcement Training Counsel commit reversible error when it considered Sergeant Aiken's February 26, 2024 testimony?

Appellant argues the LETC erred in considering 1) testimony from Sergeant Aiken concerning facts that were not testified to or introduced before the Hearing Officer and 2) testimony regarding the admission of State's Exhibit 15.

The decision to admit or exclude evidence is within the trial court's sound discretion and will not be disturbed on appeal absent an abuse of discretion. Gamble v. Int'l Paper Realty Corp. of S.C. , 323 S.C. 367, 373, 474 S.E.2d 438, 441 (1996). To warrant a reversal based on the admission of evidence, the appellant must show both error and resulting prejudice. Commerce Ctr. of Greenville, Inc. v. W. Powers McElveen & Assocs., Inc ., 347 S.C. 545, 559, 556 S.E.2d 718, 726 (Ct.App.2001). "When improperly admitted evidence is merely cumulative, no prejudice exists, and therefore, the admission is not reversible error." Campbell v. Jordan , 382 S.C. 445, 453, 675 S.E.2d 801, 805 (Ct. App. 2009). Further, if a party deems testimony to be irrelevant or prejudicial, an objection should be interposed when the testimony is initially offered. State v. Cooper , 212 S.C. 61, 69, 46 S.E.2d 545, 548 (1948).

Appellant generally alleges that the LETC erred when it considered testimony from Sergeant Aiken concerning allegations made by Officer Hunter West. Appellant contends consideration of the testimony amounts to reversible error since Officer West neither testified before the Hearing Officer nor were documents produced by Officer West, admitted into evidence. Appellant summarily argues "[i]t has always been a basic premise that it is reversible error to attempt to introduce alleged additional evidence after the actual hearing determination" and that the Department's "attempt to back door information … taints any impartiality and calls for

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reversal." Yet, Appellant's brief provides no citations to legal authority to support his conclusory assertions that evidence cannot be presented directly to the LETC. See SCALC Rule 37(B)(3); see also Potter v. Spartanburg School Dist. 7, 395 S.C. 17, 24, 716 S.E.2d 123, 127 (Ct. App. 2011) ("An issue is deemed abandoned if the argument in the brief is not supported by authority or is only conclusory."). Moreover, Appellant did not object to the testimony of Sergeant Aiken when he appeared before the LETC on February 26, 2024. Therefore, Appellant's argument is not properly preserved for review. Prince v. Beaufort Mem'l Hosp. , 392 S.C. 599, 611, 709 S.E.2d 122, 128 (Ct. App. 2011) ("It is axiomatic that an issue cannot be raised for the first time on appeal but must have been raised to and ruled upon by the [fact finder] to be preserved for appellate review.") (quoting Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998)). Furthermore, Appellant failed to show that the LETC based its decision on information that was not a part of the Record. Rather, the LETC adopted the recommendation of the Hearing Officer and did not reference the testimony presented after the hearing as a basis for its decision.

Next, Appellant argues the LETC erred in relying on Sergeant Aiken's testimony as he misled the LETC when he stated that State's Exhibit 15, the recorded interview of Appellant and Captain Kobler, was submitted into evidence. Appellant asserts that Sergeant Aiken's statement was incorrect as the exhibit was only marked for evidence and thus argues that his statement misled the LETC and prevented Appellant from having an impartial and objective review. Nonetheless, the Record reflects that Sergeant Aiken did not denote that Exhibit 15 was "admitted into evidence" but rather that it was "submitted." Moreover, as asserted in Respondent's brief and shown in the Record, State's Exhibit 15 was indeed, marked and admitted into evidence. Accordingly, the Record supports that State Exhibit 15 was properly entered into the Record and Appellant has failed to show otherwise. Further, State Exhibit 15 was merely cumulative to the testimony of Chief Ford. See Creech v. S.C. Wildlife Marine Res. Dept ., 328 S.C. 24, 35, 491 S.E.2d 571, 576 (1997) (finding challenged evidence was simply one additional, minor piece of evidence, so even though it was irrelevant, its admission did not constitute reversible error). Therefore, I find that Appellant has failed to meet his burden to show resulting prejudice.

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Commerce Ctr. of Greenville, Inc. v. W. Powers McElveen & Assocs., Inc ., 347 S.C. at 559, 556 S.E.2d at 726.

Did the Department erroneously charge Appellant with a policy violation?

Appellant argues the Department erroneously charged him with a violation of a policy that does not exist. He specifically argues he should not be charged for noncompliance since there is no policy concerning the misuse of Department Code "10-36" or "business checks" nor was he on notice of how the policy operated. However, Appellant has misconstrued the issue in this case. The issue before the Court is whether Appellant committed misconduct by making a false statement to a law enforcement officer not whether Appellant improperly performed the 10-36. The use of the code was only the means by which Appellant falsely communicated his location and activity. As will be discussed more fully below, substantial evidence supports the LETC's determination that Appellant engaged in misconduct by "willfully making false, misleading, incomplete, deceitful, or incorrect statements to a law enforcement officer, a law enforcement agency, or a representative of the agency, except when required by departmental policy or by the laws of this State." S.C. Code Ann. § 23-23-150(A)(3)(i) (Supp. 2023); see Friends of the Earth , 387 S.C. at 366, 692 S.E.2d at 913 (holding a decision is supported by "substantial evidence" when the record as a whole allows reasonable minds to reach the same conclusion as the agency).

Whether the Hearing Officer erred when he stated he has no power to grant summary judgement or issue a directed verdict?

Appellant argues the Hearing Officer erred in denying his motion for a directed verdict on the basis that he was "unsure if he could do that." Appellant's argument lacks merit for three reasons. First, Appellant fails to cite to any legal authority to support his arguments. State v. Hill , 394 S.C. at 297, 715 S.E.2d at 377 (Ct. App. 2011) (considering a citation to a case "without any analysis whatsoever as to how or why [it] applies" insufficient to preserve an issue on appeal, and thus rendering that issue abandoned on appeal). Martin v. Rapid Plumbing , 369 S.C. 278, 631 S.E.2d 547 (Ct. App. 2006) (conclusory arguments constitute abandonment on appeal). Secondly, the Record does not support Appellant's assertion. During the administrative hearing, at the close of the Department's case, Appellant moved "to dismiss on grounds that nobody has - - has really given any substantial evidence to support the claims." Notably, Appellant did not make a motion for directed verdict as stated in his brief. The Hearing Officer then informed the parties that he was construing the motion as a motion for summary judgment to which Appellant asserted "I don't

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think there's substantial evidence. That's all." Ultimately, the Hearing Officer denied the motion on the grounds that "… [o]ne, I'm going to deny the motion based on the fact that they have presented evidence. … Additionally, I'm not sure what the effect of dismissing the case at this point would be. I don't think I have that authority as the hearing officer." Accordingly, the Record shows that the Hearing Officer construed Appellant's motion as a motion for summary judgment and that he ruled upon the motion based upon that rationale without objection.

As for whether it was error for the Hearing Officer to deny the motion, "summary judgment is proper when the pleadings, depositions, affidavits, and discovery on file show there is no genuine issue of material fact such that the moving party must prevail as a matter of law." Williams v. Jeffcoat , 2024 WL 4234721, *2 (2024); s ee Rule 56(c), SCRCP; Knight , 396 S.C. at 521-22, 722 S.E.2d at 804; Kitchen Planners, LLC v. Friedman , 440 S.C. 456, 463, 892 S.E.2d 297, 301 (2023) (eliminating the "mere scintilla" standard and holding the proper standard is the "genuine issue of material fact" standard set forth in the text of Rule 56(c), SCRCP); see also Knight v. Austin , 396 S.C. 518, 521, 722 S.E.2d 802, 804 (2012) (appellate court applies the same standard of review of as the trial court). Summary judgment is not proper when further inquiry into the facts is necessary "to clarify the application of the law." USAA Prop. & Cas. Ins. V. Clegg , 377 S.C. 643, 653, 661 S.E.2d 791, 796 (2008). Here, the Hearing Officer denied the motion on the basis that the Department "presented evidence." As will be discussed in detail below, the Record includes ample evidence that Appellant willfully made false, misleading, incomplete, deceitful, or incorrect statements regarding his patrol activity on at least two occasions, thus creating a general issue of material fact. While Appellant may disagree with the evidence presented by the Department, he has failed to meet his burden of proof to show that the Hearing Officer erred in denying his motion.

Whether the Hearing Officer erred in allowing Sergeant Aiken to prosecute the Department's claim during the contested case?

Appellant argues the LETC erred when it denied his objection to Sergeant Aiken prosecuting the case on behalf of the Department. The LETC overruled Appellant's objection due to Appellant's failure to point to any legal authority to support his contention that a non-lawyer was unauthorized to represent the Department. Even now on appeal, Appellant fails to point to

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any legal authority to support his objection. Therefore, this argument has been abandoned. See Potter v. Spartanburg School Dist . 7, 395 S.C. 17, 24, 716 S.E.2d 123, 127 (Ct. App. 2011) ("An issue is deemed abandoned if the argument in the brief is not supported by authority or is only conclusory.").

Furthermore, Appellant's argument is flawed. Subsection 23-23-150(B)(2) of the South Carolina Code expressly states that "[r]eported incidences of misconduct shall be prosecuted by the reporting agency before the contested case hearing." S.C. Code Ann. § 23-23-150(B)(2) (2022). Additionally, our courts have repeatedly recognized an arresting law enforcement officer's authority to prosecute certain cases. In re Unauthorized Prac. of L. Rules Proposed by S.C. Bar , 309 S.C. 304, 422 S.E.2d 123 (1992); e.g. , State v. Messervy , 258 S.C. 110, 113, 187 S.E.2d 524, 525 (1972) (authorizing in municipal and magistrate's court when they are the arresting officer). Quizzically, although Appellant dogmatically proclaims that "it is the position of Appellant's counsel that in matters before the LETC, bar admission be required …." Appellant's counsel's position belies his own argument as it acknowledges the standard for non-attorney law enforcement officers to prosecute these matters. Accordingly, I find that Appellant has failed to meet his burden of proof to show that the Hearing Officer's actions amount to reversible error. Waters , 321 S.C. at 226, 467 S.E.2d at 917.

Does substantial evidence support the LETC's decision that Appellant committed misconduct?

Appellant raises three arguments challenging the sufficiency of the evidence presented to the LETC. Specifically, Appellant argues that 1) the Hearing Officer's recommendation was founded upon "nonspecific allegations absent dates, times and supporting evidence" which deprived him the ability to properly prepare and defend against the charges; 2) the Hearing Officer erred in accepting Chief Ford's testimony regarding Appellant's exit interview, and 3) the Hearing Officer erred in ignoring that Captain Kobler was in direct conflict with Appellant which he contends is evidence that the Department terminated him in retaliation. As stated above, Appellant did not include a standard of review in his original brief. However, in his reply brief, these arguments are presented under the issue of whether there is substantial evidence to support the

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LETC's decision. As such, I review these arguments from the standpoint of whether substantial evidence supports the LETC's decision.

Nonspecific Allegations

Appellant argues that Officers Campbell and Inglehart testimony regarding the November 2022 incident was not credible because that neither specifically stated when the incident occurred which deprived him the ability to properly prepare and defend against the charges. While the Department did not give an exact date or provide audio/video recording evidence to validate their claim, there was no dispute that in November of 2022, Officers Campbell and Ingleheart personally heard Appellant call out a "10-36, 10-10" on Main Street while observing Appellant in the patrol room just moments after Appellant made that call to patrol dispatch. Officers Campbell and Igleheart explained that a 10-10 means "on foot." Further, Chief Ford and Officer Igleheart described a "10-36" as code for at the location and can see the business. Additionally, Officer Campbell testified that when she confronted Appellant, he told her to not be "a Miller" which she understood to mean "don't be snitch, don't be a tattletale." Finally, Appellant never denied that the incident took place and never gave any specific reason why the lack of knowledge regarding the date of the incident prejudiced him.

Moreover, Appellant ignores the fact that multiple credible witnesses provided testimony that Main Street could not be observed from the patrol room to the degree necessary to complete a "10-36, 10-10" security check. Furthermore, the portions of the testimony Appellant now challenges were not objected to at the hearing. See Hanna v. Palmetto Homes, Inc ., 300 S.C. 535, 537, 389 S.E.2d 164, 165 (Ct. App. 1990) (citing 88 C.J.S. Trial § 155 at 302 (1955) ("As a general rule testimony consisting of mere conclusions of the witness must be considered and given its due probative value, when admitted without objection, and such evidence will be sufficient to establish a fact ... and may support a verdict.")); cf. Cantrell v. Carruth, 250 S.C. 415, 158 S.E.2d 208 (1967) (testimony received without objection becomes competent and its sufficiency is for the jury); Brown v. Ryder Truck Rental, 300 S.C. 530, 389 S.E.2d 161 (1990) (inadmissible evidence received without objection becomes competent).

In sum, on questions of witness credibility, this Court defers to the judgment of the agency. § 1-23-380 (an appellate court "may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact."); Milliken & Co. v. S.C. Employment Sec. Comm'n , 321 S.C. 349, 350, 468 S.E.2d 638, 639 (1996). Furthermore, the portions of the

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testimony Appellant now challenges were not objected to at the hearing. See Hanna v. Palmetto Homes, Inc ., 300 S.C. 535, 537, 389 S.E.2d 164, 165 (Ct. App. 1990) (citing 88 C.J.S. Trial § 155 at 302 (1955) ("As a general rule testimony consisting of mere conclusions of the witness must be considered and given its due probative value, when admitted without objection, and such evidence will be sufficient to establish a fact ... and may support a verdict.")); cf. Cantrell v. Carruth, 250 S.C. 415, 158 S.E.2d 208 (1967) (testimony received without objection becomes competent and its sufficiency is for the jury); Brown v. Ryder Truck Rental, 300 S.C. 530, 389 S.E.2d 161 (1990) (inadmissible evidence received without objection becomes competent). Therefore, Appellant's arguments go to the weight of the evidence. Indeed, it is obvious that audio/video recording evidence is not required to validate every witness's testimony. See Small v. Pioneer Mach., Inc. , 329 S.C. at 465, 494 S.E.2d at 843-44 (it is for the finder of fact to determine the credibility of witnesses, and determine what parts of a witness' testimony it wishes to believe).

Chief Ford's Exit Interview Testimony

Appellant argues that it was error for the Hearing Officer to accept Chief Ford's testimony that Appellant admitted to lying during his exit interview when there was an absence of any corroborative evidence to establish the fact. Additionally, Appellant contends that he could not offset the testimony due to his "great credibility by his position of being the Chief." However, without objection, Chief Ford provided a specific and detailed recollection of the exit interview. Chief Ford testified that during the course of his exit interview with Appellant, Appellant acknowledged his actions when he stated that he did not think it was a "big deal" since he was just down the road.

Here again, the Hearing Officer weighed all the evidence presented, assessed credibility, and gave greater weight to Chief Ford's testimony than to Appellant's and, the Hearing Officer was within its authority to do so. See Hanna v. Palmetto Homes, Inc ., 300 S.C. at 537, 389 S.E.2d at 165 ("[T]he credibility and weight to be accorded evidence is solely for the fact finder to determine. They are not matters with which an appellate court is at all concerned."); Small v. Pioneer Mach., Inc. , 329 S.C. 448, 465, 494 S.E.2d 835, 843-44 (Ct. App. 1997) (noting that it is for the finder of fact to weigh the evidence, determine the credibility of witnesses, and determine what parts of a witness' testimony it wishes to believe); Friends of the Earth v. Pub. Serv. Comm'n of S.C. , 387 S.C. at 366, 692 S.E.2d at 913

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(A decision is supported by "substantial evidence" when the record as a whole allows reasonable minds to reach the same conclusion as the agency.").

GPS Unit

Appellant contended in the body of his brief that the GPS evidence the Department presented regarding his location was faulty and falsely portrayed the location of his assigned vehicle. This argument was not specifically raised by the Appellant as an issue to consider, however, the Court will nevertheless address the issue. Officer Land testified that she personally observed the GPS device accurately tracking Appellant's vehicle's location. Although Appellant attempted to dispute this by submitting expert opinion that the device could be inaccurate, the expert, Donald K. Johnson, admitted that he did not inspect the specific device installed on Appellant's vehicle. Thus, the LETC ultimately found the expert's opinion did not overcome Officer Land's firsthand observation of the accuracy of the device. See Hanna v. Palmetto Homes, Inc ., 300 S.C. at 537, 389 S.E.2d at 164 ("[T]he credibility and weight to be accorded evidence is solely for the fact finder to determine. They are not matters with which an appellate court is at all concerned.").

Retaliation

Finally, Appellant argues the Hearing Officer erred in ignoring his allegation that the Department terminated him in retaliation for his complaint about Captain Kobler and for seeking employment elsewhere. Appellant claims he reported an incident involving Captain Kobler through the chain of command. However, the Record provides that Appellant did not file an official complaint. Indeed, Chief Ford did not recall a complaint being filed by Appellant and Captain Kobler was not even aware of Appellant's concerns with him. Clearly, LETC could reasonably find the investigation into Appellant was not related to a non-existent complaint filed by Appellant about Captain Kobler. Additionally, Appellant submits that the "fair thing to do" would have been for the Department to simply terminate him rather than "terminate his career" by filing an allegation of misconduct. For clarity, it is important note that the record reflects that

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Appellant separated from employment with the Department due to misconduct, rather than that he was terminated by the Department. More importantly, as discussed at length herein, substantial evidence supports the LETC's determination that Appellant committed misconduct when, on two occasions, he "willfully [made] false, misleading, incomplete, deceitful, or incorrect statements to a law enforcement officer, a law enforcement agency, or a representative of the agency. . . ." S.C. Code Ann. § 23-23-150(A)(3)(g) (Supp. 2023).

Conclusion

In sum, other than Appellant's blanket denials, the accounts of Officer Campbell, Officer Ingleheart, Chief Ford and Captain Kobler present ample credible competent evidence that Appellant committed misconduct on two occasions. On questions of witness credibility, [reviewing courts] defer to the judgment of the agency." Milliken & Co. v. S.C. Employment Sec. Comm'n , 321 S.C. at 350, 468 S.E.2d at 639. More particularly, the LETC is the ultimate finder of fact, and this Court may not substitute its judgment for that of the LETC as to the weight of the evidence on questions of fact. See Merck v South Carolina Employment Sec. Comm'n , 290 S.C. 459, 351 S.E.2d 338 (1986); Grant v. Coastal Council , 319 S.C.348, 353 S.E.2d 388, 391 (1995). While Appellant may continue to dispute the witnesses' accounts of the incidents which gave rise to this case, reasonable minds could conclude from the testimony that a preponderance of the evidence established that Appellant willfully made false, misleading, incomplete, deceitful, or incorrect statements regarding his patrol activity on at least two occasions. For these reasons, I find there is substantial evidence to support the LETC's determination that Appellant committed misconduct when, on two occasions, he willfully made false, misleading, incomplete, deceitful, or incorrect statements regarding his patrol activity. Friends of the Earth v. Pub. Serv. Comm'n of S.C. , 387 S.C. at 366, 692 S.E.2d at 913.

If misconduct is found, the LETC has the authority to impose a number of sanctions; one such sanction being the permanent denial of a law enforcement certification. Regs. 37-108(A)(1). When considering whether to permanently deny certification for misconduct, regulation 37-025(B) of the South Carolina Code of Regulations provides "the Council may consider the seriousness, the remoteness in time and any mitigating circumstances surrounding the act or omission constituting or alleged to constitute misconduct." (emphasis added). "The use of the word 'may' signifies permission and generally means that the action spoken of is optional or discretionary unless it appears to require that it be given any other meaning in the present statute."

17

State v. Wilson, 274 S.C. 352, 356, 264 S.E.2d 414, 416 (1980). In contrast, "[t]he term 'shall' in a statute means that the action is mandatory." Johnston v. S.C. Dept. of LLR, 365 S.C. 293, 296, 617 S.E.2d 363, 364 (2005). In other words, the LETC has discretion and may consider mitigating circumstances but it is not required to do so. Here, the LETC decided that upon a finding of misconduct permanent denial of Appellant's eligibility for law enforcement certification was warranted and, I find that the LETC did not abuse its discretion in applying this sanction in Appellant's case. See Deese v. S.C. State Bd. of Dentistry, 286 S.C. at 185, 332 S.E.2d at 541.

CONCLUSION

For the reasons stated above, the LETC's decision to permanently deny Appellant's law enforcement certification for the State of South Carolina is supported by substantial evidence.

ORDER

IT IS THEREFORE ORDERED that the LETC's decision is AFFIRMED

AND IT IS SO ORDERED