South Carolina Cases November 18, 2024: Bowman v. S.C. Criminal Justice Acad.

Case Description

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ORDER OF REMAND

S. PHILLIP LENSKI S.C. ADMINISTRATIVE LAW JUDGE

STATEMENT OF THE CASE

This matter is before the Administrative Law Court (ALC or court) pursuant to a Notice of Appeal filed on April 8, 2024, by Stephanie Bowman (Appellant). The Appellant is appealing the South Carolina Criminal Justice Academy's (SCCJA or Respondent) Law Enforcement Training Council's (LETC or Council) decision to permanently deny her a law enforcement certification in South Carolina for "unlawful use of a controlled substance." She does not dispute that she consumed marijuana but asserts that she did so unknowingly after eating a cupcake that contained marijuana.

After careful consideration of the parties' arguments, the record, and the applicable law, the court finds that the Council's Final Agency Decision provides no explanation or reasoning as to how it determined that her use was unlawful in light of the evidence presented. Therefore, the matter is remanded to the Council to articulate their rationale in reaching the conclusion that the Appellant's use of marijuana was "unlawful."

BACKGROUND

The Appellant was employed by the South Carolina Department of Corrections (Department) as a correctional officer for six and a half years. On May 18, 2023, the Appellant was selected by the Department to undergo random drug testing in accordance with the Department's Drug-Free Workplace program. Accordingly, a urine sample was collected from the Appellant. An initial testing of the Appellant's urine sample yielded a positive result for marijuana. In accordance with the Department's drug testing policy, the sample was then sent

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Premier Biotech, the Department's drug test analysis contractor, for confirmatory testing, which also yielded a positive result.

On May 25, 2024, the Department received confirmation from Premier Biotech that Appellant's urine sample had tested positive for "Marijuana, Carboxy THC." The threshold for a positive confirmatory test is ten (10), the Appellant's sample produced a result of 14.5. The Department received a document entitled "Final Report" from Premier Biotech which indicated the Appellant's sample had tested positive for "THC, Delta-9, THC-COOH/creatinine Ration." The Department identified this substance as a controlled substance.

On June 2,2023, the SCCJA received a Personnel Change in Status (PCS) separation report for the Appellant from the Department. The Department alleged that the Appellant had committed law enforcement certification misconduct in violation of section 23-23-150 of the South Carolina Code due to the Appellant having engaged in, "[t]he unlawful use of a controlled substance."

On June 12,2023, the Appellant was served with the misconduct allegation. The Appellant requested a contested case hearing on June 13, 2023. On July 20, 2023, a Contested Case Hearing Notice was sent to the Appellant and the Department notifying them that a hearing had been scheduled for October 3, 2023.

A contested case hearing was held on October 3, 2023. The Appellant represented herself. Karen Holden, the Human Resource Coordinator, and the Appellant testified during the contested case hearing. Ms. Holden testified to the drug screening procedures employed by the Department. She confirmed that both the Appellant's initial test and confirmatory tests from the same sample yielded a positive result for marijuana. Ms. Holden also testified to an apparent issue that the drug tester reported involving the Appellant requesting the results of her drug test on the same day the sample was collected, which was not ordinary and was contrary to the Department's policy. This request was denied by the Department's sample collector, who subsequently reported feeling threatened by the Appellant walking back and forth in the assistant warden's office wanting the results of her test. According to Ms. Holden, after her request was denied, the Appellant reportedly returned fifteen minutes later to again request the results of her testing.

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The Appellant conceded that she consumed a marijuana infused cupcake at a family event she attended in mid-April, less than thirty (30) days prior to providing the Department with her urine sample. However, she testified that she was unaware any of the baked goods at the party, including the one she consumed, contained marijuana. The Appellant testified she had also consumed one or two mixed drinks containing tequila at the event and had attributed the intoxicating effects of the marijuana to her alcohol consumption. She testified that she only discovered that the cupcake contained marijuana after the drug test produced positive results. She explained that she was discussing her positive drug test and resulting termination with the host of the party she attended, who informed the Appellant that her cupcakes were baked with marijuana. She testified that following this interaction, she attempted to contact Davis Anderson with the Department to report her unknowing consumption of marijuana and had other lieutenants at the Department write letters of support on her behalf. The Appellant testified extensively to her love for and commitment to her job as a correctional officer. She explained that she was on the verge of being promoted to sergeant and that she saw herself retiring from the Department. As such, the Appellant testified that she would never do anything to jeopardize her career with the Department.

The Hearing Officer's Findings and Recommendation, hearing transcript, and exhibits were sent to the parties on November 21, 2023. In her report, the Hearing Officer recommended that the LETC find that the allegations of misconduct by the Appellant had been proven by a preponderance of the evidence. On February 2, 2024, the parties were notified that the LETC would meet to render a Final Agency Decision in the Appellant's case and vote on a Final Agency Decision.

On February 26, 2024, the LETC convened a monthly meeting to consider, among other matters, the misconduct allegation levied against the Appellant and vote on a Final Agency Decision. During the meeting, both parties, including the Appellant, who again represented herself, had the opportunity to address and answer questions from the LETC. The Appellant reiterated her testimony from the hearing, confirming that she had consumed marijuana, but asserting that it had done so unwittingly. The Appellant also confirmed she had consumed alcohol at the same event.

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After considering the Hearing Officer's recommendation, hearing transcript, exhibits, and comments made at the hearing, the LETC voted to find misconduct and permanently deny the Appellant a law enforcement certification. The Final Agency Decision was signed March 5,2024, and a letter notifying the parties of the decision was sent March 11, 2024.

Thereafter, on April 8, 2024, the Appellant timely filed a Notice of Appeal.

On appeal, the Appellant maintains that she unknowingly consumed marijuana after eating a marijuana infused cupcake at the family event. She does not dispute the presence of marijuana in her body, but suggests that her unknowing ingestion of it calls into question whether it was "unlawful." She notes that, during the contested case hearing, the Department's attorney even questioned whether inadvertent consumption constituted the "unlawful use" of a controlled substance. Included with her brief were three (3) character letters in support of the Appellant.

The Respondent, on the other hand, argues that the Appellant only reiterates factual assertions that were made at her hearing. As to the unlawfulness, the Respondent acknowledges that "'unlawful use' would require evidence of intent, or knowledge of the nature of the substance used." However, it asserts that substantial evidence in the record supports an inference that the Appellant knew she had consumed marijuana prior to the drug test and failed to address the matter with her chain of command.

ISSUE ON APPEAL

Is the LETC's Final Agency Decision finding that the Appellant engaged in misconduct warranting a permanent denial of her law enforcement certification supported by substantial evidence in the record?

STANDARD OF REVIEW

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The South Carolina Criminal Justice Academy (SCCJA) is governed by the LETC. See S.C. Code Ann. § 23-23-20 (Supp. 2023). The Council has the power to "certify and train qualified candidates and applicants for law enforcement officers and provide for suspension, revocation, or restriction of the certification, in accordance with regulations promulgated by the council . . . ." S.C. Code Ann. § 23-23-80(6) (Supp. 2023). The ALC has jurisdiction to hear the appeal of a final decision of the SCCJA pursuant to the Administrative Procedures Act (APA). S.C. Code Ann. § l-23-600(D) (Supp. 2023). Under the appellate standard of the APA, the court's review in such cases is limited to the record, absent irregularities in the procedure of the agency. S.C. Code Ann. § 1-23-380(4) (Supp. 2023); SCALC Rule 36(G). The APA provides that:

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.

S.C. Code Ann. § 1-23-380(5) (Supp. 2023).

'"Substantial evidence' is not a mere scintilla of evidence nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached . . . ." Lark v. i-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981) (citation omitted). "The limited substantial evidence standard of review is intended only to assure that the [agency's] action is properly supported and that, therefore, no abuse of delegated authority occurred." Fast Stops, Inc. v. Ingram, 276 S.C. 593,595,281 S.E.2d 118, 119 (1981) (citation omitted). Thus, the fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent

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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) (citation omitted).

In applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct. Rodney v. Michelin Tire Corp., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996) (citation omitted). A reviewing court is prohibited from substituting its judgment for that of the agency as to the weight of the evidence on questions of fact for which there is room for a difference of intelligent opinion. See Byerly Hosp. v. S. C State Health & Hum. Servs. Fin. Comm'n, 319 S.C. 225, 229, 460 S.E.2d 383, 386 (1995) (citation omitted). Accordingly, "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 Nat. Res., 345 S.C. 594, 603-04, 550 S.E.2d 287, 292 (2001) (citation omitted). The party challenging an agency action on appeal 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 (citation omitted).

DISCUSSION

The LETC permanently denied the Appellant's certification as a law enforcement officer in South Carolina based on its determination that the Appellant committed misconduct by unlawfully using marijuana. Broadly speaking, the Appellant challenges the sufficiency of the evidence supporting the LETC's decision that her use constitutes misconduct. She does not dispute that she consumed marijuana, a controlled substance, but maintains that her use was inadvertent, citing to the Department attorney's comments during the hearing calling into question whether that would constitute "unlawful use."

South Carolina Regulation 37-025 provides, in pertinent part, that "[t]he [LETC] may deny certification based on evidence satisfactory to the [LETC] that the candidate has engaged in misconduct," which includes the "[u]nlawful use of a controlled substance." S.C. Code Ann. Regs. 37-025(A)(2) (Supp. 2023); see also S.C. Code Ann. § 23-23-150(A)(3)(b) (Supp. 2023) (defining "misconduct" in this context as including "the unlawful use of a controlled substance"). Furthermore, the Department acknowledges that, based on a comparison to unlawful possession, "unlawful use" would require evidence of intent or knowledge of the nature of the substance used. Cf State v. Hudson, 277 S.C. 200,202,284 S.E.2d 773,774 (1981) (requiring proof of knowledge

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to establish possession of illegal drugs). Accordingly, the court must determine if there is substantial evidence showing that the Appellant had knowledge that she had consumed a controlled substance.

Here, the Department asserts that the record contains substantial evidence supporting the LETC's inference that the Appellant's testimony was not credible and that she was aware of the nature of the substance prior to failing the Department's drug test. In support of this argument, the Department cites to three (3) points: 1) the Appellant's interest in and attempts to get the results of her drug test shortly after providing the sample, showing apparent apprehension regarding her test results; 2) the Appellant's failure to disclose the name of the family member who served her the marijuana, produce any of her alleged letters in support, or subpoena the supervisor she purportedly requested to speak with; and 3) that the Appellant testified to consuming alcohol at the event in question, suggesting that she engaged in illicit conduct due to impaired inhibitory control caused by her alcohol consumption. However, none of this is reflected in the Council's order.

The Final Agency Decision merely notes that the Appellant tested positive for THC, testified that her ingestion was unknowing, then summarily concludes that the Department had met its burden of establishing that the Appellant unlawfully used a controlled substance. Neither the LETC's decision nor the Hearing Officer's recommendation makes any findings regarding the Appellant's knowledge or awareness that she consumed marijuana, and there is no discussion as to what evidence the Council considered on that point. Notably, no evidence was presented refuting the Appellant's testimony that she was not aware that the cupcake contained marijuana and there is no finding that she lacked credibility, let alone an explanation as to why the Council chose to reject her testimony.

While this court does not find that the record lacks sufficient evidence for the panel to reject the Appellant's claim of innocent ingestion, the Council's order is devoid of any explanation or reasoning as to how it reached the conclusion that her ingestion was knowing and, therefore, unlawful. The Council's decision provides that it took into account the Appellant's explanation that, if accepted, would exculpate her. If the Appellant truly did not know she was

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eating a marijuana infused cupcake and had no intention of consuming marijuana, then she did not commit misconduct. However, in finding that she unlawfully ingested the marijuana, the Council appears to have rejected the Appellant's explanation. Without findings or reasoning supporting that conclusion, the court cannot affirm the order as written. See Hill v. S. C. Dep 't of Health and Envtl Control, 389 S.C. 1, 19-20, 698 S.E.2d 612, 622 (2010) (citation omitted) (holding that implicit findings, as well as general statements and conclusions, do not provide sufficient detail for appellate review); Kiawah Prop. Owners Grp. v. Pub. Serv. Comm 'n, 338 S.C. 92, 95-96, 525 S.E.2d 863, 865 (1999) (citation omitted) ("An administrative body must make findings which are sufficiently detailed to enable [an appellate court] to determine whether the findings are supported by the evidence and whether the law has been applied properly to those findings."); Porter v. S.C. Pub. Serv. Comm'n, 333 S.C. 12, 21, 507 S.E.2d 328, 332 (1998) (citations omitted) ("Where material facts are in dispute, the administrative body must make specific, express findings of fact."). Consequently, the court is remanding this matter to the LETC to articulate their rationale and how they reached the conclusion that the Appellant knowingly, rather than innocently, ingested the marijuana.

It is undisputed that the Appellant consumed marijuana. However, because the Council's order lacks any factual findings with respect to the knowing element of the Appellant's marijuana consumption, which is largely determinative of whether her use was unlawful, it is necessary to remand this matter to the LETC to clarify its order.

ORDER

As set forth above, the court finds that this matter must be remanded to the LETC to clarify its findings and conclusions relating to the knowingness or unlawfulness of the Appellant's use of marijuana.

THEREFORE, for the foregoing reasons, this matter is hereby REMANDED to the Law Enforcement Training Council to clarify its findings consistent with this Order.

AND IT IS SO ORDERED.