ig wt STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE NEW HANOVER COUNTY ~ SUPERIOR COURT DIVISION JAMES BRIAN GILMORE- ) ) Petitioner ) ) CITY OF WILMINGTON, NORTH CAROLINA ) CIVIL SERVICE COMMISSION; CITY OF _ ) WILMINGTON, N.C. ) ) Respondents PETITION FOR JUDICIAL REVIEW AND NOTICE OF APPEAL FROM ORDER OF WILMINGTON CIVIL SERVICE COMMISSION I. INTRODUCTION 1.Now comes Petitioner/Appellant James Brian Gilmore, upon information and belief, pursuant to the North Carolina Administrative Procedure Act, N.C.G.S. 150B including but not limited to 150B-43, 45, 46, et. seq., the Code of Ordinances of the City of Wilmington, and other North Carolina law, including Article 1, Sections 1, 19, 35 and 36 of the North Carolina Constitution and respectfully submits this Notice of 1Appeal and Petition for Judicial Review (hereafter PJR) challenging the attached November 13, 2020 Order of the Respondent Commission which deprived Petitioner of his rights under law. 2.The November 13, 2020 order is a final decision of the Commission, which has adjudicated rights of Petitioner Gilmore. 3.Petitioner hereby respectfully appeals to this Court from the November 13, 2020 order of the Commission as authorized by the Code of Ordinances of the City of Wilmington. 4.Petitioner hereby seeks judicial review to redress the deprivations of his rights from the erroneous order and decisions of the Respondent Commission. 5.Other challenged decisions are a part of the record before the Commission. 6.Petitioner incorporates by reference the entire record in this matter including but not limited to the hearing transcript, all exhibits and other matters of record and all other objections and exceptions to the decision below.IL. PARTIES 7.Petitioner Brian Gilmore is a citizen and resident of New Hanover County, North Carlina. 8.Petitioner is an aggrieved person within the meaning of N.C.G.S. Chapter 150B. 9.Petitioner served as a police officer employed by the City of Wilmington, who was entitled to protection by the Wilmington Code of Ordinances including but not limited to the Civil Service Act which requires cause for termination. 10. Petitioner's termination of employment, as upheld by the Commission order, is a substantial injury and a deprivation of Petitioner’s legal rights. 11.Respondent City of Wilmington Civil Service Commission (hereafter the “Commission”) is a duly enacted governmental administrative agency, in part designed to afford hearings to Wilmington Police officers who have been terminated from employment by agents of the City of Wilmington, North Carolina. 12.The Commission had jurisdiction to hear Petitioner's appeal anddid so, thereby adjudicating his rights under the Civil Service Act within Wilmington’s Code of Ordinances. The Commission issued the attached order, which is the subject of this appeal. 13.Respondent City of Wilmington, North Carolina is a duly organized and existing municipality located in New Hanover County, North Carolina. 14.The City of Wilmington is a public employer, and employed Petitioner as a police officer. The City of Wilmington terminated Petitioner’s employment on June 23, 2020, which gave rise to Petitioner’s civil service appeal, the hearing and order below, and this appeal. 15.The acts and omissions complained of herein occurred within New Hanover County, thus venue lies within New Hanover County. 16.Respondent Commission is a local government agency, organized and operating pursuant to the North Carolina General Statutes and the Code of Ordinances of the City of Wilmington, N.C., and its decisions are subject to judicial review and appeal.III. FACTS AND BACKGROUND 17.Petitioner Brian Gilmore and the City of Wilmington entered an employment relationship as parties in July 1997. 18.Petitioner Gilmore was employed as a law enforcement officer by the City of Wilmington and Gilmore served in that capacity from July 1997 until Gilmore was terminated by action of the Wilmington Police Department on June 23, 2020. 19.Gilmore’s termination arose out of a verbal conversation that Gilmore had with Officer Kevin Piner of the Wilmington Police Department on June 3, 2020. 20.The alleged policy violation which gave rise to Gilmore’s termination was his use of language in a conversation with a colleague officer, Kevin Piner. 21.Neither Petitioner Gilmore nor Officer Piner was aware that their conversation was being electronically recorded. 22.The Mobile Video Recording Equipment in Officer Piner’s police car inadvertently engaged and recorded the conversation between Gilmore and Piner.23.Officer Piner did not knowingly intend to record the conversation with Gilmore. 24.A topic of the conversation between Petitioner Gilmore and Officer Piner included violent and illegal protest activities that had occurred in Wilmington, North Carolina, and other locations throughout the United States of America. 25.Petitioner’s conversation with Piner arose out of frustrations and observations of misconduct directed against Wilmington law enforcement officers. 26.By 2019 and 2020, various individuals and groups within the United States declared a state of war against law enforcement officers. Various individuals and groups confederated and conspired to injure and harm law enforcement officers through various means. 27.Many protestors in America began a campaign of violence including riots, causing serious personal injuries, causing death, causing major property damage, looting and inflicting grave harm in numerous communities in America including the City of Wilmington. 28.Like other cities, the City of Wilmington was forced to takedefensive action to protect Wilmington, including its citizens and property by emergency declarations and proclamations. 29.In Wilmington, some of the protest activities included violent actions that resulted in property damage and injuries in violation of North Carolina criminal law. 30.Violent protesters in Wilmington caused harms to the community including vandalism to businesses, police property, assaults, and attempted inciting to riot. 31.In Wilmington, some of the protest. activities were predicated upon plans and agreements by and among protestors to disrupt, impede and interfere with Wilmington police operations and Wilmington Police Officers including Petitioner Gilmore. 32.The lives and safety of citizens and other law enforcement officers in Wilmington and New Hanover County were put in jeopardy by protestor caused violence. 33.Lawlessness and violence began and continued in Wilmington, which caused Wilmington to enact a State of Emergency Proclamation by the City of Wilmington. Police officers throughout America have beenrelentlessly attacked, assaulted, battered, run over, injured and even killed through criminal conduct of persons claiming to be protestors. 34.The protest violence and riots in America and the resulting war on police has become the subject of intense scrutiny. See, e.g. Congressional Resolution, H. Res. 1071, July 20, 2020, 116 Congress, Second Session, which provides in pertinent part: Whereas law enforcement officers willingly face dangerous circumstances and the threat of serious bodily injury or death on a daily basis to ensure the safety of all Americans; Whereas the National Law Enforcement Memorial and Museum reports that as of December 31, 2019, 1,627 law enforcement officers had died in the line of duty during the past decade, a rate of one law enforcement death every 54 hours; Whereas the National Law Enforcement Memorial and Museum's 2020 Mid-Year Law Enforcement Officers Fatalities Report detailed that 65 law enforcement officers have been killed in the line of duty this year, including 27 officers who were killed in firearms-related incidents; Whereas peaceful protests sparked by the death of George Floyd have been hijacked by violent extremists and progressive groups seeking to sow discord, damage property, loot businesses, and inflict harm against civilians and law enforcement officers; Whereas law enforcement officers have been run over, shot, hit with objects, and stabbed attempting to maintain peace and the rule of law during the violent protests following George Floyd’s death.Whereas the New York Post reported on June 8, 2020, that more than 700 Federal, State, and local law enforcement officers have been injured during protests resulting from George Floyd’s death. 35.The death of George Floyd in Minneapolis caused a number of reactions around the country including in Wilmington. Many of those reactions were unlawful, dangerous, and violent - wreaking havoc and inflicting damage on law abiding citizens, businesses, and the police community. 36.Wilmington has suffered a broad range of damage, attacks by protesters and injuries including overt violence, crime, property damage, attempted personal injuries, and orchestrated dangerous chaos. Armed protesters began taking the law into their own hands on the streets of Wilmington and carried out assaults, attempted arsons, attempted inciting of riots and other crimes. 37.District Attorney Ben David explained that some protesters in Wilmington were “openly displaying weapons — which Mr. David categorized as “violently protesting.” Mr. David said that this violent protesting led law enforcement officers to disperse the crowd, and when these efforts were not effective, more aggressive tactics by bothWilmington Police Department and the New Hanover County Sheriffs’ Office had to be used. Flash bangs and tear gas grenades had to be used in downtown Wilmington. Officers had to put on full “riot gear.” This chaotic danger escalated and continued, damaging property and putting Wilmington and its citizens at heightened risks and in chaos. 38.The City of Wilmington issued a Municipal Proclamation declaring a formal “State of Emergency,” executed by Mayor Bill Saffo. In pertinent part, the Proclamation by the City of Wilmington asserted that “civil unrest and accompanying violence” ensued. The City of Wilmington proclaimed that “Our nation has witnessed physical violence against innocent bystanders and law enforcement officers, damage to property and looting and buildings have been set on fire with arsonist intent ... the violent civil unrest that has followed some of them is criminal and a grave danger to the public.” 39.The City of Wilmington went on in its Proclamation to explain that recent events in Wilmington “have shown that some individuals have sought to incite criminal civil unrest and their actions now pose an imminent threat of severe damage, injury, or loss of life or property to 10the City of Wilmington.” Mayor Saffo consequently declared a “state of emergency” pursuant to Section 6-17 of the Wilmington City Code. 40.Protesters willfully clashed with law enforcement officers in Wilmington and around the country. Protests that “often started peacefully turned violent and resulted in violence, vandalism and destruction,” according to the City of Wilmington. New Hanover County Deputies had to tear gas the violent crowd and “multiple objects were thrown at the New Hanover County Courthouse.” 41.According to the Wilmington Police Department, “protesters began throwing fireworks at vehicles on front and Princess Streets...” ‘These were especially heinous and dangerous felonies, which exposed the vehicular occupants to unreasonable risks of death and burns from the attempted acts of arson. Arrests were made for various offenses including “inciting to riot.” 42.New Hanover County Sheriff Ed McMahon explained how an arrestee was armed with a gun. The Sheriff explained how “criminal acts” were being committed. The Sheriff explained how the so-calledprotest environment “was violent, this was unlawful, so we are going to protect Wilmington ...” 43.“The District Attorney echoed several of McMahon’s comments.” “Violence, lawlessness will not be tolerated, explained District Attorney Ben David. Mayor Bill Saffo saw it the same: “There was nothing about any kind of peaceful protest here. This was to incite a riot.” 44.The City of Wilmington enacted more than one proclamation of emergency as it sought to quell the occurring violence in Wilmington. 45.The foregoing conditions gave rise to the sequence of events that led to the subject conversation and Petitioner’s termination. IV. ADMINISTRATIVE HEARING AND ORDER BELOW 46.The Wilmington Police Department terminated Petitioner's employment on June 23, 2020. 47.Petitioner Gilmore appealed the termination and invoked the jurisdiction of the Wilmington Civil Service Commission. 48.The Wilmington Civil Service Commission held an administrative hearing in this matter on September 24 and 28, 2020. 249.The Commission executed an “Order” on November 13, 2020, which was served upon Petitioner’s counsel on November 15, 2020 (attached hereto as an Exhibit and incorporated herein). 50.The order is the subject of this appeal and petition for judicial review. 51.As a part of his appellate rights, Petitioner respectfully requests copy of the hearing transcript. Petitioner agrees to pay a reasonable fee for his requested copy of the transcript. Petitioner agrees to post and pay any required bond necessary to obtain the transcript and or otherwise comply with local policy. V. SUMMARY OF GROUNDS OF APPEAL 52.Petitioner’s grounds for appeal include but are not limited to: Gilmore appeals on the grounds that the adverse personnel action in the form of termination of employment is not predicated upon adequate just cause as a matter of law; that the termination is not justified as a matter of law; that the termination is arbitrary and capricious; that the termination is violative of Gilmore’s constitutional rights under the North Carolina Constitution; that the termination is not predicated upon 13substantial evidence; that the termination was not predicated upon proper procedure; that the Respondent City of Wilmington failed to prove its purported case consisting of the sole charge against Gilmore; that the termination is predicated upon inadmissible and unreliable information; that Gilmore’s legal rights were otherwise violated by the termination of employment; and that errors of laws affected the termination decision; and on such other and further grounds as set forth in the transcript and record. The order under appeal and review is erroneous as a matter of law. The Commission erred as a matter of law by failing to correctly apply the law of just cause for termination. 53.Pursuant to N.C.G.S. 150B-51, the Administrative Procedure Act, and other law, this Court should reverse the order and decisions of the Commission, inter alia, because: a) the decisions were affected by errors of law, and b) the decisions were arbitrary and capricious, and ©) the decisions were unsupported by substantial evidence, and d) the decisions were not in compliance with controlling legal authority and in violation of law, and 14e) the decisions failed to properly apply the applicable tests from the controlling cases, and f) the decisions failed to afford Petitioner the benefit of undisputed facts, and g) the order and decisions are otherwise in violation of Petitioner's rights under North Carolina law, and h) the order and decisions erroneously misapplied law and erroneously overlooked controlling law, and i) the order and decisions erroneously failed to credit Petitioner with undisputed facts warranting relief for Petitioner, and }) the decision below failed to properly address and decide all of Petitioner's legal arguments and k) the Commission erroneously made and relied upon erroneous findings, which are inconsistent with law and the true facts and not supported by substantial evidence, and 1) the Commission’s decision is erroneous as a matter of law, and m) the Commission's decision failed to properly apply the correct applicable law in its order, and 45n) the Commission’s findings, conclusions, decisions and orders are erroneous as a matter of law, were affected by errors of law, were arbitrary, capricious and improper in violation of North Carolina law, which deprived Petitioner of his rights, and 0) the charge against Petitioner, as set forth in WPD Rule 2.25 “Standard of Conduct” is unconstitutional on its face and as applied. p) the charge against Petitioner, as set forth in Rule 2.25 “Standard of Conduct” is further unenforceable because, inter alia, it fails to put Petitioner on notice of prohibited behaviors, its fails to contain adequate standards and criteria. Due to these legal problems; Rule 2.25 was arbitrarily applied in this case which deprived Petitioner of his rights. VI. UNDERLYING CHARGE AGAINST GILMORE AND ADMINISTRATIVE PROCEEDINGS 54.The underlying charge of “standard of conduct” was the sole charge against Petitioner. See Wilmington Police Department Rule of Conduct, 2.25. 56.The sole charge was predicated upon a purported Wilmington Police Department Rule (Rule 2.25) that did not afford adequate notice to Gilmore of the purportedly prohibited conduct. 1656.Wilmington Rule of Conduct 2.25 is unduly vague, ambiguous and fails to contain adequate criteria and standards, fails to provide adequate due process and is unconstitutional. 57.WPD Rule 2.25, that is the sole basis of the charge against Petitioner, is unconstitutional on its face and as applied to Petitioner. 58.Petitioner hereby objects to and excepts from each of the identified Findings of Fact and Conclusions of Law in the Order by the Commission, as well as the omissions and failures to make necessary findings of fact and conclusions of law. VII. EXHAUSTION 59.Petitioner has exhausted all administrative remedies and appeals before the City of Wilmington and the Commission. Petitioner is now therefore entitled to pursue judicial review of the Commission decision, which gave rise to the deprivation of Petitioner's rights. 60. A final order denying Petitioner's rights was issued on November 13, 2020, which erroneously deprived Petitioner of his rights. This petition seeks judicial review of the decisions and order of the Commission.VIII. OBJECTIONS AND EXCEPTIONS AS TO FINDINGS OF FACT 61.Petitioner excepts from, objects to and appeals from the Commission's Findings of Fact as being incomplete, erroneous and not supported by substantial and competent evidence 62.Additional Findings of Fact were necessary in order for the findings to be complete for purpose of just cause and other legal analysis. 63.Petitioner excepts from, objects to and appeals from Findings of Fact identified herein, as being either erroneous in whole or in part, incomplete, not supported by substantial evidence, inadequate, not supported by competent evidence, legally irrelevant, inadmissible, or otherwise improper and inappropriate. The objectionable findings are as follows: 64.Finding of Fact 1 is objectionable in so far as it purports to find a violation of WPD Rule of Conduct 2.25, as there was no such violation. 65.Finding of Fact 14 is objectionable in that it purports to find a violation of WPD Rule of Conduct 2.25, as there was no such violation. 66.Finding of Fact 16 is objectionable to the extent that it found that Piner and Moore were terminated from employment; both of those officers resigned from their positions. 1867.Findings of Fact 17 through 24 are objectionable in that those purported findings are legally irrelevant and have no proper place either in the Order or in this appeal. 68.Petitioner also objects to the following findings, as being either erroneous in whole or in part, incomplete, not supported by substantial evidence, inadequate, not supported by competent evidence, legally irrelevant, inadmissible, or otherwise improper and inappropriate. 26, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 40, 42, 43, 44, 45, 46, 47, 48, 50, 51, 52, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72. 69.The Commission’s rulings and decisions below are arbitrary, capricious, irrational, and not adequately supported by substantial or competent evidence of record. 70. The Commission erroneously failed to otherwise find additional necessary facts and failed to take judicial notice of other necessary facts. IX. OBJECTIONS AS TO CONCLUSIONS OF LAW 71. Petitioner excepts from, objects to and appeals from all of the Conclusions of Law 75 through 92 within the order under review. 72.These Conclusions of law are legally erroneous, conclusory and duplicative, not supported by existing law and are affected by errors of 1973.The decisions, findings and conclusions of the Commission were adversely affected by multiple errors of law and fact including incompleteness which adversely impacted the proceeding and final order. X. OBJECTIONS AS TO COMMISSION DECISION/ORDER T4.Petitioner excepts from, objects to and appeals from the Commission decision and order as being erroneous as a matter of law and affected by errors of law, and erroneous as being predicated upon erroneous and incomplete fact findings. All other objections and exceptions are incorporated by reference. 75.The Commission decision and order is arbitrary and capricious, is predicated upon a charge with lack of notice and due process violations, misapplies the law of just cause, fails to apply the just cause standard, and was erroneous as a matter of law. 76.The individual and combined errors have deprived Petitioner of his constitutional rights under Article 1, Sections 1, 19, 35 and 36 of the North Carolina Constitution. 77.The charge against Petitioner including the alleged Rule in issue, Rule 2.25, was unconstitutional on its face and as applied. 78.Petitioner respectfully reserves his rights to amend this petition 20upon receipt of the hearing transcript. XI. PRAYER FOR RELIEF Wherefore, based upon the foregoing and the record, Petitioner seeks reversal of the order and decisions of the Commission and the issuance of a decision in Petitioner's favor, reversing his termination of employment, reinstating him to his position or an alternative suitable position, awarding him back pay and all lost employee benefits along with such other and further relief as the court deems just and proper. Petitioner respectfully requests, pursuant to N.C.G.S. 150B-47 and the Wilmington Code of Ordinances, that the Commission prepare and transmit the complete record including all transcripts to this Court for judicial review and to serve the compete record upon the parties. An Exhibit is attached hereto and incorporated herein, by reference. Qiu isf'J. Michael ess J. Michael McGuinness The McGuinness Law Firm P.O, Box 952 2034 Highway 701 North Elizabethtown, N.C. 28337 N.C. Bar Number 12196 910-862-7087 Telephone 888-862-2505 Facsimile jmichael@mcguinnesslaw.com Counsel for Petitioner Gilmore