Kristin Cosby v. SCCJA

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Kristin Cosby, Appellant,

v.

South Carolina Criminal Justice Academy, Respondent.

Appellate Case No. 2020-000849

Appeal From The Administrative Law Court
Ralph King Anderson, III, Administrative Law Judge

Unpublished Opinion No. 2022-UP-286
Submitted June 1, 2022 – Filed July 6, 2022

AFFIRMED

Courtney Celeste Atkinson, of Metcalfe & Atkinson,
LLC, of Greenville, for Appellant.

James M. Fennell, of the South Carolina Criminal Justice
Academy, of Columbia, for Respondent.

PER CURIAM: Kristin Cosby appeals a decision of the administrative law court
(ALC) affirming the South Carolina Criminal Justice Academy's final decision to
permanently withdraw her law enforcement certification, arguing the ALC erred by
finding (1) substantial evidence supported the Academy's finding that she engaged
in misconduct, (2) the Academy did not rely on an incorrect standard for "willful
conduct," and (3) the Academy's decision was not arbitrary or capricious and did
not constitute an abuse of discretion. We affirm.

1. We find substantial evidence supports the Academy's finding that Cosby
engaged in misconduct by making an incorrect or incomplete statement to a law
enforcement officer. See S.C. Code Ann. § 1-23-380(5)(e) (Supp. 2021) (stating
this court should affirm the ALC's decision if it is supported by substantial
evidence). Because the evidence in the record shows that Cosby initially stated she
rebuffed her subordinate's attempt to engage in sexual activity, but later provided a
written statement indicating they engaged in consensual sexual activity, we find
substantial evidence supports the Academy's finding that Cosby "provided [an]
incorrect or incomplete statement[]." See CareAlliance Health Servs. v. S.C. Dep't
of Revenue, 416 S.C. 484, 488, 787 S.E.2d 475, 477 (2016) ("Substantial evidence
is evidence which, considering the record as a whole, would allow reasonable
minds to reach the conclusion that the administrative agency reached . . . ."). We
also find the lack of evidence that the investigator clarified the meaning of his
questions or the scope of the investigation after Cosby gave her initial statement
indicates Cosby's initial denial was not the result of a misunderstanding. Thus,
substantial evidence supports the Academy's finding that Cosby engaged in
misconduct by willfully "provid[ing] incorrect or incomplete statements." See S.C.
Code Regs. § 37-026(A)(4)(h) (Supp. 2021) (defining "misconduct" as "willfully
mak[ing] false, misleading, incomplete, deceitful, or incorrect statement(s) to a law
enforcement officer").

2. As to whether the Academy applied the wrong legal standard for willfulness
when it found that Cosby engaged in misconduct, we find no reversible error. See
Amisub of S.C., Inc. v. S.C. Dep't of Health & Env't Control, 424 S.C. 80, 104, 817
S.E.2d 633, 646 (Ct. App. 2018) ("Generally, appellate courts will not set aside
judgments due to insubstantial errors not affecting the result." (quoting Judy v.
Judy, 384 S.C. 634, 646, 682 S.E.2d 836, 842 (Ct. App. 2009))); Rule 220(c),
SCACR ("The appellate court may affirm any ruling, order, decision[,] or
judgment upon any ground(s) appearing in the Record on Appeal.").

3. We find substantial evidence supports the ALC's finding that the Academy's
decision to permanently withdraw Cosby's law enforcement certification was not
"arbitrary or capricious or characterized by [an] abuse of discretion" because such
a sanction was authorized under regulation 37-026(A)(4) of the South Carolina
Code of Regulations (Supp. 2021). See S.C. Code Ann. § 1-23-380(5)(e)-(f)
(Supp. 2021) (stating this court should affirm the ALC's decision if it is supported
by substantial evidence but may reverse if the ALC's decision is "arbitrary or
capricious or characterized by [an] abuse of discretion"); Wyndham Enterprises,
LLC v. City of N. Augusta, 401 S.C. 144, 151, 735 S.E.2d 659, 663 (Ct. App. 2012)
(stating a decision is arbitrary and capricious when it is "not supported by
competent, substantial, and material evidence, and [i]s based on opinion and
speculation testimony"); Regs. § 37-026(A)(4) ("A law enforcement officer . . .
shall have his or her certification . . . withdrawn . . . [when there is e]vidence
satisfactory to the [Academy] that the officer has engaged in misconduct."); Deese
v. S.C. State Bd. of Dentistry, 286 S.C. 182, 185, 332 S.E.2d 539, 541 (Ct. App.
1985) (finding a five-year suspension of a dentist's license was not arbitrary or
capricious because suspension was authorized as a possible sanction under South
Carolina law).

We also find substantial evidence supports the ALC's finding that the Academy's
failure to consider the alleged mitigating circumstances was not "arbitrary or
capricious or characterized by [an] abuse of discretion" because the Academy was
not required to consider the mitigating circumstances. See Regs. § 37-026(A)(4)
(stating the Academy "may consider . . . any mitigating circumstances" when
"considering whether to withdraw certification based on misconduct" (emphasis
added)); Kosciusko v. Parham, 428 S.C. 481, 498, 836 S.E.2d 362, 371 (Ct. App.
2019) ("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." (quoting Kennedy v. S.C. Ret.
Sys., 345 S.C. 339, 352-53, 549 S.E.2d 243, 250 (2001))).

AFFIRMED. 1

WILLIAMS, C.J., and KONDUROS and VINSON, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.