IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 24-922
Filed 15 October 2025
Wake County, No. 23CV007462-910
JUDY ALLMAN, Plaintiff,
v.
SWAIN COUNTY BOARD OF ELECTIONS, and NORTH CAROLINA STATE BOARD OF ELECTIONS, Defendants.
Appeal by Plaintiff from Orders entered 25 August 2023 and 3 November 2023
by Judge William R. Pittman in Wake County Superior Court. Heard in the Court of
Appeals 20 May 2025.
Davis Hartman & Wright, LLP, by R. Daniel Gibson, for Plaintiff-Appellant.
Attorney General Jeff Jackson, by Special Deputy Attorney General Terence Steed; and Solicitor General Fellow Kaeli E. Czosek for Defendant-Appellee North Carolina State Board of Elections.
Womble Bond Dickinson LLP, by Brian F. Castro, Sean Perrin, and Caitlin T. Augerson, for Defendant-Appellee Swain County Board of Elections.
HAMPSON, Judge.
Factual and Procedural Background
This appeal stems from a Petition for Judicial Review filed in Wake County
Superior Court alleging Judy Allman (Plaintiff) was improperly terminated as
Director of the Swain County Board of Elections (the County Board). Plaintiff appeals
from the Superior Court’s Orders: (1) denying her Motion for partial summary ALLMAN V. SWAIN CNTY. BD. OF ELECTIONS
Opinion of the Court
judgment and granting Defendants summary judgment against her on the issue of
whether the Superior Court of Wake County had exclusive jurisdiction over her
claims and (2) dismissing her constitutional claim for violation of her right to the
fruits of her labor.
Plaintiff, a former employee of the County Board, was promoted from Deputy
Director to Director in August 2020. On 9 December 2022, in accordance with
statutory procedures contained in N.C. Gen. Stat. § 163-35.1, the County Board
submitted a Petition to the Executive Director of the North Carolina Board of
Elections (the State Board) recommending Plaintiff’s termination for cause based on
various allegations including making misrepresentations to the County Board,
insubordination, and unprofessional conduct. The Executive Director sent a copy of
the petition to Plaintiff on 13 December 2022. Plaintiff responded on 19 December
2022.
On 9 January 2023, the Executive Director held a virtual hearing. Plaintiff
was present for this hearing. The Executive Director reviewed the County Board’s
Petition, Plaintiff’s response, records provided by both parties, correspondence from
the parties sent to the State Board, and comments made by both parties at the virtual
hearing. That same day, the Executive Director issued a written decision finding
cause for termination and granting the County Board’s petition to terminate Plaintiff.
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The State Board declined to reconsider the decision of the Executive Director
as provided by N.C. Gen. Stat. § 163-35.1. Accordingly, the Executive Director’s
written decision became the Final Decision on 29 January 2023.
Plaintiff filed two simultaneous actions on 30 March 2023: a contested case
with the Office of Administrative Hearings (OAH), and her Petition for Judicial
Review and Complaint for Declaratory Judgment with the Wake County Superior
Court giving rise to this appeal. On 29 August 2023, the OAH dismissed the contested
case for lack of subject matter jurisdiction. Allman v. Swain Cnty. Bd. of Elections
N.C. State Bd. of Elections (OAH 2023 WL 5969287).
Plaintiff’s Complaint in Wake County Superior Court alleged several causes of
action. The first was a petition for judicial review under Section 163-22(l) of our
General Statutes, which requires any person seeking to obtain judicial review of any
decision of the State Board of Elections to file a petition in the Superior Court of Wake
County. She also requested a declaratory judgment addressing Section 163-22(l) and
its constitutionality, arguing that despite its mandate she should be permitted to
contest the decision of the State Board in the OAH. She also requested a declaratory
judgment that the County Board’s actions exceeded its statutory authority and
violated Plaintiff’s rights, and asserted a constitutional claim based on a violation of
her right to the fruits of her labor.
On 29 June 2023, Plaintiff moved for summary judgment on her claim for a
declaratory judgment concerning the application of Section 163-22(l) to her claims.
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The trial court heard arguments on 10 August 2023. Plaintiff argued that, before her
case could be heard in the Superior Court of Wake County, it should first go through
a contested case proceeding in the OAH. Defendants argued appeal from the State
Board decision lies directly in the Superior Court of Wake County, bypassing the
OAH. On 25 August 2023, the trial court denied Plaintiff’s motion for summary
judgment and granted partial summary judgment in favor of Defendant, ordering
Plaintiff’s case be heard in the Superior Court of Wake County.
Both the County and State Boards moved to dismiss Plaintiff’s remaining
claims. The County Board argued it could not be sued because, under the statutory
procedure for terminating a director, it had not actually terminated Plaintiff but only
recommended her termination to the State Board. The State Board argued it was
protected from Plaintiff’s claims by sovereign immunity and the existence of an
adequate remedy under State law. The trial court dismissed Plaintiff’s remaining
claims with prejudice on 1 November 2023.
On appeal, Plaintiff challenges only the trial court’s dismissal of her
constitutional claim and its grant of summary judgment to Defendants based on its
interpretation of Section 163-22(l) as granting jurisdiction over Plaintiff’s case to the
Superior Court of Wake County. She does not challenge the dismissal of her Petition
for Judicial Review.
Issues
The dispositive issues are whether: (I) N.C. Gen. Stat. § 163-22(l) vests
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jurisdiction for judicial review of the State Board’s final decision in the Superior Court
of Wake County rather than OAH; and (II) Plaintiff’s allegations were sufficient to
state a claim for violation of her right to the fruits of her labor under the North
Carolina State Constitution.
Analysis
I. Jurisdiction under N.C. Gen. Stat. § 163-22(l)
Chapter 163 of our General Statutes governs election law, including the
establishment of the State Board of Elections and the various County Boards. A
subsection of Article 4 of this Chapter establishes a process by which a county director
of elections may be terminated. N.C. Gen. Stat. § 163-35.1 (2023). First, the County
Board, by signed petition, recommends the termination to the Executive Director of
the State Board of Elections. N.C. Gen. Stat. § 163-35.1(a). The Executive Director
must forward a copy of the petition to the county director. Id. The county director has
15 days to respond to the petition, and within 20 days of receipt of that reply the
Executive Director issues a decision as to termination. Id. That decision becomes final
unless within 20 days the State Board of Elections chooses to defer it. Id.1 If the State
Board elects to defer the decision of the Executive Director, the State Board must give
the county director an opportunity to be heard and present witnesses and information
1 The statute also provides a process by which the Executive Director may initiate
termination proceedings. N.C. Gen. Stat. § 163-35.1(b). This procedure is not relevant to this case. Termination of a county director must be conducted via one of these two processes. N.C. Gen. Stat. § 163-35.1(d).
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to the State Board, then the State Board makes a final decision on termination. Id.
As described above, the County and State Boards followed this statutory
process in this case. Ultimately, the State Board declined to defer the decision of the
Executive Director terminating Plaintiff. Plaintiff contested her termination by filing
(1) a Petition for Judicial Review in the Superior Court of Wake County and (2) a
contested case with the OAH.
The OAH determined it was not the proper forum to review the decision of the
State Board and dismissed the contested case. 2023 WL 5969287. The Superior Court
of Wake County determined it was the proper forum. Both the OAH and the Superior
Court based their respective decisions on N.C. Gen. Stat. § 163-22(l), which provides
any review of a decision of the State Board is conducted in the Superior Court of Wake
County:
Notwithstanding any over provision of law, in order to obtain judicial review of any decision of the State Board rendered in the performance of its duties or in the exercise of its powers under this Chapter, the person seeking review must file a petition in the Superior Court of Wake County.
N.C. Gen. Stat. § 163-22(l).
Plaintiff, however, argues Section 163-22(l) should not be interpreted to
require direct review of State Board decisions in the Superior Court of Wake County.
Instead, she argues cases like hers should first be heard by the Office of
Administrative Hearings in a trial-level evidentiary hearing. Then, as OAH decisions
are generally reviewed in our Superior Courts, N.C. Gen. Stat. § 150B-45(b), she
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argues Section 163-22(l) should be interpreted as no more than a venue statute,
mandating that such an appeal may only be heard in Wake County.
The Office of Administrative Hearings is a statutorily created, quasi-judicial
agency established “to ensure that administrative decisions are made in a fair and
impartial manner[.]” N.C. Gen. Stat. § 7A-750. As such, its jurisdiction is limited to
matters appearing before it under a provision of our General Statutes. The OAH
dismissed Plaintiff’s contested case, determining neither the North Carolina Human
Resources Act (HRA) nor the Administrative Procedures Act (APA) conferred
jurisdiction over the matter. While we are not reviewing the decision of the OAH on
appeal, it is instructive to examine that decision for the purposes of this case.
Plaintiff does not advocate for application of the HRA to her case. Rather,
Plaintiff asserts only that she may bring her claim under the APA. Under the APA,
“[a]ny person aggrieved may commence a contested case” against a state agency by
filing a petition with the Office of Administrative Hearings. N.C. Gen. Stat. §150B-
23. The OAH did not recognize it held jurisdiction over Plaintiff’s case under the APA
in part because the Swain County Board of Elections is not an “agency” for the
purposes of the APA. Allman, 2023 WL 5969287 ¶ 4. However, the State Board, which
ultimately issued the decision, is. See McFadyen v. New Hanover Cnty, 273 N.C. App.
124, 133, 848 S.E.2d 217, 223 (2020) (Dietz, J., concurring) (termination of county
director by State Board of Elections was “unquestionably a ‘dispute between an
agency and another person that involves the person’s rights, duties, or privileges’ and
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thus is subject to the Administrative Procedure Act” under N.C. Gen. Stat. § 150B-
22(a)).
The APA applies to every State agency except those specifically exempted by
statute. N.C. Gen. Stat. § 150B-1(c). The contested case provisions of the APA
likewise apply to “all agencies and all proceedings not expressly exempted from the
Chapter.” N.C. Gen. Stat. § 150B-1(e). In dismissing Plaintiff’s contested case, the
OAH held any jurisdiction over appeals of public employee termination decisions
derives from the HRA rather than the APA, citing our Supreme Court’s decision in
Batten v. N.C. Dep’t of Correction, 326 N.C. 338, 389 S.E.2d 35 (1990):
OAH jurisdiction over appeals of public employee termination decisions derives not from N.C.G.S. chapter 150B, but from N.C.G.S. Chapter 126. The administrative hearing provisions of Article 3, Chapter 150B, do not establish the right of a person “aggrieved” by agency action to OAH review of that action, but only describe the procedures for such review. Batten v. N.C. Dep't of Correction, 326 N.C. 338, 342-343, 389 S.E.2d 35, 38, 1990 N.C. LEXIS 120, *9; overruled on other grounds by Empire Power Co. v. North Carolina Dep't of Env't, Health & Natural Resources, Div. of Envtl. Management, 337 N.C. 569, 572, 447 S.E.2d 768, 770, 1994 N.C. LEXIS 492, *1.
Allman ¶ 6. However, Batten involved the appeal of a grievance of an employee of the
North Carolina Department of Correction—an agency expressly exempted from the
administrative hearing provisions of the APA. Batten, 326 N.C. at 344, 389 S.E.2d at
39; N.C. Gen. Stat. § 150B-1(e)(7). Accordingly, the Supreme Court has rejected a
reading of Batten that would suggest the APA does not itself establish the right of an
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aggrieved person to contest agency decisions:
Respondents contend we made it clear in Batten that the administrative hearing provisions of the NCAPA “do not establish the right of a person ‘aggrieved’ by agency action to administrative review of that action by the OAH, but only describe procedures for such review.” That interpretation is contrary to the language of the statute as interpreted and applied in Vass.
Empire Power Co. v. N.C. Dep’t of Env’t, Health and Nat. Res., Div. of Env’t Mgmt.,
337 N.C. 569, 579, 447 S.E.2d 768, 774 (1994). As a general proposition then, the APA
confers jurisdiction upon the OAH to hear appeals of employee grievances and indeed
any appeal of an agency decision against agencies unless the matter is “expressly
exempted from the NCAPA.” Id. at 575, 447 S.E.2d at 772.
For example, in Vass v. Bd. of Trustees, the plaintiff was a State employee who
contested the denial of a medical claim by filing a breach of contract action in the
District Court of Wake County against the Board of Trustees of the State Employees
Medical Plan. 324 N.C. 402, 404, 379 S.E.2d 26, 27 (1989). Our Supreme Court held
that, because the Board of Trustees was a State agency, it was “subject to judicial
review only under the terms of the Administrative Procedure Act” and the plaintiff
was required to exhaust administrative remedies under the APA. Id. at 409, 379
S.E.2d at 30. His district court action was therefore dismissed. Id. Likewise, in
Empire Power Co. petitioner George Clark was entitled to appeal to the Office of
Administrative Hearings from a decision of the Division of Environmental
Management, a State agency, when the Division granted a permit to Duke Energy.
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337 N.C. at 596, 447 S.E.2d at 784. Clark lived on property adjacent to the proposed
cite for a power generation station. Id. The Supreme Court reversed this Court’s
holding that the “organic statute” N.C. Gen. Stat. § 143-215.108(e), which controls
the issuance of permits for activity that causes air pollution, provided only the permit
applicant or permittee the right to appeal permit decisions to the OAH. The Supreme
Court held the plaintiff was an “aggrieved person” and, as the agency at issue was
not among those expressly excluded from the APA or its administrative hearing
provisions, he was entitled to appeal the decision under the APA. Id. at 596, 447
S.E.2d at 784.
Like the agencies in Empire Power Co. and Vass, the State Board is not among
the agencies the APA lists as expressly exempted from any of its provisions, N.C. Gen.
Stat. § 150B-1(c), or as expressly exempted from its contested case provisions, N.C.
Gen. Stat. § 150B-1(e). In this case, however, the organic statute establishing the
powers and duties of the State Board creates an exception, mandating in subsection
163-22(l) that all judicial review of State Board decisions be conducted in the Superior
Court of Wake County.
In order for language in an organic statute creating an agency to exempt that
agency from provisions of the APA, the language used must “expressly and
unequivocally” indicate the exemption. Cabarrus Cnty. Bd. of Educ. v. Dep’t of State
Treasurer, 261 N.C. App. 325, 330, 821 S.E.2d 196, 201 (2018). For example, the
following provision does not create an exception to the APA:
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If, after exhaustion of internal appeal handling as outlined in the contract with the Claims Processor any person is aggrieved, the Claims Processor shall bring the matter to the attention of the Executive Administrator and Board of Trustees, which may make a binding decision on the matter in accordance with procedures established by the Executive Administrator and Board of Trustees.
N.C. Gen. Stat. § 135-39.7 (1988). Our Supreme Court rejected the argument that the
statute’s language allowing the Board of Trustees to make a “binding decision”
showed legislative intent to exclude those decisions from being reviewed under the
APA. Vass, 324 N.C. at 406-07, 379 S.E.2d at 29. The statutory language was not an
“express and unequivocal exemption . . . from the requirements of the Administrative
Procedure Act” because it did not make “specific provisions to the contrary.” Id. A
decision may bind the parties while still being subject to judicial review.
The text of subsection 163-22(l) is more specific. Under its provisions:
Notwithstanding any other provision of law, in order to obtain judicial review of any decision of the State Board rendered in the performance of its duties or in the exercise of its powers under this Chapter, the person seeking review must file a petition in the Superior Court of Wake County.
As the parties agree, this language clearly creates an exemption from the
requirements of the APA. The parties dispute only the nature of the exemption.
Plaintiff argues it is a venue provision that requires appeal from OAH decisions be
made in Wake County Superior Court, while Defendant argues it exempts State
Board decisions from OAH review entirely, with cases like Plaintiff’s proceeding
directly to Wake County Superior Court. To resolve this issue, we must construe the
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meaning of subsection 163-22(l).
The principal goal of statutory construction is to accomplish the legislative intent. The intent of the General Assembly may be found from the plain language of the statute, then from the legislative history, the spirit of the act and what the act seeks to accomplish. If the language of a statute is clear, the court must implement the statute according to the plain meaning of its terms so long as it is reasonable to do so.
Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548 S.E.2d 513, 517 (2001).
First, a plain reading of the statute indicates a clear process: when the State
Board makes a decision, a person seeking review of that decision must file a petition
in the Superior Court of Wake County. N.C. Gen. Stat. § 163-22(l). The statute does
not indicate the Superior Court of Wake County is to review a decision of the OAH,
but the decision of the State Board. Indeed, this procedure has been implicitly
recognized by our courts. In McFadyen v. New Hanover County, as in this case, a
former county director of elections filed an action challenging his termination. 273
N.C. App. 124, 848 S.E.2d 217. As in this case, the county board sent a petition to the
Executive Director, requesting that the plaintiff be terminated. Id. at 127, 848 S.E.2d
at 220. The Deputy Director of the State Board, sitting in place of the Executive
Director, granted the petition, and the State Board declined to defer the decision. Id.
at 128, 848 S.E.2d at 220. The plaintiff then challenged the decision by filing claims
in the Superior Court of New Hanover County. Id.
We held the Superior Court of New Hanover County was without jurisdiction
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to hear the plaintiff’s appeal because “N.C.G.S. § 163-22(l) requires any appeal taken
from a decision of the SBE to be filed in the Superior Court of Wake County.” 273
N.C. App. at 132, 848 S.E.2d 223. The plaintiff had at no point filed his petition with
the OAH, and we did not suggest in our opinion that the OAH was the proper venue
for his claims. Likewise, we have reviewed other cases challenging State Board
decisions which were reviewed immediately in the Superior Court of Wake County,
bypassing the OAH, and have not in those cases identified issues of jurisdiction. See,
e.g., Griffin v. N.C. State Bd. of Elections, 915 S.E.2d 212, 218. See also State v.
Gorman, 221 N.C. App. 330, 333, 727 S.E.2d 731, 733 (2012) (“The issue of a court’s
jurisdiction over a matter may be raised at any time, even for the first time on appeal
or by a court sua sponte.”).
Beyond the plain language of the statute as implicitly recognized in our courts,
there are several indicators of legislative intent at odds with Plaintiff’s
interpretation. For one, although Plaintiff’s case is an employment dispute, the
primary role of the State Board is to supervise the primaries and elections in the
State, and it promulgates rules and regulations accordingly. N.C. Gen. Stat. § 163-
22(a). Accordingly, the bulk of its proceedings are likely to involve election law,
including election protests which must be “expeditiously resolved” so that elections
may be timely certified. Bouvier v. Porter, 386 N.C. 1, 16, 900 S.E.2d 838, 850 (2024).
Accordingly, our Legislature set out a process by which review of the State Board’s
decisions may be completed more quickly, by advancing directly to our courts rather
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than first being heard in the OAH. This procedure also allows the State Board to
litigate these claims in Wake County, where it is located, rather than in the county
where the petitioner resides, as it would be required to for contested cases heard by
the OAH. N.C. Gen. Stat. § 150B-24.2
Thus, under the plain language of N.C. Gen. Stat. § 163-22(l), petitions for
review of decisions of the North Carolina Board of Elections terminating a county
elections director are properly filed with the Superior Court of Wake County.
Therefore, the Superior Court correctly determined it had jurisdiction over Plaintiff’s
case. Consequently, the Superior Court properly denied Plaintiff’s request for a
declaratory judgment vesting jurisdiction over this matter in the OAH.
II. Constitutional claim
2 Other portions of Chapter 163 acknowledge that this is the default process, specifically identifying certain State Board decisions which do not bypass the OAH. One section of Chapter 163 assesses civil penalties for violations of certain election law provisions. N.C. Gen. Stat. § 163-278.34. Unlike other sections of the Chapter, this section specifically provides for review of State Board decisions by the OAH:
(f) OAH Review.--After assessing a civil penalty under subsection (b) of this section or imposing a civil remedy under subsection (c) of this section, appeal of the decision of the State Board of Elections under this section shall be in accordance with Article 3 of Chapter 150B of the General Statutes.
N.C. Gen. Stat. § 163-278.34(f). If all decisions of the State Board were appealed to the OAH under Article 3 of the APA prior to being heard in the Superior Court of Wake County, as Plaintiff argues, this provision would be redundant. See Hall v. Simmons, 329 N.C. 779, 784, 407 S.E.2d 816, 818 (1991) (“The rules of statutory construction require presumptions that the legislature inserted every part of a provision for a purpose and that no part is redundant.”). “Significance and effect should, if possible, . . . be accorded every part of the act, including every section, paragraph, sentence or clause, phrase, and word.” State v. Williams, 286 N.C. 422, 432, 212 S.E.2d 113, 120 (1975).
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Plaintiff argues the Superior Court erred by dismissing her claim for a
declaratory judgment that the County Board “unconstitutionally and unjustifiably
burdened [her] rights to enjoy the fruits of her labor” by “intentionally failing to
comply with its own policies and the relevant law” when it petitioned the State Board
to terminate her.
In order to assert a direct cause of action under the North Carolina
Constitution: (1) the plaintiff must allege “a state actor . . . violated an individual’s
constitutional rights;” (2) the plaintiff must establish the claim is colorable, in that it
“present[s] facts sufficient to support an alleged violation of a right protected by the
State Constitution;” and (3) there must be no alternative “adequate state remedy.”
Deminksy v. State Bd. of Educ., 377 N.C. 406, 413, 858 S.E.2d 788, 793-94 (2021).
Plaintiff alleges the County Board violated her right to the enjoyment of the
fruits of her labor, guaranteed under Article I, Section 1 of the North Carolina
Constitution. The County Board, as a government entity, is a government actor.
Deminsky, 377 N.C. at 414, 858 S.E.2d at 794. However, as Plaintiff has not presented
facts sufficient to support an alleged violation of her right to the enjoyment of the
fruits of her labor, she has not established a colorable constitutional claim.
The North Carolina Constitution recognizes the right to individuals’
“enjoyment of the fruits of their own labor.” N.C. Const. Art. I, § 1. Our courts’ “duty
to protect fundamental rights includes preventing arbitrary government actions that
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interfere with the right to the fruits of one’s own labor.” King v. Town of Chapel Hill,
367 N.C. 400, 408, 758 S.E.2d 364, 371 (2014).
Plaintiff alleges the County Board failed to follow its own procedures in
recommending her termination. Our Supreme Court in Tully v. City of Wilmington
acknowledged the right to the fruits of one’s labor includes “the right to pursue one’s
profession free from unreasonable government action.” 370 N.C. 527, 535, 810 S.E.2d
208, 215 (2018). Accordingly, a governmental entity violates the constitution when it
“acts in an arbitrary and capricious manner toward one of its employees by failing to
abide by promotional procedures that the employer itself put in place.” 370 N.C. at
535-36, 810 S.E.2d at 215. In Tully, for example, the Wilmington Police Department
did not allow the plaintiff to file a grievance regarding a promotional exam, despite
its policy manual stating that candidates for promotion “may appeal any portion of
the selection process.” Id. The failure by the department to follow its own
employment-related policies violated the plaintiff’s constitutional right.
While Tully was limited to the employment promotion process, we addressed
its applicability to termination decisions in Mole’ v. City of Durham, 279 N.C. App.
583, 866 S.E.2d 773 (2021). We held Tully’s articulation of Article I, Section 1’s
protections extends to the process of terminating employees such that public
employers must follow their own procedures regarding termination, and a failure to
do so implicates the right to the fruits of one’s labor. 279 N.C. App. at 590, 866 S.E.2d
at 779. Accordingly, the plaintiff stated a claim by alleging he was not given sufficient
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notice of his pre-disciplinary hearing under his employer’s own guidelines. Id. at 591,
866 S.E.2d at 780.
Our determination in Mole’ that Tully’s protections apply to the termination
context is not binding, as on discretionary review our Supreme Court affirmed that
decision without precedential value. 384 N.C. 78, 884 S.E.2d 711 (2023).
Nevertheless, Mole’s rationale remains persuasive. However, in this case, even
assuming a public employer’s failure to abide by its own procedures when terminating
an employee constitutes a violation of constitutional protections, Plaintiff has not
stated a colorable claim for relief.
In order to state a direct constitutional claim grounded in the right to the fruits
of one’s own labor, a plaintiff must show “(1) a clear, established rule or policy existed
regarding the employment [termination] process that furthered a legitimate
governmental interest; (2) the employer violated that policy; and (3) the plaintiff was
injured as a result of that violation.” Tully, 370 NC at 537, 810 S.E.2d at 216. “If a
public employee alleges these elements, he has adequately stated a claim that his
employer unconstitutionally burdened his right to the enjoyment of the fruits of his
labor.” Id.
In her Complaint and on appeal, Plaintiff is unable to identify any established
rule or policy violated by the County Board when submitting its recommendation to
the State Board. The allegation in her Complaint states only:
50. There are clear, established policies and statutes that
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existed regarding Mrs. Allman’s employment and the operation of the Swain County Board of Elections and State Board of Elections.
51. Defendants violated those policies.
On appeal, Plaintiff argues this is sufficient to state a claim under North
Carolina’s notice pleading standard. Under the notice theory of pleading, “a
statement of a claim is adequate if it gives sufficient notice of the events or
transactions which produced the claim to enable the adverse party to understand its
nature and basis and to file a responsive pleading.” Pyco Supply Co., Inc. v. Am.
Centennial Ins. Co., 321 N.C. 435, 442, 364 S.E.2d 380, 384 (1988). Although this
standard does not require detailed factual allegations, “a complaint must nonetheless
state enough to give the substantive elements of at least some legally recognized
claim or it is subject to dismissal under Rule 12(b)(6).” Hayes v. Peters, 184 N.C. App.
285, 287, 645 S.E.2d 846, 847 (2007).
Here, Plaintiff has failed to allege an element of the constitutional claim by
failing to identify any “clear, established rule or policies or statutes” the County
Board violated. Because she has failed to identify the policy at issue, she has likewise
necessarily failed to allege such policy “furthered a legitimate governmental interest.”
Tully, 370 NC at + , 810 S.E.2d at 216. Simply stated, the Complaint is insufficient
to put the County Board on notice of any policy or statute it violated and allow it to
respond to the litigation.
On appeal, Plaintiff argues she alleged a policy violation by, in a separate
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section of her Complaint, alleging the County Board failed to “comply with open
meeting laws, including Article 33 of Chapter 143 of the General Statutes.” Article
33C of Chapter 143 promulgates general rules for meetings held by all public bodies
in the State, including the policy that “hearings, deliberations, and actions of these
bodies be conducted openly.” N.C. Gen. Stat. § 143-318.9. It is not clear that these
statutes constitute the type of rule or policy as those “regarding the employment
promotional process” required to state a claim under Tully, which protected the
plaintiff from actions of his employer “that, by their very nature, are unreasonable
because they contravene policies specifically promulgated by that employer for the
purpose of having a fair promotional process.” 370 N.C. at 536-37, 810 S.E.2d at 215-
16. Plaintiff’s Complaint appears to acknowledge this, as it alleges the County Board
failed to comply with open meeting laws separately from her allegation that it failed
to follow its own (unidentified) employment policies and procedures. Even assuming
violation of our open meeting laws could support a Tully claim, those very laws
require closed sessions when necessary “to prevent the disclosure of information that
is privileged or confidential” and authorize closed sessions “to consider the
qualifications, competence, performance, character, fitness . . . of an individual public
officer or employee[.]” N.C. Gen. Stat. § 143-318.11. Plaintiff has neither alleged the
County Board violated any particular internal employment policies or that it violated
our open meeting laws.
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Thus, Plaintiff has failed to establish a colorable constitutional claim that
Defendants violated her right to enjoy the fruits of her own labor. Therefore, the
constitutional claim was properly dismissed. The trial court did not err in dismissing
Plaintiff’s Petition and claims.
Conclusion
For the foregoing reasons, the trial court did not err in entering summary
judgment for Defendants on Plaintiff’s claim for declaratory judgment, and it did not
err in dismissing her constitutional claim. Accordingly, the trial court’s judgment is
affirmed.
Chief Judge DILLON and Judge ARROWOOD concur.
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