Church v. Madison County Board of Education

230 S.E.2d 769, 31 N.C. App. 641, 1976 N.C. App. LEXIS 2079
CourtCourt of Appeals of North Carolina
DecidedDecember 15, 1976
DocketNo. 7624SC502
StatusPublished
Cited by3 cases

This text of 230 S.E.2d 769 (Church v. Madison County Board of Education) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Church v. Madison County Board of Education, 230 S.E.2d 769, 31 N.C. App. 641, 1976 N.C. App. LEXIS 2079 (N.C. Ct. App. 1976).

Opinion

MARTIN, Judge.

The plaintiff’s complaint was dismissed, pursuant to G.S. 1A-1, Rule 12(b) (6), for failure to state a claim upon which relief could be granted. The sole issue before this Court is whether the trial court erred in dismissing the case under this rule. The defendants contend that dismissal was proper because the trial court did not have jurisdiction to entertain the case until the plaintiff had exhausted all the administrative remedies provided by G.S. 115-142. We agree with this contention.

The General Assembly has enacted an exhaustive statute concerning the employment and dismissal of public school teachers in North Carolina. This statute, G.S. 115-142, creates detailed procedures for settling contracts, dismissals, and demotions and is commonly referred to as the Tenure Act.

The pertinent sections of G.S. 115-142 aré summarized as follows:

“(h) Procedure for Dismissal or Demotion of Career Teacher. —
“ (1) A career teacher may not be dismissed, demoted, or reduced to part-time employment except upon the superintendent’s recommendation.
“ (2) Before recommending to a board the dismissal or demotion of the career teacher, the superintendent shall give written notice to the career teacher by certified mail of his intention to make such recommendation. . . .
“(3) Within the 15-day period after receipt of the notice, the career teacher may file with the superintendent a written request for ... (i) a review of the superintendent’s proposed recom[644]*644mendation by a panel of the Professional Review Committee. . . .
“(4) If a request for review is made, the superintendent, within five days of filing such request for review, shall notify the Superintendent of Public Instruction who, within seven days from the time of receipt of such notice, shall designate a panel of five members of the Committee (at least two of whom shall be lay persons) who shall not be employed in or be residents of the county in which the request for review is made, to review the proposed recommendations of the superintendent. . . .
“(i) Investigation by Panel of Professional Review Committee; Report; Action of Superintendent; Review by Board. —”
* * *
“(4) When the panel has completed its investigation, it shall prepare a written report and send it to the superintendent and teacher. The report shall contain an outline of the scope of its investigation and its finding as to whether or not the grounds for the recommendation of the superintendent are true and substantiated. . . .
“(5) Within five days after the superintendent receives the report of the panel, he shall submit his written recommendation for dismissal to the board with a copy to the teacher. . . .
“(6) Within seven days after receiving the superintendent’s recommendation and before taking any formal action, the board shall notify the teacher by certified mail that it has received the superintendent’s recommendation and the report of the panel. The notice shall state that if the teacher requests a hearing before the board on the superintendent’s recommendation, a hearing will be provided at the time and place specified in the notice.”
* * *
“(n) Appeal. — Any teacher who has been terminated by action of the board after a hearing pursuant to [645]*645subsections (k) or (1) shall have the right to appeal from the decision of the board to the superior court for the judicial district in which the teacher is employed. The appeal shall be filed within a period of 30 days after notification of the decision of the board. The cost of preparing the transcript shall be borne by the board.”

Plaintiff’s complaint clearly reveals that, until the time this lawsuit was instituted, she had proceeded under the Tenure Act. However, at the time the plaintiff’s complaint was filed, there still remained certain administrative remedies provided by G.S. 115-142 to which the plaintiff had not resorted. For example, although the plaintiff had requested a hearing pursuant to G.S. 115-142(i) (6), she failed to resort to this hearing to present her side of the dismissal issue. In fact, she even prevented this hearing from ever taking place by bringing the present action for damages and obtaining a preliminary injunction. In addition, the plaintiff failed to appeal her dismissal as provided in G.S. 115-142 (n). Instead of filing an appeal with the superior court after the board hearing and after dismissal, she brought the instant action in the superior court before either of these events took place.

In North Carolina, our courts have held that when the Legislature has provided an effective administrative remedy by statute, then that remedy is exclusive. Wake County Hospital v. Industrial Commission, 8 N.C. App. 259, 174 S.E. 2d 292 (1970). See also 1 Strong, N. C. Index 3d, Administrative Law, § 2 (1976). In addition, our courts have held that not only is the administrative remedy exclusive but also a party must pursue it and exhaust it before resorting to the courts. See King v. Baldwin, 276 N.C. 316, 172 S.E. 2d 12 (1970); Garner v. Weston, 263 N.C. 487, 139 S.E. 2d 642 (1965); Sinodis v. Board of Alcoholic Control, 258 N.C. 282, 128 S.E. 2d 587 (1962); Employment Security Commission v. Kermon, 232 N.C. 342, 60 S.E. 2d 580 (1950); Stevenson v. N. C. Department of Insurance, 31 N.C. App. 299, 229 S.E. 2d 209 (1976). See also 1 Strong, N. C. Index 3d, supra.

Our Supreme Court, in the case of Elmore v. Lanier, 270 N.C. 674, 155 S.E. 2d 114 (1967), has made the doctrine of the exhaustion of administrative remedies quite clear. In Elmore, the Commissioner of Insurance suspended the plaintiff’s insur-[646]*646anee license after a six-month investigation and charged him with some twenty-two violations. As in the instant case, a time was set for an administrative hearing on the charges against the plaintiff to determine what final action should be taken. Before this hearing could be concluded, the insurance agent, like the teacher in this appeal, went to the superior court and obtained an order restraining the Commissioner from proceeding under the legislative enacted administrative hearing and from doing any other act on the charges against the plaintiff. As in G.S. 115-142, the insurance agent, just like the appellant teacher before us, had the right to have any license revocation reviewed by filing a petition in the superior court within 30 days after the time of any final order of revocation. This case was appealed to the North Carolina Supreme Court and in an opinion by Justice Pless, it was held that the cause of action to restrain the Commissioner of Insurance from proceeding in accordance with the administrative procedure was not proper because there had been a failure to exhaust the administrative remedies provided.

This doctrine of exhausting administrative remedies has long been applied by the Supreme Court of this State. The doctrine, for example, has often been employed in taxpayer cases where the statutes provide administrative channels through which a taxpayer may question the appraisal of his property. Such cases have held that

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Related

Spry v. Winston-Salem/Forsyth County Board of Education
412 S.E.2d 687 (Court of Appeals of North Carolina, 1992)
Church v. MADISON COUNTY BD. OF EDUCATION
230 S.E.2d 769 (Court of Appeals of North Carolina, 1976)

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Bluebook (online)
230 S.E.2d 769, 31 N.C. App. 641, 1976 N.C. App. LEXIS 2079, Counsel Stack Legal Research, https://law.counselstack.com/opinion/church-v-madison-county-board-of-education-ncctapp-1976.