Cunningham v. Catawba County

493 S.E.2d 82, 128 N.C. App. 70, 1997 N.C. App. LEXIS 1208
CourtCourt of Appeals of North Carolina
DecidedDecember 2, 1997
DocketNo. COA97-23
StatusPublished
Cited by3 cases

This text of 493 S.E.2d 82 (Cunningham v. Catawba County) 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
Cunningham v. Catawba County, 493 S.E.2d 82, 128 N.C. App. 70, 1997 N.C. App. LEXIS 1208 (N.C. Ct. App. 1997).

Opinion

GREENE, Judge.

Sandra Cunningham (petitioner) appeals from a judgment and order of the Catawba County Superior Court (trial court) which rein[71]*71stated her as an employee of the defendant, Catawba County (County), but reduced her award for attorney fees to $6,430.00 and denied her request for back pay.

The facts reveal that on 2 July 1993, petitioner was dismissed from her job as a social worker with the Catawba County Department of Social Services (DSS) (an agency of the County) for “falsifying job information through misrepresentation of [her] credentials.” County manager, J. Thomas Lundy, ultimately upheld petitioner’s dismissal after she appealed it in accordance with section 16-112 of the Catawba County Personnel Code. Petitioner then requested a contested case hearing with the North Carolina Office of Administrative Hearings pursuant to Chapters 126 and 150B of the North Carolina General Statutes.

The State Personnel Commission (Commission), relying on evidence presented before an Administrative Law Judge (ALJ), issued its “Recommendation” in two parts. The first “Recommendation,” dated 27 September 1994, recommended that petitioner be reinstated to her former position or similar one, be awarded back pay and applicable benefits, and be awarded reasonable attorney fees. The second “Recommendation,” dated 31 March 1995, recommended that the County pay petitioner’s attorney fees in the amount of $11,399.00. The County responded to the “Recommendations” in a letter dated 3 May 1995 that it “[would] not follow the recommendations” of the Commission. This letter made no findings of fact or conclusions of law, did not specify the reasons for rejecting the Commission’s recommended decision, and was not served upon the petitioner. The petitioner then filed a petition in superior court to enforce the decision of the Commission.

The trial court focused “its review on the final decision of the [County] in accordance with G.S. 150B-51.” The trial court then reviewed the evidence presented to the AU and found that the decision by the County to dismiss the petitioner was “unsupported by substantial evidence.” The trial court further found that because the record did not contain any evidence “with regard to [the petitioner’s] post discharge earnings” it was without authority to order an award of back pay. Finally, the trial court found that the petitioner was entitled to an award of attorney fees only “for the contested case proceedings before the [ALJ], the . . . Commission, and appeal to the Superior Court. ...”

[72]*72The dispositive issue is whether a “local appointing authority,” within the meaning of N.C. Gen. Stat. § 126-37, is required to render its decision in accordance with N.C. Gen. Stat. § 150B-36(b).

Employees of a “local appointing authority,” here DSS, are subject to the provisions of the State Personnel System, as are state employees. N.C.G.S. § 126-5(a)(2) (1995) (listing non state employees subject to Chapter 126); N.C.G.S. § 126-37(a) (1993). As such, DSS employees “may commence a contested case under [Chapter 150B, Article 3] . . . .” N.C.G.S. § 150B-23(a) (1995); N.C.G.S. § 126-37(a) (1993). The Commission, after a hearing before an ALJ, “shall make a final decision in these cases as provided in G.S. 150B-36.” N.C.G.S. § 126-37(a) (1993). Except when the Commission “finds that the employee has been subjected to discrimination ...[,] the decisions of the . . . Commission shall be advisory to the local appointing authority.” Id. An employee “dissatisfied with . . . the action taken by the local appointing authority pursuant to the decision [of the Commission] shall be heard [by the superior court] upon the record and not as a trial de novo.” N.C.G.S. § 126-37(b) (1993). Although “local appointing authorities]” are not agencies within the meaning of the Administrative Procedure Act (Act), see N.C.G.S. § 150B-2(1) (1995), “the principles embodied in the Act ‘are highly pertinent’ to” review by the superior court, Vulcan Materials Co. v. Guilford County Bd. of Comrs., 115 N.C. App. 319, 322, 444 S.E.2d 639, 642, disc. review denied, 337 N.C. 807, 449 S.E.2d 758-59 (1994) (quoting Concrete Co. v. Board of Commissioners, 299 N.C. 620, 625, 265 S.E.2d 379, 382 (1980)), rehearing denied, 300 N.C. 562, 270 S.E.2d 106 (1980). Thus, the superior court reviewing a decision by a “local appointing authority,” within the context of a Chapter 126 proceeding, “must determine if the decision is affected by any error of law; made upon unlawful procedure; comports with due process; is supported by competent, material, and substantial evidence in the whole record; or is arbitrary and capricious.” Vulcan Materials, 115 N.C. at 322, 444 S.E.2d at 642;1 see Gray v. Orange County Health Dept., 119 N.C. App. 62, 73, 457 S.E.2d 892, 900 (1995) (applying Chapter 150B to review of decision of local health department),2 disc. review denied, 341 N.C. 649, 462 S.E.2d 511 (1995).

[73]*73The petitioner argues that DSS, as the “local appointing authority,” was bound to make its final decision “in accordance with G.S. 150B-36” and that failure to do so requires that the decision of the Commission be adopted as the final decision of DSS.

There is no dispute that the final decision of DSS did not comply with the requirements of section 150B-36(b) in that it: (1) did not include any findings of fact; (2) did not include any conclusions of law; (3) did not state specific reasons why DSS refused to adopt the decision of the Commission; and (4) was not personally served upon the petitioner or delivered to her by certified mail. N.C.G.S. § 150B-36(b) (1995). Is the “local appointing authority” required to follow section 150B-36? Section 126-37, as it existed on the date this action was filed, is silent on that question. It can be argued that because section 126-37 does not specifically require compliance with section 150B-36(b), compliance is not required. It can be argued, however, that because judicial review of the “local appointing authority[’s]” final decision is to be conducted consistent with the principles of the Act, that decision must be entered consistent with the Act, including section 150B-36. See Gray, 119 N.C. App. at 72, 457 S.E.2d at 899 (1992 local health department decision rejecting recommendations of Commission included specific reasons explaining why it refused to adopt recommendations). This ambiguity must be resolved by determining the intent of the legislature. In determining that intent, it is proper to review any amendments to the statute that may reveal or address the ambiguity. Al Smith Buick Co. v. Mazda Motor of America, 122 N.C. App. 429, 435, 470 S.E.2d 552, 555 (1996), disc. review denied, 343 N.C. 749, 473 S.E.2d 609-10 (1996).

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Bluebook (online)
493 S.E.2d 82, 128 N.C. App. 70, 1997 N.C. App. LEXIS 1208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cunningham-v-catawba-county-ncctapp-1997.