Dockery v. N.C. Department of Human Resources

463 S.E.2d 580, 120 N.C. App. 827, 1995 N.C. App. LEXIS 945

• Court: Court of Appeals of North Carolina
• Decided: November 21, 1995
• Docket: COA94-1039
• Status: Published

Opinion

ARNOLD, Chief Judge.

While Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 443 S.E.2d 114 (1994), might appear to state a new and different standard of review of administrative agency decisions at the appellate level, the standard of review is long-standing and has been correctly and lately followed in several recent cases, e.g., Wilkie v. Wildlife Resources Commission, 118 N.C. App. 475, 455 S.E.2d 871 (1995); Brooks v. Ansco & Associates, 114 N.C. App. 711, 443 S.E.2d 89 (1994); Teague v. Western Carolina University, 108 N.C. App. 689, 424 S.E.2d 684, disc. review denied, 333 N.C. 466, 427 S.E.2d 627 (1993).

In a most recent case, In re Ramseur, 120 N.C. App. -, 463 S.E.2d - (1995), moreover, it was properly pointed out that the precise scope of review by this Court is contained in N.C. Gen. Stat. § 150B-51 (1991):

(b) Standard of Review. — After making the determinations, if any, required by subsection (a), the court reviewing a final decision may affirm the decision of the agency or remand the case for further proceedings. It may also reverse or modify the agency’s decision if the substantial rights of the petitioners may have been prejudiced because the agency’s findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional provisions;

(2) In excess of the statutory authority or jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Unsupported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or

(6) Arbitrary or capricious.

Ramseur, in summarizing the familiar standard of review, notes that the appropriate standard will depend on the precise nature of appellant’s quarrel with the lower tribunal.

If it is alleged that the agency’s decision was based on an error of law, then de novo review is required. If, however, it is alleged that the agency’s decision was not supported by the evidence or that the decision was arbitrary or capricious, then the reviewing court must apply the “whole record” test.

Ramseur, 120 N.C. App. at — , 463 S.E.2d at -.

First, we note that, pursuant to N.C. Gen. Stat. § 150B-51(b), we apply de novo,review in reviewing the claims alleging errors of law, and the whole record test in reviewing the claims alleging that the Commission’s decision was not supported by substantial evidence. Id.

In its first assignment of error, the Department argues generally that the Commission’s decision was not supported by substantial evidence on the record. We disagree. “Substantial evidence is that which a reasonable mind would regard as adequately supporting a particular conclusion.” Walker v. N.C. Dept. of Human Resources, 100 N.C. App. 498, 503, 397 S.E.2d 350, 354 (1990), disc. review denied, 328 N.C. 98, 402 S.E.2d 430 (1991). Moreover, “[if], after all the record has been reviewed, substantial evidence supports the agency’s ruling, then the agency’s ruling must stand.” In Re: Appeal by McCrary, 112 N.C. App. 161, 168, 435 S.E.2d 359, 365 (1993). Upon review of the whole record, we find that although contradictory evidence may exist, there was substantial evidence to support the Commission’s Amended Decision and Order.

In its second assignment of error the Department argues that the Commission’s decision was affected by errors of law. We apply de novo review to address this issue. See Ramseur, supra. The Department argues first that the Commission improperly considered evidence of petitioner’s qualifications presented during the hearing but not during the application process. Respondent relies on Teague, 108 N.C. App. 689, 424 S.E.2d 684, to support its argument that it would be error for the Commission to consider evidence the Department was not aware of when making its decision.

Reliance on Teague for this contention is misplaced. In Teague, we considered whether the Commission was arbitrary and capricious in upholding the decision of an administrator who interviewed and declined to hire a state employee applying for another position with the state. In that case, unlike the case sub judice, the applicant was not required to file a new or updated application, and the administrator interviewing her did not have first-hand knowledge of the applicant’s work or qualifications. We noted that her “application was seriously deficient in describing her qualifications,” id. at 691, 424 S.E.2d at 685, and held that the Commission’s decision had a rational basis in the evidence and was not arbitrary and capricious. Id. at 693, 424 S.E.2d at 687. It was not necessary, then, to address the propriety of the Commission’s considering additional evidence.

Our conclusion in Teague, under the arbitrary and capricious standard, was not based on any pronouncement by this Court that it is an error of law for the Commission to consider additional evidence presented by the applicant after the application process is completed. Thus, as a matter of law, the Commission did not err in considering evidence of petitioner’s qualifications not presented during the application process.

The Department also argues that the Commission misapplied the state employee priority consideration provision under Section 126-7.1 of the State Personnel Act. N.C. Gen. Stat. § 126-7.1(c) (1993) states:

If a State employee subject to this section:

(1) Applies for another position of State employment; and

(2) Has substantially equal qualifications as an applicant who is not a State employee

then the State employee shall receive priority consideration over the applicant who is not a State employee.

Here, petitioner was a state employee who applied for another position of state employment, and there was substantial evidence to support the Commission’s findings, including the finding that petitioner’s qualifications were “substantially equal” to the non-state employee applicant. Thus, as a matter of law, the Commission did not err in applying the state employee priority consideration provision.

In its third assignment of error, the Department argues generally that the Commission’s decision was arbitrary and capricious. We disagree.

The “arbitrary or capricious” standard is a difficult, one to meet. Administrative agency decisions may be reversed as arbitrary or capricious if they are “patently in bad faith,” ... or “whimsical” in the sense that “they indicate a lack of fair and careful consideration” or “fail to indicate ‘any course of reasoning and the exercise of judgment’. ...”

Lewis v. N.C. Dept. of Human Resources, 92 N.C. App. 737, 740, 375 S.E.2d 712, 714 (1989) (citing Comm’r of Ins. v. Rate Bureau, 300 N.C. 381, 420, 269 S.E.2d 547, 573 (citations omitted)). Upon review of the record we do not find that the Commission’s decision was “patently in bad faith” or lacking in fair and careful consideration. Applying the whole record test, we find that the Commission’s decision was not arbitrary and capricious.

We find it unnecessary to address the Department’s fourth assignment of error.

Finally, we note that the petitioner appellee’s brief was not double-spaced and violated Rule 26(g) of the North Carolina Rules of Appellate Procedure. We caution counsel that such conduct is not acceptable to this Court.

Affirmed.

Judges GREENE and SMITH concur.