In re Altman

278 S.E.2d 297, 52 N.C. App. 291, 1981 N.C. App. LEXIS 2439

• Court: Court of Appeals of North Carolina
• Decided: June 2, 1981
• Docket: No. 8010SC923
• Status: Published

Opinion

HEDRICK, Judge.

We note at the outset that the City has conceded that the evidence presented before the Commission was sufficient to support the Commission’s findings and conclusions that the City “discriminated” against Altman “because of his labor affiliations in transferring captain Altman out of the Fire Prevention Bureau and in stating to Captain Altman that he would not be considered for the position of Fire Marshal of the City of Raleigh.”

Although numerous questions have been presented and argued by the parties on this appeal, we deem it necessary to consider only whether the Commission had the authority under the Civil Service Act of the City of Raleigh (hereinafter “Act”) to enter its order dated 29 November 1979.

Chapter 1154 of the 1971 North Carolina Session Laws in pertinent part provides:

SECTION 1. That a new Civil Service Act for the City of Raleigh is adopted to read as follows:

(b) Merit Principle. All appointments and promotions of the City officers and employees shall be made solely on the basis of merit and fitness demonstrated by examination or other evidence of competence. However, any employee who contends that he was not promoted because of bias or for reasons not related to merit, fitness, or availability of positions, shall have the right, after exhausting all administrative remedies, to appeal his cause to the Civil Service Commission.

(c) Employees Subject to Act. This act shall apply to all officers and employees of the City except the following:

(1) Officials elected by the people.

(2) Employees or officials appointed by the City Council or appointed by the City Manager and approved by the City Council and their immediate secretaries.

(3) Department heads, Division heads and their immediate secretaries.

(4) Part-time or non-permanent officers or employees.

(5) Employees serving their probationary periods before becoming permanent employees, not to exceed eight months.

(f) Appeal Board. The Civil Service Commission shall act as an appeal board to hear all appeals of employees regarding violation of City policy, suspensions, layoff, removal, promotions, forfeiture of pay or loss of time; but the Board shall have no jurisdiction to hear an appeal until all administrative remedies have been exhausted pursuant to the City’s established grievance procedure.

The Civil Service Commission shall have the authority to affirm, modify or reverse, as it deems necessary, those actions over which it has jurisdiction.

(h) Further Duties. The Civil Service Commission shall keep accurate records of its proceedings and shall have such other powers and duties as are necessary to implement the provisions of this act.

(i) Discrimination Prohibited. No person in the service of the City or seeking admission thereto shall in any way be discriminated against or favored because of race, creed or color, or because of political or labor affiliations, or because of sex or marital status.

The record before us demonstrates that the requisites for an appeal to the Commission, as provided by Sections (b) and (f) of the Act, were properly met in the present case. The record also indicates that respondent is an employee subject to the jurisdiction of the Commission as provided by Section (c) of the Act, and the city has conceded discrimination against Altman in violation of Section (i) of the Act. The record does not show, however, that the position to which respondent sought promotion, the Fire Marshal of the City of Raleigh, is subject to the jurisdiction of the Commission under Section (c) of the Act.

The record demonstrates that the Raleigh Fire Department has three divisions and that the position of City Fire Marshal is the top position in one of those divisions. The City Fire Marshal, then, is a “Division head” as described in Section (c)(3) of the Act, and the City Fire Marshal position is exempt from the provisions of the Act. The Commission therefore has no jurisdiction over the position of Fire Marshal, and as a result had no authority to entertain respondent’s appeal of the City’s refusal to promote him to Fire Marshal; thus, the Commission had no authority to appoint respondent to the position of Fire Marshal, or to award respondent “back pay” for the difference in salaries between his current rank of Captain and the position of Fire Marshal.

The Commission did find that the City had discriminated against respondent by other actions, and the Commission had the authority to entertain respondent’s appeal on those matters. The Commission’s authority in such matters, however, is not without limits; under Section (f) of the Act, the Commission can merely “affirm, modify or reverse” in deciding an appeal, and under Section (h), the Commission “shall have such other powers and duties as are necessary to implement the provisions of this act.” Such authority cannot be extended, in our opinion, to include ordering the payment of an attorney’s fee or in the alternative imposing punitive damages, or to include ordering the City to “prepare and submit revised promotional policies and procedures.”

It follows, therefore, that the 29 November 1979 order of the Commission must be vacated. While the superior court reached the same result in its 26 March 1980 order, the superior court erroneously based its conclusion that the Commission had no authority to appoint respondent as Fire Marshal upon its determination that the position of Fire Marshal had not been permanently filled as found by the Commission. As we have determined that the Commission has no authority under the Act to entertain an appeal relating to the City’s refusal to promote respondent to the position of Fire Marshal, the issue of whether the Fire Marshal position had been permanently filled is irrelevant.

Therefore, the Superior Court’s order, as it relates to the authority of the Commission with respect to the promotion of respondent to the position of Fire Marshal, must be modified to show that the Commission had no authority to entertain an appeal on such a matter, and thus had no authority to appoint respondent to the Fire Marshal position or to award respondent “back pay” as measured by the difference in salaries between his current position and that of Fire Marshal. As modified, the order of the Superior Court dated 26 March 1980 is affirmed.

Modified and affirmed.

Judges Arnold and Webb concur.