{
  "id": 8524745,
  "name": "NORTH CAROLINA DEPARTMENT OF TRANSPORTATION v. RONALD E. DAVENPORT",
  "name_abbreviation": "North Carolina Department of Transportation v. Davenport",
  "decision_date": "1991-04-02",
  "docket_number": "No. 9010SC844",
  "first_page": "476",
  "last_page": "479",
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    {
      "type": "official",
      "cite": "102 N.C. App. 476"
    }
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
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    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
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  "last_updated": "2023-07-14T21:20:04.252791+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Chief Judge Hedrick and Judge Lewis concur."
    ],
    "parties": [
      "NORTH CAROLINA DEPARTMENT OF TRANSPORTATION v. RONALD E. DAVENPORT"
    ],
    "opinions": [
      {
        "text": "COZORT, Judge.\nThe North Carolina Department of Transportation (DOT) appeals Judge Weeks\u2019 order modifying the Decision and Order of the State Personnel Commission by ordering that respondent Ronald Davenport receive back pay. We affirm.\nRespondent was employed by DOT as a highway engineer from 5 August 1967 until his suspension on 27 March 1987. From 1973 to the time of suspension, respondent was in charge of DOT\u2019s district office. Respondent requested and DOT granted him outside work permits authorizing him to engage in private survey work for 10 hours per week in the evenings and on weekends. During the time he was in charge of the district office, respondent commingled private business data with official documents in his office. DOT\u2019s evidence indicates that on several occasions respondent used DOT\u2019s copying machine for private purposes, had a secretary type matters not related to DOT\u2019s business, and made local telephone calls for other than official DOT business.\nOn 27 March 1987, Davenport was suspended without pay pending an investigation by the State Bureau of Investigation. The suspension letter did not specify any alleged misconduct on the part of the respondent. Respondent appealed his suspension and sought a hearing. On 3 September 1987, DOT gave respondent a letter of dismissal. The letter informed Davenport that he was being dismissed for actions constituting conflict of interest; abuse and misuse of departmental facilities, equipment and personnel; and conduct unbecoming a DOT employee. Although the letter indicated that Davenport had conducted personal business on State time, it failed to specify names, dates, or times when Davenport was alleged to have conducted private business matters during business hours. Respondent petitioned the Office of Administrative Hearings for a hearing pursuant to N.C. Gen. Stat. \u00a7 150B-23 (Cum. Supp. 1990).\nAt the hearing, the administrative law judge made factual findings and concluded that the evidence presented by DOT was insufficient to show \u201cjust cause\u201d to dismiss a career employee. The judge also concluded that DOT failed to give respondent specific reasons for his dismissal as required by law. Based on his findings and conclusions, the administrative law judge made the following recommended decision:\nThat the decision to dismiss [Davenport] be reversed as not being for just cause and that [Davenport] be reinstated with full benefits as well as attorney fees.\nThe State Personnel Commission (Commission) adopted the administrative law judge\u2019s findings of fact and conclusion that it had jurisdiction to find facts and issue a recommended decision. The Commission rejected, however, the judge\u2019s conclusion that respondent was entitled to back pay. The Commission ordered that respondent be reinstated, but that \u201cbecause of [respondent\u2019s] conduct in the matter, the Commission declines to order an award of backpay [sic].\u201d The Commission further recommended that disciplinary action be instituted against those responsible for DOT\u2019s failure to follow proper procedure in suspending and dismissing respondent. Pursuant to N.C. Gen. Stat. \u00a7 150B-45 (1987), DOT petitioned the Wake County Superior Court for judicial review of the Commission\u2019s final decision.\nThe superior court adopted as its own the administrative law judge\u2019s findings of fact. The court found that the \u201cState Personnel Commission abused its discretion and was arbitrary and capricious in its application of 25 N.C.A.C. IB .0243 [sic] in that the findings of fact indicate such egregious procedural violations that it constitutes lack of substantive just cause.\u201d The court concluded that the second part of N.C. Admin. Code tit. 25, r.lB.0432 (December 1989), which has a mandatory requirement for reinstatement, back pay and attorney\u2019s fees should have been applied. Rule .0432(b) provides:\nFailure to give specific reasons for dismissal, demotion or suspension without pay shall be deemed a procedural violation. The Personnel Commission, in its discretion, may award back pay and attorney\u2019s fees for such a violation or, it may determine that the violation is so severe that it rises to the level to constitute lack of substantive just cause; such a determination shall require reinstatement, backpay [sic] and attorney\u2019s fees as remedies.\nThe trial court concluded that, as a matter of law, the statute requires reinstatement and back pay because the procedural violations were so egregious that back pay was required. The court modified the Commission\u2019s decision to include all findings, conclusions and recommended decisions of the administrative law judge. DOT appeals.\nThe sole issue presented on appeal is whether the trial court erred by modifying the Commission\u2019s decision to provide respondent with back pay. We affirm.\nN.C. Gen. Stat. \u00a7 150B-51 (1987) provides the standard of review with which the superior court reviews a final decision in a contested case where an administrative judge has made a recommended decision. First, the court shall determine whether the Commission heard new evidence after receiving the recommended decision. In the present case, the Commission did not. Second, the court must determine whether the Commission\u2019s decision states the specific reasons the Commission did not adopt a recommended decision. Here, the Commission\u2019s order reveals reasons the administrative law judge\u2019s recommendation of back pay was not adopted. After these initial determinations, the reviewing court may affirm, remand, reverse or modify the decision. The court may reverse or modify the agency\u2019s decision\nif the substantial rights of the [party] may' have been prejudiced because the agency\u2019s findings, inferences, conclusions, or decisions are:\nH= * * *\n(6) Arbitrary or capricious.\nN.C. Gen. Stat. \u00a7 150B-51(b). It is clear from the record that the Commission found DOT\u2019s procedural violations to be egregious enough to recommend disciplinary actions against those who participated in the suspension and dismissal of respondent. Thus, the Commission made a determination that the violation was \u201cso severe that it rises to the level to constitute lack of substantive just cause.\u201d N.C. Admin. Code tit. 25, r.lB.0432 (December 1989). Rule .0432 requires that respondent receive back pay. Thus, the trial court did not err in holding that the Commission was arbitrary and capricious in its decision not to award back pay. The decision of the trial court is\nAffirmed.\nChief Judge Hedrick and Judge Lewis concur.",
        "type": "majority",
        "author": "COZORT, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Associate Attorney General Patsy Smith Morgan, for petitioner appellant.",
      "Nichols, Miller & Sigmon, P.A., by M. Jackson Nichols, for respondent appellee."
    ],
    "corrections": "",
    "head_matter": "NORTH CAROLINA DEPARTMENT OF TRANSPORTATION v. RONALD E. DAVENPORT\nNo. 9010SC844\n(Filed 2 April 1991)\nState \u00a7 12 (NCI3d)\u2014 dismissed employee \u2014no just cause \u2014proper procedure not followed \u2014 award of back pay proper\nThe trial court did not err in holding that the State Personnel Commission was arbitrary and capricious in its decision not to award back pay to respondent employee who had been dismissed without just cause and without following proper procedure.\nAm Jur 2d, Public Officers and Employees \u00a7 297.\nAPPEAL by petitioner from order entered 8 June 1990 by Judge Gregory A. Weeks in WAKE County Superior Court. Heard in the Court of Appeals 18 February 1991.\nAttorney General Lacy H. Thornburg, by Associate Attorney General Patsy Smith Morgan, for petitioner appellant.\nNichols, Miller & Sigmon, P.A., by M. Jackson Nichols, for respondent appellee."
  },
  "file_name": "0476-01",
  "first_page_order": 506,
  "last_page_order": 509
}