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    "judges": [
      "Judge JOHNSON concurs.",
      "Judge COZORT concurs with a separate opinion."
    ],
    "parties": [
      "JUDY TEAGUE, Petitioner-Appellee v. WESTERN CAROLINA UNIVERSITY, Respondent-Appellant"
    ],
    "opinions": [
      {
        "text": "LEWIS, Judge.\nPetitioner-appellee, Judy Teague, claims she was denied her statutory right to priority consideration as a State employee under N.C.G.S. \u00a7 126-7.1 when she was passed over for a position at Western Carolina University\u2019s [hereinafter WCU] Center for Improving Mountain Living [hereinafter Center]. Ms. Teague had been employed by WCU for seven years when she applied for the position of Social Research Assistant II at the Center in 1989. Rita Murchison, who was not a State employee at the time, also applied for the position. After reviewing the applications and interviewing the candidates, WCU chose Ms. Murchison to fill the position. Ms. Teague appealed to the Office of Administrative Hearings after exhausting her on-campus administrative remedies. Although the Administrative Law Judge recommended that the State Personnel Commission [hereinafter Commission] find Ms. Teague had been denied her statutory priority consideration, the Commission determined that she was not entitled to relief. The superior court reversed the Commission\u2019s decision on the basis that it was arbitrary and capricious, and ordered back pay, back benefits, reasonable attorney fees, and placement in a comparable position. WCU appeals to this Court, asserting that the superior court erred in finding that the Commission\u2019s decision was arbitrary and capricious.\nRequirements for the position of Social Research Assistant II, as advertised, included a B.S. or B.A. degree in business, economics or accounting, one year full-time experience in a business field or economic development research, as well as interpersonal and communications skills. The position involved supervision of graduate students\u2019 research projects, individual research projects and economic development projects.\nMs. Teague held a B.S.B.A. degree from WCU in accounting and computer information systems and an M.B.A. degree from WCU. She had extensive research and marketing experience dating back to 1966, including seven years operating a small family business owned by her ex-husband. Ms. Murchison held a B.S.B.A. degree from WCU in computer information systems and had completed several courses towards her M.B.A. degree. She had had ten months experience as a graduate assistant to the head of the business school, and worked as a part-time instructor in a community college teaching computer literacy and small business management. She had worked on other relevant projects in her capacity as a graduate student, and had owned her own craft shop for four years.\nMs. Teague, as a State employee, was not required to file a hew or updated application and did not do so. Her application, originally submitted for the position of Computer Applications Programmer II in 1987, did not contain all of her experience pertinent to this particular position and did not emphasize her relevant skills. It contained no references to business research experience. Ms. Teague conceded that her application was seriously deficient in describing her qualifications for this position. Ms. Murchison\u2019s application, on the other hand, was up to date and tailored to the Social Research Assistant II position.\nThomas V. McClure, Associate Director of the Center for Improving Mountain Living, interviewed the candidates. Although he had been told that no one qualified for the State employee priority consideration, he was aware that State employees had that right. During her interview Ms. Teague informed Mr. McClure that she had an M.B.A. degree, which was not listed on her application. She failed, however, to mention any of her business research experience. Ms. Murchison, in contrast, had listed her research experience on her application and elaborated on it during her interview.\nMs. Murchison was hired for the position in July 1990. Ms. Teague immediately sought relief through the appropriate administrative channels, the Commission, and the courts.\nSection 126-7.1 states that a current State employee applying for another position in State employment, and who has \u201csubstantially equal qualifications\u201d as another applicant who is not a State employee, will receive priority consideration for the position. N.C.G.S. \u00a7 126-7.1(c) (1991). \u201cQualifications\u201d is defined to include training or education, years of experience, and other, relevant skills and abilities that \u201cbear a reasonable functional relationship\u201d to the vacant position. \u00a7 126-7.1(d).\nReview of an administrative decision is governed by \u00a7 150B-51 of the Administrative Procedure Act, which states that a court may reverse or modify an agency decision that is, among other things, arbitrary and capricious. \u00a7 150B-51(b)(6) (1991). Under this statute, the standard of review for appellate courts is the same as that for superior courts. Jarrett v. N.C. Dep\u2019t of Cultural Resources, 101 N.C. App. 475, 478, 400 S.E.2d 66, 68 (1991). This Court has stated: \u201cWhile our review is limited to assignments of error to the superior court\u2019s order, this Court is not required to accord any particular deference to the superior court\u2019s findings and conclusions concerning the Commission\u2019s actions.\u201d Watson v. N.C. Real Estate Comm., 87 N.C. App. 637, 640, 362 S.E.2d 294, 296 (1987), cert. denied and temporary stay denied, 321 N.C. 746, 365 S.E.2d 296 (1988). This Court will certainly treat with respect and carefully consider any findings of a trial court though we are not bound by them.\nAn appellate court may not, however, disturb an agency\u2019s assessment of the credibility of the witnesses and the weight and sufficiency to be given to the testimony, Commissioner of Ins. v. N.C. Rate Bureau, 300 N.C. 381, 406, 269 S.E.2d 547, 565 (1980), and may not override decisions within the agency\u2019s discretion if made in good faith and in accordance with the law. Jarrett at 479, 400 S.E.2d at 68 (citation omitted).\nThe arbitrary and capricious standard is very difficult to meet. Id. (citation omitted). When reviewing a final administrative decision, courts must apply the \u201cwhole record\u201d test to determine whether the decision was arbitrary and capricious. Webb v. N.C. Dep\u2019t of Environment, Health, and Natural Resources, 102 N.C. App. 767, 770, 404 S.E.2d 29, 32 (1991). A decision is arbitrary and capricious if it was \u201cpatently in bad faith,\u201d \u201cwhimsical,\u201d or if it lacked fair and careful consideration. Lewis v. N.C. Dep\u2019t of Human Resources, 92 N.C. App. 737, 740, 375 S.E.2d 712, 714 (1989) (citations omitted). In applying the whole record test the court must consider all of the evidence, both supportive and contradictory, Mount Olive Home Health Care Agency, Inc. v. N.C. Dep\u2019t of Human Resources, 78 N.C. App. 224, 228, 336 S.E.2d 625, 627 (1985), to determine whether the agency decision has a rational basis. Bennett v. Hertford County Bd. of Educ., 69 N.C. App. 615, 618, 317 S.E.2d 912, 915 cert. denied, 312 N.C. 81, 321 S.E.2d 893 (1984).\nThe evidence presented in the case at hand does not lead this Court to the conclusion that the Commission\u2019s decision to uphold Mr. McClure\u2019s determination was \u201cpatently in bad faith\u201d or \u201cwhimsical.\u201d Lewis, 92 N.C. App. at 740, 375 S.E.2d at 714. Mr. McClure had to make his decision based on the qualifications he found in the applications and elicited during the interviews. Ms. Teague\u2019s application did not state that she held an advanced degree, nor did it contain any references to her relevant and substantial experience. Even so, she had an opportunity to discuss such experience during her interview. Although Mr. McClure testified that he gave all the applicants ample opportunity to describe related experiences and explain why they were best qualified for the position, Ms. Teague failed to do so. Based upon the information he had before him, Mr. McClure reasonably concluded that Ms. Teague\u2019s qualifications were not \u201csubstantially equal\u201d to Ms. Murchison\u2019s.\nAfter reviewing all of the evidence, both supportive and contradictory, this Court holds that the Commission\u2019s decision to uphold Mr. McClure\u2019s findings had a rational basis in the evidence and was not arbitrary and capricious. We reverse the decision of the superior court and reinstate the opinion of the Commission.\nReversed.\nJudge JOHNSON concurs.\nJudge COZORT concurs with a separate opinion.",
        "type": "majority",
        "author": "LEWIS, Judge."
      },
      {
        "text": "Judge COZORT\nconcurring.\nI agree with the majority that, based on the information presented to Mr. McClure at the time he made the decision to hire Ms. Murchison, petitioner Teague did not possess substantially equal qualifications and was thus not entitled to priority consideration. The evidence available after that point in time demonstrates that Ms. Teague did possess substantially equal qualifications and should be entitled to priority. However, it is the duty of the applicant to make all qualifications known at the appropriate time, and petitioner Teague must bear the burden of failing to present all her qualifications to Mr. McClure. I write only to emphasize this point.",
        "type": "concurrence",
        "author": "Judge COZORT"
      }
    ],
    "attorneys": [
      "Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Michelle Rippon, for petitioner-appellee.",
      "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General Thomas J. Ziko, for respondent-appellant."
    ],
    "corrections": "",
    "head_matter": "JUDY TEAGUE, Petitioner-Appellee v. WESTERN CAROLINA UNIVERSITY, Respondent-Appellant\nNo. 9130SC951\n(Filed 19 January 1993)\nState \u00a7 12 (NCI3d)\u2014 State employee \u2014 job application \u2014statutory right to priority consideration \u2014 no denial\nThe trial court erred in concluding that plaintiff was denied her statutory right to priority consideration as a State employee under N.C.G.S. \u00a7 126-7.1 when she was passed over for a position at defendant University where the evidence tended to show that plaintiff\u2019s resume was not up to date with regard to her education or work experience, while her competitor who was not a State employee did include this information on her resume; during the course of interviews plaintiff did not discuss her relevant experience and explain why she was the best candidate for the position, while the non-State employee candidate did; and the person with hiring authority, after considering both resumes and both candidates\u2019 interviews, could legitimately conclude that plaintiff\u2019s qualifications were not \u201csubstantially equal\u201d to her competitor\u2019s.\nAm Jur 2d, Public Officers and Employees \u00a7 38.\nJudge COZORT concurring.\nAppeal by respondent from order entered 5 July 1991 by Judge Beverly T. Beal in Jackson County Superior Court. Heard in the Court of Appeals 13 October 1992.\nVan Winkle, Buck, Wall, Starnes and Davis, P.A., by Michelle Rippon, for petitioner-appellee.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General Thomas J. Ziko, for respondent-appellant."
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  "file_name": "0689-01",
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