{ "id": 11919859, "name": "THOMAS A. RITTER, Petitioner v. DEPARTMENT OF HUMAN RESOURCES, Respondent", "name_abbreviation": "Ritter v. Department of Human Resources", "decision_date": "1995-04-18", "docket_number": "No. 9410SC615", "first_page": "564", "last_page": "568", "citations": [ { "type": "official", "cite": "118 N.C. App. 564" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "406 S.E.2d 613", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "616" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522023 ], "year": 1991, "pin_cites": [ { "page": "532" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0527-01" ] }, { "cite": "419 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "107 N.C. App. 192", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527329 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/107/0192-01" ] } ], "analysis": { "cardinality": 465, "char_count": 9779, "ocr_confidence": 0.745, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7490400019460594 }, "sha256": "160698281aab668af86758f57b7bec7e09381fe13b9d10acabbcc4fe746f15ef", "simhash": "1:d3e952d37da7897d", "word_count": 1473 }, "last_updated": "2023-07-14T20:04:31.897721+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and McGEE concur." ], "parties": [ "THOMAS A. RITTER, Petitioner v. DEPARTMENT OF HUMAN RESOURCES, Respondent" ], "opinions": [ { "text": "EAGLES, Judge.\nPetitioner contends that the trial court erred in affirming the State Personnel Commission\u2019s (hereinafter Commission) decision upholding his dismissal. After careful review of the record and briefs, we affirm.\nWe note initially that respondent has cross-assigned as error the administrative law judge\u2019s (hereinafter AU) denial of its motion to dismiss for lack of subject matter jurisdiction. Respondent contends that petitioner did not file a petition for a contested case hearing within thirty days of receiving respondent\u2019s letter confirming petitioner\u2019s dismissal. G.S. 126-38. Although the petition was not filed with the Office of Administrative Hearings within thirty days after petitioner received notice of respondent\u2019s decision, we exercise our discretion pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure to address the merits of petitioner\u2019s appeal.\nI.\nPetitioner first contends that the trial court erred in denying his request to remand the case to the Office of Administrative Hearings to take additional evidence regarding petitioner\u2019s alcohol assessment, treatment and recovery. We disagree.\nG.S. 150B-49 provides:\nAn aggrieved person who files a petition in the superior court may apply to the court to present additional evidence. If the court is satisfied that the evidence is material to the issues, is not merely cumulative, and could not reasonably have been presented at the administrative hearing, the court may remand the case so that additional evidence can be taken.\nPetitioner argues that he successfully completed an alcohol recovery program after the hearing before the Commission. Petitioner contends that his earlier misbehavior was due to alcohol and that the evidence of his alcoholism and treatment were material issues to the case and could not have been presented at the hearing.\nPetitioner was discharged for unacceptable personal conduct. His dismissal stemmed from his requesting Sheriff McQueen to write a letter discrediting one of petitioner\u2019s subordinate employees and his abusive behavior toward Sheriff McQueen when he refused to write such a letter. Petitioner\u2019s alcohol .assessment and subsequent treatment is not material to the issues involved. Petitioner\u2019s alcoholism does not afford petitioner a defense for his termination for just cause. Even if petitioner\u2019s alcohol assessment and treatment were issues material to petitioner\u2019s dismissal, the trial court\u2019s decision here to deny petitioner\u2019s motion to remand for additional evidence can be reversed only for abuse of discretion. G.S. 150B-49. This assignment of error is overruled.\nII.\nPetitioner further contends that the trial court erred in affirming his dismissal because the Commission did not state specific reasons for rejecting the recommended decision of the ALJ. We disagree.\nIf an agency does not adopt the AU\u2019s recommended decision as its final decision, the agency must state the specific reasons why it did not adopt the AU\u2019s recommended decision. G.S. 150B-36(b). Upon judicial review, a reviewing court must determine whether the agency\u2019s decision adequately states specific reasons why it did not adopt the Aid\u2019s decision. G.S. 150B-51(a). In Ford v. N.C. Dep\u2019t. of Environment, Health, and Natural Resources, 107 N.C. App. 192, 419 S.E.2d 204 (1992), this court affirmed a final agency decision where the respondent agency selectively adopted and rejected the Aid\u2019s recommended findings of fact. The respondent agency also rejected the Aid\u2019s conclusions of law based upon its own findings of fact. This court held that the respondent agency\u2019s order sufficiently satisfied the spirit of G.S. 150B-36 and G.S. 150B-51. Examining this record in light of Ford, we conclude that the Commission\u2019s order states with sufficient specificity the reasons why it did not adopt the Aid\u2019s recommended decision.\nPetitioner also contends here that the Commission erroneously rejected several of the Aid\u2019s findings of fact as \u201cirrelevant\u201d or \u201cnot supported by substantial, credible evidence.\u201d In reviewing a final agency decision, the trial court must apply the \u201cwhole record\u201d test, which requires an examination of all the evidence to determine whether the agency\u2019s decision is supported by substantial evidence. Rector v. N.C. Sheriffs\u2019 Educ. and Training Standards Com\u2019n., 103 N.C. App. 527, 532, 406 S.E.2d 613, 616 (1991); G.S. 150B-51(b)(5). The trial court is not permitted to substitute its judgment for the agency\u2019s judgment when there \u2022 are two reasonably conflicting views. Id. Respondent\u2019s decision to adopt its own findings of fact and to reject many of the Aid\u2019s recommended findings of fact is supported by the whole record. This assignment of error fails.\nIII.\nFinally, petitioner contends that the Commission\u2019s decision was arbitrary and capricious. Our review of the record shows that the Commission\u2019s decision dismissing petitioner is supported by the whole record and was not arbitrary and capricious. This assignment of error also fails.\nIn sum, the trial court did not err in affirming petitioner\u2019s dismissal for just cause.\nAffirmed.\nJudges WALKER and McGEE concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Allen & Pinnix, by M. Jackson Nichols, for petitioner-appellant.", "Attorney General Michael F. Easley, by Assistant Attorney General Robert M. Curran, for respondent-appellee." ], "corrections": "", "head_matter": "THOMAS A. RITTER, Petitioner v. DEPARTMENT OF HUMAN RESOURCES, Respondent\nNo. 9410SC615\n(Filed 18 April 1995)\n1. Administrative Law and Procedure \u00a7 77 (NCI4th)\u2014 dismissed State employee \u2014 personal misconduct \u2014 denial of remand for evidence of alcoholism treatment\nThe trial court did not err by denying the application of a State employee who was dismissed for personal misconduct to remand his case to the Office of Administrative Hearings to take additional evidence about his successful completion of an alcohol recovery program since alcoholism was not a defense to the employee\u2019s dismissal for just cause, and evidence about his treatment was not material to the issues in the case. N.C.G.S. \u00a7 150B-49.\nAm Jur 2d, Public Officers and Employees \u00a7 267.\n2. Administrative Law and Procedure \u00a7 44 (NCI4th)\u2014 decision by administrative law judge \u2014 reasons for not adopting \u2014 sufficient statement\nThe State Personnel Commission\u2019s order dismissing a State employee for just cause stated with sufficient specificity the reasons it did not adopt the administrative law judge\u2019s recommendation that the employee be disciplined and reinstated. The Commission\u2019s decision to adopt its own findings of fact and to reject many of the administrative law judge\u2019s findings of fact was supported by the whole record. N.C.G.S. \u00a7\u00a7 150B-36(b), 150B-51(a).\nAm Jur 2d, Public Officers and Employees \u00a7 267.\n3. Public Officers and Employees \u00a7 67 (NCI4th)\u2014 dismissal of State employee \u2014 personal misconduct \u2014 supporting evidence\nA decision by the State Personnel Commission to dismiss a State employee for unacceptable personal conduct based upon his request that a sheriff write a letter discrediting one of the employee\u2019s subordinates and his abusive behavior toward the sheriff when he refused to write such a letter was supported by the whole record and was not arbitrary and capricious.\nAm Jur 2d, Public Officers and Employees \u00a7 239.\nAppeal by petitioner from order entered 14 January 1994 by Judge Orlando F. Hudson in Wake County Superior Court. Heard in the Court of Appeals 28 February 1995.\nOn 22 April 1991, petitioner was dismissed by respondent for unacceptable personal conduct. Petitioner was employed with the Division of Facility Services as Head of the Jail and Detention Branch. As Head of the Jail and Detention Branch, petitioner was responsible for inspecting all county and municipal jails to insure that they complied with state laws and regulations. Petitioner was required to work closely with county sheriffs from across the State in the performance of his duties.\nOn 7 March 1991, petitioner attended a meeting of the North Carolina Sheriffs Association in Rocky Mount, North Carolina. Petitioner attended this meeting as part of his official duties. Sometime that evening, petitioner joined the Sheriff of New Hanover County, Joseph McQueen, Jr., and several others for dinner. During dinner, petitioner asked Sheriff McQueen to write a letter to David Flaherty, the Secretary of Human Resources, to discredit one of petitioner\u2019s subordinate employees. When Sheriff McQueen refused to write the letter, petitioner became verbally abusive toward Sheriff McQueen using extensive profanity. Petitioner also told Sheriff McQueen never to call petitioner again about any problems concerning the New Hanover County jail. Petitioner made these statements in the presence of several other sheriffs.\nThe following Monday, 11 March, Sheriff McQueen called Secretary Flaherty and told him about petitioner\u2019s abusive behavior. Sheriff Jack Henderson also called Secretary Flaherty about petitioner\u2019s behavior. These complaints were forwarded to petitioner\u2019s immediate supervisor, Lynda McDaniel, for investigation. McDaniel concluded that petitioner should be terminated based on his \u201cunacceptable personal conduct.\u201d On 23 August 1991, petitioner received respondent\u2019s decision confirming his dismissal.\nOn 26 September 1991, petitioner filed a petition for hearing. On 19 May 1992, after a hearing, the Chief Administrative Law Judge issued a recommended decision recommending that the State Personnel Commission uphold the determination of just cause, but recommended that petitioner be reinstated and appropriately disciplined. On 21 October 1992, the full State Personnel Commission upheld respondent\u2019s decision to dismiss petitioner for just cause. Petitioner sought judicial review and on 14 January 1994, the trial court affirmed petitioner\u2019s dismissal. Petitioner appeals.\nAllen & Pinnix, by M. Jackson Nichols, for petitioner-appellant.\nAttorney General Michael F. Easley, by Assistant Attorney General Robert M. Curran, for respondent-appellee." }, "file_name": "0564-01", "first_page_order": 596, "last_page_order": 600 }