{ "id": 11917678, "name": "DOLORES D. SIMONEL, Petitioner v. NORTH CAROLINA SCHOOL OF THE ARTS; THE UNIVERSITY OF NORTH CAROLINA; and ALEXANDER C. EWING, Respondents", "name_abbreviation": "Simonel v. North Carolina School of the Arts", "decision_date": "1995-08-15", "docket_number": "No. COA95-71", "first_page": "772", "last_page": "777", "citations": [ { "type": "official", "cite": "119 N.C. App. 772" } ], "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": "N.C. Gen. Stat. \u00a7 116-34", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "341 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "112" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 201", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522738 ], "year": 1986, "pin_cites": [ { "page": "206" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0201-01" ] }, { "cite": "452 S.E.2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "338 N.C. 514", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519559, 2521484, 2518991, 2520368, 2517306 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/338/0514-04", "/nc/338/0514-02", "/nc/338/0514-03", "/nc/338/0514-05", "/nc/338/0514-01" ] }, { "cite": "446 S.E.2d 847", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "849-850" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 15", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521931 ], "year": 1994, "pin_cites": [ { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0015-01" ] } ], "analysis": { "cardinality": 450, "char_count": 10791, "ocr_confidence": 0.709, "pagerank": { "raw": 1.2240919645422112e-07, "percentile": 0.603551017839264 }, "sha256": "4d142973b53fcd51bc98ea173639e4ebe0db7da6e9d3aaf5fa201b467309931c", "simhash": "1:1eeb1033e3030a5b", "word_count": 1675 }, "last_updated": "2023-07-14T17:09:59.579385+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and WYNN concur." ], "parties": [ "DOLORES D. SIMONEL, Petitioner v. NORTH CAROLINA SCHOOL OF THE ARTS; THE UNIVERSITY OF NORTH CAROLINA; and ALEXANDER C. EWING, Respondents" ], "opinions": [ { "text": "MARTIN, MARK D., Judge.\nRespondents appeal from judgment concluding the North Carolina School of Arts failed to follow its own regulations governing the review of petitioner\u2019s non-reappointment. We affirm.\nOn 30 August 1988 petitioner Dolores Simonel entered into a five-year, fixed-term contract as a faculty member of respondent North Carolina School of the Arts (NCSA). Petitioner\u2019s contract was expressly made subject to the NCSA Regulations on Academic Freedom and Faculty Appointments, Promotions, and Discharge (NCSA Regulations).\nOn 5 June 1992, following the required institutional review of petitioner\u2019s performance, NCSA Chancellor Alex C. Ewing informed petitioner of his decision not to renew her appointment to the NCSA faculty. Pursuant to section 8a of the NCSA Regulations, petitioner requested and was granted a meeting with Chancellor Ewing to discuss the reasons for non-reappointment. In a letter dated 12 June 1992, Chancellor Ewing restated his decision not to renew petitioner\u2019s contract.\nOn 23 June 1992, pursuant to section 8b, footnote 3 of the NCSA Regulations, petitioner requested review of the Chancellor\u2019s decision by the NCSA Faculty Grievance Committee (FGC). Petitioner appealed the Chancellor\u2019s decision on the grounds that it was based upon personal malice, violated her academic freedom, and violated her rights to procedural and substantive due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, section 19 of the North Carolina Constitution. In November 1992 the FGC conducted a hearing and found that the decision not to reappoint petitioner was (1) based upon the impermissible ground of personal malice; and (2) not based upon the impermissible ground of violation of First Amendment rights. The FGC sent a report to the Chancellor stating its findings. The Chancellor reviewed the FGC\u2019s decision and entered his second decision not to renew petitioner\u2019s contract.\nIn accordance with section 8b of the NCSA Regulations, petitioner appealed to the NCSA Board of Trustees. Petitioner contended the decision not to reappoint her was based upon the impermissible grounds of (1) personal malice (2) violation of petitioner\u2019s First Amendment Rights, and (3) unlawful age discrimination. In addition, petitioner contended the reappointment process violated her rights to procedural and substantive due process of law as guaranteed under the federal and state constitutions. A committee, appointed by the Board of Trustees, determined petitioner did not establish that failure to renew her contract was based on impermissible grounds. The committee, however, did not address petitioner\u2019s procedural claim.\nPursuant to section 8d of the NCSA Regulations and section 501C(4) of the Code of the Board of Governors of the University of North Carolina (the Code), petitioner appealed the Board of Trustees\u2019 decision to the President and Board of Governors of the University of North Carolina. On 10 September 1993 the Board affirmed the decision not to renew petitioner\u2019s contract and rejected her contention that Chancellor Ewing\u2019s review of the FGC decision was a procedural violation of the NCSA Regulations.\nPetitioner then filed a petition for judicial review pursuant to N.C. Gen. Stat. \u00a7 150B-43. In her petition, she claimed the Board of Governors erred in affirming the NCSA\u2019s decision and alleged that the decisions of the Board of Governors and the NCSA were made upon unlawful procedure.\nThe trial court concluded in pertinent part:\n1. Section 8b of the Regulations provides for review of the Chancellor\u2019s decision concerning non-reappointment of a faculty member. Within that procedure, footnote 3 permits the faculty member to request review by the Faculty Grievance Committee. There was no authority in the Regulations for the decision of the Faculty Grievance Committee to be reviewed by the Chancellor.\n3. Since the Chancellor exceeded his authority under the Regulations and respondents\u2019 decision was made upon an unlawful procedure, the substantial rights of the petitioner may have been prejudiced in violation of N.C.G.S. \u00a7 150B-51(b) ....\nThe trial court ordered the reinstatement of petitioner to her former position for one year, and ordered the NCSA to fairly evaluate her during that period.\nThe question presented on appeal is whether the trial court erred in concluding that \u201cthe Chancellor exceeded his authority under the Regulations and respondents\u2019 decision was made upon an unlawful procedure.\u201d\nRespondents contend the trial court erred in its construction of the review procedure set forth within the NCSA Regulations. Respondents argue that, under the NCSA Regulations, the FGC\u2019s authority is strictly advisory and the Chancellor retains the ultimate authority to reject the FGC\u2019s recommendations.\nOn appeal from a lower court\u2019s consideration of a final agency decision under the Administrative Procedure Act, N.C. Gen. Stat. \u00a7\u00a7 150B-1, et seq., our scope of review is to determine whether the trial court committed any errors of law. Alexander v. N.C. Department of Human Resources, 116 N.C. App. 15, 17, 446 S.E.2d 847, 849-850, disc. review denied, 338 N.C. 514, 452 S.E.2d 805 (1994). Moreover, an administrative agency\u2019s interpretation of its own regulation should be accorded due deference unless it is plainly erroneous or inconsistent with the regulation. Pamlico Marine Co. Inc., v. N.C. Dept. of Natural Resources, 80 N.C. App. 201, 206, 341 S.E.2d 108, 112 (1986).\nPursuant to authority granted by the Board of Governors of the University of North Carolina, the NCSA adopted regulations governing faculty employment policies. The Code of the Board of Governors of the University of North Carolina, \u00a7 602. The NCSA Regulations set forth specific procedures that employees seeking review of non-reappointment decisions must follow. Petitioner\u2019s contract with NCSA was expressly made subject to the NCSA Regulations.\nSection 3c. (5) of the NCSA Regulations provides in pertinent part: \u201cThe Chancellor shall inform the faculty member . .. whether the faculty member\u2019s reappointment will be recommended to the Board of Trustees. This decision is final except as it may later be reviewed in accordance with the provisions of Section 8.\u201d\nSection 8(b) of the NCSA Regulations states:\nb. Request for Review bv the Board of Trustees: Scope of Review\nWithin five days after he receives notice of an unfavorable action resulting from the conference with the Chancellor, the faculty member mav request a review of the decision not to reappoint him bv the Board of Trustees or a Board committee of not less than three members, [footnote 31. Such review may be had solely to determine whether the decision not to reappoint was based upon any of the grounds stated to be impermissible in Section 3 d.\nNorth Carolina School of Arts, Regulations on Academic Freedom and Faculty Appointments, Promotions, and Discharge, as approved by the Board of Governors of the University of North Carolina, August 8, 1980. (emphasis added).\nFootnote 3 states:\nIf the faculty member so desires, he may first request a review bv the Faculty Grievance Committee. Such a review may be had solely to determine whether the decision not to re-appoint was based upon any of the grounds stated to be impermissible in Section 3d.\nId. (emphasis added).\nThe NCSA Regulations expressly gave petitioner the right to request FGC review of the Chancellor\u2019s final decision before appealing to the Board of Trustees. Petitioner exercised this right, and the FGC determined the Chancellor\u2019s decision not to reappoint was based upon impermissible grounds. We believe the Chancellor\u2019s subsequent review and ultimate rejection of the FGC\u2019s report does not comport with the review procedure expressly set forth in the NCSA Regulations.\nIn our view this construction is compelled by the express language of the NCSA Regulations as approved by the University of North Carolina Board of Governors pursuant to section 602 of the Code. There is no express provision within the NCSA Regulations which allowed the Chancellor to review the FGC report authorized by section 8b, footnote 3 of the NCSA Regulations.\nAccordingly, we conclude the trial court did not err in concluding \u201cthe Chancellor exceeded his authority under the Regulations and respondents\u2019 decision was made upon an unlawful procedure.\u201d\nWe are not unmindful that N.C. Gen. Stat. \u00a7 116-34(a) vests supervisory authority in the Chancellor of each constituent institution of the University of North Carolina:\nThe chancellor . . . shall exercise complete executive authority .. . subject to the direction of the President. He shall be responsible for carrying out policies of the Board of Governors and of the board of trustees.\nN.C. Gen. Stat. \u00a7 116-34(a) (1994). See also Code of the Board of Governors of the University of North Carolina, \u00a7 502B(4). However, this general supervisory authority must be exercised consistent with the express language of the NCSA Regul\u00e1tions governing petitioner\u2019s employment contract with the NCSA.\nAffirmed.\nJudges EAGLES and WYNN concur.", "type": "majority", "author": "MARTIN, MARK D., Judge." } ], "attorneys": [ "Elliot, Pishko, Gelbin & Morgan, P.A., by Robert M. Elliot, for petitioner-appellee.", "Attorney General Michael F. Easley, by Special Deputy Attorney General Thomas J. Ziko, for respondent-appellants." ], "corrections": "", "head_matter": "DOLORES D. SIMONEL, Petitioner v. NORTH CAROLINA SCHOOL OF THE ARTS; THE UNIVERSITY OF NORTH CAROLINA; and ALEXANDER C. EWING, Respondents\nNo. COA95-71\n(Filed 15 August 1995)\nColleges and Universities \u00a7 12 (NCI4th)\u2014 N.C. School of the Arts \u2014 decision not to renew teacher\u2019s contract \u2014 decision made upon unlawful procedure\nThe trial court did not err in concluding that the chancellor of the N.C. School of the Arts exceeded his authority under the school\u2019s regulations by reviewing and rejecting a faculty grievance committee\u2019s report finding that his decision not to renew a faculty member\u2019s contract was based upon the impermissible ground of personal malice and that the final decision not to reappoint the faculty member was thus made upon an unlawful procedure where the regulations gave the faculty member the right to request a faculty grievance committee review of the chancellor\u2019s decision before appealing to the school\u2019s board of trustees; the faculty member exercised this right; and no provision of the regulations allowed the chancellor to review the faculty grievance committee report. The chancellor\u2019s general supervisory authority set forth in N.C.G.S. \u00a7 116-34(a) must be exercised consistent with the express language of the school\u2019s regulations.\nAm Jnr 2d, College and Universities \u00a7\u00a7 1, 11, 16.\nAppeal by respondents from judgment filed 3 October 1994 by Judge Howard R. Greeson, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 6 June 1995.\nElliot, Pishko, Gelbin & Morgan, P.A., by Robert M. Elliot, for petitioner-appellee.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Thomas J. Ziko, for respondent-appellants." }, "file_name": "0772-01", "first_page_order": 806, "last_page_order": 811 }