{ "id": 11916129, "name": "NORTH CAROLINA DEPARTMENT OF CORRECTION, Petitioner v. GLENN E. MYERS, Respondent", "name_abbreviation": "North Carolina Department of Correction v. Myers", "decision_date": "1995-10-17", "docket_number": "No. COA95-135", "first_page": "437", "last_page": "444", "citations": [ { "type": "official", "cite": "120 N.C. App. 437" } ], "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": "9 ALR4th 20", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "26 ALR3d 492", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "N.C. Gen. Stat. \u00a7 126-37", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1993, "opinion_index": 0 }, { "cite": "462 S.E.2d 671", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "120 N.C. App. 461", "category": "reporters:state", "reporter": "N.C. App.", "year": 1995, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "437 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "381" } ], "opinion_index": 0 }, { "cite": "335 N.C. 183", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529224 ], "year": 1993, "pin_cites": [ { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0183-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-19.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1986, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-35", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1993, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-22", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1993, "opinion_index": 0 }, { "cite": "293 S.E.2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "176" } ], "opinion_index": 0 }, { "cite": "306 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568091 ], "year": 1982, "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0231-01" ] }, { "cite": "372 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "889-90" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526141 ], "year": 1988, "pin_cites": [ { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0527-01" ] }, { "cite": "253 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "922" } ], "opinion_index": 0 }, { "cite": "297 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566826 ], "year": 1979, "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0048-01" ] }, { "cite": "435 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "363" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 161", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520617 ], "year": 1993, "pin_cites": [ { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0161-01" ] }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1994, "pin_cites": [ { "page": "118-19" }, { "page": "118" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527936 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "675" }, { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0668-01" ] }, { "cite": "346 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697093, 4703166 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0386-02", "/nc/316/0386-01" ] }, { "cite": "340 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "377" } ], "opinion_index": 0 }, { "cite": "315 N.C. 688", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720126 ], "year": 1986, "pin_cites": [ { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0688-01" ] }, { "cite": "443 S.E.2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "92", "parenthetical": "\"error of law . . . exists if a conclusion of law ... is not supported by the findings of fact\"" } ], "opinion_index": 1 }, { "cite": "114 N.C. App. 711", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527957 ], "year": 1994, "pin_cites": [ { "page": "716-17", "parenthetical": "\"error of law . . . exists if a conclusion of law ... is not supported by the findings of fact\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/114/0711-01" ] } ], "analysis": { "cardinality": 687, "char_count": 15462, "ocr_confidence": 0.748, "pagerank": { "raw": 7.575709698507411e-07, "percentile": 0.9705953899242774 }, "sha256": "fa3745a1b58086b9f2666f5f1b5aa2587a0016ccee1d9025e9d1e048117d5cb6", "simhash": "1:876a90aaf40f6f54", "word_count": 2500 }, "last_updated": "2023-07-14T16:17:04.771230+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge GREENE concurs with a separate opinion.", "Judge MARTIN, JOHN C. concurs." ], "parties": [ "NORTH CAROLINA DEPARTMENT OF CORRECTION, Petitioner v. GLENN E. MYERS, Respondent" ], "opinions": [ { "text": "WYNN, Judge.\nWe note initially that our inquiry is limited to the evidence available through the record on appeal as settled by the trial court. See, Waste Management of Carolinas, Inc. v. Peerless Ins. Co., 315 N.C. 688, 690, 340 S.E.2d 374, 377, reh\u2019g denied, 316 N.C. 386, 346 S.E.2d 134 (1986).\nOur examination of the record indicates that respondent, Glenn E. Myers, worked as a unit supervisor for the North Carolina Department of Correction (hereinafter DOC) in Davidson County. His duties included supervising five probation officers. On or about 11 June 1991, one of the probation officers, Ms. Maxine Nicholson, had been disciplined for personal misconduct. Mr. Myers was present at Ms. Nicholson\u2019s pre-disciplinary conference. Subsequently, Ms. Nicholson was disciplined and later appealed her disciplinary action to the Employee Relations Committee. After a hearing before the Committee, Ms. Nicholson\u2019s attorney wrote to the North Carolina Attorney General\u2019s Office complaining about statements allegedly made by Mr. Myers which indicated that Ms. Nicholson\u2019s disciplinary hearing was not impartial. DOC investigated this matter, and as a result, Mr. Myers received a letter of demotion dated 16 January 1992.\nThe letter, in relevant part, alleged that Mr. Myers\u2019 demotion and transfer were based upon the following:\n(1) breach of confidentiality by discussing private personnel matters;\n(2) failure to provide complete responses to questions before the Employee Relations Committee which resulted in the omission of important facts and circumstances germane to the disciplinary action taken against Officer Maxine Nicholson.\nBased upon these reasons, Mr. Myers was demoted by DOC from Unit Supervisor to Adult Probation/Parole Officer, effective 16 January 1992. On 28 February 1992, Mr. Myers filed a petition for a contested case hearing in the Office of Administrative Hearings alleging he was demoted and transferred without just cause and that the demotion letter lacked the specificity required by law. The Administrative Law Judge (hereinafter AU) filed a recommended decision on 14 September 1992, and concluded that DOC did not have just cause to demote and transfer Mr. Myers. On or about 1 November 1992, Mr. Myers was reinstated to Supervisor III in Davie County with back pay.\nOn 23 February. 1993, the State Personnel Commission issued a final decision and order which rejected the ALJ\u2019s decision and held that DOC had just cause to dismiss Mr. Myers. Mr. Myers appealed to the Superior Court on 25 March 1993. On 25 October 1994, the trial court reversed the Commission\u2019s order, except that Mr. Myers was denied a re-transfer to his former position and location. The trial court further ordered that DOC pay attorney\u2019s fees to Mr. Myers\u2019 attorney at his \u201cjudicially recognized lodestar rate of $160.00 per hour.\u201d DOC gave notice of appeal on 9 November 1994. Mr. Myers also appeals from the portion of the judgment denying a re-transfer to his former position. We affirm in part and reverse in part.\nI.\nOur review of the case sub judice is limited to two issues: (1) whether the trial court applied the appropriate scope of review and, (2) if so, whether the court did so properly. Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114, 118-19 (1994).\nN.C. Gen. Stat. \u00a7 150B-51(b) (1991) governs both trial and appellate court review of administrative agency decisions. The trial court reviewing a final decision may affirm the agency\u2019s decision or remand the case for further proceedings. Id. Additionally, the court may reverse or modify the agency\u2019s decision if the substantial rights of the petitioners may have been prejudiced by the agency\u2019s findings or conclusions. Id.\nIn any case, the proper manner of review depends upon the particular issues presented on appeal. Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. at 674, 443 S.E.2d at 118. If petitioner argues that the agency\u2019s decision was based on an error of law, then de novo review is required. Id. De novo review requires a court to consider a question anew, or as if it had not been considered or decided by the agency. Id. If, on the other hand, petitioner questions \u201c(1) whether the agency\u2019s decision was supported by the evidence or (2) whether the decision was arbitrary or capricious, then the reviewing court must apply the \u2018whole record\u2019 test.\u201d In re Appeal by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993). The \u201cwhole record\u201d test requires the reviewing court to examine all competent evidence to determine whether the agency decision is supported by substantial evidence. Id.\nIn the subject case, DOC contends that the trial court did not properly apply the scope of review under N.C. Gen. Stat. \u00a7 150B-51 and erred when it found that the AU\u2019s legal conclusions, rather than the Commission\u2019s conclusions, were supported by the evidence, the factual findings, and the whole record. Inasmuch as the record on appeal indicates that the trial court applied the appropriate scope of review \u2014 the \u201cwhole record\u201d test \u2014 our only remaining question is whether the court did so properly.\nDOC contends that the trial court did not properly apply the \u201cwhole record\u201d test because all the evidence in the record, including testimony and exhibits, shows that there was a rational basis for the Commission\u2019s, order finding that there was just cause for Mr. Myers\u2019 demotion. Although the \u201cwhole record\u201d test gives a reviewing court the capability to determine whether an administrative decision has a rational basis in the evidence, In re Rogers, 297 N.C. 48, 65, 253 S.E.2d 912, 922 (1979), the test also requires the reviewing court to examine all competent evidence to determine whether the agency decision is supported by substantial evidence. Substantial evidence is \u201csuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d Henderson v. N.C. Dept. of Human Resources, 91 N.C. App. 527, 530, 372 S.E.2d 887, 889-90 (1988). Moreover, the reviewing court must take into account both the evidence which supports the agency\u2019s decision and any contradictory evidence which would support a different result. Lackey v. N. C. Dept. of Human Resources, 306 N.C. 231, 238, 293 S.E.2d 171, 176 (1982).\nIn the case at hand, the trial court found and the record indicates there was insufficient evidence to show that Mr. Myers \u201cbreached confidentiality\u201d or that he \u201cfailed to provide complete responses to questions\u201d causing the \u201comission of important facts\u201d at Officer Nicholson\u2019s disciplinary hearing. DOC argues that Mr. Myers\u2019 comments were made in violation of N.C. Gen. Stat. \u00a7 126-22 (1993) which prohibits a state employee from making confidential personnel data open to inspection and examination. However, none of Mr. Myers\u2019 comments revealed anything of a confidential nature about Officer Nicholson herself. The record shows that his comments were directed towards the handling of Ms. Nicholson\u2019s pre-disciplinary conference for not being conducted behind closed doors and for being conducted rudely and loudly. These comments are not breaches of confidentiality, but rather criticisms of the manner and method of conducting pre-disciplinary hearings.\nIn addition, the trial court found and the record indicates that there was insufficient evidence to support the conclusion that Mr. Myers failed to provide complete responses to questions and that he omitted important facts. No evidence was presented regarding any specific question asked of Mr. Myers during Ms. Nicholson\u2019s disciplinary hearing, what Mr. Myers\u2019 answers were or which answers of Mr. Myers purportedly caused \u201comissions of important facts,\u201d or what \u201cimportant facts\u201d were \u201comitted.\u201d Based on this evidence, we find that the trial court did not err in concluding that all of the findings of fact and conclusions of law made by the ALJ, including those adopted by the Commission, were based upon competent evidence contained in the whole record.\nBecause we agree that the trial court did not err in concluding that Mr. Myers was demoted and reduced in pay and grade without just cause in contravention of N.C. Gen. Stat. \u00a7 126-35 (1993), we do not address petitioner\u2019s arguments that the demotion letter met the specificity requirement of N.C.G.S. \u00a7 126-35, and that the ALJ\u2019s decision was based on an incomplete record.\nII.\nDOC next contends that the trial court erred when it ordered it to pay attorney\u2019s fees to Mr. Myers\u2019 attorney at the \u201cjudicially recognized lodestar fee\u201d of $160.00 per hour. We agree.\nAlthough the award of attorney\u2019s fees is within the discretion of the trial judge under N.C. Gen. Stat. \u00a7 6-19.1 (1986), the trial court rmist make findings of fact \u201c \u2018as to the time and labor expended, the skill required, the customary fee for like work, and the experience or ability of the attorney.\u2019 \u201d United Laboratories v. Kuykendall, 335 N.C. 183, 195, 437 S.E.2d 374, 381 (1993). We note parenthetically that while our record does not indicate that the trial court made findings to establish the basis for attorney fees under N.C.G.S. \u00a7 6-19.1, DOC does not challenge this lack of findings on appeal to this court. Rather, DOC argues only that the trial court did not make any of the findings necessary to arrive at the hourly attorney fee. We agree.\nWe therefore reverse the trial court\u2019s award of attorney fees at the hourly rate of $160.00 and remand for findings on the proper hourly rate that should be allowed in this case. We note that our decision to remand to the trial court for a determination of the hourly rate for attorney\u2019s fees earned on judicial review under N.C.G.S. \u00a7 6-19.1 is made without prejudice to the plaintiff to seek complementary attorney\u2019s fees from the Commission under its discretionary authority under N.C. Gen. Stat. \u00a7 126.4 (11) (1993). See, N.C. Dept. of Correction v. Harding, 120 N.C. App. 461, 462 S.E.2d 671 (1995).\nIII.\nRespondent Myers also appeals and contends that the trial court erred by not ordering DOC to re-transfer him to his former position and location. We disagree.\nAlthough N.C. Gen. Stat. \u00a7 126-37 (1993) authorizes the Commission to reinstate an employee to the position from which he is removed and to order the transfer of an employee to whom it has been wrongfully denied, that authority is discretionary. The trial court is not compelled to order Mr. Myers\u2019 reinstatement to his former position and location.\nFurthermore, reinstatement as used in the North Carolina Administrative Code denotes the following:\nReinstatement means the return to employment of a dismissed employee, in the same or similar position, at the same pay grade and step which the employee enjoyed prior to dismissal. Reinstatement may also refer to the promotion of a demoted employee to the same pay grade and step as the employee was demoted from.\n25 N.C.A.C. 1B.0428.\nMr. Myers was returned to the same pay grade and step as before his demotion even though he works at a different location. Accordingly, he was properly reinstated and the trial court\u2019s decision must be affirmed.\nFor the foregoing reasons, we affirm the trial court\u2019s decision in part, and reverse and remand oh the issue of attorney\u2019s fees.\nJudge GREENE concurs with a separate opinion.\nJudge MARTIN, JOHN C. concurs.", "type": "majority", "author": "WYNN, Judge." }, { "text": "Judge Greene\nconcurring.\nI fully concur with Part II of the majority opinion. With regard to Parts I and III, I disagree with the analysis but concur with the result.\nDemotion\nThe Department of Correction (DOC) argues that the findings entered by the State Personnel Commission (Commission) support its conclusions with regard to the demotion and therefore the trial court erred in reversing this portion of the Order of the Commission. This raises the issue of whether the Commission\u2019s Order is affected by an error of law, and this Court is required to review the Order of the Commission de novo. See Brooks v. Ansco & Assocs., 114 N.C. App. 711, 716-17, 443 S.E.2d 89, 92 (1994) (\u201cerror of law . . . exists if a conclusion of law ... is not supported by the findings of fact\u201d). Thus, the question is whether the findings entered by the Commission support its conclusion that there existed \u201cjust cause for Petitioner\u2019s demotion.\u201d I agree with the majority that the findings do not support this conclusion.\nTransfer\nGlenn E. Myers (Myers) argues that if the order of demotion is rescinded then it follows that the order of transfer must be rescinded and the trial court erred in not doing so. I disagree. The transfer of Myers is not a matter within the subject matter jurisdiction of the Commission or the trial court. N.C.G.S. \u00a7 126-35(a) (1993) (providing for appeal to Commission by State employee \u201cdischarged, suspended, or demoted\u201d); cf. N.C.G.S. \u00a7 126-36 (1993) (State employee entitled to appeal to Commission where request for transfer denied because of discrimination). Therefore, the transfer directed by the DOC remains in full force and effect and language in the judgment of the trial court relating to the transfer is mere surplusage.", "type": "concurrence", "author": "Judge Greene" } ], "attorneys": [ "Michael F. Easley, Attorney General, by Paula D. Oguah, Assistant Attorney General, for the petitioner-appellant/ appellee.", "Marvin Schiller, for respondent-appellee/appellant." ], "corrections": "", "head_matter": "NORTH CAROLINA DEPARTMENT OF CORRECTION, Petitioner v. GLENN E. MYERS, Respondent\nNo. COA95-135\n(Filed 17 October 1995)\n1. Public Officers and Employees \u00a7 67 (NCI4th)\u2014 demotion of correctional officer \u2014 standard of review \u2014 absence of just cause\nThe trial court properly applied the whole record test and properly concluded that there was no just cause for the demotion of respondent correctional supervisor where the court found and the record indicated that there was insufficient evidence to show that respondent \u201cbreached confidentiality\u201d or that he \u201cfailed to provide complete responses to questions\u201d causing the \u201comission of important facts\u201d at a probation officer\u2019s disciplinary hearing where none of respondent\u2019s comments revealed anything of a confidential nature about the probation officer herself but instead amounted to criticism of the manner and method of conducting pre-disciplinary hearings.\nAm Jur 2d, Civil Service \u00a7 63.\nLibel and slander: Public officer\u2019s privilege as to statements made in connection with hiring and discharge. 26 ALR3d 492.\n2. Costs \u00a7 37 (NCI4th)\u2014 award of attorney fee \u2014 no basis for hourly amount\nThe trial court erred in ordering the Department of Correction to pay attorney\u2019s fees to respondent\u2019s attorney at the \u201cjudicially recognized lodestar fee\u201d of $160.00 per hour, where the court made no findings of fact as to the time and labor expended, the skill required, the customary fee for like work, or the experience or ability of the attorney. N.C.G.S. \u00a7 6-19.1.\nAm Jur 2d, Costs \u00a7\u00a7 79-86.\n3. Public Officers and Employees \u00a7 66 (NCI4th)\u2014 correctional officer \u2014 improper demotion \u2014 reinstatement\u2014same pay but different location\nA correctional officer who was demoted without just cause was properly reinstated where he was returned to the same pay grade and step as before his demotion even though he now works in a different position and location.\nAm Jur 2d, Civil Service \u00a7\u00a7 52 et seq.\nWhat constitutes unfair labor practice under state public employee relations acts. 9 ALR4th 20.\nJudge Greene concurring.\nAppeal by the North Carolina Department of Correction from judgment entered 25 October 1994 by Judge George R. Greene in Wake County Superior Court. Heard in the Court of Appeals 24 August 1995.\nMichael F. Easley, Attorney General, by Paula D. Oguah, Assistant Attorney General, for the petitioner-appellant/ appellee.\nMarvin Schiller, for respondent-appellee/appellant." }, "file_name": "0437-01", "first_page_order": 471, "last_page_order": 478 }