{
  "id": 11915821,
  "name": "KATHLEEN CONRAN, Petitioner v. NEW BERN POLICE DEPARTMENT; CITY OF NEW BERN; and CITY OF POLICE CIVIL SERVICE BOARD, Respondents",
  "name_abbreviation": "Conran v. New Bern Police Department",
  "decision_date": "1996-03-19",
  "docket_number": "No. COA95-527",
  "first_page": "116",
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    {
      "cite": "N.C. Gen. Stat. \u00a7 126-37",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
      "year": 1995,
      "opinion_index": 0
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    {
      "cite": "N.C. Gen. Stat. \u00a7 126-16",
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      "year": 1995,
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  "last_updated": "2023-07-14T15:39:52.508825+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Chief Judge ARNOLD and Judge MARTIN, Mark D. concur."
    ],
    "parties": [
      "KATHLEEN CONRAN, Petitioner v. NEW BERN POLICE DEPARTMENT; CITY OF NEW BERN; and CITY OF POLICE CIVIL SERVICE BOARD, Respondents"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nOn 29 July 1993, Kathleen Conran petitioned the Office of Administrative Hearings (\u201cOAH\u201d), challenging her employment dismissal from the City of New Bern Police Department (\u201cthe city\u201d) in May of 1993. She alleged sex and creed discrimination.\nIn response, respondents moved to dismiss for lack of subject matter jurisdiction arguing that Ms. Conran, a former employee of the city, was not a state or local employee as defined by N.C. Gen. Stat. \u00a7 126-5 (1995), and thus was not entitled to petition OAH.\nSenior Administrative Law Judge Fred G. Morrison, Jr., agreed that the OAH lacked subject matter jurisdiction and, in an order dated 21 September 1993, dismissed Ms. Conran\u2019s petition.\nMs. Conran\u2019s appeal to the Superior Court of Craven County resulted in a judgment, dated 9 January 1995, affirming Judge Morrison\u2019s decision. She now seeks relief in this Court.\nThe issue is whether the trial court erred in affirming the decision of Judge Morrison that the OAH lacks subject matter jurisdiction over Ms. Conran\u2019s claim. Ms. Conran contends that N.C. Gen. Stat. \u00a7 126-16 (1995) and N.C. Gen. Stat. \u00a7 126-37 (1995), read together, confer subject matter jurisdiction to the OAH to hear her claim. We disagree.\nN.C.G.S. \u00a7 126-5, entitled \u201cEmployees subject to Chapter; exemptions\u201d designates which employees are covered under Chapter 126:\n(a) The provisions of this Chapter shall apply to:\n(1) All State employees not herein exempt, and\n(2) To all employees of area mental health, mental retardation, substance abuse authorities, and to employees of local social services departments, public health departments, and local emergency management agencies that receive federal grant-in-aid funds; and the provision of this Chapter may apply to such other county employees as the several boards of county commissioners may from time to time determine.\nThe record concedes that Ms. Conran was not a state employee; therefore, Ms. Conran must rely upon N.C.G.S. \u00a7 126-5(a)(2) to establish that a police officer working for a city in North Carolina is an employee subject to Chapter 126. This she fails to do.\nA police officer is not an employee of a mental health, mental retardation, or a substance abuse authority. Likewise, a police officer is not covered under the part of subsection (2) that provides for employees of \u201clocal social services departments, public health departments, and local emergency management agencies that receive federal grant-in-aid funds ....\u201d In addition, there is no evidence in the record that New Bern police officers are county employees determined by county commissioners. Thus, Ms. Conran fails to demonstrate that her position is covered by N.C.G.S. \u00a7 126-5.\nNevertheless, Ms. Conran argues that by reading N.C.G.S. \u00a7 126-16 together with N.C.G.S. \u00a7 126-37, her claim should be placed among those covered by Chapter 126. N.C.G.S. \u00a7 126-16 states:\nAll State departments and agencies and all local political subdivisions of North Carolina shall give equal opportunity for employment and compensation, without regard to race, religion, color, creed, national origin, sex, age, or handicapping condition as defined in G.S. 168A-3 to all persons otherwise qualified, except where specific age, sex or physical requirements constitute bona fide occupational qualifications necessary to proper and efficient administration.\n(emphasis supplied).\nN.C.G.S. \u00a7 126-37, as it existed on the date of Ms. Conran\u2019s petition, stated, in pertinent part:\n(a) The decisions of the State Personnel Commission shall be binding in appeals of local employees subject to this Chapter if the Commission finds that the employee has been subjected to discrimination prohibited by Article 6 of this Chapter or in any case where a binding decision is required by applicable federal standards. However, in all other local employee appeals, the decisions of the State Personnel Commission shall be advisory to the local appointing authority.\n(emphasis supplied).\nMs. Conran argues that the italicized portions of N.C.G.S. \u00a7\u00a7 126-16 and 126-37 grant local employees such as herself the right to OAH review, at least when discrimination as forbidden in N.C.G.S. \u00a7 126-16 is alleged. We disagree.\nWhere one statute deals with certain subject matter in particular terms and another deals with the same subject matter in more general terms, the particular statute will be viewed as controlling in the particular circumstances absent clear legislative intent to the contrary.\u201d Bryant v. Adams, 116 N.C. App. 448, 457, 448 S.E.2d 832, 836-37 (1994).\nN.C.G.S. \u00a7 126-5 states in particular terms which employees are covered by Chapter 126. On the other hand, N.C.G.S. \u00a7 126-16 and N.C.G.S. \u00a7 126-37 address the same subject matter in general terms. Moreover, neither N.C.G.S. \u00a7 126-16 nor N.C.G.S. \u00a7 126-37 affirmatively grants a remedy to a local employee such as Ms. Conran, who is not otherwise covered by Chapter 126.\nIn short, N.C.G.S. \u00a7 126-5 controls which employees are subject to Chapter 126. The petitioner is not within that class of employees. \u201cIf the Legislature desired to establish a public policy entitling county [or city] employees to the protection of G.S., Chap. 126, it could have done so.\u201d Walter v. Vance County, 90 N.C. App. 636, 641, 369 S.E.2d 631, 634 (1988).\nThe decision of the trial court is affirmed.\nChief Judge ARNOLD and Judge MARTIN, Mark D. concur.",
        "type": "majority",
        "author": "WYNN, Judge."
      }
    ],
    "attorneys": [
      "Voerman & Carroll, P.A., by David P. Voerman, for petitioner-appellant.",
      "Ward, Ward, Willey & Ward, L.L.P., by A.D. Ward, for respondent-appellees."
    ],
    "corrections": "",
    "head_matter": "KATHLEEN CONRAN, Petitioner v. NEW BERN POLICE DEPARTMENT; CITY OF NEW BERN; and CITY OF POLICE CIVIL SERVICE BOARD, Respondents\nNo. COA95-527\n(Filed 19 March 1996)\nPublic Officers and Employees \u00a7 42 (NCI4th)\u2014 city employee \u2014 dismissed\u2014no right to OAH review\nA former city police officer was not a state or local employee within the meaning of N.C.G.S. Chapter 126 and thus was not entitled to petition OAH in order to challenge her dismissal based on alleged sex and creed discrimination. N.C.G.S. \u00a7\u00a7 126-5, 126-16, 126-37.\nAm Jur 2d, Municipal, County, School and State Tort Liability \u00a7 662; Public Officers and Employees \u00a7 259.\nApplication of state law to sex discrimination in employment. 87 ALR3d 93.\nAppeal by petitioner from judgment entered 9 January 1995 by Judge James D. Llewellyn in Craven County Superior Court. Heard in the Court of Appeals 21 February 1996.\nVoerman & Carroll, P.A., by David P. Voerman, for petitioner-appellant.\nWard, Ward, Willey & Ward, L.L.P., by A.D. Ward, for respondent-appellees."
  },
  "file_name": "0116-01",
  "first_page_order": 152,
  "last_page_order": 155
}