{ "id": 11652147, "name": "SANDRA J. CUNNINGHAM, Petitioner v. CATAWBA COUNTY, Respondent; SANDRA J. CUNNINGHAM, Petitioner v. BOBBY K. BOYD, Director of Catawba County Department of Social Service and Catawba County, Respondents", "name_abbreviation": "Cunningham v. Catawba County", "decision_date": "1997-12-02", "docket_number": "No. COA97-23", "first_page": "70", "last_page": "74", "citations": [ { "type": "official", "cite": "128 N.C. App. 70" } ], "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": "273 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "236" } ], "opinion_index": 0 }, { "cite": "302 N.C. 14", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563691 ], "year": 1981, "pin_cites": [ { "page": "21" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0014-01" ] }, { "cite": "473 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "343 N.C. 749", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798947, 798789, 798922, 798795, 798942 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0749-01", "/nc/343/0749-04", "/nc/343/0749-02", "/nc/343/0749-03", "/nc/343/0749-05" ] }, { "cite": "470 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "555" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 429", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917624 ], "year": 1996, "pin_cites": [ { "page": "435" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0429-01" ] }, { "cite": "462 S.E.2d 511", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793220, 793188, 793196, 793104, 793244 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0649-03", "/nc/341/0649-04", "/nc/341/0649-01", "/nc/341/0649-05", "/nc/341/0649-02" ] }, { "cite": "457 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "900", "parenthetical": "applying Chapter 150B to review of decision of local health department" }, { "page": "899" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 62", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913588 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "73", "parenthetical": "applying Chapter 150B to review of decision of local health department" }, { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0062-01" ] }, { "cite": "270 S.E.2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563992, 8564011, 8563944, 8563965 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0562-03", "/nc/300/0562-04", "/nc/300/0562-01", "/nc/300/0562-02" ] }, { "cite": "265 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "382" } ], "opinion_index": 0 }, { "cite": "299 N.C. 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575681 ], "year": 1980, "pin_cites": [ { "page": "625" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0620-01" ] }, { "cite": "449 S.E.2d 758", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "quoting Concrete Co. v. Board of Commissioners, 299 N.C. 620, 625, 265 S.E.2d 379, 382 (1980)" } ], "opinion_index": 0 }, { "cite": "337 N.C. 807", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551889, 2549546, 2549156 ], "year": 1994, "pin_cites": [ { "parenthetical": "quoting Concrete Co. v. Board of Commissioners, 299 N.C. 620, 625, 265 S.E.2d 379, 382 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0807-03", "/nc/337/0807-02", "/nc/337/0807-01" ] }, { "cite": "444 S.E.2d 639", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "642", "parenthetical": "quoting Concrete Co. v. Board of Commissioners, 299 N.C. 620, 625, 265 S.E.2d 379, 382 (1980)" }, { "page": "642" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 319", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12127556 ], "year": 1994, "pin_cites": [ { "page": "322", "parenthetical": "quoting Concrete Co. v. Board of Commissioners, 299 N.C. 620, 625, 265 S.E.2d 379, 382 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0319-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-37", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 } ], "analysis": { "cardinality": 510, "char_count": 10876, "ocr_confidence": 0.745, "pagerank": { "raw": 7.243260778753893e-08, "percentile": 0.4320332961496983 }, "sha256": "8bfe1eb42104573a2cd707d6d80da74a9f3aa35e1329a189a8553fd0e6a9bfe8", "simhash": "1:0a47f0d6752a3032", "word_count": 1758 }, "last_updated": "2023-07-14T19:05:25.972365+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHN and TIMMONS-GOODSON concur." ], "parties": [ "SANDRA J. CUNNINGHAM, Petitioner v. CATAWBA COUNTY, Respondent SANDRA J. CUNNINGHAM, Petitioner v. BOBBY K. BOYD, Director of Catawba County Department of Social Service and Catawba County, Respondents" ], "opinions": [ { "text": "GREENE, Judge.\nSandra Cunningham (petitioner) appeals from a judgment and order of the Catawba County Superior Court (trial court) which reinstated her as an employee of the defendant, Catawba County (County), but reduced her award for attorney fees to $6,430.00 and denied her request for back pay.\nThe facts reveal that on 2 July 1993, petitioner was dismissed from her job as a social worker with the Catawba County Department of Social Services (DSS) (an agency of the County) for \u201cfalsifying job information through misrepresentation of [her] credentials.\u201d County manager, J. Thomas Lundy, ultimately upheld petitioner\u2019s dismissal after she appealed it in accordance with section 16-112 of the Catawba County Personnel Code. Petitioner then requested a contested case hearing with the North Carolina Office of Administrative Hearings pursuant to Chapters 126 and 150B of the North Carolina General Statutes.\nThe State Personnel Commission (Commission), relying on evidence presented before an Administrative Law Judge (ALJ), issued its \u201cRecommendation\u201d in two parts. The first \u201cRecommendation,\u201d dated 27 September 1994, recommended that petitioner be reinstated to her former position or similar one, be awarded back pay and applicable benefits, and be awarded reasonable attorney fees. The second \u201cRecommendation,\u201d dated 31 March 1995, recommended that the County pay petitioner\u2019s attorney fees in the amount of $11,399.00. The County responded to the \u201cRecommendations\u201d in a letter dated 3 May 1995 that it \u201c[would] not follow the recommendations\u201d of the Commission. This letter made no findings of fact or conclusions of law, did not specify the reasons for rejecting the Commission\u2019s recommended decision, and was not served upon the petitioner. The petitioner then filed a petition in superior court to enforce the decision of the Commission.\nThe trial court focused \u201cits review on the final decision of the [County] in accordance with G.S. 150B-51.\u201d The trial court then reviewed the evidence presented to the AU and found that the decision by the County to dismiss the petitioner was \u201cunsupported by substantial evidence.\u201d The trial court further found that because the record did not contain any evidence \u201cwith regard to [the petitioner\u2019s] post discharge earnings\u201d it was without authority to order an award of back pay. Finally, the trial court found that the petitioner was entitled to an award of attorney fees only \u201cfor the contested case proceedings before the [ALJ], the . . . Commission, and appeal to the Superior Court. ...\u201d\nThe dispositive issue is whether a \u201clocal appointing authority,\u201d within the meaning of N.C. Gen. Stat. \u00a7 126-37, is required to render its decision in accordance with N.C. Gen. Stat. \u00a7 150B-36(b).\nEmployees of a \u201clocal appointing authority,\u201d here DSS, are subject to the provisions of the State Personnel System, as are state employees. N.C.G.S. \u00a7 126-5(a)(2) (1995) (listing non state employees subject to Chapter 126); N.C.G.S. \u00a7 126-37(a) (1993). As such, DSS employees \u201cmay commence a contested case under [Chapter 150B, Article 3] . . . .\u201d N.C.G.S. \u00a7 150B-23(a) (1995); N.C.G.S. \u00a7 126-37(a) (1993). The Commission, after a hearing before an ALJ, \u201cshall make a final decision in these cases as provided in G.S. 150B-36.\u201d N.C.G.S. \u00a7 126-37(a) (1993). Except when the Commission \u201cfinds that the employee has been subjected to discrimination ...[,] the decisions of the . . . Commission shall be advisory to the local appointing authority.\u201d Id. An employee \u201cdissatisfied with . . . the action taken by the local appointing authority pursuant to the decision [of the Commission] shall be heard [by the superior court] upon the record and not as a trial de novo.\u201d N.C.G.S. \u00a7 126-37(b) (1993). Although \u201clocal appointing authorities]\u201d are not agencies within the meaning of the Administrative Procedure Act (Act), see N.C.G.S. \u00a7 150B-2(1) (1995), \u201cthe principles embodied in the Act \u2018are highly pertinent\u2019 to\u201d review by the superior court, Vulcan Materials Co. v. Guilford County Bd. of Comrs., 115 N.C. App. 319, 322, 444 S.E.2d 639, 642, disc. review denied, 337 N.C. 807, 449 S.E.2d 758-59 (1994) (quoting Concrete Co. v. Board of Commissioners, 299 N.C. 620, 625, 265 S.E.2d 379, 382 (1980)), rehearing denied, 300 N.C. 562, 270 S.E.2d 106 (1980). Thus, the superior court reviewing a decision by a \u201clocal appointing authority,\u201d within the context of a Chapter 126 proceeding, \u201cmust determine if the decision is affected by any error of law; made upon unlawful procedure; comports with due process; is supported by competent, material, and substantial evidence in the whole record; or is arbitrary and capricious.\u201d Vulcan Materials, 115 N.C. at 322, 444 S.E.2d at 642; see Gray v. Orange County Health Dept., 119 N.C. App. 62, 73, 457 S.E.2d 892, 900 (1995) (applying Chapter 150B to review of decision of local health department), disc. review denied, 341 N.C. 649, 462 S.E.2d 511 (1995).\nThe petitioner argues that DSS, as the \u201clocal appointing authority,\u201d was bound to make its final decision \u201cin accordance with G.S. 150B-36\u201d and that failure to do so requires that the decision of the Commission be adopted as the final decision of DSS.\nThere is no dispute that the final decision of DSS did not comply with the requirements of section 150B-36(b) in that it: (1) did not include any findings of fact; (2) did not include any conclusions of law; (3) did not state specific reasons why DSS refused to adopt the decision of the Commission; and (4) was not personally served upon the petitioner or delivered to her by certified mail. N.C.G.S. \u00a7 150B-36(b) (1995). Is the \u201clocal appointing authority\u201d required to follow section 150B-36? Section 126-37, as it existed on the date this action was filed, is silent on that question. It can be argued that because section 126-37 does not specifically require compliance with section 150B-36(b), compliance is not required. It can be argued, however, that because judicial review of the \u201clocal appointing authority[\u2019s]\u201d final decision is to be conducted consistent with the principles of the Act, that decision must be entered consistent with the Act, including section 150B-36. See Gray, 119 N.C. App. at 72, 457 S.E.2d at 899 (1992 local health department decision rejecting recommendations of Commission included specific reasons explaining why it refused to adopt recommendations). This ambiguity must be resolved by determining the intent of the legislature. In determining that intent, it is proper to review any amendments to the statute that may reveal or address the ambiguity. Al Smith Buick Co. v. Mazda Motor of America, 122 N.C. App. 429, 435, 470 S.E.2d 552, 555 (1996), disc. review denied, 343 N.C. 749, 473 S.E.2d 609-10 (1996).\nIn 1994, our legislature amended section 126-37 to provide in pertinent part that if the \u201clocal appointing authority\u201d rejects or modifies the recommended decision of the Commission, it \u201cmust state the specific reasons why it did not adopt the [recommended] decision . . . [and must serve a copy of the final decision] on each party personally or by certified mail and on each party\u2019s attorney of record.\u201d N.C.G.S. \u00a7 126-37(bl) (1995). We believe that this amendment reflects the intent of the legislature in enacting the original version of section 126-37 and was an effort by the legislature to clarify its original language. We thus construe the pre amended version consistent with the 1994 amendment and hold that DSS was required, in rejecting the recommended decision of the Commission, to state the specific reasons why it did not adopt the recommended decision and serve a copy of its final decision on the petitioner. Because the legislature did not specifically require that the \u201clocal appointing authority\u201d comply with section 150B-36(b), there is no obligation to enter findings of fact and conclusions of law, as required by section 150B-36(b).\nWe reject, however, the suggestion of the petitioner that DSS\u2019s failure to comply with section 126-37, as we now construe it, requires that the recommended decision of the Commission become the final decision of this case. See N.C.G.S. \u00a7 150B-44 (1995). Because of the ambiguity of section 126-37 existing at the time DSS rejected the recommendations of the Commission, it should not be penalized for its failure to comply with the statute as we now construe it. We accordingly vacate the judgment and order of the trial court and remand this case to the trial court for remand to DSS for the entry of a final decision. Should the final decision be a rejection of the recommendations of the Commission, that decision should include \u201cspecific reasons why it [does] not adopt\u201d the recommendations. Furthermore, a copy of the final decision of DSS must be served on each party. Should the final decision of DSS be adverse to the petitioner, she has the right to seek judicial review of that decision in the superior courts. Because of our resolution of this issue, it is not necessary that this Court address the other assignments of error raised by the petitioner.\nVacated and remanded.\nJudges JOHN and TIMMONS-GOODSON concur.\n. Of course the court\u2019s scope of review will be further limited by the errors assigned by the appellant. Utilities Comm. v. Oil Co., 302 N.C. 14, 21, 273 S.E.2d 232, 236 (1981).\n. We note that the legislature amended section 126-37 to specifically provide that decisions of \u201clocal appointing authorit[ies]\u201d are \u201csubject to judicial review pursuant to Article 4 of Chapter 160B of the General Statutes.\u201d N.C.G.S. \u00a7 126-37(b2) (1995). This amendment did not become effective until 1 January 1995 and thus does not control this case.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "The Long Law Firm, by Samuel H. Long, III, for petitioner appellant.", "Sigmon, Sigmon and Isenhower, by W. Gene Sigmon, for respondents appellees." ], "corrections": "", "head_matter": "SANDRA J. CUNNINGHAM, Petitioner v. CATAWBA COUNTY, Respondent SANDRA J. CUNNINGHAM, Petitioner v. BOBBY K. BOYD, Director of Catawba County Department of Social Service and Catawba County, Respondents\nNo. COA97-23\n(Filed 2 December 1997)\nAdministrative Law and Procedure \u00a7 44 (NCI4th); Public Officers and Employees \u00a7 63 (NCI4th)\u2014 county DSS\u2014 refusal to adopt SPC decision \u2014 statement of reasons\u2014 service on employee\nA county DSS, a local appointing authority within the meaning of N.C.G.S. \u00a7 126-37 (1993), was required to state the specific reasons why it did not adopt the recommended decision of the State Personnel Commission to reinstate petitioner and to serve a copy of its final decision on the petitioner; however, the DSS was not obligated to comply with N.C.G.S. \u00a7 150B-36(b) so that it was not required to enter findings of fact and conclusions of law.\nAppeal by petitioner from judgment and order filed 30 September 1996 and from order filed 16 October 1996 by Judge Robert D. Lewis in Catawba County Superior Court. Heard in the Court of Appeals 22 October 1997.\nThe Long Law Firm, by Samuel H. Long, III, for petitioner appellant.\nSigmon, Sigmon and Isenhower, by W. Gene Sigmon, for respondents appellees." }, "file_name": "0070-01", "first_page_order": 106, "last_page_order": 110 }