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  "name": "STEVEN LeGRAND AVANT, Petitioner-Appellant v. SANDHILLS CENTER FOR MENTAL HEALTH, DEVELOPMENTAL DISABILITIES & SUBSTANCE ABUSE SERVICES, Respondent-Appellee",
  "name_abbreviation": "Avant v. Sandhills Center for Mental Health, Developmental Disabilities & Substance Abuse Services",
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    "judges": [
      "Judges HUNTER and SMITH concur."
    ],
    "parties": [
      "STEVEN LeGRAND AVANT, Petitioner-Appellant v. SANDHILLS CENTER FOR MENTAL HEALTH, DEVELOPMENTAL DISABILITIES & SUBSTANCE ABUSE SERVICES, Respondent-Appellee"
    ],
    "opinions": [
      {
        "text": "MARTIN, Judge.\nA detailed factual and procedural history of this case is set forth in Avant v. Sandhills Center for Mental Health, (COA96-1081, unpublished opinion filed 5 August 1997) 127 N.C. App. 208, 490 S.E.2d 253 (1997). Briefly summarized, petitioner was employed by respondent as an \u201chabilitation assistant\u201d at respondent\u2019s Mallard Lane Center in Rockingham, North Carolina; his duties included assisting in the care of five emotionally and/or physically disabled residents of Mallard Lane. On 10 April 1994 an incident occurred wherein petitioner was physically assisting a difficult resident, \u201cClient L\u201d, to the shower. \u201cClient L\u201d was violent and petitioner allegedly used an improper hold on her. A fellow employee who witnessed the incident reported it to petitioner\u2019s supervisor, resulting in a written warning being issued by respondent\u2019s director and petitioner\u2019s suspension from work without pay for a period of time.\nPetitioner appealed the warning to respondent\u2019s appeals committee, arguing that he had never been informed of the special hold that was to be applied to \u201cClient L.\u201d The appeals committee affirmed the actions of respondent\u2019s director, and petitioner filed a notice for a contested case hearing with the Office of Administrative Hearings. An administrative law judge (\u201cAU\u201d) made extensive findings of fact, concluded that petitioner\u2019s written warning was unsubstantiated, and recommended that the decision to issue the suspension be reversed and that petitioner be awarded back pay. The' State Personnel Commission (\u201cSPC\u201d) issued its advisory Recommendation for Decision to respondent that petitioner\u2019s suspension be reversed, that he be awarded back wages, and that the warning be expunged from his records.\nRespondent\u2019s Board of Directors, the local appointing authority, rejected the recommended decision and issued a final decision affirming the issuance of the warning to petitioner and his suspension. Petitioner petitioned for judicial review pursuant to G.S. \u00a7 150B-43. The superior court concluded respondent had no just cause to suspend petitioner. Both petitioner and respondent appealed the superior court\u2019s decision to this Court, which determined that the superior court had not conducted a proper review as required by G.S. \u00a7 150B-51. See Avant, supra.\nOn remand, the superior court determined respondent\u2019s decision was neither arbitrary nor capricious, had been reached upon lawful procedures, had not been affected by errors of law, and was supported by substantial evidence in view of the whole record. The superior court affirmed respondent\u2019s decision and petitioner again appeals, arguing in support of twenty-six assignments of error that (1) the superior court judgment did not conform to the requirements of law; (2) the decision of the appeals committee was not supported by substantial evidence in the record; (3) the decision of the appeals committee was arbitrary and capricious; and (4) due to unlawful procedure, petitioner was denied a fair and impartial hearing. After a careful consideration of his arguments, we affirm the judgment of the superior court.\nPetitioner first argues the judgment of the superior court should be vacated because it does not comply with G.S. \u00a7 1A-1, Rule 52(a)(1). The rule requires that, in actions tried without a jury, the trial court make findings as to all issues of fact raised by the pleadings, declare its conclusions of law arising upon the facts found, and enter the appropriate judgment. Hinson v. Jefferson, 287 N.C. 422, 215 S.E.2d 102 (1975). However, when a superior court reviews an agency decision pursuant to the Administrative Procedure Act (\u201cAPA\u201d), the court essentially functions as an appellate court. Armstrong v. North Carolina State Bd. of Dental Examiners, 129 N.C. App. 153, 499 S.E.2d 462, disc. review denied, 348 N.C. 692, 511 S.E.2d 643 (1998); Gainey v. North Carolina Dept. of Justice, 121 N.C. App. 253, 465 S.E.2d 36 (1996). As such, the duty of the superior court, and our duty as well, is not to make findings of fact, but rather to apply the appropriate standard of review to the findings and conclusions of the underlying tribunal. See Shepherd v. Consolidated Judicial Retirement System, 89 N.C. App. 560, 562, 366 S.E.2d 604, 605 (1988) (\u201cwhen a superior court judge sits as an appellate court to review an administrative agency decision the judge is not required to make findings of fact and enter a judgment thereon in the same manner as the court would be when acting in its role as the trial court.\u201d). The order entered in this case is procedurally sufficient and is consistent with the trial court\u2019s role as a reviewing court. See id. at 562, 366 S.E.2d at 606 (holding sufficient an order reciting that court had reviewed the record, arguments, and relevant statutes, and concluding that declaratory ruling of agency should be affirmed). Thus, we consider the trial court\u2019s substantive review of respondent\u2019s decision.\nWe first note that although local appointing authorities such as respondent are not \u201cagencies\u201d under the APA, their employees are subject to the provisions of the State Personnel Act and may commence a contested case hearing under the APA, Chapter 150B of the General Statutes. Cunningham v. Catawba County, 128 N.C. App. 70, 72, 493 S.E.2d 82, 84 (1997). This Court has held the principles of the APA to be \u201chighly pertinent\u201d to superior court review of a local appointing authority decision. Id. In reviewing a superior court order regarding an agency decision, our scope of review consists of the two-fold task of \u201c(1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.\u201d Act-Up Triangle v. Com\u2019n for Health Serv., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini v. N.C. Dep\u2019t of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114, 118-19 (1994)). The proper standard for the superior court to apply depends upon the issues presented on appeal. Id. Where the petitioner alleges that the agency decision was either unsupported by the evidence, or arbitrary and capricious, the superior court applies the \u201cwhole record test\u201d to determine whether the agency decision was supported by substantial evidence contained in the entire record. Oates v. North Carolina Dept. of Correction, 114 N.C. App. 597, 601, 442 S.E.2d 542, 545 (1994). Where the petitioner alleges that the agency decision was based on error of law, the reviewing court must examine the record de novo, as though the issue had not yet been considered by the agency. Dorsey v. University of North Carolina-Wilmington, 122 N.C. App. 58, 468 S.E.2d 557, cert. denied, 344 N.C. 629, 477 S.E.2d 37 (1996); Air-A-Plane Corp. v. North Carolina Dept. of Environment, Health and Natural Resources, 118 N.C. App. 118, 454 S.E.2d 297, disc. review denied, 340 N.C. 358, 458 S.E.2d 184 (1995).\nPetitioner originally sought judicial review of respondent\u2019s final decision on the grounds that it contained errors of law, and that it was arbitrary, capricious, and unsupported by the evidence. Upon remand, the superior court recited that it had conducted a de novo review of the record and had concluded that respondent\u2019s decision had been made upon lawful procedure and was unaffected by error of law. In addition, the superior court determined that respondent\u2019s decision was supported by substantial admissible evidence in the whole record and was not arbitrary or capricious. We conclude, therefore, that the superior court applied the proper standards of review, and we must now determine whether it applied these standards correctly.\nPetitioner contends respondent\u2019s decision was unsupported by substantial evidence, and that the decision was arbitrary and capricious. These contentions require that we apply \u201cthe whole record test\u201d, i.e., an examination of \u201call competent evidence (the \u2018whole record\u2019) in order to determine whether the agency decision is supported by \u2018substantial evidence\u2019.\u201d Act-Up Triangle at 706, 483 S.E.2d at 392 (quoting Amanini at 674, 443 S.E.2d at 118). Substantial evidence is such \u201crelevant evidence as a reasonable mind might accept as adequate to support a conclusion,\u201d Lackey v. N.C. Dept. of Human Resources, 306 N.C. 231, 238, 293 S.E.2d 171, 176 (1982). The whole record test is not \u201ca tool of judicial intrusion; instead, it merely gives a reviewing court the capability to determine whether an administrative decision has a rational basis in the evidence.\u201d North Carolina Dept. of Correction v. Gibson, 58 N.C. App. 241, 257, 293 S.E.2d 664, 674 (1982), rev\u2019d on other grounds, 308 N.C. 131, 301 S.E.2d 78 (1983). Moreover, while the record may contain evidence contrary to the findings of the agency, neither this Court nor the superior court may substitute its judgment for that of the agency. Employment Security Com\u2019n of North Carolina v. Peace, 128 N.C. App. 1, 493 S.E.2d 466 (1997), affirmed in part, review dismissed in part, 349 N.C. 315, 507 S.E.2d 272 (1998); Rector v. North Carolina Sheriffs\u2019 Educ. & Training Standards Com\u2019n, 103 N.C. App. 527, 406 S.E.2d 613 (1991).\nApplying the \u201cwhole record\u201d standard of review, we hold there is sufficient relevant evidence in the record to support respondent\u2019s decision to uphold the written warning issued petitioner. The bases upon which the written warning was issued were (1) petitioner\u2019s failure to use the proper modified hold on \u201cClient L\u201d, and (2) petitioner\u2019s failure to ask for assistance in handling \u201cClient L\u201d on 10 April 1994. Respondent made relevant findings of fact that petitioner attempted to pick up \u201cClient L\u201d by placing his arms under hers; that approximately three or four times \u201cClient L\u201d fell to the floor as petitioner attempted to pick her up; that petitioner finally picked up \u201cClient L\u201d and carried her to the bathroom; that the way in which petitioner handled \u201cClient L\u201d was inconsistent with the modified hold which petitioner had been instructed to use in such situations; that petitioner failed to ask for assistance; and that such a one-person carry of \u201cClient L\u201d was unauthorized.\nOur review of the whole record reveals ample competent evidence, including petitioner\u2019s own affidavit, to support the findings that petitioner did indeed attempt to pick up \u201cClient L\u201d by placing his arms under hers, and that she fell to the floor a number of times before petitioner finally \u201cpicked up Client L and carried her to the bathroom.\u201d Moreover, it is uncontested that petitioner failed to ask a co-worker present at the time of the incident for assistance, even though the training manual with which petitioner had been trained did not authorize such a one-person carry. The record also reflects that the manner in which petitioner handled \u201cClient L\u201d was inconsistent with the modified therapeutic hold to be applied to \u201cClient L\u201d. While the record contains conflicting evidence as to whether petitioner had actually been instructed on the modified therapeutic hold at the time of the incident, neither this Court nor the superior court is authorized to substitute its judgment for''that of the agency. Employment Sec. Com\u2019n of North Carolina v. Peace, supra; see also, North Carolina Dept. of Correction v. Gibson at 257, 293 S.E.2d at 674 (\u201cEven where there is conflicting and contradictory evidence and inferences, \u2018it is for the administrative body, in an adjudicatory proceeding, to determine the weight and sufficiency of the evidence and the credibility of the witnesses, to draw inferences from the facts, and appraise conflicting and circumstantial evidence.\u2019 \u201d) (citations omitted). We therefore hold that there exists substantial evidence in the record to support the finding that petitioner did not employ a proper hold on \u201cClient L\u201d consistent with the manner in which petitioner had been trained and, therefore, respondent\u2019s decision to uphold the warning was supported by substantial evidence. Moreover, in light of the foregoing findings, respondent\u2019s decision cannot be said to be either arbitrary or capricious. See Jarrett v. North Carolina Dept. of Cultural Resources, 101 N.C. App. 475, 479, 400 S.E.2d 66, 68-9 (1991) (\u201cAdministrative agency decisions may be reversed as arbitrary or capricious if they are \u2018patently in bad faith\u2019 or \u2018whimsical\u2019 in the sense that \u2018they indicate a lack of fair and careful consideration\u2019 or fail to indicate \u2018any course of reasoning and the exercise of judgment\u2019. . .\u201d) (citations omitted); Armstrong at 163, 499 S.E.2d at 470.\nPetitioner next asserts that respondent violated his right to a fair and impartial hearing. Specifically, petitioner contends he was not provided an opportunity to be heard prior to adverse action being taken against him, and that certain communications between counsel for respondent and respondent\u2019s appeals committee guaranteed an outcome adverse to him, thereby denying his right to an impartial decision maker. Where it is alleged that an agency decision is made upon unlawful procedure or a constitutional violation, de novo review is required. Air-A-Plane Corp. at 124, 454 S.E.2d at 301. The de novo standard requires that we consider the question anew. Fearrington v. University of North Carolina at Chapel Hill, 126 N.C. App. 774, 487 S.E.2d 169 (1997).\nWe first note a lack of merit in petitioner\u2019s assertion that he was denied an opportunity to be heard prior to adverse action being taken against him. Petitioner has had ample opportunity to dispute the accusations against him and to present to respondent his argument as to whether the written warning should remain in petitioner\u2019s file.\nPetitioner also argues that certain communications between respondent\u2019s counsel and respondent\u2019s appeals committee during the initial appeals process guaranteed a decision adverse to petitioner, thereby violating his constitutional right to an impartial hearing. The record reflects that respondent\u2019s original attorney met with members of respondent\u2019s appeals committee on various occasions during which she discussed with committee members the merits of petitioner\u2019s appeal. We first note that such communications between respondent\u2019s counsel and its appeals committee do not violate the APA, as the record reflects that such communications occurred during the investigatory process and hearing prior to petitioner\u2019s filing a contested case with the Office of Administrative Hearings. See N.C. Gen. Stat. \u00a7 150B-35 (prohibiting ex parte communication between a member or employee of the agency making a final decision in a contested case and any party or his representative); N.C. Gen. Stat. \u00a7 150B-23 (\u201cA contested case shall be commenced by filing a petition with the Office of Administrative Hearings . . .\u201d). Any alleged violations of G.S. \u00a7 150B-35 occurring after petitioner\u2019s grievance became a contested case are unsubstantiated by the record.\nMoreover, petitioner must do more than merely allege that a conflicting role played by an attorney deprived him of due process. The United States Supreme Court has held \u201cthat there is no per se violation of due process when an administrative tribunal acts as both investigator and adjudicator on the same matter.\u201d Hope v. Charlotte-Mecklenburg Bd. of Educ., 110 N.C. App. 599, 603-4, 430 S.E.2d 472, 474-75 (1993) (citing Withrow v. Larkin, 421 U.S. 35, 43 L.Ed.2d 712 (1975)). We held in Hope that a petitioner\u2019s mere allegations that the role of the attorneys in the investigatory process denied him due process were insufficient to overcome the presumption that the Board acted correctly, and that \u201c[a]bsent a showing of actual bias or unfair prejudice petitioner cannot prevail. . . .\u201d Id. at 604, 430 S.E.2d at 475. See also, Crump v. Board of Education, 326 N.C. 603, 618, 392 S.E.2d 579, 586-87 (1990) (quoting Liepart v. N.C. School of the Arts, 80 N.C. App. 339, 354, 342 S.E.2d 914, 924 (1986)) (To make out due process claim based on theory of impartial decision-maker, petitioner \u201cmust show that the decision-making board or individual possesses a disqualifying personal bias.\u201d). Here, petitioner has brought forth only mere allegations that respondent\u2019s board acted with bias in affirming petitioner\u2019s warning, and the record contains insufficient evidence to overcome the assumption that respondent acted correctly throughout the appeals process. Petitioner received a fair and impartial hearing.\nThe order of the superior court affirming the decision of respondent board is affirmed.\nAffirmed.\nJudges HUNTER and SMITH concur.",
        "type": "majority",
        "author": "MARTIN, Judge."
      }
    ],
    "attorneys": [
      "Kitchin, Neal, Webb & Futrell, P.A., by Stephan R. Futrell, for petitioner-appellant.",
      "Cunningham, Dedmond, Petersen & Smith, by Bruce T. Cunningham, Jr., for respondent-appellee."
    ],
    "corrections": "",
    "head_matter": "STEVEN LeGRAND AVANT, Petitioner-Appellant v. SANDHILLS CENTER FOR MENTAL HEALTH, DEVELOPMENTAL DISABILITIES & SUBSTANCE ABUSE SERVICES, Respondent-Appellee\nNo. COA98-295\n(Filed 16 March 1999)\n1. Administrative Law\u2014 agency decision \u2014 standard of review\nWhen a superior court reviews an agency decision pursuant to the Administrative Procedure Act (APA), the court essentially functions as an appellate court; as such, the duty of the superior court is not to make findings of fact but to apply the appropriate standard of review to the findings and conclusions of the underlying tribunal.\n2. Administrative Law\u2014 local appointing authority employee \u2014 contested case under APA\nAlthough local appointing authorities are not \u201cagencies\u201d under the APA, their employees are subject to the provisions of the State Personnel Act and may commence a contested case hearing under the APA, N.C.G.S. Ch. 150B.\n3. Administrative Law\u2014 agency decision \u2014 standard of review\nWhen a petitioner alleges that an agency decision was either unsupported by the evidence or arbitrary and capricious, the superior court applies the \u201cwhole record test\u201d to determine whether the agency decision was supported by substantial evidence contained in the entire record; when petitioner alleges that the agency decision was based on error of law, the reviewing court must examine the record de novo as though the issue had not yet been considered by the agency.\n4. Public Officers and Employees\u2014 warning and suspension\u2014 supporting evidence\nSubstantial evidence in the record as a whole supported a decision by the local appointing authority upholding a written warning to and suspension of an employee who assisted in the care of emotionally and/or physically disabled residents of a group facility based upon his failure to use the proper modified therapeutic hold consistent with his training in placing a difficult resident in a shower and his failure to ask for assistance in handling the resident as he had been instructed.\n5. Public Officers and Employees \u2014 local appointing authority \u2014 employee grievance \u2014 opportunity to be heard\nA local appointing authority\u2019s employee was not denied an opportunity to be heard prior to adverse action being taken against him where the record shows that he had ample opportunity to dispute the accusations against him and to present to the authority his argument as to why a written warning should not remain in his file.\n6. Administrative Law; Public Officers and Employees\u2014 employee grievance \u2014 communications between employer\u2019s counsel and appeals committee \u2014 due process\nPetitioner\u2019s due process right to an impartial hearing was not violated by communications between respondent\u2019s counsel and respondent\u2019s appeals committee during the initial appeal process where such communications occurred only during the investigatory process and hearing prior to petitioner\u2019s filing a contested case under the APA.\nAppeal by petitioner from order entered 21 January 1998 by Judge Russell G. Walker, Jr., in Richmond County Superior Court. Heard in the Court of Appeals 28 October 1998.\nKitchin, Neal, Webb & Futrell, P.A., by Stephan R. Futrell, for petitioner-appellant.\nCunningham, Dedmond, Petersen & Smith, by Bruce T. Cunningham, Jr., for respondent-appellee."
  },
  "file_name": "0542-01",
  "first_page_order": 576,
  "last_page_order": 584
}
