{ "id": 12135521, "name": "EVIA L. JORDAN, Petitioner v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, DIVISION OF MOTOR VEHICLES, Respondent", "name_abbreviation": "Jordan v. North Carolina Department of Transportation, Division of Motor Vehicles", "decision_date": "2000-12-05", "docket_number": "No. COA99-1379", "first_page": "771", "last_page": "776", "citations": [ { "type": "official", "cite": "140 N.C. App. 771" } ], "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": "499 S.E.2d 187", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "347 N.C. 602", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551221 ], "year": 1998, "pin_cites": [ { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0602-01" ] }, { "cite": "499 S.E.2d 180", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "184", "parenthetical": "citations omitted" }, { "page": "185" }, { "page": "185", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "347 N.C. 614", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551369 ], "year": 1998, "pin_cites": [ { "page": "622-23", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0614-01" ] }, { "cite": "272 S.E.2d 607", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "608-09", "parenthetical": "required by due process" } ], "opinion_index": 0 }, { "cite": "50 N.C. App. 192", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2677037 ], "year": 1980, "pin_cites": [ { "page": "194", "parenthetical": "required by due process" } ], "opinion_index": 0, "case_paths": [ "/nc-app/50/0192-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-38", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "457 S.E.2d 725", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "727", "parenthetical": "N.C. Gen. Stat. \u00a7 126-38 applies to \"employees\" right of appellate review" } ], "opinion_index": 0 }, { "cite": "340 N.C. 83", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790176 ], "year": 1995, "pin_cites": [ { "page": "86", "parenthetical": "N.C. Gen. Stat. \u00a7 126-38 applies to \"employees\" right of appellate review" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0083-01" ] } ], "analysis": { "cardinality": 464, "char_count": 10407, "ocr_confidence": 0.766, "pagerank": { "raw": 2.479722674824525e-07, "percentile": 0.8073879982964258 }, "sha256": "01211f0bd0fc5acba67dbec484a9be40670f81e2e52debaa0e22f350fd8ca89d", "simhash": "1:ce6a811ef07e8c52", "word_count": 1614 }, "last_updated": "2023-07-14T16:18:32.795698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and EDMUNDS concur." ], "parties": [ "EVIA L. JORDAN, Petitioner v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, DIVISION OF MOTOR VEHICLES, Respondent" ], "opinions": [ { "text": "GREENE, Judge.\nEvia L. Jordan (Petitioner) appeals from a 7 September 1999 order on judicial review in favor of the North Carolina Department of Transportation, Division of Motor Vehicles (Respondent). This order affirmed the Decision and Order of the State Personnel Commission, which affirmed Petitioner\u2019s separation from her position as the Assistant Commissioner of Motor Vehicles (Assistant Commissioner).\nOn 1 June 1993, Petitioner was offered and accepted the position of Assistant Commissioner. The record does not reveal a written job description for this position. Petitioner testified she was \u201ccalled the chief of staff\u201d and was told\nit was [her] responsibility ... to be in charge of everything and that the [sjection directors . . . would report to [her] and that [she] would advise them on policy matters, that [she] would conduct staff meetings, that [she] would help the [Respondent] to set policy, that [she] would go to speaking engagements on [behalf of the Commissioner of Motor Vehicles (the Commissioner)], [and] that [she] would assume [the Commissioner\u2019s] duties in his absence.\nShe further testified, however, that these duties were \u201cin theory\u201d and she \u201cin fact\u201d never assumed any of the duties of the Commissioner. It \u201cbecame clear\u201d to Petitioner that she \u201cwas hired on as a technical. . . assistant.\u201d In other words, she was to \u201csteer\u201d people \u201cin the right direction and let them know if maybe a course of action was against the law or against a statute of some sort or any settled policy.\u201d Frederick Aikens (Aikens), appointed acting Commissioner in April of 1996, testified the Assistant Commissioner \u201chad several sections that reported to her directly\u201d and the Assistant Commissioner was required to perform \u201cspecific responsibilities for specific sections.\u201d\nPetitioner received a letter, in August 1995, dated 3 May 1993, from Secretary of Transportation Sam Hunt advising her:\nPursuant to G.S. 126-5(c)(3) and 126-5(d)(l), your position is being redesignated as policy-making exempt effective May 17, 1993. . . . [Y]ou will serve at the pleasure of the Secretary of the Department of Transportation. . . . [T]he provisions of Chapter 126 will no longer apply to your position.\nAs policy making, your position includes the authority to impose the final decision as to a settled course of action within the mission as defined by the Secretary.\nIf you have any questions concerning this designation, please feel free to contact the Office of State Personnel.\nPetitioner never inquired as to why she received the letter dated 3 May 1993, nor did she review the exemption statutes.\nOn 25 June 1996, Aikens informed Petitioner he was separating her from her position as Assistant Commissioner. On 24 July 1996, Petitioner filed a petition in the Office of Administrative Hearings for a contested case hearing alleging Respondent acted erroneously in terminating her employment.\nOn 5-6 January 1998, a contested case hearing was held before an Administrative Law Judge (ALT). On 7 April 1998, AU issued a Recommended Decision affirming Petitioner\u2019s dismissal and determining, in pertinent part, that Petitioner did not timely and properly contest the designation of her position as exempt and the position of Assistant Commissioner was \u201cexempt policymaking.\u201d The State Personnel Commission adopted the Recommended Decision on 12 October 1998.\nThe issues are whether: (I) Petitioner timely and properly contested the designation of her position as exempt policymaking; and (II) Petitioner\u2019s position as Assistant Commissioner was properly designated as \u201cexempt policymaking.\u201d\nI\nRespondent argues Petitioner did not timely contest the designation of her position as exempt and, thus, cannot now contest its designation. We disagree.\nOnce a position is designated as \u201cexempt policymaking,\u201d whether or not the designation is correct, an employee wishing to contest such designation must do so according to N.C. Gen. Stat. \u00a7 150B. N.C.G.S. \u00a7 126-5(h) (1999); N.C.G.S. \u00a7 126-34.1(c) (1999). The contested case hearing under N.C. Gen. Stat. \u00a7 150B must be requested \u201cno later than 30 days after receipt... of the decision\u201d to designate the position as \u201cexempt policymaking.\u201d N.C.G.S. \u00a7 126-38 (1999); Clay v. Employment Security Comm., 340 N.C. 83, 86, 457 S.E.2d 725, 727 (1995) (N.C. Gen. Stat. \u00a7 126-38 applies to \u201cemployees\u201d right of appellate review). Notice of the decision must be in writing and inform the employee of her rights, the procedure, and the time limits for filing the contested case hearing. See Luck v. Employment Security Comm., 50 N.C. App. 192, 194, 272 S.E.2d 607, 608-09 (1980) (required by due process); see also N.C.G.S. \u00a7 150B-23(f) (1999) (for state employment, notice required to applicants who alleged discrimination). The 30-day limitation period of N.C. Gen. Stat. \u00a7 126-38 does not begin to run until notice is provided in accordance with these requirements.\nIn this case, Petitioner received written notice in August 1995 that her position had been designated as \u201cexempt policymaking.\u201d The notice did not, however, inform Petitioner of her right to contest the designation, the procedure for contesting the designation, or the time limits for filing her objection to the designation. Accordingly, Petitioner\u2019s request for a contested case hearing, filed 24 July 1996, was timely filed and she is not barred from contesting the designation of her position as \u201cexempt policymaking.\u201d\nII\nPetitioner argues there was not substantial evidence in the record to support the determination her position was \u201cexempt policymaking.\u201d We agree.\nThis Court may reverse or modify an agency\u2019s decision if the agency\u2019s findings, viewed upon the \u201cwhole record,\u201d are unsupported by substantial evidence. Powell v. N. C. Dept. of Transportation, 347 N.C. 614, 622-23, 499 S.E.2d 180, 184 (1998) (citations omitted). In applying this test, the reviewing court \u201cmust review the evidence that was before the [agency].\u201d Id. at 624, 499 S.E.2d at 185. A \u201cwhole record\u201d review, however, does not allow this Court to replace the agency\u2019s judgment in light of two reasonably conflicting views, \u201cbut rather requires [this Court] to determine the substantiality of the evidence by taking all the evidence, both supporting and conflicting, into account.\u201d Id. at 623, 499 S.E.2d at 185 (citations omitted).\nA position is \u201cexempt policymaking\u201d if it is \u201cdelegated with the authority to impose the final decision as to a settled course of action to be followed within a department, agency, or division.\u201d N.C.G.S. \u00a7 126-5(b)(3) (1999).\nIn this case, there is no written job description for the position of Assistant Commissioner. The evidence shows the Assistant Commissioner had the responsibility to advise section directors on policy matters, assist the Commissioner in setting policy, and act as the Commissioner\u2019s chief of staff. Petitioner, however, never assumed any of the duties of the Commissioner and in reality served as the Commissioner\u2019s technical assistant. There is nothing in this record, certainly not substantial evidence, to support a conclusion that the position of Assistant Commissioner carried with it the authority to make any \u201cfinal decision as to a settled course of action to be followed within\u201d Respondent. Even if the record supported a conclusion that the position of Assistant Commissioner had final authority within the sections, which it does not, that authority would not be sufficient to constitute the position as \u201cexempt policymaking.\u201d N.C. Dept. of Transportation v. Hodge, 347 N.C. 602, 606, 499 S.E.2d 187, 190 (1998).\nAccordingly, the order of the superior court affirming the Decision and Order of the State Personnel Commission must be reversed because the Decision and Order, determining that the position of Assistant Commissioner is \u201cexempt policymaking,\u201d is not supported by substantial evidence in this record.\nReversed.\nJudges MARTIN and EDMUNDS concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Marvin Schiller and David G. Schiller for petitioner-appellant.", "Attorney General Michael F. Easley, by Special Deputy Attorney General Robert O. Crawford, III, for respondent-appellee." ], "corrections": "", "head_matter": "EVIA L. JORDAN, Petitioner v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, DIVISION OF MOTOR VEHICLES, Respondent\nNo. COA99-1379\n(Filed 5 December 2000)\n1. Administrative Law\u2014 contested case hearing \u2014 designation of position as \u201cexempt policymaking\u201d \u2014 timely filed\nPetitioner\u2019s request on 24 July 1996 for a contested case hearing under N.C.G.S. Ch. 150B was timely filed and she is not barred from contesting the designation of her position of Assistant Commissioner of Motor Vehicles as \u201cexempt policymaking\u201d even though she received written notice in August 1995 that her position had been designated as \u201cexempt policymaking\u201d and she did not contest this designation within the 30-day limitation period under N.C.G.S. \u00a7 126-38, because: (1) the 30-day limitation period of N.C.G.S. \u00a7 126-38 does not begin to run until notice is provided in accordance with the requirements of that statute; and (2) the written notice petitioner received informing her that her position had been designated as \u201cexempt policymaking\u201d did not inform her of her right to contest the designation, the procedure for contesting the designation, or the time limits for filing her objection to the designation.\n2. Public Officers and Employees\u2014 agency decision\u2014 \u201cexempt policymaking\u201d position \u2014 determination not supported by substantial evidence\nThe trial court\u2019s order affirming the State Personnel Commission\u2019s decision and order determining that the position of Assistant Commissioner of Motor Vehicles is \u201cexempt policymak-ing\u201d under N.C.G.S. \u00a7 126-5(b)(3) is reversed, because: (1) petitioner never assumed any of the duties of the Commissioner and in reality served as the Commissioner\u2019s technical assistant; (2) there is nothing in the record to support a conclusion that the position of Assistant Commissioner carried with it the authority to make a final decision as to a settled course of action to be followed within the agency; and (3) even if the record supported a conclusion that the position had final authority within the sections, that authority would not be sufficient to constitute the position as \u201cexempt policymaking.\u201d\nAppeal by petitioner from order on judicial review filed 7 September 1999 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 19 September 2000.\nMarvin Schiller and David G. Schiller for petitioner-appellant.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Robert O. Crawford, III, for respondent-appellee." }, "file_name": "0771-01", "first_page_order": 803, "last_page_order": 808 }