{ "id": 9125788, "name": "WARD B. ZIMMERMAN, Petitioner v. APPALACHIAN STATE UNIVERSITY; BOARD OF GOVERNORS OF THE UNIVERSITY OF NORTH CAROLINA, Respondents", "name_abbreviation": "Zimmerman v. Appalachian State University", "decision_date": "2002-03-05", "docket_number": "No. COA00-1363", "first_page": "121", "last_page": "137", "citations": [ { "type": "official", "cite": "149 N.C. App. 121" } ], "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": "510 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "348 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659687, 1659928, 1659898, 1659836, 1659934 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/348/0496-05", "/nc/348/0496-02", "/nc/348/0496-03", "/nc/348/0496-04", "/nc/348/0496-01" ] }, { "cite": "496 S.E.2d 8", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "11" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 534", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11655945 ], "year": 1998, "pin_cites": [ { "page": "539" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0534-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 116-11", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1994, "pin_cites": [ { "page": "(2)" } ], "opinion_index": 0 }, { "cite": "279 S.E.2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "885", "parenthetical": "\"[fjindings of fact that are essentially conclusions of law will be treated as such upon review,\" and will be \"upheld when there are other findings upon which they are based\"" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 676", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170693 ], "year": 1981, "pin_cites": [ { "page": "681-82", "parenthetical": "\"[fjindings of fact that are essentially conclusions of law will be treated as such upon review,\" and will be \"upheld when there are other findings upon which they are based\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0676-01" ] }, { "cite": "546 S.E.2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "conclusions of law, even if erroneously labeled as findings of fact, are reviewable de novo on appeal; Court \"not bound by the label used by the trial court\"" } ], "opinion_index": 0 }, { "cite": "353 N.C. 261", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135782, 135657, 135981, 135737, 135578 ], "year": 2000, "pin_cites": [ { "parenthetical": "conclusions of law, even if erroneously labeled as findings of fact, are reviewable de novo on appeal; Court \"not bound by the label used by the trial court\"" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0261-04", "/nc/353/0261-03", "/nc/353/0261-01", "/nc/353/0261-02", "/nc/353/0261-05" ] }, { "cite": "534 S.E.2d 641", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "646", "parenthetical": "conclusions of law, even if erroneously labeled as findings of fact, are reviewable de novo on appeal; Court \"not bound by the label used by the trial court\"" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 745", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497749 ], "year": 2000, "pin_cites": [ { "page": "752", "parenthetical": "conclusions of law, even if erroneously labeled as findings of fact, are reviewable de novo on appeal; Court \"not bound by the label used by the trial court\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0745-01" ] }, { "cite": "358 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "352" }, { "page": "346" } ], "opinion_index": 0 }, { "cite": "320 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729581 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0344-01" ] }, { "cite": "553 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "finding of fact that states no factual basis is actually a conclusion of law" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 574", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11361102 ], "year": 2001, "pin_cites": [ { "parenthetical": "finding of fact that states no factual basis is actually a conclusion of law" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0574-01" ] }, { "cite": "500 S.E.2d 723", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "129 N.C. App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651162 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc-app/129/0499-01" ] }, { "cite": "148 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9363630 ], "year": 2001, "pin_cites": [ { "page": "55-56" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0052-01" ] }, { "cite": "301 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707236 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0131-01" ] }, { "cite": "293 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "674" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 241", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524580 ], "year": 1982, "pin_cites": [ { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0241-01" ] }, { "cite": "233 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "541" } ], "opinion_index": 0 }, { "cite": "292 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569880 ], "year": 1977, "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0406-01" ] }, { "cite": "521 S.E.2d 730", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "733", "parenthetical": "quoting Thompson v. Board of Education, 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977)" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 587", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11242057 ], "year": 1999, "pin_cites": [ { "page": "592", "parenthetical": "quoting Thompson v. Board of Education, 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0587-01" ] }, { "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": "548 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "796", "parenthetical": "quoting Lackey v. Dept. of Human Resources, 306 N.C. 231, 238, 293 S.E.2d 171, 176 (1982)" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 479", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435274 ], "year": 2001, "pin_cites": [ { "page": "483", "parenthetical": "quoting Lackey v. Dept. of Human Resources, 306 N.C. 231, 238, 293 S.E.2d 171, 176 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0479-01" ] }, { "cite": "483 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "392", "parenthetical": "quoting Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118" } ], "opinion_index": 0 }, { "cite": "345 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53839 ], "year": 1997, "pin_cites": [ { "page": "706", "parenthetical": "quoting Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0699-01" ] }, { "cite": "546 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "182" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 470", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435233 ], "year": 2001, "pin_cites": [ { "page": "475-76" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0470-01" ] }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "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": "674" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0668-01" ] } ], "analysis": { "cardinality": 1098, "char_count": 38334, "ocr_confidence": 0.741, "pagerank": { "raw": 1.5074727965929098e-07, "percentile": 0.6668079876471562 }, "sha256": "c0a9d26eb45c6f794231117bc2e1e127e30598ebcb9635fc9d8cb931f060eb4d", "simhash": "1:dbe5f53a93a325d5", "word_count": 5897 }, "last_updated": "2023-07-14T21:06:37.161258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and TIMMMONS-GOODSON concur." ], "parties": [ "WARD B. ZIMMERMAN, Petitioner v. APPALACHIAN STATE UNIVERSITY; BOARD OF GOVERNORS OF THE UNIVERSITY OF NORTH CAROLINA, Respondents" ], "opinions": [ { "text": "BIGGS, Judge.\nThis appeal arises from a 1995 decision by administrators of Appalachian State University (ASU) not to offer a reappointment contract to Ward B. Zimmerman (petitioner), at that time a non-tenured faculty member. The trial court\u2019s order reversed the decision of the Board of Governors to leave undisturbed the earlier decisions by ASU\u2019s Chancellor and its Trustees, and ordered petitioner reinstated to the ASU faculty. For the reasons that follow, we reverse the trial court.\nThe record, including the transcript of a hearing conducted by ASU\u2019s Faculty Grievance Hearing Committee (FGHC), establishes the following facts: Petitioner was first employed by ASU in 1990, when he accepted a position as Vice Chancellor for Business Affairs. He served ASU in this capacity until 1994, during which time he also taught classes at ASU on an intermittent basis. For the 1990-91 school year, he held a one-year appointment, carrying \u201cno remuneration or tenure consideration,\u201d as an associate professor in his \u201chome\u201d school, the Walker College of Business.\nASU hired a new Chancellor, Francis T. Borkowski, in 1993. Shortly after his arrival, Chancellor Borkowski asked petitioner to resign as Vice Chancellor for Business Affairs, and offered to assist him with a transition to another position. Chancellor Borkowski and petitioner agreed that after petitioner resigned as Vice Chancellor, he would receive an appointment as an untenured faculty member at ASU. On 17 November 1993, Chancellor Borkowski and petitioner signed a \u201cLetter of Understanding,\u201d memorializing their agreement on petitioner\u2019s future status at ASU. This memorandum provided that after petitioner resigned as Vice Chancellor, he would be allowed \u201creasonable use\u201d of university facilities \u201cto pursue his search for a Presidency,\u201d and would \u201cbe awarded faculty status as a full professor,\u201d in an appointment which would be \u201congoing, continuing and accrue the full benefits which are awarded to other University individuals of this rank.\u201d Thereafter, administrators within ASU sought a faculty position for petitioner. In July 1994, Provost Durham (Provost) found a teaching position for petitioner in the College of Education, within the Department of Leadership and Educational Studies. On 29 July 1994, petitioner was offered a one year, tenure-track appointment to a faculty position at ASU, for the 1994-95 school year, which he accepted. In September, 1995, petitioner\u2019s contract was renewed for another one year term, for the 1995-96 school year.\nIn October, 1995, the Provost received a letter from Dean Duke of the College of Education (the dean), ratifying the recommendation of petitioner\u2019s department chair, that petitioner be reappointed for a three-year contract upon the expiration of the 1995-96 school year. The Provost contacted Chancellor Borkowski, and expressed his disagreement with this recommendation. On 13 November 1995, the Provost notified petitioner by mail that he would not be reappointed when his current contract expired. After receiving the nonreappointment letter, Petitioner met with ASU administrators to discuss his situation, and then, on 26 February 1996, petitioner wrote to the FGHC to request a hearing.\nPetitioner\u2019s application for a hearing raised a number of issues regarding the validity of his nonreappointment; these issues are summarized as follows:\n1. Procedural defects in the notice of nonreappointment: the letter was sent by the Provost, rather than by the Dean, and it did not directly reference the ASU faculty handbook sections on the grievance procedure.\n2. Length of notice: petitioner received 180 days notice of non-reappointment, rather than 365 days.\n3. Provost\u2019s nonreappointment authority: petitioner contended that the Provost lacked the power to override a Dean\u2019s recommendation of reappointment of a provisional faculty member.\n4. Petitioner\u2019s status: petitioner contended that he was already a tenured professor, because his 1990-91 faculty appointment had never been explicitly rescinded, and thus his 1994 appointment as \u201cfull professor\u201d was a \u201cpromotion\u201d that conferred tenure.\nThe FGHC conducted a hearing on these issues during April, 1996, and issued its report 26 April 1996. The report addressed each of petitioner\u2019s allegations, and found none of them to be proven by the preponderance of the evidence; its findings of fact are summarized as follows:\n1. Petitioner was not prejudiced by the procedural defects in the notice of nonreappointment.\n2. Petitioner had only one year continuous service as a faculty member, and was entitled to only 180 days notice of nonreappointment.\n3. The provost \u201chas authority to participate in decision-making\u201d on nonreappointments.\n4. FGHC found that petitioner was fired as Vice Chancellor, that the school of business, his home college, did not want him on their faculty, that finding him a faculty position was difficult, and that to \u201cconstrue this as a promotion is absurd.\u201d\nPursuant to these findings, the FGHC dismissed all of petitioner\u2019s claims. In addition to the above findings and conclusions, which addressed each of the issues raised in petitioner\u2019s application for a hearing, the FGHC made these additional findings and recommendations summarized as follows:\n1. FGHC held that a tenure candidate who has demonstrated \u201cprofessional competence\u201d and \u201cpotential for future contributions\u201d to the university, but is not awarded tenure, has made a prima facie case of wrongful nonreappointment.\n2. FGHC held that the Provost\u2019s proffer of institutional need as an explanation for the nonreappointment had shifted the burden to respondents, requiring a \u201cclear showing of institutional need sufficient to outweigh consideration of [petitioner\u2019s] demonstrated professional competence and potential for future contributions.\u201d\n3. FGHC concluded that it needed more guidance in order to \u201cjudge the validity of a non-reappointment based on institutional need,\u201d and recommended petitioner\u2019s reinstatement while guidelines were developed.\n4. FGHC found that ASU administrators had used petitioner\u2019s tenure-track faculty appointment as a \u201cgolden parachute,\u201d or \u201cspringboard for job-hunting,\u201d and advised ASU administrators not to \u201cmeddle in the affairs of the faculty.\u201d\nOn 31 July 1996, Chancellor Borkowski issued his decision regarding petitioner\u2019s grievances, stating that such decision was made \u201cafter careful review\u201d of the FGHC\u2019s report. Chancellor Borkowski accepted all of the FGHC\u2019s conclusions and holdings regarding the issues raised by petitioner in his request for a hearing. He concluded that the FGHC had found none of the grievances that petitioner raised in his application for a hearing to be proven by a preponderance of the evidence, and that petitioner had not established a right to continued employment under any university policy, or state or federal law. With respect to the FGHC\u2019s findings on matters not raised in petitioner\u2019s application for hearing, Chancellor Borkowski rejected the FGHC\u2019s proposal that a new basis for faculty challenge to nonreappointment be identified, and its recommendation that petitioner be reinstated, finding these to be based upon the committee\u2019s consideration of matters not within its purview. Accordingly, Chancellor Borkowski denied relief to petitioner.\nChancellor Borkowski agreed to take under advisement the FGHC\u2019s suggestions for amendments to the faculty handbook clarifying the extent of the Provost\u2019s authority, and to consider its recommendations on the proper use of faculty appointments. However, he also stated that the issue of \u201cinstitutional need\u201d should not have been considered by the FGHC, because (1) it had not been raised by petitioner in his application for a hearing, (2) ASU administrative assessment of institutional need in making personnel decisions was not a proper basis for a grievance, because administrators are required to consider institutional need, and (3) the FGHC did not have jurisdiction to conduct an evaluation of the relative weight accorded by ASU administrators to factors, such as institutional need, that are properly a part of a personnel decision.\nOn 8 August 1996, petitioner appealed Chancellor Borkowski\u2019s decision to the ASU Board of Trustees (Trustees). Petitioner presented two issues to the Trustees. First, he argued that he had not received timely notice of appeal, in that he was entitled to 365 days notice, not 180 days. Secondly, he contended that \u201cthe nature of the non-renewal was substantially flawed and raised an inference of bias which was not rebutted by the Provost.\u201d The Trustees reviewed the record established by the FGHC\u2019s hearing, to determine whether Chancellor Borkowski\u2019s decision was \u201cclearly erroneous.\u201d On 26 March 1996, the Trustees issued their decision, which concurred with the FGHC and Chancellor Borkowski that (1) petitioner was a tenure-track faculty member entitled to only 180 days notice of nonreap-pointment, (2) petitioner was not prejudiced by receiving notice from the Provost instead of the Dean, and (3) the Provost was authorized to make determinations regarding reappointment. In addition, the Trustees found that petitioner had \u201cnever presented evidence that amounted to a -prima facie case of personal malice.\u201d They therefore concluded that it was \u201cnever incumbent upon the [Provost] to offer any explanation for his decision,\u201d and that there was \u201cno proper occasion to inquire into the bona fides of the \u2018institutional needs\u2019 rationale.\u201d The Trustees stated that, as a general rule, the validity of alleged institutional needs \u201cproperly becomes an issue in a grievance inquiry\u201d only \u201cwhen the aggrieved faculty member first establishes a prima facie case of wrongdoing . . . and the respondent seeks to rebut that showing with a claim of institutional need.\u201d Based upon their findings and conclusions, the Trustees determined that there was \u201cno basis for recommending that the Chancellor\u2019s disposition of Dr. Zimmerman\u2019s grievance be reversed.\u201d\nOn 16 April 1997 petitioner sought review by the University of North Carolina\u2019s Board of Governors (Board of Governors). He claimed that (1) he was entitled to 365 days notice of nonreappointment, (2) ASU\u2019s grievance process was \u201cfatally flawed\u201d in that Chancellor Borkowski had made \u201ccritical rulings\u201d regarding \u201chis own conduct and representations,\u201d and (3) the Trustees\u2019 determination that petitioner had failed to present a prima facie case of wrongdoing was \u201cclearly erroneous.\u201d\nThe Board of Governors\u2019 Committee on Personnel and Tenure reviewed the record to determine whether petitioner\u2019s appeal merited action by the Board of Governors. The committee\u2019s report addressed the issues raised by petitioner. Their findings and conclusions may be summarized as follows:\n1. Required notice: The committee concurred with the findings of the FGHC, Chancellor Borkowski, and the Trustees, that at the time of his nonreappointment, petitioner was a tenure-track assistant faculty member entitled to 180 days notification.\n2. Chancellor\u2019s role in review process: The committee found that (a) administrators\u2019 review of their own decisions \u201cis inherent in any institutional grievance process,\u201d and did not justify reversal without some proof of bias, (b) the FGHC\u2019s findings did not personally attack Chancellor Borkowski, (c) Chancellor Borkowski had accepted the FGHC\u2019s findings on \u201call procedural points,\u201d and (d) the Trustees had conducted their own review.\n3. Personal malice. The committee stated that their standard of review for evidentiary issues focuses on the consistency of decision-makers below, that further review is appropriate if there has been disagreement, and that neither the FGHC, Chancellor Borkowski, nor the Trustees \u201cfound such a contention [of personal malice] established.\u201d\nUpon these findings, the Committee on Personnel and Tenure concluded that further review by the Board of Governors was not appropriate. On 12 September 1997, the Board of Governors received and approved the report of the committee, and held that it would \u201cdecline to entertain this appeal further, and leave undisturbed the decision below.\u201d\nFrom the decision of the Board of Governors, petitioner on 15 October 1997 appealed to the superior court for judicial review. Respondents filed a motion to dismiss on 20 November 1997, alleging that petitioner had failed to \u201cexplicitly state what exceptions are taken to the decision or procedure,\u201d as required by N.C.G.S. \u00a7 150B-46. The motion to dismiss was denied, and an amended petition for judicial review was filed on 28 February 1998. Issues raised in the amended petition can be summarized as follows:\n1. Notice: petitioner argued he was entitled to 365 days notice.\n2. Chancellor\u2019s role: petitioner argued that Chancellor Borkowski\u2019s role in reviewing the FGHC\u2019s findings violated petitioner\u2019s state and federal right to due process.\n3. Personal malice: petitioner asserted error in the Board of Governors\u2019s findings and conclusions on this issue.\n4. Petitioner argued that the Board of Governors violated provisions of its Code by denying his request for review.\n5. Petitioner alleged that \u201cbased upon the whole record, the decision below is arbitrary and capricious[.]\u201d\nThe trial court\u2019s order was entered 15 August 2000. The trial court did not rule on petitioner\u2019s claim that Chancellor Borkowski had \u201cmade critical findings regarding his own conduct,\u201d and concurred with the FGHC, Chancellor Borkowski, the Trustees, and the Board of Governors, that petitioner was entitled to 180 days notice of reappointment, and that petitioner had failed to establish the existence of personal malice. The trial court also held that the Board of Governors\u2019s decision not to grant review to petitioner was (a) arbitrary and capricious, and (b) in violation of petitioner\u2019s right to substantive due process, and (c) \u201cinfected by\u201d errors of law. On this basis, the court ordered petitioner reinstated as a full professor at ASU, and awarded his costs. Respondents appealed from this order, and from the denial of their motion to dismiss petitioner\u2019s motion for judicial review. Petitioner appealed the trial court\u2019s denial of his request to be awarded back pay.\nStandard of Review\nThe trial court\u2019s order was entered pursuant to petitioner\u2019s appeal from a final agency decision, in this case the decision by the Board of Governors denying further review of his grievance against ASU. Judicial review of a final agency decision is governed by N.C.G.S. \u00a7 150B-51(b) (1999), \u201cScope of review:\u201d\n(a) [T]he court reviewing a final decision may affirm the decision of the agency or remand the case for further proceedings. It may also reverse or modify the agency\u2019s decision if the substantial rights of the petitioners may have been prejudiced because the agency\u2019s findings, inferences, conclusions, or decisions are:\n(1) In violation of constitutional provisions;\n(2) In excess of the statutory authority or jurisdiction of the agency;\n(3) Made upon unlawful procedure;\n(4) Affected by other error of law;\n(5) Unsupported by substantial evidence admissible under G.S. 150B-29(a), 150B-30 ... in view of the entire record as submitted;\nor\n(6) Arbitrary or capricious.\nThe standard of review employed by the reviewing court is determined by the type of error asserted; errors of law are reviewed de novo, while the \u201cwhole record\u201d test is applied to allegations that the administrative agency decision was not supported by the evidence, or was arbitrary and capricious. Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 443 S.E.2d 114 (1994). \u201cDe novo review requires a court to consider the question anew, as if the agency has not addressed it.\u201d Blalock, v. N.C. Dep\u2019t of Health and Human Servs., 143 N.C. App. 470, 475-76, 546 S.E.2d 177, 182 (2001). Under the whole record test, \u201cthe reviewing court [must] examine all competent evidence (the \u2018whole record\u2019) in order to determine whether the agency decision is supported by \u2018substantial evidence.\u2019 \u201d ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118). Substantial evidence is \u201c \u2018more than a scintilla\u2019 and is \u2018such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u2019 \u201d Williams v. N.C. Dep\u2019t of Env\u2019t & Natural Res., 144 N.C. App. 479, 483, 548 S.E.2d 793, 796 (2001) (quoting Lackey v. Dept. of Human Resources, 306 N.C. 231, 238, 293 S.E.2d 171, 176 (1982)). However, the whole record test \u201cdoes not permit the court \u2018to replace the [agency\u2019s] judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different, result had the matter been before it de novo,\u2019 \u201d N.C. Dept. of Correction v. McNeely, 135 N.C. App. 587, 592, 521 S.E.2d 730, 733 (1999) (quoting Thompson v. Board of Education, 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977)); but \u201cmerely gives a reviewing court the capability to determine whether an administrative decision has a rational basis in the evidence.\u201d 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). If the agency\u2019s findings are supported by substantial evidence, they must be upheld. Id. On appeal:\nOn review of a superior court order regarding a board\u2019s decision, this Court examines the trial court\u2019s order for error of law by determining whether the superior court: (1) exercised the proper scope of review, and (2) correctly applied this scope of review.... Further, this Court determines the actual nature of the contended error and then proceeds with an application of the proper standard of review.\nTucker v. Mecklenburg Cty. Zoning Bd. of Adjust., 148 N.C. App. 52, 55-56, - S.E.2d -, -(2001).\nIn its order regarding an agency decision, the trial court should state the standard of review it applied to resolve each issue. In re Appeal of Willis, 129 N.C. App. 499, 500 S.E.2d 723 (1998). In the instant case, the trial court set out generally the standards that it would apply to the issues before it. Although in several instances the trial court did not explicitly state the standard employed in its review of a specific issue, we can discern from the record which standard of review was applied. Review by this Court is further complicated by the organization of the trial court\u2019s order. The order contains three sections: \u201cfindings of fact,\u201d \u201coperative findings of fact,\u201d and \u201cconclusions of law.\u201d Certain of the findings of fact and \u201coperative\u201d findings of fact should properly be labeled conclusions of law. See Wilder v. Wilder, 146 N.C. App. 574, 553 S.E.2d 425 (2001) (finding of fact that states no factual basis is actually a conclusion of law). In State ex rel. Utilities Comm. v. Eddleman, 320 N.C. 344, 358 S.E.2d 339 (1987), the Court stated:\nFindings of fact are statements of what happened in space and time. These facts, when considered together, provide the basis for concluding, as the Commission did here, whether an action or decision was reasonable or prudent. ... In this case, [in] the Commission\u2019s summary of evidence, findings of fact and conclusions of law are mixed together .... Proper labeling might have made this Court\u2019s task a little easier, but we nonetheless have been able to separate facts from conclusions in examining appellants\u2019 various assignments of error.\nId. at 352, 358 S.E.2d at 346.\nWe will review conclusions of law de novo regardless of the label applied by the trial court. Carpenter v. Brooks, 139 N.C. App. 745, 752, 534 S.E.2d 641, 646, disc. review denied, 353 N.C. 261, 546 S.E.2d 91 (2000) (conclusions of law, even if erroneously labeled as findings of fact, are reviewable de novo on appeal; Court \u201cnot bound by the label used by the trial court\u201d); State v. Rogers, 52 N.C. App. 676, 681-82, 279 S.E.2d 881, 885 (1981) (\u201c[fjindings of fact that are essentially conclusions of law will be treated as such upon review,\u201d and will be \u201cupheld when there are other findings upon which they are based\u201d).\nI.\nRespondents argue that the trial court erred in its interpretation of relevant agency regulations. We agree.\nThe FGHC, Chancellor Borkowski, the Trustees, and the Board of Governors concurred that the Provost acted within his authority when he made the decision regarding petitioner\u2019s reappointment. The trial court, however, disagreed, and held in its order that \u201cASU regulations unequivocally state that the decision not to reappoint \u2018shall be made by the dean\u2019 . . . [t]hus, ASU has governing regulations that require the nonreappointment decision not be left to the unchecked whim of the administration.\u201d The issue before this Court is whether the Provost had authority to override the dean\u2019s recommendation of reappointment. The resolution of this question requires our interpretation of ASU regulations, and thus is reviewed de novo.\nWe first examine the overall nature and extent of ASU administrators\u2019 authority. \u201cThe Chancellor and the UNC-CH Board of Trustees derive their authority from the Board of Governors of the University of North Carolina (UNC) which, in turn, derives its authority from N.C. Gen. Stat. \u00a7 116-11(2) (1994) and Article IX, Section 8 of our North Carolina Constitution.\u201d DTH Publishing Corp. v. UNC-Chapel Hill, 128 N.C. App. 534, 539, 496 S.E.2d 8, 11, disc. review denied, 348 N.C. 496, 510 S.E.2d 382 (1998). Under N.C.G.S. \u00a7 116-11(2) (1999), the Board of Governors \u201cis responsible for the general determination, control, supervision, management and governance of all affairs of the constituent institutions.\u201d Pursuant to this statutory authority, the Board of Governors has created The Code of the Board of Governors (the Code), which contains regulations applicable to all UNC campuses, including ASU. Code Appendix, \u00a7 I.A.2, delegates to UNC Chancellors the authority to make recommendations for employment of faculty members, which recommendations must be forwarded to the Trustees for approval. We conclude, therefore, that the Chancellor and Provost of ASU generally have authority to make employment decisions regarding faculty members.\nFurther, our interpretation of ASU regulations convinces us that the Provost has the specific power to overrule a dean\u2019s recommendation of reappointment. ASU rales and procedures governing reappointment of tenure-track faculty members are set out in \u00a7 3.6.3 and \u00a7 3.6.4 of the ASU faculty handbook. \u201cReappointment, Promotion, and Tenure\u201d is addressed in \u00a7 3.6.3, which states in relevant part the following:\nb. A faculty member who is to be considered for reappointment ... must be notified by the department chairperson... [and] may submit to the chairperson materials . . . and may appear before the committee to speak to the issue. The committee shall consider all materials submitted. . . .\nc. The department chairperson shall give the dean of the particular college his or her written recommendations on . . . the faculty member being considered for reappointment. ... The dean of the college shall attach her or his recommendation and then forward all material to the Provost.... If the personnel action involves a reappointment and the Provost . . . concurs with the recommendation, a notice of reappointment shall be sent to the faculty member. ... If the Chancellor decides not to recommend a personnel action favorable to the faculty member, the Chancellor shall convey that decision to the faculty member[.] (emphasis added)\nPetitioner, however, has relied on language in another ASU faculty handbook section, \u00a7 3.6.4, \u201cNonreappointment of Faculty Members of Probationary Term Appointments\u201d to support his contention that the Provost has no authority to override the dean\u2019s recommendation of reappointment. This section states, in relevant part:\n3.6.4.B. The decision not to reappoint . . . shall be made by the dean of the appropriate college [,] . . . after the dean has received the recommendations of the Departmental Personnel Committee and the department chairperson. This decision is final except as it may later be reviewed in accordance with the provisions of Chapter IV. Before such decision is communicated to the faculty member, the decision shall be communicated for information to the Provost. . . .\nThus, under \u00a7 3.6.4.B, if the dean rejects a particular faculty member, the decision \u201cis final,\u201d and is only communicated to the Provost \u201cfor information.\u201d The significance of the finality of a dean\u2019s non-reappointment decision is that a college may not be compelled to reappoint or promote a faculty member after the dean has rejected the candidate. This finality is not part of \u00a7 3.6.3.C, which provides for notice to the faculty member of his reappointment if \u201cthe Provost . . . concurs with the recommendation[.]\u201d This language clearly contemplates situations in which the Provost does not concur. We conclude that, although senior administrators may not overrule the dean\u2019s recommendation of nonreappointment, and force the college to accept a candidate, they may overrule the dean\u2019s decision to reappoint, if it appears to be in the overall best interests of the university. This is consistent with the obligation of senior administrators to consider \u201cinstitutional needs and resources\u201d in making personnel decisions.\nIn the instant case, petitioner\u2019s department personnel committee recommended reappointment, as did his department chair. The dean accepted their recommendation, and forwarded a reappointment recommendation to the Provost, all in compliance with the procedures described in \u00a7 3.6.3. We conclude that because the dean recommended reappointment, rather than nonreappointment, it is \u00a7 3.6.3, rather than \u00a7 3.6.4, which governs the present situation; the dean recommended reappointment, but the Provost did not \u201cconcur with the recommendation.\u201d\nThis Court concludes that the Provost had the authority to decide not to reappoint petitioner, and further concludes that the trial court erred in its conclusion that the Provost and Chancellor Borkowski \u201cexceeded their power when they rejected the recommendation of the dean.\u201d We hold that the trial court erred in its interpretation of relevant agency regulations on this issue.\nII.\nRespondents next allege that the trial court erred in its application of the whole record test to other issues. We agree.\nIn the instant case, the trial court concluded, based upon its review of the whole record, that \u201cthe [Board of] Governors\u2019 decision not to review the findings of the Trustees and the FGHC is not only arbitrary and capricious, but also violates Dr. Zimmerman\u2019s substantive due process rights[, and was] . . . infected with errors of law[.]\u201d We will, therefore, examine the Board of Governors\u2019 decision, to determine if the trial court correctly applied the whole record test in reaching this conclusion.\nThe trial court\u2019s review of the Board of Governors\u2019 decision not to hear petitioner\u2019s appeal was the fifth level of appeal by petitioner from his nonreappointment. The earlier stages of ASU\u2019s grievance process are summarized below:\n1. The FGHC conducts a hearing to determine if a preponderance of the evidence establishes that a right or entitlement, conferred by university policy or state or federal laws, was abridged.\n2. Chancellor Borkowski reviews the FGHC recommendations, but makes the final decision on a personnel matter.\n3. The Trustees review the record to determine if Chancellor Borkowski\u2019s decision not to grant relief to petitioner was \u201cclearly erroneous.\u201d\n4. The Board of Governors examines the record to determine if significant procedural or substantive errors below require review.\nASU faculty handbook \u00a7 4.6.4 confers jurisdiction upon FGHC to conduct hearings only upon \u201cthose matters specified in the request for a hearing.\u201d In the present case, the FGHC made findings regarding each of petitioner\u2019s contentions, and held against him on all. Their findings and conclusions addressed the factual issues regarding (1) petitioner\u2019s faculty status at the time he received notice of nonreap-pointment, (2) length of required notice of nonreappointment, and (3) significance of any procedural defects in the notice of nonreappointment. The FGHC\u2019s findings on the issues that petitioner \u201cspecified in the request for a hearing\u201d were accepted by Chancellor Borkowski, and subsequently ratified by the Trustees, the Board of Governors, and the trial court. Our review of the record reveals that these findings were supported by substantial evidence, and thus could not properly form the basis of the trial court\u2019s conclusion that the Board of Governors\u2019 decision was arbitrary and capricious. Indeed, as indicated, the trial court concurred on each of the issues outlined in petitioner\u2019s request for an FGHC hearing.\nHowever, notwithstanding petitioner\u2019s failure to establish any of his stated grievances, the FGHC concluded that petitioner had made a prima facie case of wrongful nonreappointment. Its recommendation stated that where the dean\u2019s recommendation of reappointment is \u201coverturned on the basis of administrator judgments of institutional need, a prima facie case has been established.\u201d The trial court agreed with this, stating in its order that the following evidence constituted a prima facie showing: (1) petitioner applied for reappointment, (2) was qualified for the position, (3) was recommended for reappointment by his department chair and the dean of his college, but (4) petitioner was not reappointed. The trial court concluded that upon this evidence, ASU \u201cwas then required to put forth a legitimate reason to justify its nonreappointment of Dr. Zimmerman.\u201d We disagree with this conclusion.\nUniversity regulations require decisions regarding reappointment and nonreappointment to be made within the following parameters:\n1. The decision \u201cmay be based on any factor(s) considered relevant to the total institutional interests[.]\u201d\n2. Decision makers \u201cmust consider the faculty member\u2019s demonstrated professional competence, potential for future contributions, and institutional needs and resources.\n3. The decision \u201cmay not be based upon [a] the faculty member\u2019s exercise of rights guaranteed by either the First Amendment to the United States Constitution or Article I of the North Carolina Constitution, [b] discrimination based upon the faculty member\u2019s race, color, religion, sex, age, handicap, or national origin, or [c] personal malice.\u201d\nASU faculty handbook, \u00a7 \u00a7 3.6.3 and 3.6.4. A prima facie case of wrongful nonreappointment requires that \u201cthe evidence presented by the faculty member is sufficient, alone and without rebuttal\u201d to establish that \u201csome right or entitlement, conferred by university policy or state or federal laws was abridged to the faculty member\u2019s detriment, by the policy or action of the respondent.\u201d ASU faculty handbook \u00a7 4.6.1.\nIn the instant case, the evidence established only that petitioner was a tenure-track professor who, despite the recommendation of his dean, was not reappointed. Petitioner\u2019s basic contention is that, inasmuch as he was qualified and had been recommended by his department, his nonreappointment should be presumed to be based upon a violation of law, or some impermissible consideration. This flies in the face of the language of the ASU faculty handbook, which states that the decision may be based on any relevant factor, other than the three impermissible considerations stated in \u00a7 \u00a7 3.6.3 and 3.6.4 of the handbook. Petitioner did not allege that he was the victim of discrimination, or that his First Amendment rights had been abridged. Nor did he demonstrate the existence of personal malice; on this issue, the trial court was in agreement with the Trustees and the Board of Governors.\nOn this record, Chancellor Borkowski, the Trustees, and the Board of Governors all concluded that petitioner had not made out a prima facie case. However, despite petitioner\u2019s failure to establish that his nonreappointment had been based upon one of the three impermissible grounds, the trial court nevertheless concluded that he had made out a prima facie case. On this question, the trial court\u2019s reliance on FGHC\u2019s conclusion that a prima facie case had been established is misplaced. The FGHC\u2019s factual conclusions are not herein disputed, for as noted by the trial court, the FGHC was \u201cthe only body to hear and determine the credibility of witnesses and facts.\u201d However, the existence of a prima facie case requires legal analysis as well as fact finding, and thus must be carefully reviewed. We conclude that the petitioner failed to establish a prima facie case, and that the trial court misapplied the whole record test when it reached a contrary conclusion.\nUpon review of the whole record, including the transcript of the FGHC hearing, we hold that, with the exception of the FGHC\u2019s erroneous conclusion that petitioner had presented a prima facie case, the findings and conclusions of the FGHC, Chancellor Borkowski, the Trustees, and the Board of Governors regarding the issues raised by petitioner in his application for a FGHC hearing, and on the issue of personal malice, were supported by substantial evidence. We further conclude that at each level of university appeal the correct standard of decision-making and review was applied, and that the Board of Governors\u2019 decision to leave undisturbed the decision of the Trustees was based upon its conclusions. For these reasons, we reverse the trial court\u2019s conclusion that the decision of the Board of Governors denying further review of petitioner\u2019s case was arbitrary and capricious, affected by errors of law, and in violation of his right to substantive due process.\nFor the reasons discussed herein, we conclude that the trial court erred in its conclusions that (1) the Provost lacked authority to decide whether petitioner would be reappointed, (2) petitioner had made a prima facie case that he had been wrongfully nonreap-pointed, and (3) that the Board of Governors\u2019 denial of further review of petitioner\u2019s appeal was arbitrary and capricious, and \u201cinfected with\u201d errors of law. Accordingly, we reverse the trial court\u2019s order, and remand for reinstatement of the Board of Governors\u2019 decision not to review petitioner\u2019s appeal.\nHaving reversed the trial court\u2019s order, we have no need to address respondents\u2019 appeal from the trial court\u2019s interlocutory order, nor petitioner\u2019s cross-appeal.\nReversed.\nJudges McGEE and TIMMMONS-GOODSON concur.\n. The FGHC is an advisory committee comprised of ASU faculty members, which is authorized by the ASU faculty handbook to conduct hearings to determine if a \u201cright or entitlement. . . conferred by university policy or state or federal laws, [has been] abridged].]\u201d FGHC then submits a report to ASU administrators, containing its findings and recommendations.", "type": "majority", "author": "BIGGS, Judge." } ], "attorneys": [ "Ferguson, Stein, Wallas, Adkins, Gresham, & Sumter, P.A. by John W. Gresham, for 'petitioner.", "Attorney General Roy Cooper, by Assistant Attorney General Joyce S. Rutledge, for the respondent." ], "corrections": "", "head_matter": "WARD B. ZIMMERMAN, Petitioner v. APPALACHIAN STATE UNIVERSITY; BOARD OF GOVERNORS OF THE UNIVERSITY OF NORTH CAROLINA, Respondents\nNo. COA00-1363\n(Filed 5 March 2002)\n1. Colleges and Universities\u2014 non-tenured university faculty member \u2014 refusal of reappointment \u2014 authority of provost to override dean\u2019s recommended decision\nThe trial court erred by reversing the Board of Governors\u2019 final agency decision denying petitioner non-tenured university faculty member further review of his grievance against a university and by concluding that a university provost lacked authority to override a university dean\u2019s recommendation to reappoint petitioner, because: (1) N.C.G.S. \u00a7 116-11.2 provides that the Board of Governors is responsible for the constituent universities, and the Board of Governors created a code with regulations stating that the chancellor and provost generally have authority to make employment decisions regarding faculty members; and (2) the university\u2019s regulations provide that the provost has specific power to overrule a dean\u2019s recommendation of reappointment.\n2. Colleges and Universities\u2014 non-tenured university faculty member \u2014 refusal of reappointment \u2014 whole record test\u2014 prima facie case of wrongful nonreappointment\nThe whole record test reveals that the trial court erred by reversing the Board of Governors\u2019 final agency decision denying petitioner non-tenured university faculty member further review of his grievance against a university and by concluding petitioner made a prima facie case that he had been wrongfully nonreappointed, because: (1) the evidence only established that petitioner was a tenure-track professor who, despite recommendation of his dean, was not reappointed; and (2) petitioner did not allege that he was the victim of discrimination, that his First Amendment rights had been abridged, or that there was' personal malice.\n3. Colleges and Universities\u2014 non-tenured university faculty member \u2014 refusal of reappointment \u2014 whole record test\u2014 arbitrary and capricious\nA review of the whole record reveals that the trial court erred by reversing the Board of Governors\u2019 final agency decision denying petitioner non-tenured university faculty member further review of his grievance against a university and by concluding the Board of Governors\u2019 denial of further review of petitioner\u2019s appeal was arbitrary and capricious and infected with errors of law, because: (1) the findings and conclusions of the FGHC, the Chancellor, the Trustees, and the Board of Governors regarding the issue of personal malice and the issues raised by petitioner in his application for a FGHC hearing, other than the erroneous conclusion that petitioner had presented a prima facie case, were supported by substantial evidence; and (2) at each level of university appeal the correct standard of decision-making and review was applied, and the Board of Governors\u2019 decision to leave undisturbed the decision of the Trustees was based upon its conclusions.\nAppeal by respondents from interlocutory orders entered 16 February 1998 by Judge Forrest Bridges, and from judgment entered 15 August 2000 by Judge Jessie B. Caldwell, III, all orders entered in Watauga County Superior Court. Cross-appeal by petitioner from order of 18 August 2000. Heard in the Court of Appeals 10 October 2001.\nFerguson, Stein, Wallas, Adkins, Gresham, & Sumter, P.A. by John W. Gresham, for 'petitioner.\nAttorney General Roy Cooper, by Assistant Attorney General Joyce S. Rutledge, for the respondent." }, "file_name": "0121-01", "first_page_order": 155, "last_page_order": 171 }