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    "judges": [
      "Judges TYSON and THOMAS concur."
    ],
    "parties": [
      "NORTH CAROLINA DEPARTMENT OF CORRECTION, Petitioner-Appellee v. CONNIE BRUNSON, Respondent-Appellant"
    ],
    "opinions": [
      {
        "text": "MARTIN, Judge.\nRespondent Connie Branson was terminated from her position as an Intensive Case Officer with the Division of Community Corrections of the North Carolina Department of Corrections (Department) effective 30 April 1999, for alleged unacceptable personal conduct. She petitioned for a contested case hearing.\nEvidence before the administrative law judge (AU) at the contested case hearing consisted of the testimony of several witnesses as well as numerous exhibits, which included written statements by the witnesses as well as other documentary evidence. The evidence tended to show that the incident giving rise to respondent\u2019s dismissal occurred in the Durham County Magistrate\u2019s Office on 14 January 1999. Respondent was in the magistrate\u2019s office, processing one of her probationers for a probation violation. When respondent entered the office, Durham Police Officer K.L. Johnson was seated in front of one of the magistrate\u2019s windows on the right hand side. No one was seated in front of the left window, so respondent instructed her probationer to sit on the stool in front of the left window. There were considerable contradictions in the evidence as to what occurred thereafter.\nIn his testimony at the administrative hearing and in his written statement, Officer Johnson stated that respondent was talking loudly when she entered the magistrate\u2019s office. Officer Johnson was waiting to do business with the magistrate when respondent got in front of him in line and placed her papers into the magistrate\u2019s window. Officer Johnson advised respondent that he had been waiting and was ahead of her in the line; according to Officer Johnson, respondent said, \u201c \u2018So, I got it like that, I\u2019ve been here 15 years and I can do that.\u2019 \u201d At that point, Magistrate Robinson and Magistrate VanVleet entered the processing room and Magistrate VanVleet sat down behind the window at which Officer Johnson had been waiting. Respondent began talking loudly to the probationer in her custody about his attire and his haircut; she then turned and began poking Officer Johnson on the left arm. Magistrate VanVleet instructed respondent to be quiet and to stand with her client. Respondent then stated \u201c \u2018who does he think he is? ... he must know who I am.\u2019 \u201d While Officer Johnson was providing information to the magistrate, respondent poked his arm again and Officer Johnson advised respondent that if she struck him again, he would charge her with assault on an officer. Magistrate VanVleet told respondent to go to the other side of the room because she was being disruptive. Respondent and the magistrate had words and Magistrate VanVleet told her \u201c \u2018one more word and you are in contempt of this court.\u2019 \u201d According to Officer Johnson, respondent walked to the other side of the room and asked Magistrate Robinson, \u201c \u2018who is that, he must not know me, he must be new . . . .\u2019 \u201d At that point, Magistrate VanVleet told respondent that he was finding her in contempt of court and ordered that she be taken into custody.\nIn his written statement and in his testimony before the ALJ, Magistrate VanVleet related that as he was beginning his probable cause proceeding with Officer Johnson, respondent and Officer Johnson were talking and he observed respondent poke Officer Johnson\u2019s shoulder. Magistrate VanVleet instructed both respondent and the officer that he was beginning the proceeding; Officer Johnson then ceased the conversation and began presenting his case to the magistrate, but respondent continued to speak in a loud and boisterous tone. Magistrate VanVleet stopped the probable cause hearing because he could not hear Officer Johnson. Upon learning that respondent was a probation officer, Magistrate VanVleet told respondent that she was to stand away from his window, and not to come to his window again. Magistrate VanVleet continued the probable cause hearing but had to stop the hearing again when respondent made statements directed toward his window. At that point, Magistrate VanVleet advised respondent that if she did not quiet down, he would hold her in contempt. Magistrate VanVleet resumed the hearing with Officer Johnson but after a few minutes had passed, respondent leaned into his window, partially blocking his view of Officer Johnson. At that point, the magistrate told respondent that she was being held in contempt and ordered that she be taken into custody. The accounts of Officer Johnson and Magistrate VanVleet were corroborated by the testimony of Officer David Diogo, who was also present in the magistrate\u2019s office.\nRespondent testified that after she entered the Magistrate\u2019s office, she and Officer Johnson \u201cbegan to talk and laugh and joke and tease with one another.\u201d Respondent stated that she then did business with Magistrate Stephanie Robinson. According to respondent, she heard Officer Johnson, jokingly, she thought, state, \u201c \u2018Why is she being waited on first?\u2019 \u201d Respondent then jokingly responded, \u201c \u2018Because I have seniority. I\u2019ve been here 15 years.\u2019 \u201d Respondent proceeded with her business with Magistrate Robinson but later heard someone yelling out to be quiet and to \u201cstep back from the window or you\u2019ll be held in contempt of court.\u201d Respondent finished conducting her business with Magistrate Robinson and then looked to see who was yelling. At that point, Magistrate VanVleet threw up his hands and said, \u201c \u2018That\u2019s it. You\u2019re held in contempt of court.\u2019 \u201d According to respondent, she still did not realize that he was talking to her. As she was beginning to leave, Corporal Ray, who was also present in the magistrate\u2019s office, informed her that she had been held in contempt of court.\nCorporal Ray testified that he observed respondent and Officer Johnson joking with each other. He further testified that he was under the impression that respondent did not realize that Magistrate VanVleet was talking to her or that she did not hear him tell her to step away from the window. Additionally, Corporal Ray thought that respondent had not heard Magistrate VanVleet hold her in contempt of court.\nIn his written order finding respondent in contempt, a copy of which is in the record, Magistrate VanVleet ordered that she be held in the Durham County jail for 48 hours. Magistrate VanVleet testified that, after conversing with the Chief District Court Judge for Durham County and being advised that there was no place to hold respondent, he \u201csuspended\u201d the contempt order and released respondent after she apologized for her conduct. Respondent testified that Magistrate VanVleet tore up the contempt order in her presence.\nOn 11 April 2000, the ALJ filed a recommended decision in which he concluded that the Department lacked just cause to dismiss respondent and recommended that she be reinstated with back pay, costs, and attorney\u2019s fees. The AU concluded that though respondent\u2019s conduct was such as to constitute unsatisfactory job performance, it did not rise to the level of unacceptable personal conduct so as to be grounds for termination without prior warning. Accordingly, the AU found the Department did not have just cause to terminate respondent, since she had not received the requisite written warnings required for termination for unsatisfactory job performance. On 1 September 2000, the State Personnel Commission (Commission) adopted the AU\u2019s recommended findings of fact, conclusions of law, and decision. The Department petitioned for judicial review of the Commission\u2019s decision.\nIn an order entered 10 January 2001, the superior court determined that the Commission\u2019s decision was erroneous as a matter of law. The superior court reversed the decision of the Commission and remanded the matter with instructions to the Commission to reinstate and affirm the decision of the Department to dismiss respondent from employment. Respondent appeals.\nUpon an appeal from an order of the superior court entered after review of an agency decision, \u201c \u2018the appellate court examines the trial court\u2019s order for error of law... [by] (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.\u2019 \u201d ACT-UP Triangle v. Comm\u2019n for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (citation omitted). The appropriate scope of review of the agency to be utilized by the superior court depends on the issues raised in the petition for judicial review. Id.\nWhen the petitioner contends the agency decision was affected by an error of law, G.S. \u00a7 150B-51(b)(l)(2)(3) & (4), de novo review is the proper standard; if it is contended the agency decision was not supported by the evidence, G.S. \u00a7 150B-51(b)(5), or was arbitrary and capricious, G.S. \u00a7 150B-51(b)(6), the whole record test is the proper standard (citation omitted).\nR.J. Reynolds Tobacco Co. v. North Carolina Dept. of Environment & Natural Resources, 148 N.C. App. 610, 614, 560 S.E.2d 163, 166, disc. review denied, 355 N.C. 493, 564 S.E.2d 44 (2002). It may be necessary for the reviewing court to employ both standards of review if warranted by the nature of the issues raised. In re Appeal by McCrary, 112 N.C. App. 161, 435 S.E.2d 359 (1993).\nIn its petition for judicial review in the superior court, the Department alleged that portions of the Commission\u2019s decision were either contrary to, or unsupported by, substantial evidence in the record; in addition, the Department alleged the decision was arbitrary and capricious and that the Commission had committed errors of law. Because the petition for judicial review raised issues of whether the agency decision was unsupported by the evidence (G.S. \u00a7 150B-51(b)(5)) or was arbitrary and capricious (G.S. \u00a7 150B-51(b)(6)), as well as issues of whether the decision was affected by errors of law (G.S. \u00a7 150B-51(b)(4)), both de novo review and whole record review were called for. See McCrary, 112 N.C. App. 161, 435 S.E.2d 359.\nIn its order reversing the Commission, the superior court explicitly adopted a de novo standard of review in reviewing the agency decision for error of law. The court wrote:\nSince the gravamen of the petition surrounds alleged errors of law committed by the [ALJ] and the State Personnel Commission, both as to their contravening a judicial official\u2019s written order and as to their characterization of Respondent\u2019s conduct as not being unacceptable personal conduct, the reviewing Court adopted a de novo standard of review ....\nThe court went on to recite that it had reviewed \u201cthe entire administrative record, including the exhibits and the transcript of the hearing before the [ALJ],\u201d before making extensive findings of fact. Respondent argues the trial court erred in making these findings and in replacing the Commission\u2019s findings regarding conflicting evidence with its own.\nRespondent correctly argues that a reviewing court, when conducting a \u201cwhole record\u201d review, may not substitute its own findings for those of the agency with regard to conflicts in the evidence, even though the trial court may have found differently from the agency. Savings & Loan Assoc. v. Savings & Loan Comm., 43 N.C. App. 493, 259 S.E.2d 373 (1979). However, when the trial court is conducting de novo review to determine whether an agency decision was affected by error of law, this Court has recently observed that the trial court is required to \u201c \u2018consider a question anew, as if not considered or decided by the agency\u2019 previously (citation omitted) . . . [and] must make its own findings of fact and conclusions of law and cannot defer to the agency its duty to do so.\u2019 \u201d Jordan v. Civil Serv. Bd. of Charlotte, 137 N.C. App. 575, 577, 528 S.E.2d 927, 929 (2000). Moreover, when conducting de novo review, the reviewing court may substitute its judgment for that of the agency. Duke University Medical Center v. Bruton, 134 N.C. App. 39, 42, 516 S.E.2d 633, 635 (1999).\nIn seeking review of the Commission\u2019s decision, the Department asserted the Commission committed an error of law in concluding that respondent\u2019s conduct constituted \u201cunsatisfactory job performance\u201d rather than \u201cunacceptable personal conduct.\u201d Under the Commission\u2019s regulations, a state employee may be terminated from employment for \u201cjust cause.\u201d \u201cJust cause\u201d may consist of either \u201cunsatisfactory job performance\u201d or \u201cunacceptable personal conduct.\u201d N.C. Admin. Code tit. 25, r. lJ.0604(b) (April 2002). \u201cUnsatisfactory job performance\u201d is defined as\n[w]ork-related performance that fails to satisfactorily meet job requirements as specified in the relevant job description, work plan, or as directed by the management of the work unit or agency.\nN.C. Admin. Code tit. 25, r. lJ.0614(j). \u201cUnacceptable personal conduct\u201d is defined, as applicable to the present case, as:\n(1) conduct for which no reasonable person should expect to receive prior warning; or\n(5) conduct unbecoming a state employee that is detrimental to state service[.]\nN.C. Admin. Code tit. 25, r. U.0614(i). A State employee may be terminated for a single incident of \u201cunacceptable personal conduct\u201d without any prior disciplinary action while certain warnings are required for dismissals based on an employee\u2019s \u201cunsatisfactory job performance.\u201d N.C. Admin. Code tit. 25, r. lJ.0608(a), r. lJ.0605(b). Regulations promulgated by the Commission have the force and effect of law, and an erroneous interpretation of such regulations by the Commission is an error of law, subject to de novo review. Beauchesne v. Univ. of N.C. at Chapel Hill, 125 N.C. App. 457, 462, 481 S.E.2d 685, 689 (1997).\nIn its findings of fact, the Commission found as a fact that respondent Brunson had been found in contempt of court by Magistrate VanVleet, and that after being detained for four hours, she apologized to the magistrate, who tore up the order. From this finding, the Commission concluded as a matter of law that respondent had not intentionally acted contemptuously toward the magistrate and that her actions did not rise to the level of unacceptable personal conduct. Upon review, the superior court determined the Commission\u2019s conclusions that respondent\u2019s conduct was not contemptuous and was not unacceptable personal conduct to be errors of law. We agree.\nThe Department\u2019s Personnel Manual, in evidence in this case, lists, as an example of unacceptable personal conduct, \u201c[a]s a representative of the Department, being found in contempt of court.\u201d There is no question that respondent, under the Commission\u2019s findings as well as those of the superior court, was found by Magistrate VanVleet to be in contempt of court. Respondent argues, however, that since the magistrate tore up the order of contempt and never filed it with the clerk, there was no final judgment of contempt entered. \u201cJudgment is entered when sentence is pronounced.\u201d N.C. Gen. Stat. \u00a7 15A-101(4a) (2002). In a criminal case, for entry of judgment to occur, a judge must either announce his ruling in open court or sign the judgment containing the ruling and file it with the clerk. State v. Boone, 310 N.C. 284, 311 S.E.2d 552 (1984). In the case subjudice, the Commission and the trial court found that the magistrate had told respondent he was finding her in contempt, thereby announcing his ruling, in open court. Thus, a judgment finding respondent Brunson in contempt of court order was entered.\nNonetheless, respondent argues the contempt order was not final since Magistrate VanVleet tore it up upon her apology after she had been detained for approximately four hours. Magistrate VanVleet testified that he \u201csuspended\u201d the order after he had consulted with the Chief District Court Judge and had learned there was no place available in the county jail to detain respondent for the entire sentence of forty-eight hours. Magistrate VanVleet\u2019s \u201csuspension\u201d of the sentence does not negate the final nature of the contempt finding. The trial court\u2019s characterization of respondent\u2019s apology as \u201cpurging\u201d herself of contempt, which is not available in criminal contempt matters, Bishop v. Bishop, 90 N.C. App. 499, 369 S.E.2d 106 (1988), while erroneous, is inconsequential to the court\u2019s correct legal conclusion that Magistrate VanVleet\u2019s order finding respondent in contempt was a final order of a judicial official.\nHaving determined that Magistrate VanVleet\u2019s order finding respondent in contempt was a final order of a judicial official, we must also agree with the trial court\u2019s legal conclusion that respondent\u2019s conduct underlying the finding of contempt was unacceptable personal conduct rather than unsatisfactory job performance, and that the Commission\u2019s conclusion to the contrary was an error of law. Being held in contempt of court as a representative of the Department is specifically listed in the North Carolina Department of Correction Personnel Manual as an example of personal misconduct, and is undeniably \u201cconduct for which no reasonable person should expect to receive prior warning,\u201d as well as \u201cconduct unbecoming a state employee that is detrimental to state service.\u201d N.C. Admin. Code tit. 25, r. lJ.0614(i). Therefore, the Commission\u2019s decision reversing the Department\u2019s dismissal of respondent for personal misconduct was affected by error of law and the trial court\u2019s order reversing such decision will be affirmed.\nBecause we hold that the Commission\u2019s decision reversing the Department\u2019s dismissal of respondent from employment for unacceptable personal conduct was affected by error of law and must be reversed, we deem it unnecessary to review respondent\u2019s assignments of error relating to the trial court\u2019s failure to apply the whole record standard of review to the remaining grounds urged by the Department in its petition for judicial review.\nAffirmed.\nJudges TYSON and THOMAS concur.",
        "type": "majority",
        "author": "MARTIN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy A. Cooper, III, by Assistant Attorney General J. Philip Allen, for petitioner-appellee.",
      "Browne, Flebotte, Wilson & Horn, P.L.L.C., by Joy Rhyne Webb, for respondent-appellant."
    ],
    "corrections": "",
    "head_matter": "NORTH CAROLINA DEPARTMENT OF CORRECTION, Petitioner-Appellee v. CONNIE BRUNSON, Respondent-Appellant\nNo. COA01-793\n(Filed 20 August 2002)\nPublic Officers and Employees\u2014 termination of state employee \u2014 contempt of court \u2014 personal misconduct\nThe trial court did not err by reversing the State Personnel Commission\u2019s conclusions that respondent state employee\u2019s dismissal for personal misconduct was inappropriate based on the fact that her conduct was not contemptuous and was not unacceptable personal conduct, because: (1) the Department of Corrections\u2019s Personnel Manual lists being found in contempt of court as an example of unacceptable conduct, and even though a magistrate later tore up the order of contempt and never filed it with the clerk, a judgment finding respondent in contempt of court was entered when the magistrate told respondent in open court that he was finding her in contempt; (2) the magistrate\u2019s suspension of the order after learning there was no place available in the county jail to detain respondent for the entire sentence of forty-eight hours does not negate the final nature of the contempt finding; and (3) respondent\u2019s conduct underlying the finding of contempt was unacceptable personal conduct under N.C. Admin. Code tit. 25, r. lJ.0614(b) rather than unsatisfactory job performance under N.C. Admin. Code tit. 25, r. lJ.0604(b).\nAppeal by respondent from order entered 10 January 2001 by Judge David Q. LaBarre in Durham County Superior Court. Heard in the Court of Appeals 18 April 2002.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General J. Philip Allen, for petitioner-appellee.\nBrowne, Flebotte, Wilson & Horn, P.L.L.C., by Joy Rhyne Webb, for respondent-appellant."
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