{ "id": 8301108, "name": "JOSEPH E. TEAGUE, JR., P.E., C.M., Petitioner-Appellant v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Respondent-Appellee", "name_abbreviation": "Teague v. North Carolina Department of Transportation", "decision_date": "2006-04-18", "docket_number": "No. COA05-522", "first_page": "215", "last_page": "225", "citations": [ { "type": "official", "cite": "177 N.C. App. 215" } ], "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": "618 S.E.2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633852 ], "year": 2005, "pin_cites": [ { "page": "289", "parenthetical": "quoting Watkins v. N.C. State Bd. of Dental Exam'rs, 358 N.C. 190, 199, 593 S.E.2d 764, 769 (2004)" } ], "opinion_index": 0, "case_paths": [ "/se2d/618/0280-01" ] }, { "cite": "620 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634071 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "17" }, { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/se2d/620/0014-01" ] }, { "cite": "625 S.E.2d 883", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635093 ], "year": 2006, "pin_cites": [ { "page": "885", "parenthetical": "holding that an oral announcement by an agency subject to Article 3 did not constitute a \"final decision\" under N.C.G.S. \u00a7 150B-36(b)" } ], "opinion_index": 0, "case_paths": [ "/se2d/625/0883-01" ] }, { "cite": "393 S.E.2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "107" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520957 ], "year": 1990, "pin_cites": [ { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0052-01" ] }, { "cite": "593 S.E.2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "769" } ], "opinion_index": 0 }, { "cite": "358 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986024 ], "year": 2004, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0190-01" ] }, { "cite": "173 N.C. App. 22", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352820 ], "year": 2005, "pin_cites": [ { "page": "34", "parenthetical": "quoting Watkins v. N.C. State Bd. of Dental Exam'rs, 358 N.C. 190, 199, 593 S.E.2d 764, 769 (2004)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0022-01" ] }, { "cite": "402 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 98", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539448, 2545427, 2542900 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0098-03", "/nc/328/0098-01", "/nc/328/0098-02" ] }, { "cite": "397 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "354" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527049 ], "year": 1990, "pin_cites": [ { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0498-01" ] }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "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 ], "year": 1994, "pin_cites": [ { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0668-01" ] }, { "cite": "483 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "392", "parenthetical": "quoting Amanini v. N.C. Dep't of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994)" } ], "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 v. N.C. Dep't of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994)" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0699-01" ] }, { "cite": "599 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "898" } ], "opinion_index": 0 }, { "cite": "358 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987357 ], "year": 2004, "pin_cites": [ { "page": "665" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0649-01" ] }, { "cite": "513 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "826" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 704", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239996 ], "year": 1999, "pin_cites": [ { "page": "708" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0704-01" ] }, { "cite": "458 S.E.2d 184", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790240, 790095, 790106, 790234, 790175 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0358-02", "/nc/340/0358-01", "/nc/340/0358-04", "/nc/340/0358-05", "/nc/340/0358-03" ] }, { "cite": "454 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "301" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 118", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916910 ], "year": 1995, "pin_cites": [ { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0118-01" ] }, { "cite": "499 S.E.2d 180", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "185" } ], "opinion_index": 0 }, { "cite": "347 N.C. 614", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551369 ], "year": 1998, "pin_cites": [ { "page": "623" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0614-01" ] }, { "cite": "173 N.C. App. 594", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8354061 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "596" }, { "page": "597" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0594-01" ] }, { "cite": "507 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "277" } ], "opinion_index": 0 }, { "cite": "349 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571708 ], "year": 1998, "pin_cites": [ { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0315-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-35", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "176 N.C. App. 273", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301036 ], "year": 2006, "pin_cites": [ { "page": "276", "parenthetical": "holding that an oral announcement by an agency subject to Article 3 did not constitute a \"final decision\" under N.C.G.S. \u00a7 150B-36(b)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/176/0273-01" ] }, { "cite": "556 S.E.2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "finding \"no ambiguity in [the] statutory language [of N.C.G.S. \u00a7 150-44] that would give the trial court need to further explore legislative intent\"" } ], "opinion_index": 0 }, { "cite": "354 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138470, 138323, 138489, 138494, 138495 ], "year": 2001, "pin_cites": [ { "parenthetical": "finding \"no ambiguity in [the] statutory language [of N.C.G.S. \u00a7 150-44] that would give the trial court need to further explore legislative intent\"" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0365-03", "/nc/354/0365-04", "/nc/354/0365-02", "/nc/354/0365-01", "/nc/354/0365-05" ] }, { "cite": "551 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "538", "parenthetical": "finding \"no ambiguity in [the] statutory language [of N.C.G.S. \u00a7 150-44] that would give the trial court need to further explore legislative intent\"" }, { "page": "539" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 649", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11439225 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "653", "parenthetical": "finding \"no ambiguity in [the] statutory language [of N.C.G.S. \u00a7 150-44] that would give the trial court need to further explore legislative intent\"" }, { "page": "655" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0649-01" ] }, { "cite": "447 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "783" } ], "opinion_index": 0 }, { "cite": "337 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551286 ], "year": 1994, "pin_cites": [ { "page": "594" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0569-01" ] }, { "cite": "504 S.E.2d 300", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "304", "parenthetical": "quoting Empire Power Co. v. N.C. Dept. of E.H.N.R., 337 N.C. 569, 594, 447 S.E.2d 768, 783 (1994)" }, { "page": "304" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 721", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11470233 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "725", "parenthetical": "quoting Empire Power Co. v. N.C. Dept. of E.H.N.R., 337 N.C. 569, 594, 447 S.E.2d 768, 783 (1994)" }, { "page": "725" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0721-01" ] } ], "analysis": { "cardinality": 864, "char_count": 23268, "ocr_confidence": 0.756, "pagerank": { "raw": 7.004966026733061e-07, "percentile": 0.9658281235701387 }, "sha256": "3d56612c3c4fa1ae27dec34f414bfa5cfe3a9dbe66b2aae4f98ecd3f97a61b8e", "simhash": "1:5a68f1ea75bcad52", "word_count": 3694 }, "last_updated": "2023-07-14T22:32:29.259677+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge STEELMAN concur." ], "parties": [ "JOSEPH E. TEAGUE, JR., P.E., C.M., Petitioner-Appellant v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Respondent-Appellee" ], "opinions": [ { "text": "McGEE, Judge.\nJoseph E. Teague (Teague) was employed as an engineer by the North Carolina Department of Transportation (DOT) in the Program Analysis Unit. By letter dated 17 May 2001, DOT dismissed Teague from employment based on unacceptable personal conduct. Teague filed a grievance, and DOT upheld its dismissal decision. Thereafter, Teague filed a petition for a contested case hearing in the Office of Administrative Hearings. A hearing was held before an administrative law judge (the AU) on 9 and 10 April 2002. The AU rendered a decision on 17 October 2002 upholding DOT\u2019s dismissal of Teague for unacceptable personal conduct.\nThe State Personnel Commission (the Commission) considered the decision of the AU at its 20 February 2003 meeting. The Commission issued a Memorandum of Consideration on 1 April 2003, stating that four members of the Commission voted to adopt the AU\u2019s decision and four members voted against the adoption of the AU\u2019s decision. The Memorandum of Consideration continued: \u201cBeing unable to sustain a majority in favor of a motion to adopt or reject the [ALJ\u2019s] decision, the Commission took no further action with regard to the recommended decision.\u201d The Memorandum of Consideration concluded: \u201cNote: G.S. 150B-44 provides the following: If an agency subject to Article 3 of this Chapter has not made a final decision within [the time limit specified in the statute], the agency is considered to have adopted the [ALJ\u2019s] recommended decision as the agency\u2019s final decision.\u201d Teague filed a petition for judicial review. The trial court determined the ALJ\u2019s decision to be the final agency decision, and affirmed the ALJ\u2019s decision. Teague appeals.\nThe evidence before the ALJ tended to show that Teague was continuously employed by DOT from 1988 until his discharge in 2001. Teague received an A.B.S. degree in Mechanical Engineering from Georgia Tech University, an M.B.A. in Economics from the University of Oklahoma, and a Master\u2019s Degree in Civil Engineering from North Carolina State University. From 1998 until 2000, Teague\u2019s responsibilities at DOT involved computer security and software licensing issues. On 11 April 2001, DOT staff conducted a routine, random scan of local ports and Internet Protocol addresses in Teague\u2019s unit. As a result of the scan and a subsequent'inspection of Teague\u2019s computer, DOT discovered nineteen software applications on Teague\u2019s computer that were not issued by DOT. Teague was placed on \u201cinvestigatory placement\u201d with pay while a full investigatory audit of Teague\u2019s computer was completed. Ultimately, Teague was dismissed from his employment for unacceptable personal conduct, specifically for the willful violation of known or written work rules.\nThe ALJ determined that Teague willfully violated two sets of work rules: (1) a document entitled \u201cInternet and Email Policy and Procedure\u201d (Internet Policy); and (2) a document entitled \u201cStatement of Understanding Regarding Use of Computers\u201d (Statement of Understanding). The AU found that Teague admitted to reading and signing the Internet Policy, the first paragraph of which stated that the Internet Policy was to be understood \u201c[a]s a supplement to and in conjunction with\u201d the Statement of Understanding.\nI.\nTeague first assigns error to the trial court\u2019s determination that the AU\u2019s recommended decision became the final decision of the Commission pursuant to N.C. Gen. Stat. \u00a7 150B-44. The statute provides that \u201c[i]f an agency subject to Article 3 of [Chapter 150B] has not made a final decision within the [relevant] time limitf], the agency is considered to have adopted the [ALJ\u2019s] decision as the agency\u2019s final decision.\u201d N.C. Gen. Stat. \u00a7 150B-44 (2005). In interpreting the statute, our Court has held that, \u201c[b]ecause the primary purpose of [Chapter 150B] is to provide procedural protection for persons aggrieved by an agency decision, the provisions thereof are to be \u2018liberally construed ... to preserve and effectuate such right.\u2019 \u201d Holland Group v. N.C. Dept. of Administration, 130 N.C. App. 721, 725, 504 S.E.2d 300, 304 (1998) (quoting Empire Power Co. v. N.C. Dept. of E.H.N.R., 337 N.C. 569, 594, 447 S.E.2d 768, 783 (1994)). Moreover, \u201c[t]he plain language of [N.C.]G.S. \u00a7 150-44 indicates the section is intended to guard those involved in the administrative process from the inconvenience and uncertainty of unreasonable delay.\u201d Id.] see Occaneechi Band of the Saponi Nation v. N.C. Comm\u2019n of Indian Affairs, 145 N.C. App. 649, 653, 551 S.E.2d 535, 538, disc. review denied, 354 N.C. 365, 556 S.E.2d 575 (2001) (finding \u201cno ambiguity in [the] statutory language [of N.C.G.S. \u00a7 150-44] that would give the trial court need to further explore legislative intent\u201d).\nTeague argues that the Commission\u2019s act of voting, and failure to reach a majority vote, was in fact a final decision that DOT failed to carry its burden of showing just cause for Teague\u2019s dismissal. Therefore, he contends N.C.G.S. \u00a7 150B-44 does not apply. This is incorrect. The plain language of N.C.G.S. \u00a7 150B-44 provides that an agency, such as the Commission, that is subject to Article 3, \u201chas 60 days from the day it receives the official record in a contested case ... or 60 days after its next regularly scheduled meeting, whichever is longer, to make a final decision in the case.\u201d N.C.G.S. \u00a7 150B-44. N.C. Gen. Stat. \u00a7 150B-36(b) (2005) provides that \u201ca final decision in a contested case shall be made by the agency in writing . . . and shall include findings of fact and conclusions of law.\u201d (emphasis added). Our Court has explained that N.C.G.S. \u00a7 150B-36(b) \u201cclearly requires that a final agency decision be in writing and include findings of fact and conclusions of law.\u201d Walton v. N.C. State Treasurer, 176 N.C. App. 273, 276, 625 S.E.2d 883, 885 (2006) (holding that an oral announcement by an agency subject to Article 3 did not constitute a \u201cfinal decision\u201d under N.C.G.S. \u00a7 150B-36(b)).\nIn the present case, the Commission received the official record on 18 December 2002 and heard the case at its next regularly scheduled meeting on 20 February 2003. Therefore, the Commission had 60 days from its 20 February 2003 meeting in which to render a final decision in writing, including findings of fact and conclusions of law. See N.C.G.S. \u00a7 150B-36(b); N.C.G.S. \u00a7 150B-44. After failing to reach a majority vote during its 20 February 2003 meeting, the Commission issued a Memorandum of Consideration on 1 April 2003. The Memorandum of Consideration did not recite any findings of fact or conclusions of law. Nor did it include any language that could be construed as a finding of fact or conclusion of law. Absent any findings of fact or conclusions of law, the Memorandum of Consideration cannot be considered a final decision under N.C.G.S. \u00a7 150B-36(b).\nBecause the Memorandum of Consideration did not constitute a final decision under N.C.G.S. \u00a7 150B-36, the Commission failed to make a final decision within the time limit set forth in N.C.G.S. \u00a7 150B-44. Accordingly, in order to protect Teague from unreasonable delay resulting from the Commission\u2019s failure to issue a final decision, the Commission \u201c[was] considered to have adopted the [ALJ\u2019s] decision as the agency\u2019s final decision.\u201d N.C.G.S. \u00a7 150B-44. The ALJ\u2019s recommended decision became the final decision in the case \u201cby operation, of law.\u201d Occaneechi, 145 N.C. App. at 655, 551 S.E.2d at 539.\nTeague correctly asserts that, under the State Personnel Act, the Commission had the burden of showing Teague was discharged for just cause. N.C. Gen. Stat. \u00a7 126-35 states in pertinent part that\n(a) No career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause. . . .\n(d) In contested cases conducted subject to Chapter 150B of the General Statutes, the burden of showing that a career State employee subject to the State Personnel Act was discharged, suspended, or demoted for just cause rests with the department or agency employer.\nN.C. Gen. Stat. \u00a7 126-35 (2005).\nOur Supreme Court has held that, for the purpose of procedural due process, \u201c[t]he North Carolina General Assembly created, by enactment of the State Personnel Act, a constitutionally protected \u2018property\u2019 interest in the continued employment of career State employees.\u201d Peace v. Employment Sec. Comm\u2019n, 349 N.C. 315, 321, 507 S.E.2d 272, 277 (1998). In the present case, Teague does not raise an argument as to procedural due process, but rather argues that N.C.G.S. \u00a7 150-44 cannot be interpreted to apply to his situation because there was no prescribed delay by the Commission. We disagree.\nWe have determined that the Commission failed to issue a final decision within the meaning of N.C.G.S. \u00a7 150B-36(b). In order to protect Teague from unreasonable delay, N.C.G.S. \u00a7 150B-44 provided Teague the remedy of making the ALJ\u2019s recommended decision the final decision of the agency, so the administrative appeals process could continue. This situation, in which an administrative agency failed to issue a final decision within the statutorily prescribed period, is the situation N.C.G.S. \u00a7 150B-44 was intended to remedy. See Holland, 130 N.C. App. at 725, 504 S.E.2d at 304 (stating that N.C.G.S. \u00a7 150B-44 \u201cis intended to guard those involved in the administrative process from the inconvenience and uncertainty of unreasonable delay\u201d). This assignment of error is overruled.\nII.\nTeague next argues the trial court erred in using the \u201cwhole record\u201d standard of review in reviewing his petition. Teague contends the trial court should have reviewed the matter de novo.\nWhen reviewing a trial court\u2019s order affirming a decision by an administrative agency, our Court must \u201cexamine the trial court\u2019s order for errors of law and determine whether the trial court exercised the appropriate scope of review and whether the trial court properly applied this standard.\u201d Hilliard v. N.C. Dep\u2019t of Corr., 173 N.C. App. 594, 596, 620 S.E.2d 14, 17 (2005).\nThe particular legal standard applied by a reviewing trial court depends on the type of issues presented for judicial review. Powell v. N.C. Dept. of Transportation, 347 N.C. 614, 623, 499 S.E.2d 180, 185 (1998). In cases where a petitioner contends an agency decision was based on an error of law, the trial court conducts a de novo review. Air-A-Plane Corp. v. N.C. Dept. of E.H.N.R., 118 N.C. App. 118, 124, 454 S.E.2d 297, 301, disc. review denied, 340 N.C. 358, 458 S.E.2d 184 (1995). In cases where the petitioner contends the agency decision was not supported by substantial evidence, the whole record test is the proper standard of review. N.C. Gen. Stat. \u00a7 150B-51(b)(5) (2005); Dillingham v. N.C. Dep\u2019t of Human Res., 132 N.C. App. 704, 708, 513 S.E.2d 823, 826 (1999).\nIn the present case, Teague asserted two alternative grounds for relief in his petition: (1) the AU\u2019s findings of fact and conclusions of law were not supported by evidence in the record; and (2) N.C.G.S. \u00a7 150B-44 did not apply to the Commission\u2019s act of voting and issuance of the Memorandum of Consideration. As to the first ground, the trial court stated that \u201c[t]he appropriate standard of review is whether the decision is supported by the substantial evidence in view of the entire record.\u201d We hold that this determination was correct under N.C.G.S. \u00a7 150B-51(b)(5).\nAs to the second ground, the trial court did not specify that it was using a de novo review, but addressed the matter in depth in its order and determined that \u201cthe recommended decision of the AU in favor of the DOT became the final decision by operation of law ... in accordance with Occaneechi.\u201d We find that the trial court properly employed a de novo review of the question of the application of N.C.G.S. \u00a7 150B-44. Moreover, our Supreme Court recently held that\nit is well settled that the trial court\u2019s erroneous application of the standard of review does not automatically necessitate remand, provided the appellate court can reasonably determine from the record whether the petitioner\u2019s asserted grounds for challenging the agency\u2019s final decision warrant reversal or modification of that decision under the applicable provisions of N.C.G.S. \u00a7 150B-51(b).\nN.C. Dep\u2019t of Env\u2019t and Natural Res. v. Carroll, 358 N.C. 649, 665, 599 S.E.2d 888, 898 (2004). As discussed above, our own de novo review of the issue reveals no error in the application of N.C.G.S. \u00a7 150B-44 to the present case. This assignment of error is overruled.\nIII.\nTeague argues that, even employing a whole record review, the trial court erred in determining there was sufficient evidence to support his dismissal for just cause. The State Personnel Act permits disciplinary action against career state employees for just cause. N.C.G.S. \u00a7 126-35. Just cause may consist of \u201cunacceptable personal conduct.\u201d 25 N.C.A.C. lJ.0604(b) (August 2005). Unacceptable personal conduct includes \u201cthe willful violation of known or written work rules[.]\u201d 25 N.C.A.C. lJ.0614(i) (August 2005). Our Court has held that a willful violation of known or written work rules occurs when an employee \u201cwillfully takes action which violates the rule and does not require that the employee intend [the] conduct to violate the work rule.\u201d Hilliard, 173 N.C. App. at 597, 620 S.E.2d at 17.\n\u201c \u2018[T]he \u201cwhole record\u201d test requires the reviewing court to examine all competent evidence (the \u201cwhole record\u201d) in order to determine whether the agency decision is supported by \u201csubstantial evidence.\u201d \u2019 \u201d ACT-UP Triangle v. Commission for Health Services, 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, 674, 443 S.E.2d 114, 118 (1994)). Substantial evidence is evidence that a reasonable mind would deem adequate to support a particular conclusion. Walker v. N.C. Dept. of Human Resources, 100 N.C. App. 498, 503, 397 S.E.2d 350, 354 (1990), disc. review denied, 328 N.C. 98, 402 S.E.2d 430 (1991). In conducting a whole record review, a trial court \u201c \u2018may not substitute its judgment for the agency\u2019s,\u2019 even if a different conclusion may result under a whole record review.\u201d Gordon v. N.C. Dep\u2019t of Corr., 173 N.C. App. 22, 34, 618 S.E.2d 280, 289 (2005) (quoting Watkins v. N.C. State Bd. of Dental Exam\u2019rs, 358 N.C. 190, 199, 593 S.E.2d 764, 769 (2004)).\nIn his petition for judicial review, Teague excepted to four findings of fact and four conclusions of law. The first three contested findings assert that Teague was, in fact, aware of the terms of the Statement of Understanding. Teague contends the only direct evidence in the record on this issue was Teague\u2019s own testimony that he had never seen nor signed the Statement of Understanding. He further argues that DOT did not present a copy of the Statement of Understanding signed by Teague. For the reasons discussed below, we find no error.\nIn finding number twenty-three, the AU explained that she found Teague\u2019s denial of knowledge of the Statement of Understanding \u201csimply not credible for several reasons.\u201d Among those reasons were: (1) Teague was a Computer Security Liaison for DOT for ten years; (2) Teague signed the Internet Policy, which explicitly referenced the Statement of Understanding; and (3) Teague was advised by a DOT computer systems administrator on several occasions that Teague needed to obtain permission to install software, which was part of the substance of the Statement of Understanding. Each of these reasons is supported by evidence of record. Moreover, the credibility of witnesses and the resolution of conflicting evidence is a matter for the agency, and not for the reviewing court. Huntington Manor of Murphy v. N.C. Dept. of Human Resources, 99 N.C. App. 52, 57, 393 S.E.2d 104, 107 (1990).\nSimilarly, in finding number twenty-four, the ALJ discredited Teague\u2019s assertion that Teague was unaware he was required to obtain his supervisor\u2019s approval before installing software onto his work computer. The AU explained that her disbelief of Teague was based on Teague\u2019s educational background, intellectual abilities, and on-the-job computer experience. This finding was supported by evidence of record, and it was within the AU\u2019s discretion to analyze the credibility of witnesses and to resolve conflicting testimony. Id. Accordingly, the trial court did not err in upholding finding number twenty-four.\nFinding twenty-five, that Teague admitted not having permission, or even asking permission, to install the software discovered on his computer, is supported by Teague\u2019s own testimony as follows:\nQ. In fact, did anyone ever explicitly give you permission to put any of these items that are listed in this time line \u2014 any of these software applications onto your own computer?\nA. No. I never asked.\nQ. You never asked permission:?\nA. No.\nTherefore, the trial court did not err in upholding finding number twenty-five.\nIn finding number thirty-one, the ALJ found Teague\u2019s unauthorized installation of applications such as remote access servers, virtual private networking servers, and Point-to-Point Protocol was \u201cinconsistent with [DOT\u2019s] objective to insure its files and computer network system were properly protected by the appropriate security devices],]\u201d in violation of the Internet Policy. This finding is supported by evidence that Teague did not have permission to install such software and that installing the servers and protocols breached DOT\u2019s network security and exposed DOT\u2019s systems to invasion by external computer hackers. The trial court did not err in upholding finding number thirty-one.\nConclusion of law number seven, which simply quotes language from the Statement of Understanding, was supported by substantial evidence, and was therefore correctly upheld by the trial court. Conclusion eight, that Teague was dismissed for unacceptable conduct, was based upon the finding that Teague knowingly violated the Statement of Understanding. As we uphold the finding that Teague was aware of the Statement of Understanding, we likewise find no error in the trial court\u2019s upholding this conclusion, as well as conclusion nine, which stated that DOT had just cause to dismiss Teague for unacceptable conduct, which constitutes just cause under \u00d1.C. Gen. Stat. \u00a7 126-35. Finally, conclusion eleven, that Teague knowingly violated the Internet Policy, is supported by evidence that Teague signed the Internet Policy, which stated that \u201cuse of all telecommunications and computer systems and resources must be in support of NCDOT activities and consistent with NCDOT objectives\u201d and that \u201c[c]omput-ing systems include, but are not limited to host computers, file servers, workstations, . . . and internal and external communication networks.\u201d Substantial evidence of the security risk posed by Teague\u2019s installation of software on his computer system further supports this conclusion. Accordingly, the trial court did not err in affirming conclusion eleven.\nAffirmed.\nChief Judge MARTIN and Judge STEELMAN concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Biggers & Hunter, PLLC, by John C. Hunter, for petitioner- ' appellant.", "Attorney General Roy Cooper, by Assistant Attorney General Tina A. Krasner, for respondent-appellee." ], "corrections": "", "head_matter": "JOSEPH E. TEAGUE, JR., P.E., C.M., Petitioner-Appellant v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Respondent-Appellee\nNo. COA05-522\n(Filed 18 April 2006)\n1. Public Officers and Employees\u2014 dismissal of state, employee \u2014 personal misconduct \u2014 final agency decision\nThe trial court did not err in a case involving the dismissal of a state employee for personal misconduct by determining that the ALJ\u2019s recommended decision became the final decision of the State Personnel Commission under N.C.G.S. \u00a7 150B-44, because: (1) after failing to reach a majority vote during its 20 February 2003 meeting, the Commission issued a Memorandum of Consideration on 1 April 2003, and absent any findings of fact or conclusions of law, the Memorandum of Consideration cannot be considered a final decision under N.C.G.S. \u00a7 150B-36(b); (2) in order to protect petitioner dismissed employee from unreasonable delay, N.C.G.S. \u00a7 150B-44 provided petitioner the remedy of making the ALJ\u2019s recommended decision the final decision of the agency so the administrative appeals process could continue; and (3) this situation, in which an administrative agency failed to issue a final decision within the statutorily prescribed period, is the situation N.C.G.S. \u00a7 150B-44 was intended to remedy.\n2. Administrative Law\u2014 whole record review \u2014 de novo review \u2014 dismissal of state employee\nThe trial court did not err in a case involving the dismissal of a state employee for personal misconduct by using the whole record standard of review instead of reviewing the matter de novo, because: (1) in cases where petitioner contends the agency decision was not supported by substantial evidence, the whole record test is the proper standard of review, and the first ground for relief in his petition stated that the ALJ\u2019s findings of fact and conclusions of law were not supported by evidence in the record; (2) as to petitioner\u2019s second ground for relief, the trial court properly employed a de novo review of the question of the application of N.C.G.S. \u00a7 150B-44; and (3) the trial court\u2019s erroneous application of the standard of review would not automatically necessitate remand, provided the appellate court can reasonably determine from the record whether the petitioner\u2019s asserted grounds for challenging the agency\u2019s final decision warrant reversal or modification of the decision under the applicable provisions of N.C.G.S. \u00a7 150B-51(b), and the Court of Appeals\u2019 de novo review of the issue revealed no error.\n3. Public Officers and Employees\u2014 dismissal of state employee \u2014 just cause\nA whole record review revealed that the trial court did not err by determining there was sufficient evidence to support the ALJ\u2019s findings and conclusions justifying petitioner state employee\u2019s dismissal for just cause, because: (1) the State Personnel Act permits disciplinary action against career state employees for just cause which may consist of unacceptable personal conduct; (2) petitioner\u2019s denial of knowledge of the statement of understanding was not credible when he was a computer security liaison for DOT for ten years, he signed the internet policy which explicitly referenced the statement of understanding, and he was advised by a DOT computer systems administrator on several occasions that he needed to obtain permission to install software; (3) the AU explained her disbelief of petitioner based on his educational background, intellectual abilities, and on-the-job computer experience, and it is within the AU\u2019s discretion to analyze the credibility of witnesses and to resolve conflicting testimony; (4) petitioner\u2019s own testimony supported the finding that he did not ask or get permission to install the software discovered on his computer; and (5) evidence supported the finding that petitioner\u2019s installation of servers and protocols breached DOT\u2019s network security and exposed DOT\u2019s systems to invasion by external computer hackers.\nAppeal by petitioner from order entered 18 February 2005 by Judge Henry W. Hight, Jr. in Superior Court, Wake County. Heard in the Court of Appeals 9 January 2006.\nBiggers & Hunter, PLLC, by John C. Hunter, for petitioner- ' appellant.\nAttorney General Roy Cooper, by Assistant Attorney General Tina A. Krasner, for respondent-appellee." }, "file_name": "0215-01", "first_page_order": 249, "last_page_order": 259 }