{
  "id": 12170172,
  "name": "In the Matter of: HUBERT Y. ALTMAN",
  "name_abbreviation": "In re Altman",
  "decision_date": "1981-06-02",
  "docket_number": "No. 8010SC923",
  "first_page": "291",
  "last_page": "299",
  "citations": [
    {
      "type": "official",
      "cite": "52 N.C. App. 291"
    }
  ],
  "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": [],
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  "last_updated": "2023-07-14T23:00:28.379499+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Arnold and Webb concur."
    ],
    "parties": [
      "In the Matter of: HUBERT Y. ALTMAN"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nWe note at the outset that the City has conceded that the evidence presented before the Commission was sufficient to support the Commission\u2019s findings and conclusions that the City \u201cdiscriminated\u201d against Altman \u201cbecause of his labor affiliations in transferring captain Altman out of the Fire Prevention Bureau and in stating to Captain Altman that he would not be considered for the position of Fire Marshal of the City of Raleigh.\u201d\nAlthough numerous questions have been presented and argued by the parties on this appeal, we deem it necessary to consider only whether the Commission had the authority under the Civil Service Act of the City of Raleigh (hereinafter \u201cAct\u201d) to enter its order dated 29 November 1979.\nChapter 1154 of the 1971 North Carolina Session Laws in pertinent part provides:\nSECTION 1. That a new Civil Service Act for the City of Raleigh is adopted to read as follows:\n(b) Merit Principle. All appointments and promotions of the City officers and employees shall be made solely on the basis of merit and fitness demonstrated by examination or other evidence of competence. However, any employee who contends that he was not promoted because of bias or for reasons not related to merit, fitness, or availability of positions, shall have the right, after exhausting all administrative remedies, to appeal his cause to the Civil Service Commission.\n(c) Employees Subject to Act. This act shall apply to all officers and employees of the City except the following:\n(1) Officials elected by the people.\n(2) Employees or officials appointed by the City Council or appointed by the City Manager and approved by the City Council and their immediate secretaries.\n(3) Department heads, Division heads and their immediate secretaries.\n(4) Part-time or non-permanent officers or employees.\n(5) Employees serving their probationary periods before becoming permanent employees, not to exceed eight months.\n(f) Appeal Board. The Civil Service Commission shall act as an appeal board to hear all appeals of employees regarding violation of City policy, suspensions, layoff, removal, promotions, forfeiture of pay or loss of time; but the Board shall have no jurisdiction to hear an appeal until all administrative remedies have been exhausted pursuant to the City\u2019s established grievance procedure.\nThe Civil Service Commission shall have the authority to affirm, modify or reverse, as it deems necessary, those actions over which it has jurisdiction.\n(h) Further Duties. The Civil Service Commission shall keep accurate records of its proceedings and shall have such other powers and duties as are necessary to implement the provisions of this act.\n(i) Discrimination Prohibited. No person in the service of the City or seeking admission thereto shall in any way be discriminated against or favored because of race, creed or color, or because of political or labor affiliations, or because of sex or marital status.\nThe record before us demonstrates that the requisites for an appeal to the Commission, as provided by Sections (b) and (f) of the Act, were properly met in the present case. The record also indicates that respondent is an employee subject to the jurisdiction of the Commission as provided by Section (c) of the Act, and the city has conceded discrimination against Altman in violation of Section (i) of the Act. The record does not show, however, that the position to which respondent sought promotion, the Fire Marshal of the City of Raleigh, is subject to the jurisdiction of the Commission under Section (c) of the Act.\nThe record demonstrates that the Raleigh Fire Department has three divisions and that the position of City Fire Marshal is the top position in one of those divisions. The City Fire Marshal, then, is a \u201cDivision head\u201d as described in Section (c)(3) of the Act, and the City Fire Marshal position is exempt from the provisions of the Act. The Commission therefore has no jurisdiction over the position of Fire Marshal, and as a result had no authority to entertain respondent\u2019s appeal of the City\u2019s refusal to promote him to Fire Marshal; thus, the Commission had no authority to appoint respondent to the position of Fire Marshal, or to award respondent \u201cback pay\u201d for the difference in salaries between his current rank of Captain and the position of Fire Marshal.\nThe Commission did find that the City had discriminated against respondent by other actions, and the Commission had the authority to entertain respondent\u2019s appeal on those matters. The Commission\u2019s authority in such matters, however, is not without limits; under Section (f) of the Act, the Commission can merely \u201caffirm, modify or reverse\u201d in deciding an appeal, and under Section (h), the Commission \u201cshall have such other powers and duties as are necessary to implement the provisions of this act.\u201d Such authority cannot be extended, in our opinion, to include ordering the payment of an attorney\u2019s fee or in the alternative imposing punitive damages, or to include ordering the City to \u201cprepare and submit revised promotional policies and procedures.\u201d\nIt follows, therefore, that the 29 November 1979 order of the Commission must be vacated. While the superior court reached the same result in its 26 March 1980 order, the superior court erroneously based its conclusion that the Commission had no authority to appoint respondent as Fire Marshal upon its determination that the position of Fire Marshal had not been permanently filled as found by the Commission. As we have determined that the Commission has no authority under the Act to entertain an appeal relating to the City\u2019s refusal to promote respondent to the position of Fire Marshal, the issue of whether the Fire Marshal position had been permanently filled is irrelevant.\nTherefore, the Superior Court\u2019s order, as it relates to the authority of the Commission with respect to the promotion of respondent to the position of Fire Marshal, must be modified to show that the Commission had no authority to entertain an appeal on such a matter, and thus had no authority to appoint respondent to the Fire Marshal position or to award respondent \u201cback pay\u201d as measured by the difference in salaries between his current position and that of Fire Marshal. As modified, the order of the Superior Court dated 26 March 1980 is affirmed.\nModified and affirmed.\nJudges Arnold and Webb concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "City Attorney Thomas A. McCormick, Jr., and Assistant City Attorney Francis P. Rasberry, Jr., for the petitioner appellee City of Raleigh.",
      "Poyner, Geraghty, Hartsfield & Townsend, by Cecil W. Harrison, Jr., and Johnson, Gamble & Shearon, by Samuel H. Johnson, for the intervenor appellees.",
      "Blanchard, Tucker, Twiggs, Denson & Earls, by Howard F. Twiggs and Charles H. Mercer, Jr., for the respondent appellant."
    ],
    "corrections": "",
    "head_matter": "In the Matter of: HUBERT Y. ALTMAN\nNo. 8010SC923\n(Filed 2 June 1981)\n1. Municipal Corporations \u00a7 9\u2014 Civil Service Commission \u2014no authority to appoint respondent as Fire Marshal\nThe Civil Service Commission of the City of Raleigh had no authority to entertain an appeal of the City\u2019s refusal to appoint respondent as City Fire Marshal since the Fire Marshal is a \u201cdivision head\u201d whose position is exempt from the provisions of the Civil Service Act; therefore, the Commission had no authority to appoint respondent as Fire Marshal or to award respondent \u201cback pay\u201d for the difference in salaries between his current rank of Fire Captain and the position of Fire Marshal.\n2. Municipal Corporations \u00a7 9\u2014 Civil Service Commission \u2014appeal from discrimination decision \u2014 attorney\u2019s fees \u2014order that City revise promotional procedures\nWhile the Civil Service Commission of the City of Raleigh had authority to entertain respondent\u2019s appeal from a decision of the City that he had not been the subject of discrimination in violation of City policy, the Commission had no authority to order the City to pay respondent\u2019s attorney fees or, in the alternative, punitive damages, or to order the City to prepare and submit revised promotional policies and procedures.\nAPPEAL by respondent Hubert Y. Altman from Bailey, Judge. Order entered 26 March 1980 in Superior Court, WAKE County. Heard in the Court of Appeals 7 April 1981.\nHubert Y. Altman, an employee with the rank of Captain in the Fire Department of the City of Raleigh (hereinafter \u201cCity\u201d), instituted this proceeding by appealing to the Civil Service Commission (hereinafter \u201cCommission\u201d) of the City, pursuant to Sections (b) and (f) of the Civil Service Act of the City of Raleigh (1971 N.C. Sess. Laws, Ch. 1154, \u00a7 1), the decision of the City that he had \u201cnot been the subject of discrimination in violation of City policy.\u201d After a hearing on Altman\u2019s appeal, the Commission made findings which, except where quoted, are summarized as follows:\nHubert Y. Altman has been an employee of the Raleigh Fire Department (hereinafter \u201cDepartment\u201d) for nineteen years. In 1973 he was promoted to the rank of Captain. In 1974, Captain Altman became Executive Secretary-Treasurer and Spokesman for the Raleigh Firefighter\u2019s Association. Altman was also Spokesman for the Raleigh Employees Benevolent Association. His activities as \u201cunion spokesman,\u201d and the publicity generated therefrom, \u201cwas a source of conflict and disagreement\u201d between Altman and Department Chief R. E. Keith and \u201cmembers of the Administration of the City of Raleigh.\u201d On 17 October 1977, Altman was transferred to the Fire Prevention Bureau of the Department as a Fire Inspector. Although initially displeased, Altman eventually \u201cenjoyed his work in the Bureau,\u201d but he was \u201cthe only employee of the Raleigh Fire Department who has been transferred into the Fire Prevention Bureau over his objections and against his will\u201d for longer than ninety days. In addition, the policies relating to transfers among the three divisions of the Department were \u201cunwritten and informal.\u201d\nThe position of Fire Marshal of the City became vacant on or about 19 March 1979. On 3 April 1979, District Chief James Owens was assigned the duties of \u201cActing Fire Marshal.\u201d During the Spring of 1979, Altman \u201cwas told on several occasions that unless he resigned as spokesman for and as a member of the Raleigh Firefighter\u2019s Association that he would be transferred back to a line company by Chief Keith,\u201d and Chief Keith told Altman that his \u201cactivities for the Association had seriously prejudiced his chances for promotion to position of Fire Marshal for the City.\u201d In April 1979, Altman was transferred over his objection by Chief Keith to \u201cFire Station Number 10, one of the least active stations in the Raleigh Fire Department.\u201d Altman was the \u201conly member of the Raleigh Fire Department to have been transferred out of the Fire Prevention Bureau over his objections and against his will.\u201d\nAltman \u201cinitiated\u201d his appeal to the Commission \u201cin a proper and timely manner\u201d on 25 April 1979. On 30 May 1979, Chief Keith mailed a letter to the District Chiefs of the Department and all Captains in the Department with a year\u2019s experience in the Fire Prevention Bureau soliciting applications for the Fire Marshal position. Altman and several others then applied for the position. The City did not advertise for the position elsewhere.\nThe Commission then concluded that the City, through \u201cits duly authorized agents,\u201d \u201cdiscriminated\u201d against Altman in violation of Section (i) of the Civil Service Act of the City of Raleigh in the following instances: (1) Chief Keith transferred Altman out of the Fire Prevention Bureau because of Altman\u2019s \u201clabor affiliation,\u201d as a \u201cdiscriminatory and punitive act\u201d against Altman, and to \u201cdiminish the effectiveness of the union;\u201d (2) Chief Keith told Altman he would not be considered for the Fire Marshal position \u201cbecause of his labor affiliation even though [Chief Keith] said that Altman was well-qualified for that position;\u201d (3) Chief Keith told Altman he would have to \u201cresign his membership in the Raleigh Firefighter\u2019s Association\u201d before Altman would be considered for further promotions and that Altman \u201cwould have to \u2018prove himself loyal\u201d to the Department administration; and (4) Chief Keith \u201charassed\u201d Altman and \u201cdiscriminated against him in various other areas. . . .\u201d\nThe Commission also concluded that Altman was the \u201cbest qualified person in the Raleigh Fire Department for the position as Fire Marshal\u201d since he was \u201cthe only individual applying for the job with extensive training in the areas of both fire prevention and fire suppression,\u201d and the \u201conly applicant\u201d who had spent at least eighteen months as a \u201cLine Captain\u201d as well as eighteen months with the Fire Prevention Bureau, and because he passed the \u201cexamination for District Chief.\u201d The Commission concluded further that the appointment of District Chief James Owens as \u201cActing Fire Marshal\u201d for the City had the \u201cfull force and effect of being a permanent assignment,\u201d and that the \u201cpromotion process of the Raleigh Fire Department . . . lacks sufficient objective criteria and written procedures to insure that promotions are based only on merit, fitness and competence in performance of duties.\u201d In addition, the Commission concluded that because Altman \u201chas been forced to expend a considerable amount of money to obtain legal counsel in this matter\u201d and that the attorneys representing the City were being paid by \u201cthe taxpayers of Raleigh including Captain Altman,\u201d Altman was entitled to reimbursement for his attorney\u2019s fees \u201c[i]n order to correct this inequitable position . . . .\u201d\nBased upon its findings and conclusions, the Commission entered the following order on 29 November 1979:\n1. Hubert Y. Altman be appointed Fire Marshal of the City of Raleigh on the condition that, upon his permanent appointment to Fire Marshal . . . , Hubert Y. Altman will no longer maintain an active status in the Raleigh Firefighter\u2019s Association.\n2. Hubert Y. Altman be paid the difference in the salaries of a Fire Captain and as a Fire Marshal from the date of April 6, 1979 to the date of his permanent appointment to Fire Marshal plus any increases that he would have been entitled to during this time.\n3. Interest on the back pay be paid from the date of April 6, 1979 at an annual rate of 6\u00b0/o.\n4. Hubert Y. Altman be reimbursed for damages consisting of the cost of his legal representation by the City of Raleigh. . . .\n5. In the event the City of Raleigh does not pay Hubert Y. Altman\u2019s attorney\u2019s fees, the Civil Service Commission directs that Hubert Y. Altman be compensated for the damages in the amount of attorney fees and anticipated cost of pursuing appeal, lost earnings and damages to his professional reputation in the amount of $100,000.00 as punitive damages as punishment for the wilful and deliberate acts of the City of Raleigh through its duly authorized agents by using the City Attorney\u2019s office and the appeals process as a threat and subsequent punishment.\n6. The Raleigh Fire Department consider its promotional policies and procedures and present its recommendation for such changes ... as may be necessary to eliminate the bias and discrimination inherent in the present system; such ameliorating changes to be presented to this Commission prior to review by the City Council within 90 days of the date of this order.\n7. The City of Raleigh, by and through its duly authorized agents, cease and desist discrimination against the employee for union affiliation in violation of Chapter 1154, 1971 Session Laws of the General Assembly.\nOn 3 December 1979, the City petitioned the Superior Court for a writ of certiorari to review the decision of the Commission, and on the same day the Superior Court issued the writ. On 30 January 1980, the court granted a motion to intervene by six officers of the Department who, like Altman, had sought the Fire Marshal position. After a hearing pursuant to the writ, Judge Bailey made detailed findings and conclusions (1) that the Commission \u201cgrossly exceeded the authority and powers delegated to it by the Legislature . . .\u201d by ordering the appointment of respondent Altman as Fire Marshal for the City \u201cwhen in fact a vacancy existed in the position which had not then been permanently filled;\u201d (2) that the Commission\u2019s finding that the \u201cnaming\u201d of District Chief Owens as \u201cActing Fire Marshal\u201d had \u201cthe full force and effect of a permanent appointment\u201d was \u201cunsupported by competent, material and substantial evidence on the whole record;\u201d (3) the Commission exceeded its authority in ordering that respondent be paid the difference in salaries between the positions of Captain and Fire Marshal, with interest, retroactive to the date of District Chief Owens\u2019 \u201cappointment\u201d as \u201cActing Fire Marshal;\u201d and (4) the Commission had no authority to order the payment of attorney\u2019s fees or, in the alternative, punitive damages, or to order the City to \u201cprepare and submit revised promotional policies and procedures.\u201d Based on these findings and conclusions, the court ordered (1) that the 29 November 1979 decision of the Commission be \u201cremanded, reversed, and set aside;\u201d (2) that the City \u201creadvertise\u201d within the Department for an appointment to the Fire Marshal position, and to make the appointment \u201cbased upon objective findings;\u201d and (3) that the City not \u201cdiscriminate against any applicant because of race, creed or col- or, or because of political or labor affiliations, or because of sex or marital status,\u201d and \u201cin particular,\u201d not to \u201cdiscriminate\u201d against Altman. From Judge Bailey\u2019s order, respondent Altman appealed to the Court of Appeals.\nCity Attorney Thomas A. McCormick, Jr., and Assistant City Attorney Francis P. Rasberry, Jr., for the petitioner appellee City of Raleigh.\nPoyner, Geraghty, Hartsfield & Townsend, by Cecil W. Harrison, Jr., and Johnson, Gamble & Shearon, by Samuel H. Johnson, for the intervenor appellees.\nBlanchard, Tucker, Twiggs, Denson & Earls, by Howard F. Twiggs and Charles H. Mercer, Jr., for the respondent appellant."
  },
  "file_name": "0291-01",
  "first_page_order": 319,
  "last_page_order": 327
}