{ "id": 8524793, "name": "TERRY FAULKNER v. NEW BERN-CRAVEN COUNTY BOARD OF EDUCATION", "name_abbreviation": "Faulkner v. New Bern-Craven County Board of Education", "decision_date": "1983-12-20", "docket_number": "No. 823SC1222", "first_page": "483", "last_page": "492", "citations": [ { "type": "official", "cite": "65 N.C. App. 483" } ], "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": "253 S.E. 2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "922" } ], "opinion_index": 0 }, { "cite": "297 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566826 ], "year": 1979, "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0048-01" ] }, { "cite": "233 S.E. 2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1977, "pin_cites": [ { "page": "541" }, { "page": "543" } ], "opinion_index": 0 }, { "cite": "292 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569880 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0406-01" ] }, { "cite": "283 S.E. 2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "501" } ], "opinion_index": 0 }, { "cite": "304 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567539 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0312-01" ] } ], "analysis": { "cardinality": 750, "char_count": 19580, "ocr_confidence": 0.847, "pagerank": { "raw": 2.6941744545509596e-07, "percentile": 0.827858303708054 }, "sha256": "05076f35d4cd0264e9ef641995860034cd85654e446f822911f8d19d85e7513e", "simhash": "1:42f600f66e91efe5", "word_count": 3168 }, "last_updated": "2023-07-14T21:11:09.312138+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WEBB and EAGLES concur." ], "parties": [ "TERRY FAULKNER v. NEW BERN-CRAVEN COUNTY BOARD OF EDUCATION" ], "opinions": [ { "text": "PHILLIPS, Judge.\nThe appropriate standard of judicial review for reviewing administrative decisions of boards of education is set forth in G.S. 150A-51. Overton v. Board of Education, 304 N.C. 312, 283 S.E. 2d 495 (1981). G.S. 150A-51 in pertinent part provides:\nThe court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the agency findings, inferences, conclusions, or decisions are:\n(5) Unsupported by substantial evidence admissible under G.S. 150A-29(a) or G.S. 150A-30 in view of the entire record as submitted ....\nThis standard of review is commonly referred to as the \u201cwhole record\u201d test. In explaining what is involved in \u201cwhole record\u201d review Justice Copeland stated:\nThis standard of judicial review is known as the \u201cwhole record\u201d test and must be distinguished from both de novo review and the \u201cany competent evidence\u201d standard of review. The \u201cwhole record\u201d test does not allow the reviewing court to replace the Board\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. On the other hand, the \u201cwhole record\u201d rule requires the court, in determining the substantiality of evidence supporting the Board\u2019s decision, to take into account whatever in the record fairly detracts from the weight of the Board\u2019s evidence. Under the whole evidence rule, the court may not consider the evidence which in and of itself justifies the Board\u2019s result, without taking into account contradictory evidence or evidence from which conflicting inferences can be drawn. (Citations omitted.)\nThompson v. Board of Education, 292 N.C. 406, 410, 233 S.E. 2d 538, 541 (1977). \u201cThe \u2018whole record\u2019 test is not a tool of judicial intrusion; instead it merely gives a reviewing court the capability to determine whether an administrative decision has a rational basis in the evidence.\u201d In re Rogers, 297 N.C. 48, 65, 253 S.E. 2d 912, 922 (1979); Overton v. Board of Education, 304 N.C. 312, 322, 283 S.E. 2d 495, 501 (1981).\nThe Board made the following pertinent conclusions of law:\n1. That the teacher, Terry M. Faulkner, has made habitual and/or excessive use of alcohol (G.S. 115C-325(e)(l)(f)) in that on an occasion or occasions during the 1980-1981 school year, Faulkner has consumed some form of alcoholic beverages at school, or, at least, has had the odor of alcohol on his breath at school during instructional hours, and has, during the school day, on occasions during the 1981-1982 school year, and after reprimand and warning against the same, consumed alcoholic beverages, or at least, has had the odor of alcohol on his breath.\n2. The said Terry M. Faulkner, teacher, has failed to fulfill the duties and responsibilities imposed upon teachers by the General Statutes of this State (G.S. 115C-325(e)(l)(i)) in that during the 1980-1981 school year he has absented himself from his classroom and classroom duties for inordinate lengths of time; and has, after warning and reprimand against the same, during the 1981-1982 school year, been absent for inordinate lengths of time from his classroom and classroom duties.\nThese conclusions were based upon the following pertinent findings of fact:\n4. That at some time during the 1980-1981 school year, while employed as a career teacher at the H. J. MacDonald Middle School and during regular instructional hours, the Principal of said school, Mr. Albert U. Hardison, did detect the odor of alcohol on the breath of said teacher, Terry M. Faulkner; and said Principal did remonstrate with and did informally reprimand said teacher for said conduct and did informally warn him against any further conduct of this kind, specifically, having the odor of alcohol on his breath at school, although no formal complaint was filed in his personnel file.\n5. That following the reprimand by the Principal herein-above set out in Paragraph 4, the Principal directed one Marie Satz, a counselor employed at the H. J. MacDonald Middle School and a friend of Faulkner, to talk with Faulkner regarding this problem; that she did talk with Faulkner at the request of the Principal.\n6. That on several occasions during the early part of the 1981-1982 school year, the odor of alcohol was detected on the breath of Mr. Faulkner by another teacher, a Mrs. Margie Rice.\n7. That on or about Thursday, September 3, 1981, a Mrs. Frances Motley, a parent, who had gone to Faulkner\u2019s classroom to obtain assignments for her child who was a student of Faulkner, detected the odor of alcohol on Faulkner\u2019s breath at approximately 2:30 o\u2019clock P.M. on Thursday, September 3, 1981; and reported the same to the Superintendent.\n8. That other complaints were received verbally and in writing by the said Principal and the Superintendent regarding the odor of alcohol on Faulkner\u2019s breath during the early part of the 1980-1981 school year.\n11. That during the 1980-1981 school year, the said Principal summoned Faulkner to his office and reprimanded him with regard to his extended absences from his classroom which he had a duty to instruct and supervise; whereupon the said Faulkner admitted the fact of being absent for inordinate periods of time from his classroom and promised to correct this inadequacy.\n12. That the said Principal assumed that this problem regarding absences for inordinate lengths of time from the classroom had been corrected; however, during the early part of the 1981-1982 school year, because of complaints received by the Principal regarding extended absences from his classroom Faulkner was again reprimanded and warned by the Principal for the same, to which the said Faulkner admitted his absence from his classroom for inordinate lengths of time without just cause or excuse.\nPlaintiff contends that these findings of fact and conclusions of law are erroneous in that they are not supported by substantial evidence. The evidence relied upon by the Board to support findings of fact numbers four through eight and conclusion number one tends to show: That near the beginning of the 1980-1981 school year Mr. Albert U. Hardison, H. J. MacDonald School principal, detected what he \u201cbelieved to be the smell of alcohol\u201d on plaintiffs breath; that when confronted with the charge plaintiff denied that he had been drinking; that the principal asked Mrs. Satz, a counselor at the school, if she would \u201ctalk with\u201d the plaintiff about this; that during the first week of the 1981-1982 school year the principal received a complaint from Mr. Robert W. Brin-son, Sr. that his son had smelled alcohol on the plaintiffs breath; and that he received a complaint from Mrs. Frances M. Motley that she had smelled alcohol on plaintiffs breath when she came to school to pick up her child\u2019s assignments. Marie Satz testified that she talked with plaintiff about drinking once during the 1980-1981 school year after the principal requested that she do so. She further testified that plaintiff denied having any odor of alcohol about his person at school. Robert W. Brinson, Sr. testified that his son told him on \u201cseveral occasions\u201d that the son had smelled alcohol on plaintiffs breath. These occasions all occurred during the first week of the 1981-1982 school year. Frances M. Motley testified that one day during the first week of the 1981-1982 school year when she went to school to pick up her son\u2019s assignments, she smelled what she thought to be alcohol on plaintiffs breath. She further testified that when she went to get the assignments plaintiff \u201cwas very, very nice\u201d and that his speech was not slurred and that he walked straight. She further testified that her son told her he smelled something which \u201csmelled like alcohol to him\u201d on plaintiff. Margie Rice, a teacher at the school who worked in a different pod from plaintiff, testified that she smelled alcohol on plaintiffs breath during one of the teacher workdays at the beginning of the 1981-1982 school year and \u201cmaybe once or twice\u201d after the students started to class, but that she didn\u2019t report it to anyone \u201cbecause to me it wasn\u2019t that bad.\u201d The Superintendent testified that he had received complaints about the plaintiff having alcohol on his breath at school from parents. The only parents he identified were Mr. Brinson and Mrs. Motley.\nPlaintiff offered evidence from Lois Evans, a teacher with over twenty years experience, who testified that she had bus duty with the plaintiff and she never saw him intoxicated and that she had never smelled alcohol on his breath. She further testified that she saw plaintiff a \u201cgreat deal\u201d because there were \u201cmany meetings at the beginning of school.\u201d She testified she usually sat at the same table with plaintiff during the meetings and had never smelled alcohol on his breath. Ernestine Rankin, a teacher with over thirty years experience, also testified that she had never smelled alcohol on plaintiff, nor had she heard any complaints about this from other members of the faculty. Annie Nixon, who taught in the same pod with plaintiff during the 1978-1979 and 1980-1981 school years, testified that she saw plaintiff \u201cjust about every morning\u201d before his suspension and that she never smelled alcohol on his breath. Helen Adams, who taught in the same pod with plaintiff during the 1981-1982 school year, testified that she had never smelled alcohol on his breath. She further testified that she had eaten lunch with him on several occasions and had never smelled alcohol on his breath on those occasions either. Evelyn Peterson testified that she taught on the same floor with plaintiff and saw him twice per day during the 1980-1981 school year and every day before his suspension in the 1981-1982 school year, and that during these occasions she stood close enough to him to talk with him and that she did not smell alcohol on his breath on any of these occasions. On cross-examination the principal testified that he had daily contact with the plaintiff during the 1981-1982 school year and that at no time during this period did he smell alcohol on plaintiff. He further testified that only on the one occasion, related by him on direct, did he smell alcohol on plaintiffs breath during the 1980-1981 school year. Plaintiff testified that he never drank at school but that he did have a drink or sometimes two before dinner and that he had a nightcap before he went to bed.\nIn reviewing the whole record to determine whether there is substantial evidence to support the Board\u2019s findings of fact and conclusions we must also consider the Professional Review Committee panel\u2019s report that they found these allegations to be \u201cnot true and substantiated.\u201d Thompson v. Board of Education, 292 N.C. 406, 233 S.E. 2d 538 (1977).\nG.S. 115C-325(e)(l)(f) lists the \u201chabitual or excessive use of alcohol\u201d as a permissible ground for the dismissal of a career teacher. Webster\u2019s Third New International Dictionary 792 (1968) defines excessive as \u201ccharacterized by or present in excess; . . . very large, great or numerous.\u201d Habitual is defined as \u201cdoing, practicing, or acting in some manner by force of habit: customarily doing a certain thing.\u201d Id. at 1017.\nAn examination of the \u201cwhole record\u201d reveals that standing alone the Board\u2019s evidence would show that over a two-year time span four different people smelled, \u201cthought they smelled,\u201d or \u201cbelieved\u201d that they smelled alcohol on plaintiffs person. This evidence must then be considered in conjunction with the Professional Review Committee panel\u2019s unanimous finding that the charges presented were \u201cnot true and substantiated.\u201d The substantial evidence standard is not altered because the Board and panel disagree. \u201cHowever, the evidence supporting a school board\u2019s decision may appear less substantial when an impartial panel, which has observed the witnesses and dealt with the case, has drawn different conclusions than when the panel has reached the same conclusion as the school board.\u201d Thompson v. Board of Education, at 414, 233 S.E. 2d at 543. Furthermore, the Board\u2019s evidence must be weighed together with evidence from several of plaintiffs co-workers, who had substantial contact with plaintiff, that they had never smelled alcohol about the plaintiffs person. After considering the whole record, we are obliged to conclude that the Board\u2019s conclusion that plaintiff is an \u201chabitual and/or excessive user of alcohol\u201d is not adequately supported by evidence and must be set aside. If the charge was drinking during school duty hours the decision would be otherwise; but, of course, the Legislature has not seen fit to make that a ground for discharging career teachers.\nG.S. 115C-325(e)(l)(i) allows for dismissal of a career teacher for \u201c[fjailure to fulfill the duties and responsibilities imposed on teachers by the General Statutes of this State.\u201d G.S. 115C-307 enumerates the duties of teachers. These duties are: (a) To Maintain Order and Discipline, (b) To Provide for the General Well-Being of Students, (c) To Provide Some Medical Care to Students, (d) To Teach the Students, (e) To Enter into the Superintendent\u2019s Plans for Professional Growth, (f) To Discourage Nonattendance, (g) To Make Required Reports, and (h) To Take Care of School Buildings.\nThe evidence offered in support of the Board\u2019s findings of fact numbers 11 and 12 and its conclusion that plaintiff failed to perform his duties and responsibilities as imposed by the General Statutes tends to show that during the 1980-1981 school year the principal received complaints \u201cfrom a couple of parents\u201d that plaintiff was absent from his class for excessive time periods. The principal testified that he talked with the plaintiff about these complaints and that plaintiff acknowledged they were valid. After the conference the problems were corrected. The principal further testified that he received complaints about plaintiffs absence from the classroom again at the beginning of the 1981-1982 school year and that after he talked with plaintiff about his absences from the classroom \u201cthen he did correct it to my satisfaction.\u201d Robert Brinson, Sr. testified that his son told him that plaintiff would come to class, give an assignment, and leave for long periods of time. This evidence also must be considered in conjunction with the Professional Review Committee panel\u2019s findings that the charges were \u201cnot true and substantiated,\u201d and in the light of the evidence from Mrs. Satz, the counselor called as a witness by the Superintendent, that it was common practice for teachers to take five or ten minute breaks from the classroom, that this was done throughout the school and continued up until the time of the hearing. In our view the record fails to show in any substantial way that plaintiff was derelict in any of the duties and responsibilities imposed on him by the General Assembly. We therefore hold that the Board\u2019s order dismissing plaintiff for the reasons stated in conclusion number two must also be set aside.\nIn light of the above holdings, plaintiffs argument that certain evidence was improperly admitted at the hearing need not be discussed. Suffice it to say the evidence presented, regardless of its caliber, was not sufficient to support the charges made.\nThe 13 August 1982 order of the trial court is reversed and the cause is remanded to the Superior Court of Craven County for entry of an order reinstating the plaintiff with back pay, reduced by his earnings during the period suspended, as determined by the court.\nReversed and remanded.\nJudges WEBB and EAGLES concur.", "type": "majority", "author": "PHILLIPS, Judge." } ], "attorneys": [ "Chambers, Ferguson, Watt, Wallas, Adkins & Fuller, by Yvonne Mims Evans and James C. Fuller, Jr., for plaintiff appellant.", "Henderson and Baxter, by David S. Henderson, for defendant appellee." ], "corrections": "", "head_matter": "TERRY FAULKNER v. NEW BERN-CRAVEN COUNTY BOARD OF EDUCATION\nNo. 823SC1222\n(Filed 20 December 1983)\n1. Schools \u00a7 13.2\u2014 teacher dismissal \u2014 whole record test \u2014 consideration of Professional Review Committee panel\u2019s report\nIn reviewing the whole record to determine whether there was substantial evidence to support a board of education\u2019s findings of fact and conclusions in dismissing a career teacher, the appellate court must consider the panel report of the Professional Review Committee finding the allegations against respondent to be unsubstantiated. G.S. 150A-51.\n2. Schools \u00a7 13.2\u2014 teacher dismissal \u2014excessive user of alcohol \u2014 insufficient evidence\nThe evidence was insufficient to support a school board\u2019s decision to dismiss a career teacher because the teacher is an \u201chabitual and/or excessive user of alcohol.\u201d G.S. 115C-325(e)(l)(f).\n3. Schools \u00a7 13.2\u2014 teacher dismissal \u2014 failure to fulfill duties \u2014 insufficient evidence\nThe evidence was insufficient to support a school board\u2019s decision to dismiss a career teacher for \u201cfailure to fulfill the duties and responsibilities imposed on teachers by the General Statutes of this State.\u201d G.S. 115C-325(e)(l)(i).\nAPPEAL by plaintiff from Reid, Judge. Judgment entered 13 August 1982 in Superior Court, CRAVEN County. Heard in the Court of Appeals 19 October 1983.\nPlaintiff was a \u201ccareer teacher\u201d as defined by G.S. 115C-325(c). He had been teaching in the New Bern, and later the New Bern-Craven County, school system since 1969. In 1981 he was teaching seventh grade language arts at the H. J. MacDonald School. On 17 September 1981, the New Bern-Craven County Board of Education (hereinafter Board), upon the recommendation of the Superintendent of the New Bern-Craven County Schools (hereinafter Superintendent), voted by unanimous resolution to suspend plaintiff from his teaching duties without pay pursuant to G.S. 115C-325(f). The Board\u2019s grounds for suspension were immorality, insubordination, neglect of duty and habitual or excessive use of alcohol, G.S. 115C-325(e)(l)(b), (c), (d) and (f).\nUpon being advised of the Board\u2019s action and of the Superintendent\u2019s intention to recommend his dismissal, plaintiff requested a hearing before a panel of the Professional Review Committee, pursuant to G.S. 115C-325(h)(3). A hearing was conducted on 3 November 1981. The Professional Review Committee panel unanimously found that the charges presented were \u201cnot true and substantiated.\u201d\nNotwithstanding the Professional Review Committee panel\u2019s report the Superintendent, pursuant to G.S. 115C-325(i)(5), submitted a written recommendation for dismissal to the Board. This recommendation was accompanied by the panel\u2019s report. After receiving notification of the Superintendent\u2019s recommendation, plaintiff requested a hearing before the Board pursuant to G.S. 115C-325 (i)(6). The Board conducted a hearing on 3 December 1981. Following the hearing, the Board unanimously voted to dismiss plaintiff and directed that an order be drawn dismissing plaintiff as a teacher at H. J. MacDonald School. The grounds stated were that plaintiff had \u201cmade habitual and/or excessive use of alcohol\u201d in violation of G.S. 115C-325(e)(l)(f); and that he had \u201cfailed to fulfill the duties and responsibilities imposed upon teachers by the General Statutes of this State\u201d in violation of G.S. 115C-325(e)(l)(i).\nPlaintiff appealed the Board\u2019s order to the Craven County Superior Court pursuant to G.S. 150A-43 et seq. Plaintiff also filed a Petition for Judicial Review of the decision and a complaint seeking reinstatement, back pay, costs, and attorney fees. The matter was heard by Judge Reid who entered an order affirming the Board\u2019s action on 13 August 1982. Plaintiff appealed.\nChambers, Ferguson, Watt, Wallas, Adkins & Fuller, by Yvonne Mims Evans and James C. Fuller, Jr., for plaintiff appellant.\nHenderson and Baxter, by David S. Henderson, for defendant appellee." }, "file_name": "0483-01", "first_page_order": 515, "last_page_order": 524 }