{
  "id": 8358521,
  "name": "J. F. NEWBER v. THE CITY OF WILMINGTON, NORTH CAROLINA",
  "name_abbreviation": "Newber v. City of Wilmington",
  "decision_date": "1986-11-18",
  "docket_number": "No. 865DC261",
  "first_page": "327",
  "last_page": "331",
  "citations": [
    {
      "type": "official",
      "cite": "83 N.C. App. 327"
    }
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  "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."
  },
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  "last_updated": "2023-07-14T16:07:52.921422+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Chief Judge HEDRICK and Judge WELLS concur."
    ],
    "parties": [
      "J. F. NEWBER v. THE CITY OF WILMINGTON, NORTH CAROLINA"
    ],
    "opinions": [
      {
        "text": "WEBB, Judge.\nThe defendant assigns error to the trial court\u2019s conclusion that Administrative Policy P/P 6-77 did not establish a \u201cschedule of pay\u201d as defined in G.S. 160A-162. We agree. G.S. 160A-162 provides in pertinent part: \u201c(a) The city council shall fix or approve the schedule of pay, expense allowances, and other compensation of all city employees.\u201d\nAdministrative Policy P/P 6-77 appears clear and unambiguous on its face and thus will be given its plain meaning as to application. The policy indicates in its initial sentence its purposes, \u201cto establish conditions for authorizing stand-by and on-call duty, to define them and to set rates for compensation.\" (Emphasis added.) The policy further states:\nEmployees assigned to such stand-by duty shall receive an additional one hours pay for each normal work day and two hours additional pay for each day of the week-end and holidays. In addition, employees will be compensated for actual time worked in accordance with the City\u2019s overtime pay policy.\nThe policy is clear. It sets forth rates of pay for stand-by and on-call duty and thus must fall within the purview of G.S. 160A-162 and its mandate as to \u201cschedule of pay.\u201d G.S. \u00a7 160A-162 (1982 Replacement).\nThe effect of application of G.S. 160A-162 to this case is to make ineffective any policy as to payment of city employees without the approval of the Wilmington City Council. This conclusion is supported clearly in G.S. 160A-162 which states: \u201cIn cities with the council-manager form of government, the manager shall be responsible for preparing position classification and pay plans for submission to council, and after such plans have been adopted by council, shall administer them.\u201d (Emphasis added.)\nFrom a review of the record we can find no express approval by the Wilmington City Council as to authorization of a stand-by pay policy for the Wilmington Police Department, nor can we find from our review of statutory and case law any support for unilateral adoption of such pay policies by the city manager. G.S. 160A-148 states that \u201cthe city manager\u2019s personnel actions are to be in accordance with such general personnel rules, regulations, and policy as the city council may adopt.\u201d We hold that G.S. 160A-148(1) prohibits the city manager from unilateral adoption of a policy establishing the funding for stand-by and on-call duty for any city department. The manager\u2019s role is limited to recommending position classification and pay plans to the city council for their ultimate approval. G.S. 160A-164 (1982 Replacement).\nFurther support for our view in defining the authority of the city manager is stated in the Wilmington City Charter provisions in effect at the time Administrative Policy P/P 6-77 was issued. This Charter mandates that the city council \u201capprove a general plan for employees to be administered by the city manager.\u201d (Emphasis added.) 1977 N.C. Sess. Laws c. 495, s. 9.1. We hold that the. policies of the municipality are the decisions of the council alone, and the duties of the city manager are to act as a conduit through which policy is implemented.\nAdministrative Policy P/P 6-77 is very clear as to its requirements: application of stand-by and on-call pay policy to departments within the Wilmington City government requires specific action on the part of the respective departmental heads. A request must be made, and the specific approval of the City Manager or the City Council must be obtained. The Wilmington Police Department never sought nor obtained either the council or manager\u2019s approval such that stand-by and on-call pay would become applicable to their employees. Policy P/P 6-77 permits only those employees who follow this aforementioned procedure to be eligible for stand-by and on-call pay, all other employees including plaintiff in this instance simply do not come within the terms of the policy.\nWe believe the statutory mandates of G.S. 160A-162 and the requisite action and authorization required by both the Wilmington City Charter and the Administrative Policy P/P 6-77 itself are such that plaintiff has no entitlement to stand-by or on-call pay based on said policy. 1977 N.C. Sess. Laws c. 495 s. 9.\nDefendant also assigns as error the trial court\u2019s conclusion that plaintiff is entitled to recover attorney\u2019s fees pursuant to G.S. 95-25.22(d). We agree. The plaintiff asserted and the trial court agreed that via G.S. 95-25.22(d) attorney\u2019s fees were appropriate in this instance. However, G.S. 95-25.14 explicitly exempts \u201cthe State of North Carolina, any city, town, or municipality\u201d from application of Article 2A of Chapter 95 of which G.S. 95-25.22 is a part. Thus, G.S. 95-25.22(d) has no application to this appellant at trial and the trial court was in error in awarding such fees. We reverse.\nWe reverse and remand with an order that the plaintiffs claim be dismissed.\nReversed and remanded.\nChief Judge HEDRICK and Judge WELLS concur.",
        "type": "majority",
        "author": "WEBB, Judge."
      }
    ],
    "attorneys": [
      "Yow, Yow, Culbreth & Fox, by Stephen K Culbreth, for plaintiff appellee.",
      "Office of City Attorney for Wilmington, North Carolina, by Thomas C. Pollard, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "J. F. NEWBER v. THE CITY OF WILMINGTON, NORTH CAROLINA\nNo. 865DC261\n(Filed 18 November 1986)\nMunicipal Corporations \u00a7 9.1\u2014 police officers \u2014 no stand-by or on-call pay \u2014 policy not approved by city council\nPlaintiff policeman was not entitled to stand-by or on-call duty pay where there was no showing that defendant\u2019s city council ever specifically approved the stand-by pay policy or that the police department ever sought or obtained approval from the city manager or city council, and the city manager could not unilaterally adopt a policy establishing the funding for stand-by and on-call duty for any city department; furthermore, plaintiff was not entitled to counsel fees pursuant to N.C.G.S. \u00a7 95-25.22(d), since the statute explicitly exempts the State and any municipality from its application. N.C.G.S. \u00a7 160A-162; N.C.G.S. \u00a7 160A-148.\nAPPEAL by defendant from Tucker, Judge. Judgment entered 20 January 1986 in District Court, New HANOVER County. Heard in the Court of Appeals 20 August 1986.\nThis is an action filed by plaintiff, a member of the Wilmington Police Department since 3 October 1966, to compel defendant City of Wilmington to pay him for stand-by duty worked between 26 September 1977 and 1 February 1983 while a member of the Technical Services Section of the Wilmington Police Department. Plaintiffs claim is based on Administrative Policy P/P 6-77 which was issued by the office of defendant\u2019s City Manager, with an effective date of 26 September 1977. This policy provided that in emergencies and when other necessary work conditions occur, employees of the City during other than normal work hours may be called in for duty or placed on stand-by duty. Compensation for such duties was to be received at the rate of \u201cone hours pay for each normal work day and two hours additional pay for each day of the week-end or holidays. In addition, ... to compensation for actual time worked in accordance with the city\u2019s overtime pay policy.\u201d The policy further provided that \u201cstand-by and on-call duty systems shall either be approved through the City\u2019s budget process or specifically approved by the City Manager when necessitated by emergencies or other conditions.\u201d At no time prior to or following 26 September 1977 did the Wilmington\nFollowing institution of this policy, the Director of Public Works of the City of Wilmington made budget requests which were approved and authorized by the city council for the payment of stand-by wages to Public Works employees. No such requests were ever made by or on behalf of the Chief of Police nor were any wages paid to police officers pursuant to said policy.\nPlaintiff was assigned stand-by duty after transfer to the Technical Services Section on 4 November 1976 and on several occasions was actually called in to work while on such stand-by. Plaintiff was compensated at the standard hourly pay set for overtime hours worked. Plaintiff did not receive any reimbursement for transportation expense incurred in reporting for duty when called, nor did he receive any other compensation for standby duty other than the aforementioned pay for hours actually worked.\nPlaintiff was unaware of Administrative Policy P/P 6-77 until 30 September 1982 at which time he filed a grievance with the Police Department claiming that such policy applied to him. After failing to obtain additional compensation through the grievance process plaintiff filed this lawsuit on 7 June 1983. After a hearing without a jury the court awarded plaintiff compensation in standby pay for time worked under the terms of Administrative Policy P/P 6-77 and in addition plaintiff was allowed to recover of the defendant attorney\u2019s fees for said action. From this judgment defendant City of Wilmington appealed.\nYow, Yow, Culbreth & Fox, by Stephen K Culbreth, for plaintiff appellee.\nOffice of City Attorney for Wilmington, North Carolina, by Thomas C. Pollard, for defendant appellant."
  },
  "file_name": "0327-01",
  "first_page_order": 355,
  "last_page_order": 359
}