{ "id": 8522150, "name": "NORTH CAROLINA DEPARTMENT OF JUSTICE v. JAY EAKER", "name_abbreviation": "North Carolina Department of Justice v. Eaker", "decision_date": "1988-05-03", "docket_number": "No. 8710SC857", "first_page": "30", "last_page": "40", "citations": [ { "type": "official", "cite": "90 N.C. App. 30" } ], "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": "534 F. 2d 328", "category": "reporters:federal", "reporter": "F.2d", "year": 1976, "opinion_index": 0 }, { "cite": "408 F. Supp. 614", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3852107 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/f-supp/408/0614-01" ] }, { "cite": "332 S.E. 2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694848, 4685635, 4691143, 4696177, 4697201 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0117-03", "/nc/314/0117-02", "/nc/314/0117-04", "/nc/314/0117-05", "/nc/314/0117-01" ] }, { "cite": "328 S.E. 2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "74 N.C. App. 536", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525275 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/74/0536-01" ] }, { "cite": "288 S.E. 2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "304 N.C. 727", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571648, 8571520, 8571546, 8571612, 8571485 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/304/0727-05", "/nc/304/0727-02", "/nc/304/0727-03", "/nc/304/0727-04", "/nc/304/0727-01" ] }, { "cite": "282 S.E. 2d 544", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "54 N.C. App. 218", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521354 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/54/0218-01" ] }, { "cite": "254 S.E. 2d 268", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "41 N.C. App. 102", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547911 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/41/0102-01" ] }, { "cite": "757 F. 2d 330", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3594821, 317279 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us-app-dc/244/0255-01", "/f2d/757/0330-01" ] }, { "cite": "485 F. 2d 1237", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 669810, 670083 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/f2d/485/1237-02", "/f2d/485/1237-01" ] }, { "cite": "364 F. Supp. 948", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3499297 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/f-supp/364/0948-01" ] }, { "cite": "349 S.E. 2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736704, 4734882, 4738767, 4739771, 4732061 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0507-03", "/nc/318/0507-02", "/nc/318/0507-01", "/nc/318/0507-05", "/nc/318/0507-04" ] }, { "cite": "342 S.E. 2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "80 N.C. App. 339", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523825 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/80/0339-01" ] }, { "cite": "336 S.E. 2d 621", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 664", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4689129, 4685964, 4687317, 4686872, 4687966 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0664-04", "/nc/314/0664-03", "/nc/314/0664-02", "/nc/314/0664-01", "/nc/314/0664-05" ] }, { "cite": "332 S.E. 2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "700" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 202", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526927 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/76/0202-01" ] }, { "cite": "317 S.E. 2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "69 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526283 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/69/0341-01" ] }, { "cite": "182 S.E. 2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566492 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0226-01" ] }, { "cite": "84 S.E. 2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "240 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611422 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/240/0770-01" ] }, { "cite": "258 S.E. 2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 246", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569878 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0246-01" ] }, { "cite": "64 S.E. 2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 N.C. 585", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613814 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/233/0585-01" ] }, { "cite": "50 S.E. 2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "229 N.C. 541", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12166864 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/nc/229/0541-01" ] }, { "cite": "259 S.E. 2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 294", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570336, 8570284, 8570444, 8570383, 8570419 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0294-02", "/nc/298/0294-01", "/nc/298/0294-05", "/nc/298/0294-03", "/nc/298/0294-04" ] }, { "cite": "255 S.E. 2d 328", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "41 N.C. App. 567", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550641 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/41/0567-01" ] }, { "cite": "317 S.E. 2d 680", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 304", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686309, 4684742, 4680939, 4682746, 4686078 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0304-02", "/nc/311/0304-05", "/nc/311/0304-01", "/nc/311/0304-04", "/nc/311/0304-03" ] }, { "cite": "312 S.E. 2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "67 N.C. App. 243", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526129 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/67/0243-01" ] }, { "cite": "321 S.E. 2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "decided under former G.S. 126-43" } ], "opinion_index": 0 }, { "cite": "312 N.C. 81", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755172, 4756557, 4756237, 4749458, 4754484 ], "year": 1984, "pin_cites": [ { "parenthetical": "decided under former G.S. 126-43" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0081-04", "/nc/312/0081-03", "/nc/312/0081-01", "/nc/312/0081-05", "/nc/312/0081-02" ] }, { "cite": "317 S.E. 2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "decided under former G.S. 126-43" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 247", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526144 ], "year": 1984, "pin_cites": [ { "parenthetical": "decided under former G.S. 126-43" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0247-01" ] } ], "analysis": { "cardinality": 912, "char_count": 23016, "ocr_confidence": 0.803, "pagerank": { "raw": 3.687074194457974e-07, "percentile": 0.8922958442750909 }, "sha256": "79139ca797b90d10717c2fad8c5cf9505102e255893f5f7f0195e49b5a8f7305", "simhash": "1:65d244ad3dc62662", "word_count": 3591 }, "last_updated": "2023-07-14T21:55:12.261630+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Becton and Greene concur." ], "parties": [ "NORTH CAROLINA DEPARTMENT OF JUSTICE v. JAY EAKER" ], "opinions": [ { "text": "EAGLES, Judge.\nJudicial review of State Personnel Commission decisions is governed by Chapter 150B, the Administrative Procedure Act. G.S. 150A-l(c) (now G.S. 150B-1(c)); Area Mental Health Authority v. Speed, 69 N.C. App. 247, 317 S.E. 2d 22, disc. rev. denied, 312 N.C. 81, 321 S.E. 2d 893 (1984) (decided under former G.S. 126-43). Petitioner argues that in reversing the Commission\u2019s decision, the superior court erred when it concluded that: (1) the Commission lacked jurisdiction to reinstate him, (2) the Commission\u2019s findings that the Department failed to follow the applicable policies for accomplishing a reduction in force were unsupported by substantial evidence, (3) petitioner was not entitled to any remedy because he failed to show prejudice, and (4) any remedy available to petitioner before the Commission should have been limited to the Commission remanding the case to the Department for reconsideration. We review each of these issues in order.\nI.\nG.S. 126r4(7a) gives the State Personnel Commission the power, subject to the approval of the Governor, to establish policies and rules governing \u201c[t]he separation of employees.\u201d G.S. 126-4 (7a). The Department contends that a reduction in force is not a \u201cseparation\u201d within the meaning of G.S. 126-4(7a), but is a \u201cmanagement\u201d decision reserved solely to department heads under G.S. 143B-10(c). The Department concedes that the Commission has authority under G.S. 126-36 and G.S. 126-35 to reinstate employees whose positions have been abolished improperly as a result of unlawful discrimination or for a disciplinary motive. Otherwise, the Department argues, the Commission has no statutory authority to order reinstatement of an employee whose position has been abolished. In contrast, petitioner argues that a reduction in force is a \u201cseparation,\u201d and that under G.S. 126-4(7a) the Commission has authority to reinstate employees whose positions were abolished in violation of its policies and rules. We believe that both parties have failed to make the distinction between the management decision to abolish a position and personnel matters which may necessarily be a consequence of that management decision.\nThe purpose of Chapter 126 is \u201cto establish for the government of the State a system of personnel administration under the Governor, based on accepted principles of personnel administration and applying the best methods as evolved in government and industry.\u201d G.S. 126-1. In addition to the power to promulgate policies and rules regarding the \u201cseparation\u201d of employees, the Commission has the same policy and rule making power over \u201c[t]he appointment, promotion, transfer, demotion, and suspension\u201d of employees under G.S. 126-4(6) and \u201cprograms and procedures as may be necessary to promote efficiency of administration and provide for a fair and reasonable system of personnel administration\u201d under G.S. 126-4(10). Chapter 126 clearly gives the State Personnel Commission the power to establish rules and policies governing personnel matters.\nWe need not fully delineate the extent of the Commission\u2019s powers; nor do we need to decide whether it has the power to issue rules and policies which attempt to affect when a reduction in force should occur. The only policies of the Commission which purport to do that were found in a portion of the State\u2019s Personnel Manual entitled \u201cSuggested Guidelines for Reductions in Force.\u201d Those \u201cguidelines\u201d provide, among other things, that a reduction in force should occur only after \u201ca thorough evaluation of the accomplishments of specific programs\u201d and \u201cmeasures such as a hiring freeze on vacant positions, limits on purchasing and travel, retirement options and job sharing and work schedule alternatives have proven insufficient.\u201d The superior court, however, correctly concluded that these guidelines were not mandatory and that the Department was not obligated to comply with them. Since, at the time petitioner\u2019s position was abolished, the Commission had not attempted to exercise any authority over the Department\u2019s decision to make a reduction in force, we need not decide whether the Commission has the authority to do so.\nThe only mandatory policy regarding reductions in force dealt with the retention of employees whose positions have already been abolished. It provided, in pertinent part, as follows:\nRetention of employees in classes affected shall be based on systematic consideration of type of appointment, length of service, and relative efficiency; the relative weight of each of these factors is to be determined by management in making reduction-in-force decisions.\n25 N.C.A.C. 1D.0504. It is immaterial whether the required \u201csystematic consideration\u201d of the listed factors is accomplished after the position is abolished or occurs as a means of deciding which position, among those similarly classified, should be abolished. In either case, the policy governs a personnel matter which does not interfere with \u201cmanagement\u201d determinations such as whether a position is necessary, cost-effective, or consistent with the department\u2019s mission, or whether the department\u2019s limited resources could best be used elsewhere. Because retention of employees in abolished positions is clearly a personnel matter affecting the \u201cseparation\u201d of employees, under G.S. 126-4(7a) the Commission has authority to issue the policy and to require the Department to follow it.\nII.\nIn a conclusion of law, which would more appropriately be labeled a finding of fact, the Commission found that the Department had failed to follow the policy regarding retention of employees. It stated that:\n14. [T]he retention of the other Research Associate in the Sheriff Standards Division and similar employees throughout the Department was not based on a systematic consideration of type of appointment, length of service and relative efficiency. Petitioner\u2019s skills, knowledge, and productivity were not compared to the skills, knowledge, and productivity of employees in similar positions w;ho were retained in employment by Respondent. Mr. Roark, in fact, admitted that the people in the affected positions and their job performances were not evaluated as part of his own reduction in force process. Petitioner was dismissed even though he may have possessed more skills and knowledge and been capable of greater productivity than employees in similar positions who were retained.\nThe superior court concluded that this finding was not supported by the record and that Mr. Roark\u2019s procedures were sufficiently systematic to insure that the decision to abolish petitioner\u2019s position was neither arbitrary nor capricious.\nWhether the Department\u2019s decision to abolish the position was arbitrary or capricious is not germane to the question of whether the Commission\u2019s personnel policies were followed. Court review of an agency\u2019s findings of fact is limited to determining, from an examination of the whole record, whether there is evidence to support the finding. Goodwin v. Goldsboro Board of Education, 67 N.C. App. 243, 312 S.E. 2d 892, disc. rev. denied, 311 N.C. 304, 317 S.E. 2d 680 (1984). If, after considering all of the evidence, including that which contradicts as well as that which supports the finding, the court finds competent, material, and substantial evidence in support of the finding, the finding is deemed conclusive on appeal. Boehm v. Board of Podiatry Examiners, 41 N.C. App. 567, 255 S.E. 2d 328, cert. denied, 298 N.C. 294, 259 S.E. 2d 298 (1979). We find, from the whole record, that the trial court erred and that there is substantial evidence to support the Commission\u2019s finding that the Department failed to follow the policy regarding retention of employees whose positions are abolished as part of a reduction in force.\nAlthough there is substantial evidence to support the Commission\u2019s finding that the Department failed to follow the policy, and, as a result, the Department is not entitled to prevail on those grounds; nevertheless, we must remand this case to the Commission. In one of the Commission\u2019s conclusions of law complained of by the Department, the Commission stated that \u201c[respondent has not satisfied its burden of proving that appropriate reduction in force procedures were utilized.\u201d We agree with the Department that the Commission improperly placed that burden on the Department.\nGenerally, the burden of proof is on the party attempting to show the existence of a claim or cause of action and, if proof of his claim includes proof of negative allegations, it is incumbent on him to do so. See Johnson v. Johnson, 229 N.C. 541, 50 S.E. 2d 569 (1948). Neither Chapter 126 nor the Administrative Procedure Act indicate that the burden is shifted to the department or agency to show that it followed the Personnel Commission\u2019s rules, policies, or procedures. Moreover, we do not believe that the facts tending to show whether the policy was followed are so peculiarly within the knowledge of the Department that the burden should be on the Department to show the policy was followed. Cf., Joyce v. Sell, 233 N.C. 585, 64 S.E. 2d 837 (1951).\nBecause the Commission acted under a misapprehension of the law, this case must be remanded. See Insurance Co. v. Chantos, 298 N.C. 246, 258 S.E. 2d 334 (1979). The rule fixing the burden of proof constitutes a substantial right of the party upon whose adversary the burden rests and must be rigidly enforced. Owens v. Kelly, 240 N.C. 770, 84 S.E. 2d 163 (1954). The law relating to the burden of proof is equally applicable to proceedings which are not conducted before a jury. Joyner v. Garrett, Comr. of Motor Vehicles, 279 N.C. 226, 182 S.E. 2d 553 (1971). We cannot say, as a matter of law, that the Commission\u2019s finding was not affected by its misapprehension of the law. Cf., Bowles Distributing Co. v. Pabst Brewing Co., 69 N.C. App. 341, 317 S.E. 2d 684 (1984). Therefore, we vacate the findings and conclusions and remand this case to the Commission for reconsideration of the evidence in additional proceedings in which petitioner has the burden of proof.\nAlthough we remand this case to the Commission, we must address the Department\u2019s remaining arguments, since, if meritorious, they would require that we reverse the Commission\u2019s decision and uphold the trial court\u2019s order.\nIII.\nThe Department contends, and the superior court agreed, that even if the Department failed to follow the Commission\u2019s policies, petitioner is without a remedy unless he shows a substantial chance that a different result would have followed. The Department cites Farlow v. Bd. of Chiropractic Examiners, 76 N.C. App. 202, 332 S.E. 2d 696, disc. rev. denied, 314 N.C. 664, 336 S.E. 2d 621 (1985) and Leiphart v. N. C. School of the Arts, 80 N.C. App. 339, 342 S.E. 2d 914, cert. denied, 318 N.C. 507, 349 S.E. 2d 862 (1986) in support of its contention. We believe Farlow and Leiphart are distinguishable and we hold that petitioner does not have to show prejudice once he carries his burden of showing the Department failed to follow the Commission\u2019s policies.\nIn Farlow, supra, the Board of Chiropractic Examiners, in violation of the Board\u2019s own rules, failed to render its decision within 90 days after the hearing. This court held that an administrative agency\u2019s failure to follow its own rules requires reversal only where \u201cits failure to do so would result in a substantial chance that there would be a different result from what the result would be if the rule were followed.\u201d Id. at 208, 332 S.E. 2d at 700. In Leiphart, supra, we applied the same holding to a petitioner\u2019s argument that the School of the Arts failed to follow its own internal grievance procedures. Since Farlow and Leiphart involved only an agency\u2019s failure to follow its own procedural rules, they are inapposite.\nThe policy at issue here was promulgated pursuant to the Commission\u2019s statutory authority under G.S. 126-4. The Legislature has delegated, to the extent of the Commission\u2019s statutory powers, its own legislative powers over the State\u2019s personnel system. Therefore, rules and policies made pursuant to the Commission\u2019s statutory authority have the effect of law. See Westmoreland v. Laird, 364 F. Supp. 948 (E.D.N.C. 1973), aff'd, 485 F. 2d 1237 (4th Cir. 1973); American Federation of Labor v. Donovan, 757 F. 2d 330 (D.C. Cir. 1985); 2 Am. Jur. 2d, \u201cAdministrative Law,\u201d sections 292, 295 (1962). Pursuant to its statutory authority, the Commission promulgated a policy requiring the State\u2019s departments and agencies to systematically consider certain factors in determining which employees should be retained once a department or agency has decided to implement a reduction in its force. Consequently, that policy has the force of law and must be strictly followed and enforced. See Parrish v. Real Estate Licensing Board, 41 N.C. App. 102, 254 S.E. 2d 268 (1979); In re Trulove, 54 N.C. App. 218, 282 S.E. 2d 544 (1981), disc. rev. denied, 304 N.C. 727, 288 S.E. 2d 808 (1982). Petitioner was not required to show prejudice resulting from the Department\u2019s failure to follow the Commission\u2019s policy.\nIf petitioner were required to show prejudice, it would be nearly impossible for him to do so. The policy requires only that the Department have systematically considered certain factors, leaving the weight to be accorded each factor up to the Department. At the hearing before the Commission, petitioner presented some evidence of his own qualifications and work record. To show prejudice from failure to follow the policy, petitioner would have to show, not only how he stood in relation to other employees in the same class as to type of appointment, length of service, and work performance, but he would have to show the weight which the Department would attribute to each of those factors. The Commission and the reviewing court would be relegated to speculating how the Department would weigh each factor.\n> H-l\nFinally, we address the Department s argument that the Commission has authority to issue binding orders for reinstatement only in disciplinary and discrimination cases.\nG.S. 126-37(a) states, in pertinent part, that:\n[t]he State Personnel Director or any other person or persons designated by the Commission shall investigate the disciplinary action or alleged discrimination which is appealed to the Commission. Appeals involving a disciplinary action, alleged discrimination and any other contested case arising under this Chapter shall be conducted in the Office of Administrative Hearings as provided in Article 3 of Chapter 150B; provided that no grievance may be appealed unless the employee has complied with G.S. 126-34. . . . The State Personnel Commission is hereby authorized to reinstate any employee to the position from which he has been removed, to order the employment, promotion, transfer, or salary adjustment of any individual to whom it has been wrongfully denied or to direct other suitable action to correct the abuse which may include the requirement of payment for any loss of salary which has resulted from the improperly discriminatory action of the appointing authority. [Emphasis added.]\nG.S. 126-37(a). The State Personnel Commission\u2019s jurisdiction is not limited to disciplinary actions under G.S. 126-35 or discriminatory actions under G.S. 126-36; jurisdiction may \u00bfIso arise, under G.S. 126-34, for any \u201cgrievance arising out of or due to his employment.\u201d G.S. 126-34. See Poret v. State Personnel Comm., 74 N.C. App. 536, 328 S.E. 2d 880, disc. rev. denied, 314 N.C. 117, 332 S.E. 2d 491 (1985). Moreover, G.S. 126-4(9) provides the Commission with policy and rule-making authority regarding:\n[t]he investigation of complaints and the issuing of such binding corrective orders or such other appropriate action concerning employment, promotion, demotion, transfer, discharge, and reinstatement in all cases as the Commission shall find justified.\nG.S. 126-4(9). Although G.S. 126-37(a) makes more frequent reference to the Commission\u2019s remedial powers over disciplinary and discriminatory action, the statute also refers to \u201cgrievance[s]\u201d under G.S. 126-34 and \u201cany other contested case arising under this Chapter.\u201d It has been recognized that, to serve the purpose of Chapter 126, rules and policies made pursuant to G.S. 126-4 must be enforced. Bean v. Taylor, 408 F. Supp. 614 (M.D.N.C. 1976) aff\u2019d, 534 F. 2d 328 (4th Cir. 1976). We believe G.S. 126-37(a) allows the Commission to order reinstatement of an employee and direct other suitable relief, whenever it deems it necessary to correct the failure of a department or agency to follow policies or rules promulgated pursuant to G.S. 126-4. To hold that the Commission\u2019s opinion in those cases is merely advisory would give the Commission the power to establish policies and rules but no power to enforce them. That construction of G.S. 126-37 reaches a result which is contrary to the Chapter\u2019s stated policy.\nAccordingly, this case is reversed and remanded to the Superior Court for remand to the Personnel Commission for reconsideration in additional proceedings consistent with this opinion.\nReversed and remanded.\nJudges Becton and Greene concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Attorney General Thornburg, by Senior Deputy Attorney General Jean A. Benoy and Special Deputy Attorney General James Peeler Smith, for the respondent-appellee.", "Marc W. Sokol, for the petitioner-appellant." ], "corrections": "", "head_matter": "NORTH CAROLINA DEPARTMENT OF JUSTICE v. JAY EAKER\nNo. 8710SC857\n(Filed 3 May 1988)\n1. State \u00a7 12\u2014 retention of employees in abolished positions \u2014 authority of State Personnel Commission to issue policy\nBecause retention of employees in abolished positions is clearly a personnel matter affecting the \u201cseparation\u201d of employees, pursuant to N.C.6.S. \u00a7 126-4(7a), the State Personnel Commission had authority to issue a policy concerning such action and to require respondent to follow it.\n2. State \u00a7 12\u2014 policy of State Personnel Commission \u2014 failure of respondent to follow \u2014 sufficiency of evidence\nThe trial court erred in determining that there was insufficient evidence to support the State Personnel Commission\u2019s finding that respondent failed to follow the Commission\u2019s policy regarding retention of employees whose positions are abolished as part of a reduction in force, but the Commission erred in placing upon respondent the burden of proving that appropriate reduction in force procedures were utilized.\n3. State \u00a7 12\u2014 failure of employer to follow policy of State Personnel Commission \u2014 no showing of prejudice required of dismissed employee\nPetitioner did not have to show prejudice once he carried his burden of showing that respondent failed to follow the State Personnel Commission\u2019s policies concerning retention of employees whose positions are abolished as part of a reduction in force.\n4. State \u00a7 12\u2014 reinstatement of dismissed employee \u2014 authority of State Personnel Commission\nThere was no merit to respondent\u2019s contention that the State Personnel Commission had authority to issue binding orders for reinstatement of dismissed employees only in disciplinary and discrimination cases, since N.C.G.S. \u00a7 126-37(a) allows the Commission to order reinstatement of an employee and direct other suitable relief whenever it deems it necessary to correct the failure of a department or agency to follow policies or rules promulgated pursuant to N.C.G.S. \u00a7 126-4.\nAPPEAL by petitioner from Farmer, Judge. Order entered 2 June 1987 in Superior Court, WAKE County. Heard in the Court of Appeals 9 February 1988.\nThe facts of this case are essentially undisputed. Petitioner began working for respondent, the North Carolina Department of Justice, in 1976. Prior to December 1984, petitioner was an Information and Communications Specialist III (Press Secretary) for then Attorney General Rufus Edmisten. In November, after the election of the new Attorney General, Lacy H. Thornburg, petitioner accepted a demotional transfer to a position as a Criminal Justice Research Associate in the Department\u2019s Sheriffs\u2019 Standards Division. Petitioner\u2019s job there consisted of reviewing information to determine whether sheriffs\u2019 deputies qualified for \u201ccertification\u201d and, if so, to complete the necessary paper work and issue the certification.\nWhen Attorney General Thornburg took office in January 1985, he decided to \u201cstreamline\u201d the Department. Although he retained ultimate authority, Attorney General Thornburg delegated much of the responsibility for managing the Department\u2019s non-attorney personnel to Administrative Deputy Attorney General Lester Roark. Mr. Roark reviewed a number of positions, examining the position titles and job descriptions as well as the position\u2019s productivity and cost effectiveness. After his review, Mr. Roark recommended that eight positions within the Department be abolished, one of which was petitioner\u2019s position. Attorney General Thornburg accepted the recommendation and petitioner\u2019s position was abolished and petitioner was terminated as a State employee effective 13 May 1985. The following month, plaintiff was offered a different position within the Department which paid a substantially lower salary. Petitioner turned down the offer.\nPetitioner appealed his termination to the State Personnel Commission, alleging that it was the result of his political association with former Attorney General Edmisten and that the Department failed to comply with its own policies or those of the State Personnel Commission regarding \u201creductions in force.\u201d The Hearing Officer rejected petitioner\u2019s political discrimination claim, but concluded that the Department had failed to follow the Commission\u2019s policies for reductions in force. The Hearing Officer recommended that petitioner be reinstated to his former position or a comparable position and that he be awarded back pay and reasonable attorney\u2019s fees. The full Commission adopted the Hearing Officer\u2019s findings of fact and conclusions of law and ordered petitioner\u2019s reinstatement with back pay and reasonable attorney\u2019s fees.\nPursuant to then G.S. 150A-43 (now G.S. 150B-43), the Department appealed to superior court. However, petitioner did not appeal the Commission\u2019s decision even though the Commission rejected certain of his claims. After a hearing the superior court reversed the Commission\u2019s decision on several grounds: (1) that the Commission had no authority to order reinstatement of an employee whose position has been improperly abolished; (2) that the Department had followed all mandatory policies for reductions in force; (3) that even if the policies were not followed, petitioner had failed to show a substantial chance of a different result; and (4) that even if petitioner had showed the policies were not followed and that he was prejudiced thereby, the only remedy available to petitioner was for the Commission to remand the case to the Department to follow those policies. Consequently, the court remanded the case to the Commission with directions to dismiss petitioner\u2019s appeal. From the superior court order, petitioner appeals.\nAttorney General Thornburg, by Senior Deputy Attorney General Jean A. Benoy and Special Deputy Attorney General James Peeler Smith, for the respondent-appellee.\nMarc W. Sokol, for the petitioner-appellant." }, "file_name": "0030-01", "first_page_order": 60, "last_page_order": 70 }