{ "id": 5305257, "name": "ROBERT J. BATTEN v. N.C. DEPARTMENT OF CORRECTION", "name_abbreviation": "Batten v. N.C. Department of Correction", "decision_date": "1990-03-01", "docket_number": "No. 76PA89", "first_page": "338", "last_page": "347", "citations": [ { "type": "official", "cite": "326 N.C. 338" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "376 S.E.2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": -1 }, { "cite": "92 N.C. App. 595", "category": "reporters:state", "reporter": "N.C. App.", "year": 1988, "opinion_index": -1 }, { "cite": "90 N.C. App. 30", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522150 ], "year": 1988, "opinion_index": -1, "case_paths": [ "/nc-app/90/0030-01" ] }, { "cite": "74 N.C. App. 536", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525275 ], "year": 1985, "opinion_index": -1, "case_paths": [ "/nc-app/74/0536-01" ] }, { "cite": "196 S.E.2d 770", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "774", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "283 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559260 ], "year": 1973, "pin_cites": [ { "page": "500", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0494-01" ] }, { "cite": "146 S.E.2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "485" } ], "opinion_index": 0 }, { "cite": "266 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561051 ], "year": 1966, "pin_cites": [ { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0419-01" ] }, { "cite": "151 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1966, "pin_cites": [ { "page": "586", "parenthetical": "quoting 82 C.J.S. Statutes \u00a7 369 (1953)" } ], "opinion_index": 0 }, { "cite": "268 N.C. 624", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564406 ], "year": 1966, "pin_cites": [ { "page": "628-29", "parenthetical": "quoting 82 C.J.S. Statutes \u00a7 369 (1953)" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0624-01" ] }, { "cite": "371 S.E.2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 836", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513860, 2514372, 2513576, 2514007, 2515449 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0836-05", "/nc/322/0836-01", "/nc/322/0836-04", "/nc/322/0836-03", "/nc/322/0836-02" ] }, { "cite": "367 S.E.2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "398" } ], "opinion_index": 0 }, { "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, "pin_cites": [ { "page": "883" } ], "opinion_index": 0 }, { "cite": "47 Law & Contemp. Probs. 123", "category": "journals:journal", "reporter": "Law & Contemp. Probs.", "weight": 2, "opinion_index": 0 }, { "cite": "293 S.E.2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "184", "parenthetical": "order granting a motion to dismiss for lack of subject matter jurisdiction immediately appealable" } ], "opinion_index": 0 }, { "cite": "306 N.C. 324", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568484 ], "year": 1982, "pin_cites": [ { "page": "327", "parenthetical": "order granting a motion to dismiss for lack of subject matter jurisdiction immediately appealable" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0324-01" ] }, { "cite": "90 N.C. App. 30", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522150 ], "year": 1988, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0030-01" ] }, { "cite": "74 N.C. App. 536", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525275 ], "year": 1985, "pin_cites": [ { "page": "539" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0536-01" ] } ], "analysis": { "cardinality": 853, "char_count": 23068, "ocr_confidence": 0.724, "pagerank": { "raw": 7.360306729428757e-07, "percentile": 0.9689003104041973 }, "sha256": "1896c01a63bdd0be7a997f8d8bb8e12ae9afdc820223854d6c66d1bd6f8680a6", "simhash": "1:eeebb9d75d7ff11a", "word_count": 3568 }, "last_updated": "2023-07-14T18:38:26.587833+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ROBERT J. BATTEN v. N.C. DEPARTMENT OF CORRECTION" ], "opinions": [ { "text": "WHICHARD, Justice.\nThis case concerns the grievance of an employee of the Department of Correction (DOC) who was \u201creallocated\u201d pursuant to a managerial reorganization of correctional facility personnel. Grievance procedures available to the employee are set forth in the State Personnel Act, N.C.G.S. \u00a7\u00a7 126-1 through 126-88, and in the administrative code regulations authorized thereunder. Because reallocation in this employee\u2019s case entailed a reduction in position, the action was \u201cdisciplinary\u201d within the meaning of the Act. Such actions entitle \u201cpermanent state employees\u201d subject to the Act to review of the action in accordance with the procedures set forth in the Administrative Procedure Act, N.C.G.S. \u00a7\u00a7 150B-1 through 150B-64.\nWhen the Harnett Correctional Center was converted from a youth prison to an adult facility, petitioner was reallocated from his position as a correctional lieutenant, at pay grade level sixty-six, to that of a correctional officer, at pay grade level sixty-two. Petitioner has not alleged that his reallocation was the result of either discrimination or disciplinary action. The reallocation did not affect petitioner\u2019s pay or benefits; he contends, however, that because the pay scale at grade level sixty-two peaks at a lower figure than the pay scale for grade level sixty-six, the reallocation eventually will affect the maximum amount of compensation he could earn.\nPetitioner was informed by the DOC personnel director that nondisciplinary reallocations were reviewed by the Personnel Office and that its recommendation would be forwarded to the Secretary of Correction. Upon review of petitioner\u2019s case, the Secretary decided to let prior actions of the department stand, and petitioner was informed that there were no further means of appeal within the department. He was simultaneously informed that if he wished to pursue his grievance, he must contact the Director of Employee Relations at the Office of State Personnel.\nPetitioner accordingly requested information from the Office of State Personnel about the nonhearing, complaint resolution procedure of the State Personnel Commission. Petitioner\u2019s letter attempting to perfect his grievance with the State Personnel Commission was answered by a memorandum from the Office of State Personnel enclosing a \u201cHearing Request Information Form\u201d for a contested case hearing under the aegis of the Office of Administrative Hearings (OAH) pursuant to N.C.G.S. \u00a7 150B-23(a).\nPetitioner pursued this avenue of relief, but the DOC filed a motion to dismiss for lack of subject matter jurisdiction. The OAH denied the motion, found that jurisdiction did lie with it pursuant to N.C.G.S. \u00a7 126-37, and denied the DOC\u2019s motion for reconsideration, its petition for writ of certiorari, and its motion to stay OAH proceedings. A motion to stay and a petition for writ of supersedeas were granted subsequently, however, by the Superior Court, Wake County.\nThe superior court held that the OAH did not have jurisdiction \u201cto determine nondisciplinary matters, which do not involve allegations of discrimination, and which concern business judgments of agencies of the State, such as, in this case, a reallocation.\u201d The court ordered the matter remanded to the Office of State Personnel, directing that it review petitioner\u2019s grievance through its nonhearing, complaint resolution procedure.\nThe Court of Appeals dismissed petitioner\u2019s appeal without prejudice to his right to pursue the procedure dictated by the trial court, holding that the order entered by the trial court was interlocutory and did not affect a substantial right. On 5 April 1989 we allowed discretionary review. We now reverse.\nAn order issued by a trial court holding that an administrative agency does not have subject matter jurisdiction over the issues on appeal is immediately appealable under N.C.G.S. \u00a7 l-277(a) because it determines or discontinues the action. See Teachy v. Coble Dairies, Inc., 306 N.C. 324, 327, 293 S.E.2d 182, 184 (1982) (order granting a motion to dismiss for lack of subject matter jurisdiction immediately appealable); Whichard, Appealability in North Carolina: Common Law Definition of the Statutory Substantial Right Doctrine, 47 Law & Contemp. Probs. 123, 127-28 n. 33 (1984). The Court of Appeals thus erred in dismissing the appeal as interlocutory and not affecting a substantial right. Because of inconsistent interpretation of the statutes authorizing the resolution of state employee grievances, we elect to determine the issues presented rather than remand to the Court of Appeals for such determination.\nThe issues involve statutory provisions governing the State Personnel System, codified at N.C.G.S. \u00a7\u00a7 126-1 through 126-88. Article 8 of that Act, dealing with \u201cEmployee Appeals of Grievances and Disciplinary Action,\u201d N.C.G.S. \u00a7\u00a7 126-34 through -41, read together with provisions for administrative hearings of \u201ccontested cases\u201d under Article 3 of the Administrative Procedure Act, N.C.G.S. \u00a7\u00a7 150B-22 through 150B-37, entitles certain state employees \u201caggrieved\u201d by agency or departmental decisions affecting their employment to administrative and judicial review of those decisions. See N.C.G.S. \u00a7 150B-43 (1987). The question whether the trial court erred in determining that the OAH did not have subject matter jurisdiction to review petitioner\u2019s appeal and whether petitioner is otherwise entitled to the review procedures outlined in Chapter 150B turns upon three subsidiary questions: first, what is the source of OAH jurisdiction over such appeals; second, whether petitioner is barred by the general exemption of the DOC from the provisions of Chapter 150B; and third, whether an appeal of a reduction in position prompted by managerial reallocation of personnel rather than by allegations of employee misconduct is a \u201ccontested case\u201d arising under the State Personnel Act, the appeal of which must be conducted in the OAH in accordance with the provisions of Chapter 150B. See N.C.G.S. \u00a7 126-37(a) (1989).\nI.\nThe jurisdiction of the OAH over the appeals of state employee grievances derives not from Chapter 150B, but from Chapter 126. The administrative hearing provisions of Article 3, Chapter 150B, do not establish the right of a person \u201caggrieved\u201d by agency action to OAH review of that action, but only describe the procedures for such review. See N.C.G.S. \u00a7 150B-23(a) (1987). The purpose of that Chapter is narrowly defined: \u201cto establish as nearly as possible a uniform system of administrative rule making and adjudicatory procedures for State agencies.\u201d N.C.G.S. \u00a7 150B-l(b) (1987).\nOAH jurisdiction over appeals of state employee grievances is granted in the State Personnel Act: \u201cAppeals 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.\u201d N.C.G.S. \u00a7 126-37(a) (1989). Such appeals do not reach the OAH unless the grievance meets a number of statutory conditions precedent. First, it must be an appeal \u201cinvolving a disciplinary action, alleged discrimination, and any other contested case arising under [the State Personnel Act].\u201d Id. Second, employees whose grievances arise put of their employment, other than those who allege discrimination, must have complied with N.C.G.S. \u00a7 126-34, which requires all permanent state employees having such a grievance arising out of or due to their employment first to discuss their problem or grievance with their supervisor, then to follow the grievance procedure established by their department or agency. N.C.G.S. \u00a7 126-34 (1989); N.C.G.S. \u00a7 126-37(a) (1989). Third, unless the provision describing his dispute permits direct appeal to the Personnel Commission, see, e.g., N.C.G.S. \u00a7\u00a7 126-5(h), -36, -36.1, -36.2 (1989), an employee who has met the prerequisites of section 126-34 and who remains dissatisfied with the final decision of the head of his department or agency may appeal to the Personnel Commission for investigation of that action. N.C.G.S. \u00a7 126-37(a) (1989). Among all the provisions of Article 8, only section 126-37 confers upon the State Personnel Commission or upon the OAH the jurisdiction, or power, to deal with the action in question. See W. Shuford, N.C. Civil Practice and Procedure \u00a7 12-6 (1988). Insofar as Poret v. State Personnel Comm., 74 N.C. App. 536, 539, 328 S.E.2d 880, 883, disc. rev. denied, 314 N.C. 117, 332 S.E.2d 491 (1985) and N.C. Dept. of Justice v. Eaker, 90 N.C. App. 30, 39, 367 S.E.2d 392, 398, disc. rev. denied, 322 N.C. 836, 371 S.E.2d 279 (1988), hold otherwise, they are overruled.\nII.\nThe DOC is one of several departments exempted from the provisions of the Administrative Procedure Act. See N.C.G.S. \u00a7 150B-l(d) (1987). This broad exemption, however, appears to be contradicted by provisions of the State Personnel Act that detail a system of investigation, review, and appeal for certain personnel decisions affecting state employees and that specifically refer to the role of the OAH and the procedures of Chapter 150B as part of that process. The State Personnel Act empowers the State Personnel Commission to establish policies and rules governing personnel administration, including investigating complaints and taking \u201cother appropriate action concerning employment, promotion, demotion, transfer, discharge, and reinstatement.\u201d N.C.G.S. \u00a7 126-4(9) (1989). The Act specifies that its provisions apply to \u201c[a]ll State employees not herein exempt.\u201d N.C.G.S. \u00a7 126-5(a)(l) (1989). \u201cTeaching and related educational classes of employees of the Department of Correction\u201d are specifically exempted from certain provisions of the Act, N.C.G.S. \u00a7 126-5(c3) (1989), as are any policymaking positions in that department that the Governor may designate. N.C.G.S. \u00a7 126-5(d)(l) (1989). However, permanent, non-academic, non-policymaking employees of the DOC are notably not among the exempted state employees enumerated, despite the length and detail of the list. See N.C.G.S. \u00a7\u00a7 126-5(c)(l)-(4), 126-5(cl)(l)-(14), 126-5(c2)(l), (2), 126-5(c4), and 126-5(d)(l) (1989).\nWhen two statutes deal with common subject matter, one in \u201cgeneral and comprehensive terms\u201d and the other \u201cin a more minute and definite way,\u201d they should be read together and harmonized, if possible, to effectuate consistent legislative policy. Food Stores v. Board of Alcoholic Control, 268 N.C. 624, 628-29, 151 S.E.2d 582, 586 (1966) (quoting 82 C.J.S. Statutes \u00a7 369 (1953)). \u201c[B]ut, to the extent of any necessary repugnancy between them, the special statute, or the one dealing with the common subject matter in a minute way, will prevail over the general statute . . . unless it appears that the legislature intended to make the general act controlling.\u201d Id. Thus, the detailed provisions of Chapter 126, which govern the appeal of personnel actions affecting state employees, prevail with respect to DOC employees over the general departmental exclusion stated in the Administrative Procedure Act. The fact that Chapter 150B merely provides procedural guidelines to be followed in order to satisfy substantive rights established under Chapter 126 lends additional weight to our recognition that the exemption of the DOC from Chapter 150B does not apply to a DOC employee whose job classification is not one of those exempted from grievance review and appeal under Chapter 126. Moreover, the exclusion of a particular circumstance from a statute\u2019s general operation is evidence of legislative intent not to exempt other particular circumstances not expressly excluded. See Barnhardt v. Cab Co., 266 N.C. 419, 428, 146 S.E.2d 479, 485 (1966). Thus, the particularized exclusion of certain DOC employees from the provisions of Chapter 126 plainly indicates the General Assembly\u2019s intent that the Act\u2019s provisions for appeals of employment grievances apply to those not so excluded. Petitioner, a permanent employee in a non-policymaking, non-academic position in the DOC, thus was not barred from the appeal procedures of the Administrative Procedure Act by that Act\u2019s general exclusion of his department from its provisions.\nIII.\nThe question whether petitioner\u2019s appeal was a \u201ccontested case\u201d arising under the State Personnel Act turns upon whether he has stated grounds recognized in that Act as meriting administrative review and appeal. Although several sections in the Act describe employment-related grounds for such review, only section 126-35 states as grounds the particular adverse departmental action of which petitioner complained in this case. The first sentence of the section provides that \u201c[n]o permanent state employee subject to the State Personnel Act shall be discharged, suspended, or reduced in pay or position, except for just cause.\u201d N.C.G.S. \u00a7 126-35 (1989). Although this provision proceeds to refer to such adverse action as \u201cdisciplinary,\u201d it is apparent that the focus of the review is justification of the adverse departmental action, without regard to whether it is taken in response to employee conduct or in response to the vicissitudes of a department\u2019s personnel needs.\nA \u201ccontested case\u201d is not defined in the State Personnel Act. It is defined, however, in Chapter 150B, as \u201can administrative proceeding pursuant to this Chapter to resolve a dispute between an agency and another person that involves the person\u2019s rights, duties, or privileges.\u201d N.C.G.S. \u00a7 150B-2(2) (1987). This definition is narrowed subsequently to a procedural status, referring to a complaint that has satisfied the prerequisite of informal review:\nIt is the policy of this State that any dispute between an agency and another person that involves the person\u2019s rights, duties, or privileges, . . . should be settled through informal procedures. . . . Notwithstanding any other provision of law, if the agency and the other person do not agree to a resolution of the dispute through informal procedures, either the agency or the person may commence an administrative proceeding to determine the person\u2019s rights, duties, or privileges, at which time the dispute becomes a \u201ccontested case.\u201d\nN.C.G.S. \u00a7 150B-22 (1987).\n\u201cUnless the contrary appears, it is presumed that the Legislature intended the words of the statute to be given the meaning which they had in ordinary speech at the time the statute was enacted. . . . However, the context of the statute must also be considered.\u201d Transportation Service v. County of Robeson, 283 N.C. 494, 500, 196 S.E.2d 770, 774 (1973) (citations omitted). Read in the context of N.C.G.S. \u00a7 126-37(a), which provides that \u201c[ajppeals 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,\u201d \u201ccontested case\u201d clearly derives its meaning from the latter, procedural statute.\nThe right of permanent state employees subject to the State Personnel Act not to \u201cbe discharged, suspended, or reduced in pay or position, except for just cause,\u201d is clearly stated among the provisions of that Act. The abrogation of this right comprises grounds for employee grievances, their investigation, and appeal under the provisions of Article 8, N.C.G.S. \u00a7\u00a7 126-34 through 126-41, \u201cEmployee Appeals of Grievances and Disciplinary Action.\u201d A permanent state employee who alleges he has been \u201creduced in . . . position [without] just cause\u201d is entitled to the review and appeal provisions outlined in Article 8, whether the motive for his demotion was illegally discriminatory or retaliatory, N.C.G.S. \u00a7 126-36 (1987), or apparently or actually disciplinary, N.C.G.S. \u00a7 126-35. Because this section deems such departmental or agency action \u201cdisciplinary,\u201d we hold that an allegation that an employee has been \u201cdemoted in rank without sufficient cause\u201d invokes first the jurisdiction of the State Personnel Commission, then, on appeal, that of the OAH, even when there has been no documented misconduct by the employee. See N.C.G.S. \u00a7 126-35 (1989).\nPetitioner\u2019s allegation that he had been \u201cdemoted in rank without sufficient cause\u201d stated grounds under the Act for his department\u2019s action to be deemed \u201cdisciplinary\u201d within the meaning and intent of N.C.G.S. \u00a7 126-35 and for his case to be considered \u201ccontested\u201d within the meaning and intent of N.C.G.S. \u00a7 126-37(a). Because he had properly pursued all informal procedures mandated by the State Personnel Act and by the North Carolina Administrative Code for the resolution of his grievance, petitioner\u2019s appeal also fit the procedural profile of a \u201ccontested case\u201d for purposes of its review by the OAH under Chapter 150B. We accordingly hold that, contrary to the conclusion of the trial court, the OAH did have jurisdiction to determine petitioner\u2019s appeal, and we reverse the dismissal by the Court of Appeals and remand to that court for subsequent remand to that agency in order for petitioner\u2019s appeal to be heard.\nCourt of Appeals opinion reversed; superior court order reversed; case remanded.\n. The North Carolina Administrative Code defines \u201creallocation\u201d as \u201cthe assignment of a position to a different classification.\u201d 25 NCAC ID .0601. Reallocation to a lower grade may be effected as a disciplinary measure, in which case it is treated as a \u201cdemotion,\u201d 25 NCAC ID .0603(b)(2), or it may result from \u201cmanagement needs not associated with the employee\u2019s . . . performance.\u201d 25 NCAC ID .0603(b)(1).\n. \u201cPermanent State employee\u201d is defined in the State Personnel Act as a person\n(1) in a grade 60 or lower position who has been continuously employed by the State of North Carolina for the immediate 12 preceding months;\n(2) in a grade 61 to grade 65 position who has been continuously employed by the State of North Carolina for the immediate 36 preceding months;\n(3) in a grade 66 to grade 70 position who has been continuously employed by the State of North Carolina for the immediate 48 preceding months; or\n(4) in a grade 71 or higher position who has been continuously employed by the State of North Carolina for the immediate 60 preceding months at the time of the act, grievance, or employment practice complained of.\nN.C.G.S. \u00a7 126-39 (1989).\n. E.g., N.C.G.S. \u00a7 126-5(h) (dispute between employer and employee as to whether latter non-exempt); N.C.G.S. \u00a7\u00a7 126-14(c), -14.1(c) (\u201cdisciplinary actions\u201d: false accusation of coercion of political help from fellow employee); N.C.G.S. \u00a7 126-25 (employee objection to inaccurate or misleading material in personnel file); N.C.G.S. \u00a7\u00a7 126-27, -28 (prohibiting unauthorized examination of personnel files); N.C.G.S. \u00a7 126-35 (disciplinary actions); N.C.G.S. \u00a7\u00a7 126-16, -36 (alleged discrimination on unlawful bases); N.C.G.S. \u00a7 126-36.2 (denial of promotion because of employer\u2019s failure to post job vacancy or to give employee priority consideration); N.C.G.S. \u00a7 126-82(d) (employer failure to give qualified veteran preference).\n. The section of the North Carolina Administrative Code governing \u201cEmployee Grievances\u201d outlines \u201ca procedure representative of the minimum provisions\u201d for a grievance review by the State Personnel Commission. 25 NCAC 1J ,503(l)-(3). In addition, the Personnel Manual of the North Carolina Office of State Personnel permits a nonhearing, complaint resolution procedure before the Employee Relations Division of the Office of State Personnel, \u201cdesigned to provide an informal, nonadversarial method of reviewing employee complaints.\u201d Manual, \u00a7 9, p. 18. This procedure does not displace an employee\u2019s statutory entitlement to a contested case hearing under the provisions of Chapter 150B, and the Manual notes that these are available to either the employee or his department or agency if the nonhearing, complaint resolution procedure fails to resolve their dispute.", "type": "majority", "author": "WHICHARD, Justice." } ], "attorneys": [ "Kirk, Gay, Kirk, Gwynn & Howell, by Philip G. Kirk and Katherine M. McCraw, for petitioner-appellant.", "Lacy H. Thornburg, Attorney General, by Sylvia Thibaut, Assistant Attorney General, for respondent-appellee." ], "corrections": "", "head_matter": "ROBERT J. BATTEN v. N.C. DEPARTMENT OF CORRECTION\nNo. 76PA89\n(Filed 1 March 1990)\n1. Appeal and Error \u00a7 6.3 (NCI3d)\u2014 absence of subject matter jurisdiction \u2014ruling appealable\nAn order issued by a trial court holding that an adminstrative agency does not have subject matter jurisdiction over the issues on appeal is immediately appealable under N.C.G.S. \u00a7 l-277(a) because it determines or discontinues the action.\nAm Jur 2d, Administrative Law \u00a7 646; Appeal and Error \u00a7 87.\n2. State \u00a7 12 (NCI3d>\u2014 state employee grievance \u2014 jurisdiction of State Personnel Commission and Office of Administrative Hearings \u2014 applicable statute\nAmong all of the provisions of Article 8 of the State Personnel Act, only section 126-37 confers upon the State Personnel Commission or upon the Office of Administrative Hearings the jurisdiction, or power, to deal with a state employee grievance based on a reduction in position prompted by managerial reallocation of personnel. Insofar as Poret v. State Personnel Comm., 74 N.C. App. 536 (1985) and N.C. Dept, of Justice v. Eaker, 90 N.C. App. 30 (1988) hold otherwise, they are overruled.\nAm Jur 2d, Administrative Law \u00a7 203; Civil Service \u00a7\u00a7 72, 74.\n3. State \u00a7 12 (NCI3d)\u2014 grievance of Department of Correction employee \u2014 no exemption under Administrative Procedure Act\nThe exemption of the Department of Correction from the Administrative Procedure Act, G.S. Ch. 150B, does not apply to a Department of Correction employee whose job classification is not one of those exempted from grievance review and appeal under the State Personnel Act, G.S. Ch. 126. Therefore, petitioner, a permanent employee in a non-policymaking, nonacademic position in the Department of Correction, was not barred from the appeal procedures of the Administrative Procedure Act by that Act\u2019s general exclusion of his department from its provisions.\nAm Jur 2d, Administrative Law \u00a7 203; Civil Service \u00a7\u00a7 72, 74.\n4. State \u00a7 12 (NCI3d)\u2014 state employee \u2014 demotion without sufficient cause \u2014 contested case \u2014 appeal conducted by Office of Administrative Hearings\nAn allegation that a permanent state employee was \u201cdemoted in rank without sufficient cause\u201d stated grounds for his department\u2019s action to be deemed \u201cdisciplinary\u201d within the meaning of N.C.G.S. \u00a7 126-35, even though his reduction in position was prompted by managerial reallocation of personnel rather than by employee misconduct, and presented a \u201ccontested case\u201d within the meaning of N.C.G.S. \u00a7 126-37(a). Therefore, plaintiff\u2019s grievance invoked first the jurisdiction of the State Personnel Commission and, on appeal, that of the Office of Administrative Hearings.\nAm Jur 2d, Administrative Law \u00a7 203; Civil Service \u00a7\u00a7 72, 74.\nOn discretionary review of an unpublished opinion of the Court of Appeals, 92 N.C. App. 595, 376 S.E.2d 53 (1988), dismissing as interlocutory an appeal from an order entered by Stephens, J., at the 4 January 1988 Civil Session of Superior Court, WAKE County. Heard in the Supreme Court 9 October 1989.\nKirk, Gay, Kirk, Gwynn & Howell, by Philip G. Kirk and Katherine M. McCraw, for petitioner-appellant.\nLacy H. Thornburg, Attorney General, by Sylvia Thibaut, Assistant Attorney General, for respondent-appellee." }, "file_name": "0338-01", "first_page_order": 374, "last_page_order": 383 }