{ "id": 220051, "name": "LINDA FARRIS, Petitioner v. BURKE COUNTY BOARD OF EDUCATION, Respondent", "name_abbreviation": "Farris v. Burke County Board of Education", "decision_date": "2002-03-07", "docket_number": "No. 272PA01", "first_page": "225", "last_page": "242", "citations": [ { "type": "official", "cite": "355 N.C. 225" } ], "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": "544 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": -1 }, { "cite": "143 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433122 ], "year": 2001, "opinion_index": -1, "case_paths": [ "/nc-app/143/0077-01" ] }, { "cite": "401 S.E.2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538159 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0276-01" ] }, { "cite": "426 S.E.2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "109 N.C. App. 100", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524435 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/109/0100-01" ] }, { "cite": "380 S.E.2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 546", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2484791 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0546-01" ] }, { "cite": "430 S.E.2d 472", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1993, "pin_cites": [ { "page": "602" }, { "page": "474" }, { "page": "603" }, { "page": "474" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 599", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526103 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/110/0599-01" ] }, { "cite": "392 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "584" }, { "page": "615" }, { "page": "585" } ], "opinion_index": 0 }, { "cite": "326 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307658 ], "year": 1990, "pin_cites": [ { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0603-01" ] }, { "cite": "346 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4775585, 4775853, 4771860, 4771992, 4775065 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0333-01", "/nc/317/0333-05", "/nc/317/0333-03", "/nc/317/0333-02", "/nc/317/0333-04" ] }, { "cite": "339 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "79 N.C. App. 372", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520827 ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0372-01" ] }, { "cite": "542 S.E.2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "142 N.C. App. 169", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440081 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/142/0169-01" ] }, { "cite": "333 S.E.2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694301 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0284-01" ] }, { "cite": "416 S.E.2d 3", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2501019 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0380-01" ] }, { "cite": "407 S.E.2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "104 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519969 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/104/0001-01" ] }, { "cite": "283 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567539 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0312-01" ] }, { "cite": "544 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "585" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433122 ], "year": 2001, "pin_cites": [ { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0077-01" ] } ], "analysis": { "cardinality": 1299, "char_count": 41910, "ocr_confidence": 0.756, "pagerank": { "raw": 1.384708099683216e-07, "percentile": 0.6412414391727085 }, "sha256": "2d6b124c5e02f2ccd2259e887e76e53f72606f3d74a4c484432f0493b71c4364", "simhash": "1:fb45b5a2653ea74a", "word_count": 6579 }, "last_updated": "2023-07-14T16:24:10.729326+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice ORR concurs in the result only." ], "parties": [ "LINDA FARRIS, Petitioner v. BURKE COUNTY BOARD OF EDUCATION, Respondent" ], "opinions": [ { "text": "EDMUNDS, Justice.\nPetitioner Linda Farris (petitioner) was employed by respondent Burke County Board of Education (respondent), teaching educable mentally handicapped children in the sixth, seventh, and eighth grades. Petitioner began her employment with respondent in 1970 and thereafter attained tenured status as a teacher.\nThe record indicates that petitioner\u2019s teaching methods and skills were considered acceptable and unremarkable through most of her career. However, in 1998, doubts arose. On 12 June 1998, Dr. Tony M. Stewart (Stewart), respondent\u2019s superintendent, wrote petitioner to inform her that the principal of her school, Charles W. Sherrill, had recommended that petitioner not be rehired for the upcoming school year and that Stewart agreed with the recommendation. In that same letter, Stewart added that he wished to meet with petitioner on 16 June 1998 to review with her the facts behind this decision.\nWhen petitioner failed to meet with Stewart after receiving his 12 June 1998 letter, he sent her \u00e1 second letter on 29 June 1998. This letter advised petitioner that she had waived her opportunity to respond to Stewart about the recommendation that she not be rehired and, in addition, informed her that she had fourteen days to file a request in writing for either \u201c(i) a hearing on the grounds for [Stewart\u2019s] proposed recommendation by a case manager, or (ii) a hearing within five (5) days before the board [i.e., respondent] on [Stewart\u2019s] recommendation.\u201d The letter included the following language:\nGROUNDS FOR DISMISSAL\nThe grounds for your dismissal are inadequate performance, insubordination, and neglect of duty, pursuant to N.C.G.S. \u00a7 1150325(e)(1)(a), (c), and (d).\nBASIS FOR THE CHARGES\nAttached to this letter ... is a summary of the factual basis for my recommendation that you not be rehired for the coming school year. You have repeatedly ignored direct orders from your principals^] both oral and written. You created, and refused to correct, health and fire hazards, which endangered your students. You refused to follow directives regarding curriculum, and you misrepresented the status of your plan book.\nThe administration has demonstrated a thoughtful, patient, persistent but unavailing effort to get you to recognize that you were not properly managing your classroom and to correct the situation. Any or all of the referenced acts constitute inadequate performance, insubordination],] and neglect of duty.\nStewart attached to this letter a nine-page \u201cChronological Listing Documentation & Correspondence Concerning [Petitioner].\u201d This list, intended to substantiate the decision to terminate petitioner, detailed letters, conferences, memoranda, and the like circulated between petitioner and others in the school system.\nOn 10 July 1998, petitioner responded by requesting a hearing before a case manager, and in a letter dated 12 August 1998, petitioner asked Stewart to provide her copies of the documents described in the attachment to his 29 June 1998 letter. Stewart complied on 20 August 1998. On 31 August 1998, petitioner requested from Stewart a list of witnesses, a summary of the witnesses\u2019 anticipated testimony, and a copy of any documents Stewart intended to provide the case manager at the upcoming hearing. That same day, Stewart provided petitioner a list of potential witnesses. The list also included the following information:\nEach of the above individuals will testify about the events that culminated in Dr. Stewart\u2019s decision to recommend to [respondent] that [petitioner\u2019s] contract not be renewed for the next year.\nWith regard to documents that I plan to introduce, I may present any of the documents that I have previously provided to you. Additionally, I will present reports from the fire marshall [sic] and possibly the health department, neither of which are [sic] currently in my possession.\nThe hearing before the case manager was held on 3 September 1998 and 8 October 1998. At the hearing, petitioner objected to certain evidence that had not been set out in Stewart\u2019s 29 June 1998 notice. This evidence included photographs of petitioner\u2019s classroom purporting to show roach droppings and a rat\u2019s nest in addition to clutter, letters to petitioner, and the testimony of two witnesses whose names had been provided, but not the pertinent substance of their testimony. One of these witnesses, Beth Wright (Wright), petitioner\u2019s teacher assistant, testified that petitioner used classroom time to talk to friends on the telephone and to call a psychic hotline, that petitioner had returned her students three hours late from a field trip to Biltmore Estate because petitioner spent over an hour and a half in the gift shop, that petitioner had called an African-American student a \u201cmonkey,\u201d that petitioner would give massages to individuals while students were present in the classroom, and that petitioner spent only about ten percent of her time teaching. The other witness, Joel Hastings (Hastings), Director of Exceptional Children, testified about petitioner\u2019s failure to maintain some of her students\u2019 records necessary for continued state and federal funding, and petitioner\u2019s relationship with a particular student. Hastings also expressed concern that \u201cthere was the lack of quality individualized instruction in the [petitioner\u2019s] classroom, plus there was a fear of intimidation if someone went to an administrator about those concerns.\u201d The case manager held in abeyance her rulings on petitioner\u2019s objections to this evidence.\nOn 9 November 1998, the case manager filed a report that included findings of fact and a recommendation that Stewart\u2019s grounds for petitioner\u2019s dismissal were not substantiated by a preponderance of the evidence. That same day, Stewart wrote petitioner informing her that he intended to submit a written recommendation to respondent that petitioner be terminated. Accordingly, petitioner requested a hearing before respondent. On 18 November 1998, Stewart recommended in writing to respondent that petitioner be terminated, stating:\nThe grounds for my recommendation are inadequate performance, insubordination, and neglect of duty, pursuant to N.C.G.S. \u00a7 115C-325(e)(l)(a), (c)[,] and (d). [Petitioner] repeatedly ignored direct orders, both oral and written, from principals. [Petitioner] created, and refused to correct, health and fire hazards, including giving special education children seriously outdated food, all of which endangered her students. [Petitioner] refused to follow directives regarding curriculum, and she misrepresented the status of her [lesson] plan book.\nThe administration has demonstrated a thoughtful, patient, persistent but unavailing effort to get [petitioner] to recognize that she was not properly managing her classroom.\nPursuant to requests by both parties, on 24 November 1998, the case manager filed an \u201cAmended Report of Case Manager\u201d in which she made rulings on evidentiary challenges raised at the hearing, sustaining petitioner\u2019s objections to the photographs and the evidence described above offered by Wright and Hastings. In particular, the case manager found that the photographs had not been provided to petitioner in advance of the hearing, as required by N.C.G.S. \u00a7 115C-325(j)(5); that the letters were both insufficiently specific to allow petitioner to prepare a defense and outside the scope of the notice provided petitioner by Stewart; and that the testimony of Wright and much of the testimony of Hastings were insufficiently specific and outside the scope of the notice provided petitioner. However, Hastings\u2019 testimony as to one inspection of petitioner\u2019s classroom, where outdated food was discovered, was admitted. Accordingly, the excluded evidence was not included in the case manager\u2019s findings of fact in her amended report, which read in pertinent part:\n5. That [petitioner] has taught for 28 years in the Burke County Public Schools as a special education teacher. That during the last eight years [petitioner] has taught a self-contained class for the educationally and mentally handicapped. . . .\n6. That each student in [petitioner\u2019s] class was required to be taught based on the student\u2019s individualized educational plan (IEP). That over the course of 28 years, [petitioner] acquired a large and wide variety of teaching materials that accumulated in her classroom and office to accommodate her students and their special needs. That [petitioner\u2019s] classroom was cluttered with these items.\n7. That the clutter in her classroom was of concern to her various principals over the last four years. That at various times and on various occasions, these principals . . . encouraged and requested [petitioner] to clean her classroom. On several occasions, [petitioner] was directed to clean her classroom.\n6. [sic] That during 1995 through 1996, Betty Terrell was the principal at Liberty Middle School [] and [petitioner\u2019s] assigned principal. . . . That Ms. Terrell sent [petitioner] a letter in March, 1996 simply documenting that a general cleaning of her room had not been accomplished. That Ms. Terrell did not warn [petitioner] that her behavior was insubordinate.\n7. [sic] That during 1996 through 1997, Malinda Bollinger was the principal of North Liberty [] School and [petitioner\u2019s] assigned principal. ... On August 14, 1996, Ms. Bollinger specifically directed [petitioner] to clean her classroom and store materials and supplies. That Ms. Bollinger wrote [petitioner] that failure to clean the classroom would constitute insubordination. That [petitioner] complied with that directive on the same day she received Ms. Bollinger\u2019s letter and notified Ms. Bollinger in writing of her compliance with these clear and specific instructions.. . .\n8. That during 1997 through 1998, Mr. Sherrill was the principal of Liberty Middle School and [petitioner\u2019s] assigned principal. That on September 8, 199[7], Mr. Sherrill gave [petitioner] specific directions regarding the cleaning of her classroom. Two months later on November 10, 1997, Mr. Sherrill noted compliance of his instructions by [petitioner].\n9. On February 10, 1998, in response to a call from the health department, all the classrooms at North Liberty School were inspected. Items of outdated food were found in [petitioner\u2019s] classroom or office.\n10. [Petitioner] was not given a warning, a plan for improvement or any written notification that Mr. Sherrill viewed her as being insubordinate or having neglected her duty as a result of the food items that were found in her classroom or office.\n11. That despite the ongoing differences regarding the condition of her classroom between [petitioner] and her principals, . . . [petitioner] was evaluated by both Ms. Terrell and Ms. Bollinger as being above standard in every teaching function. [Petitioner] was observed and evaluated by Mr. Sherrill on December 8, 1997.... Mr. Sherrill evaluated [petitioner] as being standard in two of the categories he observed and below standard in the other three categories he observed. [Petitioner] was again evaluated on May 4, 1998 by evaluators who did have some training and experience in special education and was found to be performing at standard in each category they observed which were the same categories evaluated by Mr. Sherrill. On June 2, 1998, Mr. Sherrill completed a Teacher Performance Appraisal Instrument for [petitioner]. He rated her at being standard in the three categories in which he had previously found her to be below standard. Then, although never having given her any documentation or warnings, he rated her as being below standard or unsatisfactory in three categories in which he had never previously evaluated her.\n12. That on two occasions, Mr. Sherrill claimed that [petitioner] was insubordinate because she failed to have lesson plans in a lesson plan book as she had been instructed. Mr. Sherrill offered into evidence blank pages of a lesson plan book. However, additional pages obtained by Mr. Sherrill consist of lengthy instructions written for substitute teachers which would not fit within a lesson plan book. Mr. Sherrill did not request the lesson plan book from [petitioner]. [Petitioner] testified that she maintained a lesson plan. On May 4, 1998, [petitioner] was observed by assistant principal Susan Jones and by Jeannette N. Davis. The Formative Observation Data Analysis of this observation does not note the failure to maintain a lesson plan book. That a former principal and a teacher of the in-school suspension program (ISS) at Liberty Middle School, testified that anytime one of [petitioner\u2019s] students was sent to in-school suspension they always came with a lesson plan.\n13. Two long[-]term special education teachers testified that they reviewed the individualized educational plans of [petitioner\u2019s] students and [petitioner\u2019s] lesson plan book. Ms. Horn testified that formal lesson plans were not always necessary in a special education class like the one [petitioner] taught. Both teachers testified that the individualized education plans for [petitioner\u2019s] students were well thought out and appropriated [sic]. Further, both teachers confirmed that [petitioner\u2019s] method of teaching, including the utilization of recipes and field trips, were [sic] effective methods of teaching middle school educationally mentally handicapped children and focused on appropriate lessons which would help these children in the future.\n16. Except for his approximately one hour observation of [petitioner] on December 8, 1997, Mr. Sherrill spent no other time observing [petitioner] or monitoring her teaching ability. Mr. Sherrill failed to make suggestions to [petitioner] for professional improvement following his December 8, 1997 observation and evaluation of [petitioner]. Following his December 8, 1997 observation of [petitioner], Mr. Sherrill did not provide [petitioner] any assistance in becoming a more effective teacher. He did not devise a professional growth plan. He did not request the assistance of other special education teachers or of [Hastings]. . . . Mr. Sherrill failed to document^ ways in which he had helped [petitioner] become a more effective professional at a time when he was recommending her dismissal.\n17. There was a[n] evidentiary objection as to the maintenance of IEP folders by [petitioner]. The only evidence introduced to show that [petitioner] had not properly maintained the IEP folders was the testimony of Mr. Hastings. This evidence is outside the factual basis stated by Dr. Stewart as the basis for his decision to terminate [petitioner].\n18. Four parents of former students of [petitioner] testified at the hearing. Each parent testified as to having observed [petitioner] in the classroom or on field trips. Each parent testified that his/her child made progress in [petitioner\u2019s] classroom. Each parent testified that if given the opportunity they would have [petitioner] teach their child again.\n19. [Petitioner] was not insubordinate and did not willfully disregard directions of her employer or refuse to obey a reasonable order.\n20. [Petitioner\u2019s] teaching performance was not inadequate.\n21. [Petitioner] did not neglect her duty.\nBased on these findings, the case manager recommended that \u201cthe [superintendent's grounds for dismissal are not substantiated by a preponderance of [the] evidence.\u201d\nThe case manager\u2019s amended findings did not affect Stewart\u2019s decision to proceed to a hearing before respondent. Accordingly, Stewart forwarded to respondent the entire record of the hearing held before the case manager, including the evidence to which petitioner\u2019s objections had been sustained. On 21 December 1998, petitioner wrote attorney Larry A. Ballew (Ballew), objecting to the material that had been excluded by the case manager. On 12 January 1999, respondent held a hearing on this matter. It heard no evidence in addition to that presented to the case manager, but petitioner and Stewart were permitted to make oral arguments before respondent in a closed session. Respondent \u201cunanimously determined that the case manager\u2019s findings of fact were not supported by substantial evidence when the record was reviewed as a whole and therefore made . . . alternative findings of fact.\u201d These \u201calternative findings of fact\u201d included matters excluded by the case manager:\n44. At the case manager's] hearing, [Wright], the teacher assistant in [petitioner\u2019s] classroom for the previous two years stated, and we find as a fact, that [petitioner] would spend as much as three to four hours per day on the telephone, leaving the kids to the assistant to teach. The telephone conversations were unrelated to the classroom and concerned [] [petitioner\u2019s] joint-venture in a flea market, her massage business, or the psychic hot-line.\n48. [Petitioner] did not spend a complete day doing instruction to the children, during the two years that [Wright] was her assistant. The most time that [petitioner] spent in any one day actually teaching was two hours. [Petitioner] spent less than 10% of her time actually teaching the children in her care.\n53. [Petitioner] referred to a black student as a \u201cmonkey.\u201d This racial slur caused the student and his parents great concern.\n54. [Petitioner] took the class on a field trip to the Biltmore House in Asheville. The children\u2019s parents were told that the children would be back at 5:00 p.m. [Petitioner] did not have the children back until 8:00 p.m. and did not call anyone to say they would return late. The reason they were late returning is because [petitioner] wanted to go shopping after the field trip.\n55. Pictures taken of [petitioner\u2019s] classroom illustrated the testimony shown in the transcripts. The classroom was cluttered, old food was present throughout the room and the storage areas, [and] roach droppings and a rat\u2019s nest were clearly visible.\n56. In March of 1998, the Director for Exceptional Children, [Hastings], in a review of the Exceptional Children records in [petitioner\u2019s] class were incomplete [sic]. Mr. Hastings directed [petitioner] to make the necessary corrections. Mr. Hastings [\u2019] testimony was that such incomplete records could have resulted in a loss of funding had they not be[en] corrected before an audit.\nRespondent concluded that its findings \u201csubstantiate the [superintendent's grounds for dismissal, inadequate performance, insubordination, and neglect of duty as set forth in N.C.G.S. \u00a7 115C-325(e)(l)(a), (c)[,] and (d)\u201d and that petitioner did not suffer any prejudicial error. Accordingly, respondent terminated petitioner\u2019s employment.\nPetitioner appealed to the Superior Court, Burke County. That court held that respondent\u2019s decision to terminate petitioner was supported by substantial evidence from the whole record and affirmed the termination decision. Petitioner appealed to the North Carolina Court of Appeals, which reversed and remanded the case to the Superior Court, Burke County, \u201cfor further remand to [Respondent for it to either reject Stewart\u2019s recommendation or \u2018accept or modify the recommendation and dismiss, demote, reinstate, or suspend\u2019 [petitioner. N.C.G.S. \u00a7 115C-325(jl)(5) (1999). Respondent\u2019s decision must be based on the findings made by the case manager.\u201d Farris v. Burke Cty. Bd. of Educ., 143 N.C. App. 77, 88, 544 S.E.2d 578, 585 (2001). This Court allowed respondent\u2019s petition for discretionary review to consider the Court of Appeals\u2019 interpretation of the statutes applicable to teacher dismissal. We also allowed petitioner\u2019s conditional petition for discretionary review to consider an issue that had been raised by assignment of error in the Court of Appeals but not resolved in that court\u2019s opinion, that is, whether petitioner\u2019s due process rights to have the termination decision made by an impartial decision-maker had been violated. As to the first issue, we affirm the holding of the Court of Appeals, as modified below. As to the second issue, we overrule petitioner\u2019s assignment of error.\nI.\nTo avoid possible confusion, we take this opportunity to clarify the standard of review. Respondent school board\u2019s review of the case manager\u2019s report and recommendation is controlled by N.C.G.S. \u00a7 115C-325(J2)(2). Although respondent purported to apply the \u2018whole record test\u2019 mandated by this statute in its initial review of the case manager\u2019s amended report, we hold that respondent did not administer this test properly, as detailed below. However, a different statute controls judicial review of a school board\u2019s action. Accordingly, we apply the standards set out in N.C.G.S. \u00a7 150B-51. Overton v. Goldsboro City Bd. of Educ., 304 N.C. 312, 283 S.E.2d 495 (1981). In light of the particular posture of the case at bar, we review respondent\u2019s action to determine whether its decision was based upon \u201cwrongful procedure.\u201d N.C.G.S. \u00a7 150B-51(b)(3) (1999); see Evers v. Pender Cty. Bd. of Educ., 104 N.C. App. 1, 407 S.E.2d 879 (1991), aff\u2019d per curiam, 331 N.C. 380, 416 S.E.2d 3 (1992).\nWe first consider the procedure followed by the case manager and by respondent. As detailed above, Stewart provided petitioner with an extensive list of witnesses and exhibits in his 12 August 1998 notice. However, the list was not comprehensive, and Stejvart presented additional evidence at the hearing before the case manager, including photographs of petitioner\u2019s classroom and testimony relating to petitioner\u2019s classroom behavior. Petitioner objected, and the case manager ultimately sustained the objection and excluded the evidence.\nWe hold that the case manager\u2019s decision to exclude the evidence was proper. Although the statute provides that formal rules of evidence do not apply to a hearing before a case manager, N.C.G.S. \u00a7 115C-325(j)(4), there is no ambiguity in the notice requirements set out in section 115C-325(j)(5), which provides in pertinent part:\nAt least five days before the hearing [before a case manager], the superintendent shall provide to the career employee a list of witnesses the superintendent intends to present, a brief statement of the nature of the testimony of each witness and a copy of any documentary evidence the superintendent intends to present. .. . Additional witnesses or documentary evidence may not be presented except upon a finding by the case manager that the new evidence is critical to the matter at issue and the party making the request could not, with reasonable diligence, have discovered and produced the evidence according to the schedule provided in this subdivision.\nN.C.G.S. \u00a7 115C-325(j)(5). While Stewart did provide in apt time the names of all witnesses, his summary of the evidence to be presented by those witnesses omitted significant portions of their testimony, such as petitioner\u2019s alleged neglect of her students so she could use the telephone and the delayed return from the Biltmore Estate. In addition, petitioner was not provided copies of the photographs of her classroom that purportedly showed a cluttered and unsanitary environment. There is no suggestion in the record that this evidence could not have been discovered with reasonable diligence and produced to petitioner in accordance with the statutory timetable. Consequently, the case manager\u2019s only choice was to exclude this evidence.\nIn so holding, we do not suggest that a superintendent is required to set out the facts supporting a case for termination in complete detail prior to a hearing before a case manager. The provisions of chapter 115C do not mirror the discovery proceedings in either criminal or civil cases. Stewart\u2019s provision to petitioner of a nine-page synopsis of the evidence was a commendable effort to ensure the statutory requirements were met. Nevertheless, the excluded evidence was available to Stewart at the time the synopsis was prepared and its prejudicial impact was readily apparent, but it was not included in the \u201cbrief statement of the nature of the testimony of [the] witness,\u201d N.C.G.S. \u00a7 115C-325(j)(5). Under the facts before us, we believe the existence of this evidence should have been disclosed to petitioner prior to the hearing.\nStewart then resubmitted to respondent all the evidence that had been submitted at the case manager\u2019s hearing, including the evidence that had been excluded by the case manager. Stewart\u2019s theory in so doing was that respondent could consider the excluded evidence pursuant to section 115C-325(j2)(7), which provides in pertinent part:\nThe board shall accept the case manager\u2019s findings of fact unless a majority of the board determines that the findings of fact are not supported by substantial evidence when reviewing the record as a whole. In such an event, the board shall make alternative findings of fact.\nN.C.G.S. \u00a7 115C-325(j2)(7). Respondent argues that because the statute calls for application of a \u2018whole record test\u2019 at this stage, it was not bound by evidentiary rulings of the case manager and was entitled to consider all the evidence presented at the hearing, specifically including the evidence disallowed by the case manager. Petitioner answers that respondent\u2019s review was limited to the \u2018whole record\u2019 properly before the case manager, an interpretation that would foreclose respondent\u2019s consideration of evidence excluded by the case manager.\nSection 115C-325(j2)(7) further provides:\nIf a majority of the board determines that the case manager did not address a critical factual issue, the board may remand the findings of fact to the case manager to complete the report to the board. If the case manager does not submit the report within seven days receipt of the board\u2019s request, the board may determine its own findings of fact regarding the critical factual issues not addressed by the case manager. The board\u2019s determination shall be based upon a preponderance of the evidence.\nId.\nWe believe this statutory framework is consistent with petitioner\u2019s interpretation that a board initially reviewing the results of a case manager\u2019s hearing is bound by the \u2018whole record\u2019 admitted and considered by the case manager. However, because (j2)(7) contemplates a remand to the case manager \u201c[i]f a majority of the board determines that the case manager did not address a critical factual issue,\u201d the school board may nevertheless view evidence excluded by the case manager but later submitted to the board in making its initial determination whether the case manager addressed all critical issues. In fact, the case manager\u2019s amended report here cited this excluded evidence.\nIn the case at bar, the board failed to follow statutory procedure. If a board chooses not to accept the case manager\u2019s report as submitted, then pursuant to section 115C-325(J2)(7) the board should determine either (1) that the case manager\u2019s findings of fact are not supported by substantial evidence admissible under section 115C-325, in which case it can make alternative findings of fact; or (2) that the case manager failed to consider a critical factual issue, in which case the board should remand the matter for the case manager to make additional findings of fact. Where a board\u2019s conclusion that the case manager failed to consider a critical factual issue is based upon the case manager\u2019s rulings excluding evidence, the case manager, on remand, remains bound by the provisions of N.C.G.S. \u00a7 115C-325 and within those limits may either reconsider or reaffirm those evidentiary rulings. A board may thereafter substitute its findings of fact for those of the case manager only if the case manager does not respond to the board\u2019s request within seven days.\nThe board here followed none .of the permissible alternatives. Instead, it attached additional findings of fact to those already made by the case manager and mislabeled the result as \u201calternative findings of fact.\u201d Because the board did not follow proper procedures, we hold that it was bound by the case manager\u2019s findings of fact. See N.C.G.S. \u00a7 150B-51(b)(3).\nOur inquiry does not end here, however. We turn next to the 24 November 1998 \u201cAmended Report of Case Manager,\u201d which has been quoted in some detail above. Section 115C-325(il)(2) provides in relevant part:\nThe case manager shall make all necessary findings of fact, based upon the preponderance of the evidence, on all issues related to each and every ground for dismissal and on all relevant matters related to the question of whether the superintendent\u2019s recommendation is justified. The case manager also shall make a recommendation as to whether the findings of fact substantiate the superintendent\u2019s grounds for dismissal.\nN.C.G.S. \u00a7 115C-325(il)(2). As noted above, we agree with the Court of Appeals that, pursuant to N.C.G.S. \u00a7 115C-325, sufficient admissible evidence was presented to the case manager to support her findings of fact and that respondent was bound by those findings of fact. However, nowhere does this statute allow the case manager to reach conclusions of law. Although the distinction between findings of fact and conclusions of law can be elusive, see, e.g., Harris v. Walden, 314 N.C. 284, 333 S.E.2d 254 (1985); Dunevant v. Dunevant, 142 N.C. App. 169, 542 S.E.2d 242 (2001), paragraphs numbered 19, 20, and 21 of the \u201cAmended Report of Case Manager,\u201d quoted above, do not set out facts found by the case manager. These paragraphs instead amount to the case manager\u2019s conclusions of law. See, e.g., Crump v. Board of Educ., 79 N.C. App. 372, 339 S.E.2d 483 (conclusion that plaintiff insubordinate based upon findings of fact), disc, rev. denied, 317 N.C. 333, 346 S.E.2d 137 (1986). As such, these paragraphs are not binding on respondent. Accordingly, on remand respondent shall not consider paragraphs 19, 20, and 21 of the case manager\u2019s amended report. The holding of the Court of Appeals is affirmed as modified.\nII.\nPetitioner claims that her due process rights were violated because the decision to terminate her employment was not made by an unbiased and impartial decision-maker. This contention is based upon alleged ex parte communication between respondent and attorney Ballew in the termination proceedings. We initially observe that the extent of Ballew\u2019s representation is not well-defined in the record. Ballew first discussed petitioner\u2019s termination with Stewart in March 1998, before petitioner was notified of the recommendation that she not be rehired. On 18 June 1998, Ballew wrote petitioner\u2019s counsel, identifying himself as \u201cthe attorney for the Burke County School Board,\u201d but at the case manager\u2019s hearing in September and October 1998, he represented Stewart. In a letter written 9 November 1998 to the case manager, Ballew identified himself as the \u201cAttorney for Burke County Public Schools,\u201d but at the hearing before respondent in January 1999, Ballew again argued on behalf of Stewart; in fact, respondent\u2019s findings of fact recite that \u201cSuperintendent Tony M. Stewart was present and represented by attorney Larry A. Ballew.\u201d Ballew signed respondent\u2019s answer to petitioner\u2019s appeal to superior court, and when the record of the instant appeal was settled, Ballew signed as \u201cAttorney for Respondent.\u201d On the basis of this record, Ballew\u2019s role is undeniably equivocal.\nPetitioner\u2019s allegations of ex parte communication between Ballew and respondent are based upon circumstantial evidence. At the end of her hearing, the case manager asked both Ballew and petitioner\u2019s counsel to submit proposed findings of fact. Ballew submitted a proposal, but the case manager ultimately drafted her own findings of fact and amended findings of fact, recommending against petitioner\u2019s dismissal. Stewart then advised petitioner that he intended to recommend to respondent that petitioner\u2019s contract not be renewed. No new evidence was heard at the hearing before respondent, but Ballew argued on behalf of Stewart. When respondent later issued its findings of fact, they were virtually identical to those submitted by Ballew to the case manager, to the point where the same mistakes could be found in both. For example, both Ballew\u2019s proposed findings to the case manager and respondent\u2019s findings misidentified petitioner by stating: \u201cThis letter was adequate to apprize Ms. Branch of the charges against her.\u201d (Emphasis added.) Petitioner argues that the only reasonable inference from this resemblance is that Ballew had improper ex parte contact with respondent that prevented respondent from properly carrying out its duties.\nWe have held that whenever a school board considers a case in which it might deprive a teacher of employment, \u201cit is fundamental to the concept of due process that the deliberative body give that person\u2019s case fair and open-minded consideration.\u201d Crump v. Board of Educ., 326 N.C. 603, 613, 392 S.E.2d 579, 584 (1990). However, we have also recognized that \u201cdue process is a somewhat fluid concept, and that determining what process is \u2018due\u2019 at a school board hearing is very different from evaluating the procedural protections required in a court of law.\u201d Id. at 615, 392 S.E.2d at 585.\nThe Court of Appeals considered an analogous issue in Hope v. Charlotte-Mecklenburg Bd. of Educ., 110 N.C. App. 599, 430 S.E.2d 472 (1993). In that case, the petitioner, a teacher who was dismissed on grounds of inadequate performance, insubordination, and neglect of duty, claimed a due process violation because the attorneys for the school board and for the school superintendent were members of the same firm. The Court of Appeals noted that \u201calthough the [b]oard was required to provide petitioner with all the essential elements of due process, it was permitted to operate under a more relaxed set of rules than is a court of law.\u201d Id. at 602, 430 S.E.2d at 474. The Court of Appeals observed that the board was responsible for making the ultimate decision, not its attorney, who acted only in an advisory capacity, and held that \u201c[t]he possibility that the [b]oard obtained information from [its] attorney about the case does not establish a due process violation.\u201d Id. at 603, 430 S.E.2d at 474.\nHope can be distinguished from the case at bar because, as petitioner points out, a single attorney rather than different members of one firm arguably represented both respondent and Stewart at different points in the proceeding. Nevertheless, we evaluate petitioner\u2019s due process claim in light of section 115C-44(b), which provides that \u201c[i]n all actions brought in any court against a local board of education, the order or action of the board shall be presumed to be correct and the burden of proof shall be on the complaining party to show the contrary.\u201d N.C.G.S. \u00a7 115C-44(b) (1999). Consequently, we review the record to determine whether petitioner has carried her burden of overcoming the presumption of regularity.\nA petitioner claiming a due process violation must have some opportunity to create a record to rebut the statutory presumption. In instances where, as here, a petitioner has a good-faith reason to question the propriety of a board\u2019s actions, chapter 115C provides that he or she may appeal to superior court. N.C.G.S. \u00a7 115C-325(n). Although that statute does not set out the procedure to be followed in such an appeal, in practice it appears that the superior courts have been conducting hearings, see, e.g., Taborn v. Hammonds, 324 N.C. 546, 380 S.E.2d 513 (1989); In re Freeman, 109 N.C. App. 100, 426 S.E.2d 100 (1993), and the judgment of the superior court in the case at bar recites that the case came on for a hearing and was heard. Where the appeal to the superior court presents a petitioner his or her first opportunity to establish a record supporting allegations of impropriety before a board, as in the case at bar, it is incumbent upon the petitioner to create a record supporting the allegations at that time for any further reviewing courts.\nPetitioner focuses on the patent similarities between the proposed findings of fact submitted by Ballew to the case manager and the ultimate findings of fact issued by respondent. These similarities leave little doubt that respondent somehow obtained a copy of Ballew\u2019s proposal. However, although these documents were available to petitioner at the time of her appeal to superior court, she failed to establish a record supporting her contention that such contact was improper and violated her due process rights. There is no indication when the contact took place, i.e., that Ballew had improper ex parte contact with respondent in his capacity as attorney for Stewart before respondent reached its decision. As observed in Hope, the board is the decision-making body, and there is no reason based on this record to make any assumption other than that the respondent, after making its decision, asked Ballew to prepare findings of fact. Similar procedures are routine in civil cases, where a judge is permitted to ask the prevailing party to draft a judgment. See N.C.G.S. \u00a7 1A-1, Rule 58 (1999); see also Stachlowski v. Stack, 328 N.C. 276, 401 S.E.2d 638 (1991). In the absence of evidence to the contrary, N.C.G.S. \u00a7 115C-44(b) constrains us to adopt an interpretation of the record consistent with proper action by all parties. Accordingly, we hold that petitioner was not denied her due process rights. This assignment of error is overruled.\nMODIFIED AND AFFIRMED.\nJustice ORR concurs in the result only.\n. The record indicates that petitioner originally was teaching at Liberty Middle School. However, during part of the time of the events discussed in this opinion, she was assigned a classroom at North Liberty School and placed under the supervision of the principal of North Liberty School, while still considered a teacher at Liberty Middle School.", "type": "majority", "author": "EDMUNDS, Justice." } ], "attorneys": [ "Elliot Pishko Gelbin & Morgan, P.A., by J. Griffin Morgan, for petitioner-appellant and -appellee.", "Starnes, Teele, Ay cock & Haire, P.A., by Samuel E. Ay cock, for respondent-appellant and -appellee.", "Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., by John W. Gresham and S. Luke Largess, on behalf of the North Carolina Association of Educators, amicus curiae.", "Tharrington Smith, L.L.P., by Michael Crowell, on behalf of the North Carolina School Boards Association, amicus curiae." ], "corrections": "", "head_matter": "LINDA FARRIS, Petitioner v. BURKE COUNTY BOARD OF EDUCATION, Respondent\nNo. 272PA01\n(Filed 7 March 2002)\n1. Schools and Education\u2014 dismissal of teacher \u2014 case manager\u2019s report \u2014 school board review \u2014 whole record test\u2014 judicial review\nThe whole record test is mandated by N.C.G.S. \u00a7 115C-325(j2)(2) for a school board\u2019s review of a case manager\u2019s report and recommendation concerning a career teacher. Judicial review of the school board\u2019s action is under N.C.G.S. \u00a7 150B-51; in this case, the school board\u2019s action was reviewed for \u201cwrongful procedure.\u201d\n2. Schools and Education\u2014 dismissal of teacher \u2014 case manager hearing \u2014 exclusion of evidence \u2014 notice requirements\nThe case manager did not err by excluding evidence from a hearing concerning the dismissal of a career teacher where the evidence was not included in the list of witnesses and exhibits furnished to the teacher. Although the formal rules of evidence do not apply to a hearing before a case manager, there is no ambiguity in the notice requirements of N.C.G.S. \u00a7 115C-325(j)(5). While a superintendent is not required to set out the facts supporting termination in complete detail, the excluded evidence in this case was readily available at the time the synopsis of the evidence was prepared and its prejudicial impact was readily apparent.\n3. Schools and Education\u2014 dismissal of teacher \u2014 review of case manager\u2019s decision \u2014 whole record considered by case manager\nA school board initially reviewing the results of a case manager\u2019s hearing on the dismissal of a career teacher is bound by the whole record admitted and considered by the case manager. The board may view evidence excluded by the case manager but later submitted to the board in making its initial determination of whether the case manager addressed all critical issues, but N.C.G.S. \u00a7 115C-325(j2)(7) contemplates a remand to the case manager if the majority of the board determines that the case manager did not address a critical factual issue. In this case, the board failed to follow the statutory procedure and is bound by the case manager\u2019s findings of fact.\n4. Schools and Education\u2014 dismissal of teacher \u2014 case manager\u2019s report \u2014 conclusions of law excluded\nRespondent school board, when considering the remanded dismissal of a career teacher, shall not consider certain paragraphs in the case manager\u2019s report because those paragraphs amounted to conclusions of law.\n5. Schools and Education\u2014 dismissal of teacher \u2014 ex parte contact between board and attorney \u2014 due process\nA career teacher\u2019s due process rights were not violated in her dismissal where she alleged that the decision was not made by an unbiased and impartial decision-maker, based upon identical findings of fact in the school board\u2019s decision and proposed findings submitted to the case manager by an attorney whose role was equivocal. Although the teacher argued that the only reasonable inference was improper ex parte contact, she failed to establish a record supporting her contention; there is no reason on this record to make any assumption other than that the respondent, after making its decision, asked the attorney to prepare findings, as is common in civil cases. In the absence of evidence to the contrary, N.C.G.S. \u00a7 115C-44(b) requires an interpretation of the record consistent with proper action by all parties.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals, 143 N.C. App. 77, 544 S.E.2d 578 (2001), reversing and remanding a judgment signed by Caldwell, J., on 13 October 1999 in Superior Court, Burke County. On 19 July 2001, the Supreme Court allowed petitioner\u2019s conditional petition for discretionary review as to an additional issue. Heard in the Supreme Court 12 December 2001.\nElliot Pishko Gelbin & Morgan, P.A., by J. Griffin Morgan, for petitioner-appellant and -appellee.\nStarnes, Teele, Ay cock & Haire, P.A., by Samuel E. Ay cock, for respondent-appellant and -appellee.\nFerguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., by John W. Gresham and S. Luke Largess, on behalf of the North Carolina Association of Educators, amicus curiae.\nTharrington Smith, L.L.P., by Michael Crowell, on behalf of the North Carolina School Boards Association, amicus curiae." }, "file_name": "0225-01", "first_page_order": 273, "last_page_order": 290 }