105 N.C. App. 665 | N.C. Ct. App. | 1992
Lead Opinion
Respondents argued that the Superior Court of Craven County lacked subject matter jurisdiction to hear this case under the provisions of N.C.G.S. § 150A-45, which was recodified as N.C.G.S. 150B effective 1 January 1986. They argue that this case commenced prior to the 1 January 1986 effective date of Chapter 150B and therefore is governed by 150A. N.C.G.S. § 150A-45 requires that any appeal from the State Personnel Commission be brought in Wake County Superior Court. Plaintiff, a resident of Craven County, argues that his filing in Craven County Superior Court was not an extension of the original case filed in 1983 but rather a separate “contested case” which he filed 9 January 1990 for reinstatement, back pay, attorney’s fees and expungement of his record and that it falls under the new statute N.C.G.S. § 150B-45. Under the provisions of N.C.G.S. § 150B-43 and § 150B-45, plaintiff would then be an aggrieved person who had the right to seek judicial intervention and Craven County Superior Court would have jurisdiction since the new statute allows review in Wake County or in the county of plaintiff’s residence.
With plaintiff’s argument, we agree. Upon dismissal of the action, ordered by this Court, Meyers v. Dep’t of Human Resources, 92 N.C. App. 193, 374 S.E.2d 280 (1988), disc. rev. denied, 324 N.C. 247, 377 S.E.2d 754 (1989), plaintiff’s contested case came to an end. Though not specifically articulated, implied in this Court’s prior ruling was a return to the status quo as it existed prior to the demotion proceedings. After dismissal, there remained no reason to deprive plaintiff of his prior job status. The only impediment remained in the Commission’s refusal to reinstate plaintiff. Now plaintiff seeks to enforce the remedy implied in this Court’s dismissal order. We find the trial judge was correct in findings of fact 6(ee) of his order, that “under the provisions of North Carolina Administrative Code § .0432, the State Personnell [sic] Commission is required to reinstate Meyers, grant him back pay and attorney’s fees. . . .” In addition, all records of these proceedings should be expunged from his personal record. To rule otherwise would be futile. The Commission has already refused to consider plaintiff’s petitions. Requiring plaintiff to seek relief within the agency grievance procedures would be time consuming.
We distinguish this case from Community Sav. & Loan Ass’n. v. North Carolina Sav. & Loan Commission, 43 N.C. App. 493,
The trial court reviewed the record and found that the Personnel Commission’s decision was “arbitrary and capricious.” The trial court then went forward with very specific orders to correct the deficiencies of the Commission’s actions. We agree that the Commission’s refusal to take any action on plaintiff’s petitions was arbitrary and capricious.
The Commission argues that it is not a necessary party. As it is the quasi-judicial branch of the agency, it had the power to act on plaintiff’s petitions. It had not only the power, but the duty to do so as these actions were implied in the order of dismissal which it was directed to carry out.
The trial court’s order of 10 October 1990 is
Affirmed.
Dissenting Opinion
dissenting.
I respectfully dissent from that portion of the majority opinion which holds that upon dismissal of the personnel action by the State Personnel Commission, petitioner’s contested case came to an end.
When petitioner’s initial personnel action was previously before this Court it reversed the petitioner’s demotion and mandated “that the matter be remanded to the [State Personnel] Commission with instructions that the action be dismissed due to lack of proper notice under Section 126-35.” Meyers v. Dept. of Human Resources, 92 N.C.App. 193, 198, 374 S.E.2d 280, 283 (1988), disc. review denied, 324 N.C. 247, 377 S.E.2d 754 (1989). On or about 9 January 1990 petitioner filed a second petition for dismissal of the personnel action, reinstatement, back pay, attorney’s fees and expungement of his record. On 9 February 1990 the Commission ordered that the personnel action be dismissed due to lack of proper notice under G.S. 126-35, but petitioner’s other claims were not addressed.
Having determined that petitioner’s contested case continued and was commenced prior to 1 January 1986, G.S. 150A-45 would govern. Pursuant to this statute, Wake County Superior Court would be the proper forum in which to seek judicial review of the decision of the State Personnel Commission concerning petitioner’s claims for reinstatement, back pay, attorney’s fees, and expungement of his record. Craven County Superior Court would not have subject matter jurisdiction and petitioner’s petition for judicial review, having been improperly filed, should have been dismissed.
In my judgment proper disposition of this case would require that the Commission’s order dismissing the personnel action due to lack of proper notice under G.S. 126-35 be affirmed and the case remanded to Wake County Superior Court with directions to remand it to the State Personnel Commission for petitioner’s reinstatement to a position comparable to the one he held on 19 October 1983. At that time the Commission must act upon petitioner’s petition for back pay, attorney’s fees and expungement of the record.
