36 N.C. App. 307 | N.C. Ct. App. | 1978
Lead Opinion
We note first that the plaintiff amended his complaint after the decision of the Supreme Court, Smith v. State, supra, to allege that the actions of David T. Flaherty were motivated by malicious and corrupt intent. The plaintiff excepted to the directed verdict in favor of the individual defendants and assigned this as error in his brief. In support of this assignment of error, no reason or argument is stated and no authority is cited.
As to the claim against the State of North Carolina, we hold that the superior court committed error by not allowing partial summary judgment for the plaintiff. The facts as set forth in this opinion are established either by the pleadings or by stipulation. There being no genuine issue as to these facts, if they establish a claim for relief, the plaintiff is entitled to summary judgment as to the claim to which they entitle him. Kidd v. Early, 289 N.C. 343, 222 S.E. 2d 392 (1976). The plaintiff bases his claim on the theory that being an employee of the Department of Mental Health, appointed for a specific length of time, he can only be discharged by a certain procedure and this procedure was not followed. In passing on this claim, we must examine some of the General Statutes in effect in April 1973.
The State Department of Mental Health was created by the General Assembly in 1963. N.C. Sess. Laws 1963, Chap. 1166 (codified as Chap. 122 of the General Statutes). At that time, a policy-making body for the Department was created which was denominated the State Board of Mental Health. G.S. 122-1.1 (now repealed) provided in part:
“The Board shall determine policies and adopt necessary rules and regulations governing the operation of the State Department of Mental Health and the employment of professional and staff personnel. The State Board of Mental Health, by and with the approval of the Governor, may terminate for cause the services of any employee appointed for a specific length of time. In the event of any such termination, severance pay shall be adjusted by the Governor and the Advisory Budget Commission.”
Nothing else appearing, it seems clear that the plaintiff, having been appointed for a specific length of time could only be discharged for cause and then only by the State Board of Mental Health, with the concurrence of the Governor. The defendants contend that this power to discharge was removed from the State
Under the Executive Organization Act of 1971, N.C. Sess. Laws 1971, Chap. 864, codified as Chap. 143A of the General Statutes, the State Department of Mental Health and the State Board of Mental Health were transferred by type II transfers to the Department of Human Resources, G.S. 143A-138 and 143A-139. (Both the sections were repealed by N.C. Sess. Laws 1973, Chap. 476 s. 183). G.S. 143A-6 said:
“(b) Under this Chapter, a type II transfer means the transferring intact of an existing agency, or part thereof, to a principal department established by this Chapter. When any agency, or part thereof, is transferred to a principal department under a type II transfer, that agency, or part thereof, shall be administered under the direction and supervision of that principal department, but shall exercise all its prescribed statutory powers independently of the head of the principal department, except that under a type II transfer the management functions of any transferred agency, or part thereof, shall be performed under the direction and supervision of the head of the principal department.
(c) Whenever the term ‘management functions’ is used it shall mean planning, organizing, staffing, directing, coordinating, reporting and budgeting.”
The defendants’ position is that when the State Board of Mental Health was transferred to the Department of Human Resources the power to discharge employees was given to the Secretary of the Department. The defendants say this is so because G.S. 143A-6(b) says “the management functions (which includes ‘staffing’) . . . shall be performed under the direction and supervision of the head of the principal department.” The defendants argue that “staffing” includes the right to hire and fire, that this provision of G.S. 143A-6(b) is inconsistent with the power to discharge given the State Board of Mental Health by G.S. 122-1.1 and being inconsistent, the later statute must prevail. We believe the two statutes can be reconciled. As we read G.S. 143A-6(b), it leaves in the State Board of Mental Health all its statutory powers, but provides management functions including hiring and
We hold the superior court committed error in not granting the plaintiff’s motion for summary judgment against the State as to the liability of the State for the wrongful discharge of plaintiff from his job as Superintendent of Broughton Hospital. We order that the case be remanded to the Superior Court of Burke County for trial on the issue of damages.
Affirmed as to defendants David T. Flaherty, individually and as Secretary of Human Resources, N. P. Zarzar, individually and as Commissioner, Department of Mental Health, and Trevor Williams, individually and as Regional Commissioner of Mental Health, for the State of North Carolina.
Reversed and remanded as to the State of North Carolina.
Dissenting Opinion
dissenting.
In my opinion, the entry of a directed verdict against the plaintiff was proper and should be affirmed because, among other reasons, the Secretary of the Department of Human Resources had authority to terminate plaintiff’s services and plaintiff’s evidence fails to show the absence of just cause for that termination.
