Lead Opinion
*269Defendant State of North Carolina ("the State") appeals from an order denying its motion for summary judgment and granting Plaintiff *270Joseph Vincoli's ("Vincoli") motion for summary judgment in a declaratory judgment action initiated by Vincoli. In its order, the trial court declared that the enactment of
I. Background
In 2010, Vincoli was hired by the North Carolina Department of Public Safety ("DPS") into a position subject to the NCHRA
Until 2013, a career State employee whose non-exempt position was subsequently designated as exempt was entitled by
Contested case hearings are conducted by the Office of Administrative Hearings (OAH) and are heard by an Administrative Law Judge (ALJ). The ALJ makes a recommendation to the Commission, N.C.G.S. § 150B-34 (1995), and the Commission then makes a final decision based upon the record from the OAH, N.C.G.S. § 150B-36 (1995). If the employee or state agency is aggrieved by the Commission's final decision, either party may petition the superior court for judicial review, *271N.C.G.S. § 150B-43 (1995), as petitioner Powell did in this case. Review is then conducted in accordance with N.C.G.S. § 150B-51(b).
Powell v. N.C. Dep't of Transp. ,
*815On 21 August 2013, the Governor signed into law House Bill 834, which substantially revised the NCHRA. A career state employee's ability to challenge an exempt designation pursuant to the previous process changed with the passage of "An Act Enhancing the Effectiveness and Efficiency of State Government by Modernizing the State's System of Human Resource Management and By Providing Flexibility for Executive Branch Reorganization and Restructuring ..." 2013 N.C. Sess. Laws, c. 382 ("the Act"). The Act, inter alia , amended the "Employee Grievance" section of the NCHRA by repealing
On 1 October 2013, Vincoli, who was employed by DPS as a Special Assistant to the Secretary for Inmate Services and who had attained career status, was notified that the Governor had declared his position as "managerial exempt." Approximately two months later, on 6 December 2013, Vincoli received a letter terminating him from employment on the stated grounds that "a change in agency staff is appropriate at this time[.]"
According to the pleadings in Vincoli's OAH proceeding,
*272On 16 January 2014, Vincoli filed a petition for a contested case hearing with OAH, challenging his exemption and subsequent termination without just cause. Specifically, Vincoli asserted that
his designation as "managerial exempt" was in fact used to disguise a disciplinary dismissal without just cause that would fall within the scope of the State Personnel Act's protections against dismissal without just cause. [DPS'] action was a sham, pretext exemption designation ... and constituted a de facto dismissal[.]
In addition, Vincoli asserted that he was entitled to a contested case hearing based on
[DPS] takes several pages to state what should be a fairly concise argument: The OAH lacks subject matter jurisdiction because the General Assembly repealed the portion of N.C.G.S. 126-34.1 listing improper exempt designation as appealable. The response is equally concise: while that provision was repealed, 126-5(h), mandating that disputes on whether one is subject to the State Personnel Act "shall be resolved as provided in Article 3 of Chapter *816150B," was not. And, as shown below, it is 126-5, not 126-34.1, which controls whether a state employee is subject to the State Personnel Act. Accordingly, given the appeal right arises under 126-5, and that appeal right remains in force, the OAH has jurisdiction over [ ] Vincoli's appeal....
Vincoli asserted that he had
properly invoked the subject matter jurisdiction of the OAH in two separate and specific manners. He has alleged dismissal without just cause under 126-35(a), and has *273likewise alleged a dispute about whether he is subject to the State Personnel Act under N.C.G.S. 126-5(h).
After a hearing, OAH entered an order on 10 April 2014 granting DPS' motion to dismiss for lack of subject matter jurisdiction. In its order, OAH made the following conclusions of law:
1. Effective August 21, 2013, the law changed controlling the matters over which the OAH has original jurisdiction, and the General Assembly repealed the right to appeal an exempt designation. This statutory change removes the rights of a state employee to challenge an exempt designation; therefore, the merits of this contested case will not be addressed.
2. As a managerial exempt employee, [Vincoli] is not subject to the provisions of Chapter 126. Therefore, G.S. 126-5(h) does not grant [Vincoli] the right to appeal his exempt designation or ultimate dismissal under G.S. 126-5(h) and Chapter 150B.
3. Only those grievance listed in G.S. 126-34.02 may be heard as contested cases in the OAH and only after review by the [OSHR]. [Vincoli's] exempt designation is no longer among the grievances listed; therefore, the OAH has no subject matter jurisdiction, which is the predicate authority for a contested case to proceed. The lack of subject matter jurisdiction requires that [Vincoli's] contested case be dismissed.
Vincoli had thirty days to appeal OAH's decision to the Court of Appeals of North Carolina. Vincoli did not timely appeal this order to our Court.
On 29 August 2014, Vincoli filed a complaint and petition for a declaratory judgment action under the North Carolina Uniform Declaratory Judgment Act ("NCUDJA"),
[U]pon reaching "career" status, [Vincoli] had a constitutionally protected, fully vested property interest *274with respect to his employment with the State of North Carolina that created a reasonable expectation of continued employment with the State of North Carolina. Prior to the passage of [the Act] and codification of N.C.G.S. § 126-34.02, neither the Governor nor any State agency could have terminated or deprived Plaintiff of his property interest through an "exempt" designation without providing Plaintiff due process of law in the form of a contested case proceedings[.]
Vincoli requested declaratory relief, seeking a declaration that
On 7 October 2014, the State moved to dismiss Vincoli's claims, asserting, inter alia , that: (1) a career state employee may no longer challenge the designation of his position as exempt in OAH; (2) OAH lacked jurisdiction to entertain Vincoli's petition for a contested case hearing on the issue of whether his position was properly declared exempt; (3) due to the enactment of
Subsequently, Vincoli and the State filed cross-motions for summary judgment. After a hearing, by order entered 9 June 2015, the trial court granted Vincoli's summary judgment motion and denied the State's motion, declaring that
*275II. Issues
On appeal, the State asserts that the trial court erred by granting summary judgment in favor of Vincoli for three reasons. First, the State contends that the Act did not violate Vincoli's due process rights under Article I, Section 19 of the North Carolina Constitution because (a) the scope of Vincoli's protected property interest in continued employment did not include a right to grieve an exempt designation; and (b) the legislative process satisfied any process that was due as a result of the repeal of
III. Standard of Review
Summary judgment may be granted in a declaratory judgment proceeding, N.C. Farm Bureau Mut. Ins. Co. v. Briley,127 N.C.App. 442 , 444,491 S.E.2d 656 , 657 (1997), disc. rev. denied,347 N.C. 577 ,500 S.E.2d 82 (1998), where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law," N.C.G.S. § 1A-1, Rule 56(c) (2001).
Williams v. Blue Cross Blue Shield of N.C. ,
*276IV. Right to Appeal Pursuant to
The State contends that the trial court erred by granting summary judgment in favor of Vincoli. We agree.
The Declaratory Judgment Act provides: "Any person ... whose rights, status or other legal relations are affected by a statute ... may have determined any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status, or other legal relations thereunder."
Chapter 126 of the North Carolina General Statutes governs the State Personnel System.
a position delegated with significant managerial or programmatic responsibility that is essential to the successful operation of a State department, agency, or division, so that the application of G.S. 126-35 to an employee in the position would cause undue disruption to the operations of the agency, department, institution, or division.
The repealed statute,
(c) In the case of a dispute as to whether a State employee's position is properly exempted from the State Personnel Act under G.S. 126-5, the employee may file in the Office of Administrative Hearings a contested case under Article 3 of Chapter 150B of the General Statutes.
....
(e) Any issue for which appeal to the State Personnel Commission through the filing of a contested case under Article 3 of Chapter 150B of the General Statutes has not been specifically authorized by this section shall not be grounds for a contested case under Chapter 126.
*277This statute was replaced by
There is no inherent right of appeal from an administrative decision to either the OAH or the courts. "No appeal lies from an order or decision of an administrative agency of the State or from judgments of special statutory tribunals whose proceedings are not according to the course of the common law, unless the right is granted by statute." In re Assessment of Sales Tax,259 N.C. 589 , 592,131 S.E.2d 441 , 444 (1963).
Empire Power Co. v. N.C. Dep't of Env't, Health & Nat. Res. ,
However,
*819*278Although Article I of Chapter 150B expressly exempts DPS from the contested case provisions of Article III of Chapter 150B, see N.C. Gen. Stat. § 150B-1(e)(7), our Supreme Court has held that "the detailed provisions of Chapter 126, which govern the appeal of personnel actions affecting state employees, prevail with respect to [State] employees over the general departmental exclusion stated in the Administrative Procedure Act." Batten ,
Batten involved the appeal of a grievance of an employee of an agency expressly exempted from the administrative hearing provisions of the [Administrative Procedure Act]; thus, under the plain meaning of the [Administrative Procedure Act], that employee can be entitled to an administrative hearing to appeal his grievance to the OAH only by virtue of another statute.
In the instant case, Vincoli is an aggrieved employee of DPS, an agency expressly exempted from the administrative hearing provisions of the Administrative Procedure Act. Although
V. Conclusion
Because we hold that Vincoli is entitled to a contested case hearing before OAH pursuant to
REVERSED.
Judge DILLON concurs.
Judge DIETZ concurs in a separate opinion.
Formerly the State Personnel Act.
We recognize that the NCHRA has since been amended but construe the relevant provisions as they existed.
Although the pleadings associated with Vincoli's petition for a contested case hearing before OAH were initially omitted from the record on appeal, we have granted the State's motion to take judicial notice of OAH proceedings.
In our discretion, we have taken judicial notice of two other OAH proceedings initiated by Vincoli, 14 OSP 00389 and 15 OSP 07944.
This is not a novel interpretation of
Concurrence Opinion
I agree with the majority that the plain language of
The rub, of course, is that the General Assembly recently repealed
*820was meaningless. Ordinarily, we do not interpret the law in a way that renders actions of the General Assembly meaningless. See Town of Pine Knoll Shores v. Evans ,
But this is not an ordinary case. Vincoli argues that, if we interpret the repeal of Section 126-34.1(c) as depriving him of any opportunity to contest his exempt designation in OAH, it would violate his constitutional rights. Whether meritorious or not, his argument certainly is not frivolous. And it is a long-standing principle of statutory construction that courts should "avoid an interpretation of a ... statute that engenders constitutional issues if a reasonable alternative interpretation *280poses no constitutional question." Gomez v. United States ,
Interpreting
