Avant v. Sandhills Ctr. for Mental Health

• Decision Date: 16 March 1999
• Docket Number: No. COA98-295.,COA98-295.
• Citation: 513 S.E.2d 79,132 NC App. 542
• Court: North Carolina Court of Appeals
• Parties: Steven LeGrand AVANT, Petitioner-Appellant, v. SANDHILLS CENTER FOR MENTAL HEALTH, DEVELOPMENTAL DISABILITIES & SUBSTANCE ABUSE SERVICES, Respondent-Appellee.

513 S.E.2d 79

132 NC App. 542

Steven LeGrand AVANT, Petitioner-Appellant, v. SANDHILLS CENTER FOR MENTAL HEALTH, DEVELOPMENTAL DISABILITIES & SUBSTANCE ABUSE SERVICES, Respondent-Appellee.

No. COA98-295.

Court of Appeals of North Carolina.

March 16, 1999.

Kitchin, Neal, Webb & Futrell, P.A. by Stephan R. Futrell, Rockingham, for petitioner-appellant.

Cunningham, Dedmond, Petersen & Smith by Bruce T. Cunningham, Jr., Southern Pines, for respondent-appellee.

MARTIN, Judge.

A detailed factual and procedural history of this case is set forth in Avant v. Sandhills Center for Mental Health, (COA96-1081, unpublished opinion filed 5 August 1997) 127 N.C.App. 208, 490 S.E.2d 253 (1997). Briefly summarized, petitioner was employed by respondent as an "habilitation assistant" at respondent's Mallard Lane Center in Rockingham, North Carolina; his duties included assisting in the care of five emotionally and/or physically disabled residents of Mallard Lane. On 10 April 1994 an incident occurred wherein petitioner was physically assisting a difficult resident, "Client L", to the shower. "Client L" was violent and petitioner allegedly used an improper hold on her. A fellow employee who witnessed the incident reported it to petitioner's supervisor, resulting in a written warning being issued by respondent's director and petitioner's suspension from work without pay for a period of time.

Petitioner appealed the warning to respondent's appeals committee, arguing that he had never been informed of the special hold that was to be applied to "Client L." The appeals committee affirmed the actions of respondent's director, and petitioner filed a notice for a contested case hearing with the Office of Administrative Hearings. An administrative law judge ("ALJ") made extensive findings of fact, concluded that petitioner's written warning was unsubstantiated, and recommended that the decision to issue the suspension be reversed and that petitioner be awarded back pay. The State Personnel Commission ("SPC") issued its advisory Recommendation for Decision to respondent that petitioner's suspension be reversed, that he be awarded back wages, and that the warning be expunged from his records.

Respondent's Board of Directors, the local appointing authority, rejected the recommended decision and issued a final decision affirming the issuance of the warning to petitioner and his suspension. Petitioner petitioned for judicial review pursuant to G.S. § 150B-43. The superior court concluded respondent had no just cause to suspend petitioner. Both petitioner and respondent appealed the superior court's decision to this Court, which determined that the superior court had not conducted a proper review as required by G.S. § 150B-51. See Avant, supra.

On remand, the superior court determined respondent's decision was neither arbitrary nor capricious, had been reached upon lawful procedures, had not been affected by errors of law, and was supported by substantial evidence in view of the whole record. The superior court affirmed respondent's decision and petitioner again appeals, arguing in support of twenty-six assignments of error that (1) the superior court judgment did not conform to the requirements of law; (2) the decision of the appeals committee was not supported by substantial evidence in the record; (3) the decision of the appeals committee was arbitrary and capricious; and (4) due to unlawful procedure, petitioner was denied a fair and impartial hearing. After a careful consideration of his arguments, we affirm the judgment of the superior court.

Petitioner first argues the judgment of the superior court should be vacated because it does not comply with G.S. § 1A-1, Rule 52(a)(1). The rule requires that, in actions tried without a jury, the trial court make findings as to all issues of fact raised by the pleadings, declare its conclusions of law arising upon the facts found, and enter the appropriate judgment. Hinson v. Jefferson, 287 N.C. 422, 215 S.E.2d 102 (1975). However, when a superior court reviews an agency decision pursuant to the Administrative Procedure Act ("APA"), the court essentially functions as an appellate court. Armstrong v. North Carolina State Bd. of Dental Examiners, 129 N.C.App. 153, 499 S.E.2d 462, disc. review denied, 348 N.C. 692, 511 S.E.2d 643 (1998); Gainey v. North Carolina Dept. of Justice, 121 N.C.App. 253, 465 S.E.2d 36 (1996). As such, the duty of the superior court, and our duty as well, is not to make findings of fact, but rather to apply the appropriate standard of review to the findings and conclusions of the underlying tribunal. See Shepherd v. Consolidated Judicial Retirement System, 89 N.C.App. 560, 562, 366 S.E.2d 604, 605 (1988)

("when a superior court judge sits as an appellate court to review an administrative agency decision the judge is not required to make findings of fact and enter a judgment thereon in the same manner as the court would be when acting in its role as the trial court."). The order entered in this case is procedurally sufficient and is consistent with the trial court's role as a reviewing court. See id. at 562, 366 S.E.2d at 606 (holding sufficient an order reciting that court had reviewed the record, arguments, and relevant statutes, and concluding that declaratory ruling of agency should be affirmed). Thus, we consider the trial court's substantive review of respondent's decision.

We first note that although local appointing authorities such as respondent are not "agencies" under the APA, their employees are subject to the provisions of the State Personnel Act and may commence a contested case hearing under the APA, Chapter 150B of the General Statutes. Cunningham v. Catawba County, 128 N.C.App. 70, 72, 493 S.E.2d 82, 84 (1997). This Court has held the principles of the APA to be "highly pertinent" to superior court review of a local appointing authority decision. Id. In reviewing a superior court order regarding an agency decision, our scope of review consists of the two-fold task of "(1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly." ACT-UP Triangle v. Com'n for Health Serv., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini v. N.C. Dep't of Human Resources, 114 N.C.App. 668, 675, 443 S.E.2d 114, 118-19 (1994)). The proper standard for the superior court to apply depends upon the issues presented on appeal. Id. Where the petitioner alleges that the agency decision was either unsupported by the evidence, or arbitrary and capricious, the superior court applies the "whole record test" to determine whether the agency decision was supported by substantial evidence contained in the entire record. Oates v. North Carolina Dept. of Correction, 114 N.C.App. 597, 601, 442 S.E.2d 542, 545 (1994). Where the petitioner alleges that the agency decision was based on error of law, the reviewing court must examine the record de novo, as though the issue had not yet been considered by the agency. Dorsey v. University of North Carolina-Wilmington, 122 N.C.App. 58, 468 S.E.2d 557,cert. denied,344 N.C. 629, 477 S.E.2d 37 (1996); Air-A-Plane Corp. v. North Carolina Dept. of Environment, Health and Natural Resources, 118 N.C.App. 118, 454 S.E.2d 297, disc. review denied, 340 N.C. 358, 458 S.E.2d 184 (1995).

Petitioner originally sought judicial review of respondent's final decision on the grounds that it contained errors of law, and that it was arbitrary, capricious, and unsupported by the evidence. Upon remand, the superior court recited that it had conducted a de novo review of the record and had concluded that respondent's decision had been made upon lawful procedure and was unaffected by error of law. In addition, the superior court determined that respondent's decision was supported by substantial admissible evidence in the whole record and was not arbitrary or capricious. We conclude, therefore, that the superior court applied the proper standards of review, and we must now determine whether it applied these standards correctly.

Petitioner contends respondent's decision was unsupported by substantial evidence, and that the decision was arbitrary and capricious. These contentions require that we apply "the whole record test", i.e., an examination of "all competent evidence (the `whole record') in order to determine whether the agency decision is supported by `substantial evidence'." ACT-UP Triangle at 706, 483 S.E.2d at 392 (quoting Amanini at 674, 443 S.E.2d at 118). Substantial evidence is such "relevant evidence as a reasonable mind might accept as adequate to support a conclusion," Lackey v. N.C. Dept. of Human Resources, 306 N.C. 231, 238, 293 S.E.2d 171, 176 (1982). The whole record test is not "a tool of judicial intrusion; instead, it merely gives a reviewing court the capability to determine whether an administrative decision has a rational basis in the evidence." North Carolina Dept. of Correction v. Gibson, 58 N.C.App. 241, 257, 293 S.E.2d 664, 674 (1982), rev'd on other grounds, 308 N.C. 131, 301 S.E.2d 78 (1983). Moreover, while the record may contain evidence contrary to the findings of the agency, neither this Court nor the superior court may substitute its judgment for that of the agency. Employment Security Com'n of North Carolina v. Peace, 128 N.C.App. 1, 493 S.E.2d 466 (1997), affirmed in part, review dismissed in part, 349 N.C. 315, 507 S.E.2d 272 (1998); Rector v. North Carolina Sheriffs' Educ. & Training Standards Com'n, 103 N.C.App. 527, 406 S.E.2d 613 (1991).

Applying the "whole record" standard of review, we hold there is sufficient relevant evidence in the record to support respondent's decision to uphold the written warning issued petitioner. The bases upon which the written warning was issued were (1) petitioner's failure to use the proper modified hold on "Client L", and (2) petitioner's failure to ask for assistance in handling ...