City of Asheville v. Bowman
| Decision Date | 16 August 2005 |
| Docket Number | No. COA04-1546.,COA04-1546. |
| Citation | 616 S.E.2d 669 |
| Parties | CITY OF ASHEVILLE, a North Carolina Municipal Corporation, Plaintiff, v. Kenneth BOWMAN, Joseph Boerner, Chad Bridges, Christian Brenzel, Charles Burchett, Mark Byrd, Tracy Crowe, Iris Durell, Scott Early, Donald Eberhardt, Henry Fulcher, Stony Gonce, Janice Hawkins, Michael Lamb, John Long II, James Lyda, Steve Riddle, Ronnie Roberson, Charles Sams, Joseph Sorrells, Donald Stout, Diana Stumpf, Stason Tyrell, William Yelton, and the City of Asheville Civil Service Board, Defendants. |
| Court | North Carolina Supreme Court |
Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Michelle Rippon, Asheville, for defendants-appellants.
Curtis W. Euler and William C. Morgan, Jr., Chapel Hill, for plaintiff-appellee.
Defendants are employees of the Asheville Police Department (APD) who were hired prior to 1 July 2000 and who hold post-secondary degrees. The dispute between defendants and the City of Asheville arose out of changes that the APD made in its recruitment and hiring policies. On 19 June 2000, APD Chief of Police Will Annarino (Annarino) distributed a memorandum entitled "Changes in Policies and Procedures Regarding Recruitment, Retention and Career Development" to all APD employees. A subsection of this memo outlined the APD's new policy of increasing the entry level of pay for new employees based upon education. The memo stated that "[a]fter July 1, any new candidate hired with a Bachelors Degree will receive 5% above the minimum starting salary" and that "[a]ny candidate hired with a Masters Degree will receive 10% above the minimum starting salary."
In response to these changes, defendants filed a grievance with the City Manager on 16 September 2000, asserting that existing officers should likewise receive additional compensation. The City Manager held a grievance conference on 9 October 2000 and, after reviewing the details of defendants' grievance, determined that "the City does not have a policy that awards additional compensation for obtaining post-secondary job-related degrees." Accordingly, the City Manager denied defendants' request for additional salary.
Defendants appealed to the Civil Service Board of the City of Asheville (the Board), and a hearing was held on 3 January 2001. On 5 January 2001, the Board dismissed the grievance based upon its conclusion that it had no jurisdiction to grant relief. In support of this conclusion, the Board found that defendants had not been denied a promotion or pay raise to which they were entitled. Defendants then appealed to Buncombe County Superior Court. In an order entered 1 May 2001, Judge Zoro Guice denied the City's motion to dismiss; determined that the Board had jurisdiction to hear the grievance; reversed the 5 January 2001 decision of the Board; and remanded to the Board for a determination of whether the City's action of denying additional compensation to current employees is justified where the City grants additional compensation to new employees hired after 1 July 2000 with the same degrees.
On remand, the Board heard defendants' grievance on 25 February 2002. In compliance with the trial court's order, the Board considered whether the City's action in providing additional compensation to new employees while denying similar consideration to defendants was justified. The Board concluded that the City was not justified in this action. From this decision of the Board entered 3 March 2002, the City appealed to the Buncombe County Superior Court for a trial de novo pursuant to Section 8(f) of the Asheville Civil Service Act. In its complaint filed 13 March 2002, the City (plaintiff)1 alleged two claims for relief: (1) that the Board did not have subject matter jurisdiction to hear defendants' grievance; and (2) that the Board's refusal to recuse one of its members from participation created a conflict of interest. Defendants filed an answer and moved to dismiss both claims. On 9 July 2002, Judge Charles C. Lamm, Jr. denied this motion. Both parties moved for summary judgment on the issue of whether the Board has subject matter jurisdiction over defendants' grievance. Plaintiff argued that there was no genuine issue of material fact as to whether defendants were entitled to a pay raise and, therefore, the Board lacked jurisdiction. On 7 July 2004, Judge E. Penn Dameron, Jr. entered an order granting plaintiff's motion for summary judgment and denying defendants' motion. Defendants appeal.
Defendants argue that the trial court erred in determining that the Board does not have jurisdiction to hear their grievance. As described by this Court previously in interpreting Section 8(a) of the Asheville Civil Service Act, in deciding whether the Board has jurisdiction to consider a party's grievance, the trial court must first determine if that party has alleged a personnel action within the scope of the Act. See Harper v. City of Asheville, 160 N.C.App. 209, 215, 585 S.E.2d 240, 244 (2003)(citing O'Donnell v. City of Asheville, 113 N.C.App. 178, 180, 438 S.E.2d 422, 423 (1993)). Thereafter, the opposing party can challenge the factual basis for the allegation. Id. at 216, 585 S.E.2d at 244. The party requesting the hearing has the burden of showing that the Board has subject matter jurisdiction over the personnel action in dispute. Id. at 217, 585 S.E.2d at 245.
Under Section 8(a) of the Asheville Civil Service Act, a person has a right to a hearing before the Civil Service Board if he or she "is denied any promotion or raise in pay which he or she would be entitled to[.]" 1999 N.C. Sess. Laws ch. 303, § 8(a). Defendants contend that they have alleged a personnel action within the scope of the Act sufficient to invoke the Board's jurisdiction. As evidence to support their allegation that they were "entitled to" a raise in pay, defendants offer the APD pay incentive policy outlined in the Annarino memo. However, this memo is insufficient to create an...
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