City of Asheville v. Huskey, No. COA09-1237 (N.C. App. 5/18/2010), COA09-1237.
| Decision Date | 18 May 2010 |
| Docket Number | No. COA09-1237.,COA09-1237. |
| Court | North Carolina Court of Appeals |
| Parties | CITY OF ASHEVILLE, Petitioner, v. WILLIAM HUSKEY, Respondent. |
City of Asheville, by Assistant City Attorneys Curtis W. Euler and Kelly L. Whitlock, for Petitioner-Appellant.
The John C. Hunter Law Firm, PLLC, by John C. Hunter and Robert C. Carpenter, for Respondent-Appellee.
UNPUBLISHED OPINION
The City of Asheville (Petitioner or City) appeals the trial court's order dismissing its Petition for Trial (Petition) upon motion by William Huskey (Respondent). We reverse.
On 2 September 2008, Petitioner terminated Respondent from his employment with the City. Pursuant to Petitioner's personnel code, Respondent appealed his termination before the five-member Civil Service Board (Board). The North Carolina General Assembly created the Board in its enactment of the Asheville Civil Service Act (Civil Service Act or Act) to perform various specified duties "with respect to the classified service of the City." 1999 N.C. Sess. Laws ch. 303, § 1. Specifically, the Civil Service Act, as amended, provides:
Whenever any member of the classified service of the City is discharged, suspended, reduced in rank, transferred against his or her will, or is denied any promotion or raise in pay which he or she would be entitled to, that member shall be entitled to a hearing before the Civil Service Board to determine whether or not the action complained of is justified.
Pre-hearing matters were addressed in November 2008, at which time Respondent learned that the City Attorney's office had issued subpoenas to compel the attendance of certain witnesses at the hearing. Respondent believed that the grievance provisions of the Civil Service Act do not confer the subpoena power upon the Board, the City, or the employee. The Board's attorney, William F. Slawter, reviewed the Act for clarification of the subpoena issue and opined to counsel for both parties and the Board that the Board lacks authority to cause the issuance of subpoenas in connection with the grievance process outlined by § 8 of the Civil Service Act. It also appeared to Slawter that the Board was therefore powerless to challenge the subpoenas at issue or render them invalid.
On 18 March 2009, the grievance hearing was conducted before the Board for a determination as to whether Respondent's termination was justified. At that time, Respondent learned that Petitioner had not withdrawn the previously issued subpoenas. Slawter clarified his opinion as to the Board's lack of authority to either issue or quash subpoenas in the context of a grievance hearing under § 8 of the Civil Service Act. He acknowledged that the Act did not provide a manner by which witnesses could be compelled to or prohibited from testifying and suggested, as one possible avenue, that the parties might bring an action in superior court for the issuance or quashing of subpoenas. Accordingly, Slawter suggested that it would not seem to be within the Board's jurisdiction to tell witnesses they could not testify because the other party objects to the manner by which their appearance was requested. Therefore, the Board determined that it would allow the witnesses to testify but, for the record, have them state the manner by which they were selected to appear at the hearing in order to preserve the issue for appeal.
The hearing was continued to 25 March 2009, and the Board held that Petitioner was not justified in terminating Respondent and reversed the City's action. Board member Sidney Bach gave an oral ruling and read the Board's findings into the record at approximately 11:45 p.m. on 25 March 2009. The two attorneys for Petitioner and Lisa Roth, the human resources director for the City and the Board's secretary, were all present when the Board announced its determination. The chairman of the Board asked Slawter to explain the remainder of the decision-making process. Slawter responded that "[t]he decision as Mr. Bach read into the record will become the decision of the Board." He confirmed that the Board had five (5) days within which to reduce the oral ruling to writing, that he would prepare the written decision for the chairman's signature, and that he would remit it to the human resources office for distribution to the parties in five days.
The Board's decision was reduced to writing and signed by the chairman on 27 March 2009. On 30 March 2009, the Board's written decision was hand-delivered to Roth along with a cover letter from Slawter instructing her to serve and file the enclosed order. Roth acknowledged her receipt thereof on 30 March 2009 and hand-delivered the decision to the city clerk's office, and the city clerk filed the decision that day. The city clerk swore in her affidavit that 30 March 2009 was the first time she had written notice of the Board's decision in this matter. Roth also served a copy of the written decision on John Hunter, attorney for Respondent, and Curtis Euler, attorney for Petitioner, on 30 March 2009. Both attorneys acknowledged their receipt on 30 March 2009 by signing a copy thereof. The written decision, stating that the Board reached its determination on 25 March 2009, is a nearly verbatim rendering of the ruling read on the record that evening.
On 7 April 2007, the City filed a Petition for Trial pursuant to § 8(f) of the Civil Service Act, which allows either party to appeal the Board's decision to the Bumcombe County Superior Court for a trial de novo within ten (10) days of receiving notice of the Board's decision. Respondent filed a Motion to Dismiss the City's Petition on 27 April 2009 pursuant to Rules 12(b)(1) and 12(b)(6) of the North Carolina Rules of Civil Procedure on the grounds that: (1) the City did not timely file its appeal; and (2) the appeal is inconsistent with the City's earlier position such that it has waived § 8(f) and is estopped from challenging the Board's decision. On 1 July 2009, the trial court granted Respondent's motion on the grounds that Petitioner filed its appeal more than ten days from 27 March 2009, the date the decision was reduced to writing, and dismissed its Petition. Petitioner appeals.
Petitioner argues that the trial court erred as a matter of law in finding the Petition for Trial untimely filed and thereby dismissing it as such. Although the trial court did not reach Respondent's alternative arguments for dismissal, Respondent cross-assigns as error the failure of the trial court to dismiss the Petition on the grounds that: (1) Petitioner has waived and is estopped from appealing the Board's decision; and (2) Petitioner is not an aggrieved party with standing to appeal.
Petitioner argues that the trial court erred in granting Respondent's Motion to Dismiss by determining that the Petition for Trial was untimely filed under the Act. An appeal of a superior court's order granting a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) is subject to de novo review. See Harper v. City of Asheville, 160 N.C. App. 209, 213, 585 S.E.2d 240, 243 (2003). A court determining the existence of jurisdiction over the subject matter "may consider matters outside the pleadings." Harris v. Matthews, 361 N.C. 265, 271, 643 S.E.2d 566, 570 (2007).
Petitioner contends that its appeal to superior court was timely because it filed the Petition in compliance with § 8 of the Civil Service Act. Section 8 provides, in pertinent part:
(e) The Civil Service Board shall render its decision in writing within five days after the conclusion of the hearing. . . . Upon reaching its decision, the Board shall, in writing, immediately inform the city clerk and the member requesting the hearing of the Board's decision.
(f) Within ten days of the receipt of notice of the decision of the Board, either party may appeal to the Superior Court Division of the General Court of Justice for Buncombe County for a trial de novo. The appeal shall be effected by filing with the Clerk of the Superior Court of Buncombe County a petition for trial in superior court, setting out the facts upon which the petitioner relies for relief.
1999 N.C. Sess. Laws ch. 303, § 8(e)-(f). Petitioner reads the express language to indicate that the ten-day period begins to run against each party respectively upon receipt of the written notice of the Board's decision by the city clerk and the member who requested the hearing. We agree.
The issue before us involves interpretation of § 8(f) of the City's Civil Service Act, and in particular, the phrase therein providing that "[w]ithin ten days of the receipt of notice of the decision of the Board, either party may appeal." It is well-settled that "[i]n matters of statutory construction, our primary task is to ensure that the purpose of the legislature, the legislative intent, is accomplished." Electric Supply Co. v. Swain Electrical Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991). The foremost task in statutory interpretation is to determine legislative intent while giving the language of the statute its natural and ordinary meaning unless the context requires otherwise. Where the statutory language is clear and unambiguous, the Court does not engage in judicial construction but must apply the statute to give effect to the plain and definite meaning of the language.
Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 518, 597 S.E.2d 717, 722 (2004) (internal quotation marks and citations omitted). For, "if the language of a statute is clear and unambiguous when applying ordinary meaning and grammar to its text, the legislative intent behind it is readily apparent." Durham Land Owners Ass'n v. County of Durham, 177 N.C. App. 629, 633, 630 S.E.2d 200, 203 (2006). "[H]...
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