Herron v. N.C. Bd. of Examiners for Eng'rs & Surveyors

• Court: North Carolina Court of Appeals
• Writing for the Court: ZACHARY, Judge.
• Citation: Herron v. N.C. Bd. of Examiners for Eng'rs & Surveyors, 248 N.C.App. 158, 790 S.E.2d 321 (N.C. App. 2016)
• Decision Date: 05 July 2016
• Docket Number: No. COA15–1382.,COA15–1382.
• Parties: J. Randy HERRON, Petitioner, v. NORTH CAROLINA BOARD OF EXAMINERS FOR ENGINEERS AND SURVEYORS, Respondent.

248 N.C.App. 158

790 S.E.2d 321

J. Randy HERRON, Petitioner,

v.NORTH CAROLINA BOARD OF EXAMINERS FOR ENGINEERS AND SURVEYORS, Respondent.

No. COA15–1382.

Court of Appeals of North Carolina.

July 5, 2016.

Long Parker Warren Anderson & Payne, P.A., Asheville, by Robert B. Long, Jr., and Andrew B. Parker, for petitioner-appellee.

Hedrick Gardner Kincheloe & Garofalo, LLP, Raleigh, by Patricia P. Shields, for respondent-appellant.

ZACHARY, Judge.

The North Carolina Board of Examiners for Engineers and Surveyors (respondent) appeals from an order of the trial court that reversed respondent's order revoking the land surveyor's license held by J. Randy Herron (petitioner). In its order, the trial court concluded that the procedures followed by respondent in its revocation of petitioner's surveyor's license "violated the Petitioner's Due Process rights to a fair and impartial hearing by an unbiased fact-finder" and "constituted unlawful procedure." On this basis, the trial court reversed and vacated respondent's order revoking petitioner's surveyor's license, and remanded for a hearing de novo before an Administrative Law Judge. On appeal, respondent argues that the trial court erred in reaching these conclusions and in reversing respondent's order. We agree.

I. Background

Respondent is an administrative agency that was established under Chapter 89C of the North Carolina General Statutes and that is charged with regulation of the practice of land surveying in North Carolina. "Chapter 89C of the General Statutes ... provides that, ‘[i]n order to safeguard life, health, and property, and to promote the public welfare, the practice of engineering and the practice of land surveying in this State are hereby declared to be subject to regulation in the public interest.’ " In re Suttles Surveying, P.A., 227 N.C.App. 70, 75, 742 S.E.2d 574, 578 (2013), disc. review improvidently allowed, 367 N.C. 319, 754 S.E.2d 416 (2014).

Petitioner was first licensed as a land surveyor in 1989. In July 2004, respondent notified petitioner that, after a review of plats prepared by petitioner, respondent found "sufficient evidence which supports a charge of gross negligence, incompetence, or misconduct." Respondent issued a formal reprimand against petitioner, imposed a civil penalty of $2000.00, and required petitioner to complete a continuing education course in professional ethics within ninety days. Petitioner failed to complete the required course within ninety days and in April 2005, respondent suspended petitioner's surveyor's license, which was reinstated after he completed the professional ethics class. In November 2009, respondent again notified petitioner that, following its investigation into several plats prepared by petitioner, respondent had evidence of gross negligence, incompetence, or misconduct. Petitioner did not contest this ruling and in May 2010, respondent imposed a civil penalty of $2000.00 against petitioner and suspended petitioner's surveyor's license for a period of three months, after which petitioner's license was reinstated. The record thus establishes that at the time of the events giving rise to this appeal, respondent had previously imposed formal discipline against petitioner on two occasions.

In November 2011, less than two years after respondent had suspended petitioner's surveyor's license for three months, respondent sent petitioner an annual notification regarding renewal of his surveyor's license. Respondent informed petitioner that his surveyor's license would expire on 31 December 2011 unless renewed. Although petitioner had been subject to the annual renewal requirement for more than twenty years, he failed to renew his surveyor's license in a timely fashion. Petitioner's surveyor's license was suspended from 31 January 2012 until petitioner renewed his license on 28 February 2012. During February 2012, while petitioner's surveyor's license was suspended, petitioner conducted surveys, signed and certified five plats, and recorded one survey plat with the Haywood County Register of Deeds. Petitioner admitted that he practiced surveying while his license was inactive or expired, in violation of N.C. Gen.Stat. § 89C–16(c) (2015).

On 13 June 2012, respondent sent petitioner a letter informing him that it was investigating petitioner's practice of surveying while his license was expired. The letter stated that during this investigation respondent had reviewed the five plats that petitioner signed and sealed in February 2012, and had determined that these plats violated certain provisions of the North Carolina Administrative Code (NCAC) governing the practice of surveying. On 14 November 2012, respondent mailed petitioner a Notice of Contemplated Board Action, informing petitioner that respondent intended to revoke petitioner's surveyor's license, but that petitioner had the right to request "a settlement conference and a formal hearing of [this] matter in the event that it could not be resolved consensually." Petitioner requested a settlement conference and on 28 February 2013, petitioner and his counsel met with respondent's Settlement Conference Committee. The Committee's recommendation was that petitioner's surveyor's license be revoked without a hearing, unless a hearing was requested by petitioner.

On 13 March 2013, respondent conducted a meeting of its Board. During this meeting a Board member moved that the Board "approve [the] consent agenda as presented." The "consent agenda" included "Board-authorized case openings, comity applications, firm applications for nine professional corporations, 17 limited liability companies, [and] two business firms, one Chapter 87 corporation name change request, four d/b/a requests, minutes, settlement committee recommendations, and [a] request for retired status[.]" The written materials that accompanied the consent agenda included a written report by the Settlement Conference Committee concerning petitioner's case, with all identifying information redacted. The Settlement Conference Committee recommended that petitioner's surveyor's license should be revoked "without [a] hearing unless requested by [petitioner]." However, none of the Board members reviewed the written materials associated with petitioner's case. Instead, the Board summarily passed the motion to approve the consent agenda in its entirety, without discussion or review of the individual items on the agenda. As a result, although respondent unanimously approved the consent agenda that included petitioner's case, none of the Board members were "aware of the facts of the settlement conference ... [or] of the settlement recommendations" of the committee until the formal hearing on petitioner's case.

On 14 August 2013, respondent wrote to petitioner, acknowledging his request for a formal hearing and setting out the specific allegations against petitioner. On 11 and 12 September 2013, several months after the Board meeting at which the Board had approved the consent agenda that included the Settlement Conference Committee's recommendation concerning petitioner's case, respondent conducted a hearing on the allegations against petitioner. The two Board members who had served on the Settlement Conference Committee—the Board's public member and Gary Thompson, a surveyor member of the Board—were recused from participation in the hearing. Despite this precaution, at the outset of the hearing, petitioner moved that his case be heard by an Administrative Law Judge instead of by respondent. Petitioner's motion was based on the fact that at the March 2013 Board meeting, respondent had approved the consent agenda that included a recommendation by the Settlement Conference Committee that petitioner's surveyor's license be revoked without a hearing unless a hearing was requested by petitioner. The record indicates, as discussed above, that the Board had passed a motion for a blanket approval of the entire consent agenda, but had not read or heard any information concerning petitioner's case in particular, and had not even known that the Committee was recommending revocation of petitioner's license. Petitioner, however, argued that the fact that the Board previously approved a consent agenda including his case was sufficient to establish that respondent had prejudged his case and could not afford him a "disinterested" review of the evidence. After a brief recess, petitioner's motion was denied, and each of the Board members stated on the record that he could be impartial.

At the hearing, David Evans, respondent's assistant executive director, testified that in February 2012 he was informed that petitioner was practicing surveying without a license. Review of the records of the Haywood County Register of Deeds revealed that petitioner had signed five plats during February 2012, while his license was suspended. Respondent therefore established a Settlement Conference Committee to conduct further investigation into petitioner's practice of surveying while his license was suspended and also into whether the plats that petitioner signed in February 2012 complied with respondent's rules for the preparation of plats.

Kristopher Kline was respondent's primary witness on the issue of petitioner's compliance with the standards of practice for land surveyors. Mr. Kline had been a licensed land surveyor for over twenty years, had extensive experience in teaching and writing on subjects related to surveying, and had served for three years as the chairman of the education committee of the North Carolina Society of Surveyors. Although Mr. Kline practices surveying in Haywood County, he also testified that the rules and standards for surveying and preparation of plats are uniform across North Carolina. Mr. Kline was familiar with petitioner's work as a surveyor, and had observed a "regular pattern of substandard work" by petitioner over a period of years. Mr. Kline had previously reported petitioner to respondent for failure to comply...