Leete v. County of Warren

Decision Date28 July 1995
Docket NumberNo. 308A94,308A94
Citation462 S.E.2d 476,341 N.C. 116
PartiesHarry M. LEETE, Albert Sears Bugg, Thomas Holt, Claude F. Burrows, II, Cecil Craig Allen, Charles A. Bennett, William S. Bugg, James E. Crenshaw, Jr., and The Other Taxpayers of Warren County v. The COUNTY OF WARREN, a body politic and corporate; Lucious Hawkins, Chairman of the Board of Commissioners of Warren County; O.L. Meek, William T. Skinner, III, James Byrd and George E. Shearin, Members of the Board of Commissioners of Warren County; and Susan W. Brown, Finance Officer of Warren County.
CourtNorth Carolina Supreme Court

Banzet, Banzet & Thompson by Julius Banzet, III and Lewis A. Thompson, III, Warrenton, for plaintiffs-appellants.

Michael B. Brough & Associates by Michael B. Brough and Charles T. Johnson, Jr., Chapel Hill, for defendants-appellees.

ORR, Justice.

Plaintiffs instituted this action on 22 February 1993, alleging that the Warren County Board of Commissioners ("the Board") unlawfully authorized severance pay in the amount of $5,073.12 to Mr. Charles Worth upon his voluntary resignation after nine years of service as County Manager.

Plaintiffs sought and obtained a temporary restraining order on 22 February 1993, preventing the Board from making the payment to Mr. Worth. The defendants filed an answer on 22 March 1993. On 23 March 1993, plaintiffs' motion for a preliminary injunction came on for hearing which was transformed into a hearing on the merits by consent of the parties. On 25 March 1993, the trial court entered an order permanently enjoining the Board from making the payment to Mr. Worth. Defendants appealed to the North Carolina Court of Appeals, which reversed the trial court's ruling. Plaintiffs filed notice of appeal of right with this Court based upon the substantial constitutional issue raised. N.C.G.S. § 7A-30(1) (1989).

The minutes of the 1 February 1993 meeting of the Board show that during the executive session of its regular meeting, Charles Worth announced his resignation from the County Manager position effective 1 March 1993 to accept employment in the office of the newly elected representative from the First Congressional District. The Board accepted Mr. Worth's resignation. Although it is not reflected in the 1 February meeting minutes, the complaint subsequently filed in this action alleges, and the defendants admitted in their answer, that at the same meeting, Mr. Worth requested "payment of an additional sum equal to three months salary." The Board voted unanimously to pay Mr. Worth "six weeks of severance pay" totalling $5,073.12. Returning to open session, the Board announced Mr. Worth's resignation, and the minutes of this meeting reflect that the Board's chairman then "expressed gratitude to Mr. Worth for the quality of service he has rendered to Warren County during his nine-year tenure."

Subsequently, at the mid-monthly meeting of the Board on 17 February 1993, several citizens appeared before the Board to voice opposition to the granting of severance pay to Mr. Worth. Supporters of Mr. Worth were also present, one of whom indicated that the Board may have called the payment by the wrong name and suggested that it be considered as pay to Mr. Worth for "meritorious service." During the executive session which followed the 17 February 1993 regular meeting, one member of the Board, after rethinking his position on the propriety of granting the severance pay, made a motion to rescind the motion made at the 1 February meeting to grant six weeks' "severance pay" to Mr. Worth. The motion failed for lack of a second. As a result, plaintiffs filed this action seeking to enjoin the Board's action to follow through on its decision to pay Mr. Worth the announced severance pay.

Plaintiffs contend that the proposed payment in this case constitutes an unlawful gratuity and an "illegal and wrongful depletion of public funds" on the grounds that the defendants' proposed payment of "severance pay" to Mr. Worth violates Article I, Section 32 of the North Carolina Constitution. Article I, Section 32 provides as follows: "No person or set of persons is entitled to exclusive or separate emoluments or privileges from the community but in consideration of public services." N.C. Const. art. I, § 32. Thus, by its definition, Section 32 precludes exclusive or separate emoluments except "in consideration of public services." See Brumley v. Baxter, 225 N.C. 691, 36 S.E.2d 281 (1945).

Section 32 concerning emoluments dates from 1776 deriving "originally from a section of the Virginia Declaration of Rights." See John V. Orth, The North Carolina State Constitution: A Reference Guide 74 (1993). This section's immediate predecessor, which also prohibited exclusive emoluments and privileges, was Article I, Section 7. See 5 N.C. Index 4th Constitutional Law § 133 (1990).

It is well settled that absent evidence to the contrary, it will always be presumed "that public officials will discharge their duties in good faith and exercise their powers in accord with the spirit and purpose of the law." Huntley v. Potter, 255 N.C. 619, 628, 122 S.E.2d 681, 686-87 (1961); accord, Painter v. Wake County Board of Education, 288 N.C. 165, 178, 217 S.E.2d 650, 658 (1975). This presumption places a heavy burden on the party challenging the validity of public officials' actions to overcome this presumption by competent and substantial evidence. Id. In the case sub judice, the plaintiffs have met their burden.

The Legislature has vested county boards of commissioners with broad discretion to direct fiscal policy for the county, N.C.G.S. § 153A-101 (1991), and with specific authority to fix compensation for all county officers, N.C.G.S. § 153A-92 (1991). The county manager is appointed by the board of county commissioners to act as the chief administrator of county government and serves at its pleasure. N.C.G.S. § 153A-82 (1991). Mr. Worth, as a county manager, held a public office; as in other jurisdictions, in North Carolina, "a public office is not created for the benefit of the holder thereof. It is created for the purpose of carrying on the operations of government." De Marco v. Bd. of Chosen Freeholders, 36 N.J.Super. 382, 386, 115 A.2d 635, 637 (1955), aff'd, 21 N.J. 136, 121 A.2d 396 (1956). "The emoluments of office are presumed to be nothing more than an equivalent for the labor it imposes." Id. Thus, the right of a public officer to receive compensation can only arise out of the rendition of the public services related to his office.

In this case, however, the compensation at issue was labeled as severance pay. "Severance pay" is defined as

[p]ayment by an employer to employee beyond his wages on termination of his employment. Such pay represents a form of compensation for the termination of the employment relation, for reasons other than the displaced employee's misconduct, primarily to alleviate the consequent need for economic readjustment but also to recompense the employee for certain losses attributable to the dismissal.

Black's Law Dictionary 1374 (6th ed. 1990) (emphasis added).

Plaintiffs argue that, in the instant case, Mr. Worth sought and the Board granted additional compensation in excess of the compensation for services previously rendered. Here, the defendants admitted in their answer that all compensation due Mr. Worth under the terms of his employment had been paid. Defendants, nevertheless, contend that Mr. Worth was being permissibly compensated in consideration of previously rendered public services. The position advocated by defendants is directly contradicted by the record. The specific delineation by the Board of the $5,073.12 as "severance pay" and by their admission in their answer that Mr. Worth had been paid all compensation due him for services rendered negates any such argument.

While numerous cases over the years have interpreted Article I, Section 32, few appear to have any direct factual similarity to the case sub judice. The principle case on which plaintiffs rely is Brown v. Comrs. of Richmond County, 223 N.C. 744, 28 S.E.2d 104 (1943). In Brown, the plaintiff was elected in 1938 to the two-year term of office of Judge of the Recorder's Court of Richmond County. In 1939, the General Assembly passed a local act abolishing the Recorder's Court. Then in 1941, the General Assembly passed an act, chapter 11 of the Private Laws of 1941, requiring the Richmond County Board of Commissioners to pay to the plaintiff the salary that plaintiff would have earned had the General Assembly not abolished his office. The county refused, and plaintiff filed a lawsuit. The issue before this Court was whether the General Assembly could legally authorize the Richmond County Board of Commissioners to pay the plaintiff his salary accruing after the date the Recorder's Court ceased to exist. Interpreting Article I, Section 7, the predecessor to Article I, Section 32 under consideration here, this Court held that the plaintiff was not entitled to receive the payment because such compensation would amount to a constitutionally prohibited gift or gratuity of public money.

[T]he Legislature has no power to compel or even to authorize a municipal corporation to pay a gratuity to an individual to adjust a claim which the municipality is under no legal obligation to pay. Nor may it lawfully authorize a municipal corporation to pay gifts or gratuities out of public funds.

Brown, 223 N.C. at 746, 28 S.E.2d at 105-06 (citations omitted). Continuing, the Brown court reasoned that

[a] municipality cannot lawfully make an appropriation of public moneys except to meet a legal and enforceable claim, and can make no payment upon a claim which exists merely by reason of some moral or equitable obligation which a generous, or even a just, individual, dealing with his own moneys, might recognize as worthy of some reward.

Id.

We find that the similarities between Brown and this case are compelling. In Brown, the...

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