Leete v. County of Warren, No. 308A94

Docket NºNo. 308A94
Citation462 S.E.2d 476, 341 N.C. 116
Case DateJuly 28, 1995
CourtUnited States State Supreme Court of North Carolina

Page 476

462 S.E.2d 476
341 N.C. 116
Harry 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.
No. 308A94.
Supreme Court of North Carolina.
July 28, 1995.

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 [341 N.C. 118] 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

Page 478

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).

[341 N.C. 119] 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 [341 N.C. 120] in their answer that all compensation due Mr. Worth under the terms of his employment had been paid. Defendants, nevertheless, contend...

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24 practice notes
  • Perry v. Pamlico Cnty., No. 4:13–CV–107–D.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • February 16, 2015
    ...S.E.2d 681, 687 (1961). A party may overcome that presumption only with competent and substantial evidence. See Leete v. Cnty. of Warren, 341 N.C. 116, 119, 462 S.E.2d 476, 478 (1995) ; Huntley, 255 N.C. at 628, 122 S.E.2d at 686–87.As for Johnson, Perry has presented no competent evidence ......
  • Perry v. Pamlico Cnty., No. 4:13-CV-107-D
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • February 16, 2015
    ...S.E.2d 681, 687 (1961). A party may overcome that presumption only with competent and substantial evidence. See Leete v. Cnty. of Warren, 341 N.C. 116, 119, 462 S.E.2d 476, 478 (1995); Huntley, 255 N.C. at 628, 122 S.E.2d at 686-87. As for Johnson, Perry has presented no competent evidence ......
  • Bartley v. City of High Point, 359A20
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • June 17, 2022
    ...as opposed to allegations, showing that he can at least establish a prima facie case at trial.’ " Id. (quoting Leete v. Cnty. Of Warren , 341 N.C. 116, 119, 462 S.E.2d 476 (1995) ; Draughon v. Harnett Cnty. Bd. of Educ. , 158 N.C. App. 208, 212, 580 S.E.2d 732 (2003) ). In Judge Tyson's vie......
  • Petersen v. Midgett, No. 2:12–CV–60–D.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • September 25, 2015
    ...S.E.2d 681, 687 (1961). A party may overcome that presumption only with competent and substantial evidence. See Leete v. Cty. of Warren, 341 N.C. 116, 119, 462 S.E.2d 476, 478 (1995) ; Huntley, 255 N.C. at 628, 122 S.E.2d at 686–87. As for Ambrose, Petersen has presented no competent eviden......
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22 cases
  • Perry v. Pamlico Cnty., No. 4:13–CV–107–D.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • February 16, 2015
    ...S.E.2d 681, 687 (1961). A party may overcome that presumption only with competent and substantial evidence. See Leete v. Cnty. of Warren, 341 N.C. 116, 119, 462 S.E.2d 476, 478 (1995) ; Huntley, 255 N.C. at 628, 122 S.E.2d at 686–87.As for Johnson, Perry has presented no competent evidence ......
  • Petersen v. Midgett, No. 2:12–CV–60–D.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • September 25, 2015
    ...S.E.2d 681, 687 (1961). A party may overcome that presumption only with competent and substantial evidence. See Leete v. Cty. of Warren, 341 N.C. 116, 119, 462 S.E.2d 476, 478 (1995) ; Huntley, 255 N.C. at 628, 122 S.E.2d at 686–87. As for Ambrose, Petersen has presented no competent eviden......
  • Perry v. Pamlico Cnty., No. 4:13-CV-107-D
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • February 16, 2015
    ...S.E.2d 681, 687 (1961). A party may overcome that presumption only with competent and substantial evidence. See Leete v. Cnty. of Warren, 341 N.C. 116, 119, 462 S.E.2d 476, 478 (1995); Huntley, 255 N.C. at 628, 122 S.E.2d at 686-87. As for Johnson, Perry has presented no competent evidence ......
  • Willis v. Cleveland Cnty., CIVIL CASE NO. 1:18-cv-00292-MR-WCM
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • July 1, 2020
    ...their duties in good faith and exercise their powers in accord with the spirit and purpose of the law.'" Leete v. Cty. of Warren, 341 N.C. 116, 119, 462 S.E.2d 476, 478 (1995) (quoting Huntley v. Potter, 255 N.C. 619, 628, 122 S.E.2dPage 49 681, 686-87 (1961)). "This presumption places a he......
  • Request a trial to view additional results

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