Nantz v. Employment Sec. Commission

• Decision Date: 14 July 1976
• Docket Number: No. 94,94
• Parties: Betty Thorne NANTZ v. EMPLOYMENT SECURITY COMMISSION of North Carolina and the North Carolina StateBoard of Personnel.
• Court: North Carolina Supreme Court

Page 340

226 S.E.2d 340

290 N.C. 473

Betty Thorne NANTZ v. EMPLOYMENT SECURITY COMMISSION of North Carolina and the

North Carolina StateBoard of Personnel.

No. 94.

Supreme Court of North Carolina.

July 14, 1976.

Rufus L. Edmisten, Atty. Gen. by William H. Guy, Associate Attorney, Raleigh, for State Personnel Board.

H. D. Harrison, Jr., Garland D. Crenshaw, Howard G. Doyle and Thomas S. Whitaker, Raleigh, for Employment Security Commission.

Bailey, Brackett & Brackett, P.A. by Ellis M. Bragg, Charlotte, for petitioner.

LAKE, Justice.

We are not here concerned with Ch. 667 of the Session Laws of 1975, modifying GS Ch. 126 concerning the State Personnel System and making provision for employee appeals of grievances and disciplinary action. That Act, by its terms, did not become effective until 1 February 1976. For the same reason, we are not here concerned with Ch. 1331 of the Session Laws of 1973, establishing procedures for the conduct of proceedings before administrative agencies and establishing a code of administrative regulations. That Act provided that it would become effective 1 July 1975 and 'shall not affect any pending administrative hearings.' By Ch. 69 of the Session Laws of 1975, the 1973 Act was amended to change its effective date to 1 February 1976. We thus express no opinion herein as to procedures to be followed in the dismissal of an employee of a State agency subsequent to 1 February 1976. The petitioner's employment was terminated as of 18 January 1974. The judgment of the Superior Court was entered 13 June 1975.

The petitioner was not a public officer elected for a specified term. She was an employee, and nothing in the record indicates the presence of any provision in her contract of employment concerning its duration or the means and procedures by which it might be terminated. As we said in Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971), 'Nothing else appearing, such a contract of employment, even though it expressly refers to the employment as 'a regular, permanent job,' is terminable at the will of either party irrespective of the quality of performance by the other party.' No statute of this State conferred upon State employees, such as this petitioner, tenure or the right to judicial review of an administrative action terminating the employment. Employment by the State of North Carolina, or by one of its political subdivisions or agencies, does not Ipso facto confer tenure or a property right in the position. Still v. Lance, supra; Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); Freeman v. Gould Special School District, 405 F.2d 1153 (8th Cir. 1969). Mere longevity of employment, even though the employee's service be of excellent quality, does not confer upon the employee such property right. Still v. Lance, supra.

The petitioner does not contend and nothing in the record suggests that her dismissal from employment was in retaliation for her exercise of a constitutional right or was for the purpose of discouraging her exercise of such right. See, Cafeteria Workers v. McElroy, supra. The petitioner asserts, on appeal, that at the hearing before the State Personnel Board her guilt of participation in the writing of the above mentioned anonymous letters was inferred by the Board from her failure to testify and this, she says, amounts to an impairment of her constitutional protection against self-incrimination. The record does not show any claim of this constitutional privilege by the petitioner at the hearing before the State Personnel Board. She simply remained silent, neither admitting nor denying participation in the writing and sending of such letters nor offering any explanation of or refutation of the opinion of the Commission's expert witness that the letters were typed on the same typewriter as other documents, shown by another witness to have been typed upon the typewriter of the petitioner.

In Baxter v. Palmigiano, --- U.S. ---, 96 S.Ct. 1551, 47 L.Ed.2d 810 (decided 20 April 1976), the Supreme Court of the United States had before it for review disciplinary action taken by prison authorities of California against an inmate who remained silent at his administrative hearing. The Court said:

'Our conclusion is consistent with the prevailing rule that the Fifth Amendment does no forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the Amendment 'does not preclude the inference where the privilege is claimed by a party to a civil cause.' 8 Wigmore, Evidence 439 (McNaughton Ed. 1961). * * * The short of it is that permitting an adverse inference to be drawn from an inmate's silence at his disciplinary proceedings is not, on its face, an invalid practice; and there is no basis in the record for invalidating it as applied to Palmigiano in this case.'

At the time of the petitioner's discharge, the hearing by the State Personnel Board and the review of the matter by the Superior Court, GS 126--1 to GS 126--6 (repealed, effective 1 February 1976, by Session Laws of 1975, Ch. 667) established a State Personnel System but contained no provision conferring tenure upon State employees. GS 126--4 provided:

'Powers and duties of State Personnel Board.--Subject to the approval of the Governor, the State Personnel Board shall establish policies and rules governing each of the following:

* * *

* * *

'(6) The appointment, promotion, transfer, demotion, suspension, and separation of employees.

* * *

* * *

'(9) Hearing of appeals of applicants, employees, and former employees and the issuing of Advisory recommendations in all appeal cases. (Emphasis added.)

'(10) Such other programs and procedures as may be necessary to promote efficiency of administration and provide for a fair and reasonable system of personnel administration.'

The Personnel Manual, in effect at the time of the actions of which the petitioner complains, contains no rule or other provision limiting the authority of the head of a department of State Government to dismiss an employee. In § 16.190, it provided:

'Disciplinary action: Any action taken At the discretion of the department head for the purpose of penalizing an employee by any one or combination of the following: (a) suspension from the payroll on leave--without--pay for a period to be determined by the department head, (b) transfer, (c) demotion, or (d) dismissal.' (Emphasis added.)

Clearly, GS 126--4(9) authorized the State Personnel Board, upon an appeal to it by a dismissed employee, to do no more than make an advisory recommendation to the department head. It was not authorized to direct reinstatement of the dismissed employee.

The Employment Security Commission is authorized by GS 96--4(d) to appoint, fix the compensation and prescribe the duties and powers of its employees. Nothing in the Employment Security Law (GS Ch. 96) confers tenure upon employees of the Commission. The Employment Security Law, in GS 96--4(m), provides for the holding of hearings by the Commission 'for the purpose of determining the rights, status and liabilities of any 'employing unit' or 'employer" as defined by the law. From such determination a dissatisfied party may appeal to the Superior Court. Even in those hearings, it is provided by GS 96--4(p), 'The Commission shall not be bound by common-law or statutory rules of evidence or by technical or formal rules of procedure but shall conduct hearings in such manner as to ascertain the substantial rights of the parties.' Both the administrative Procedure Act, GS Ch. 150A and Art. 33A of Ch. 143 of the General Statutes, entitled, 'Rules of Evidence in Administrative Proceedings Before State Agencies,' which latter provision was in effect at the time of the matters of which the petitioner complains, though subsequently repealed effective 1 February 1976, expressly exempt the Employment Security Commission from their provisions. GS 150A--1; GS 143--317(1).

Article 33 of Ch. 143 of the General Statutes, entitled, Judicial Review of Decisions of Certain Administrative Agencies,' which was in effect at the time of the actions of which the petitioner complains, though subsequently repealed, effective 1 February 1976, defines 'Administrative Agency' to include any State commission or department authorized by law to make administrative decisions, 'except (among others) those * * * whose administrative decisions are made subject to judicial review under some other statute or statutes containing adequate procedural provisions therefor.' As noted above, GS 96--4 makes provision for judicial review of administration decisions of the Employment Security Commission determining the rights, status and liabilities of 'employing units' and 'employers.' Thus, those determinations by the Employment Security Commission are not subject to judicial review under the provision of Art. 33 of Ch. 143 of the General Statutes. Furthermore, that Article provides for judicial review of 'administrative decisions,' which term is defined to mean 'any decision, order, or determination rendered by an administrative agency in a proceeding in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after an opportunity for agency hearing.' We think it clear that this statute does not contemplate judicial review of a simple administrative action such as the employment, promotion, demotion or discharge of an employee, but contemplates a determination of rights and duties of persons, organizations or corporations subject to the regulatory authority of the agency. Thus, unless the petitioner had a constitutional right to an agency hearing prior to her dismissal, the action of the Employment Security Commission in discharging her was not subject to judicial review and its motion to dismiss should have been allowed by the Superior Court.

The Superior Court...