Oates v. North Carolina Dept. of Correction

• Court: North Carolina Court of Appeals
• Writing for the Court: ARNOLD
• Citation: Oates v. North Carolina Dept. of Correction, 442 S.E.2d 542, 114 N.C.App. 597 (N.C. App. 1994)
• Decision Date: 03 May 1994
• Docket Number: No. 938SC645,938SC645
• Parties: Larry D. OATES, Appellant, v. NORTH CAROLINA DEPARTMENT OF CORRECTION, Appellee.

Page 542

442 S.E.2d 542

114 N.C.App. 597

Larry D. OATES, Appellant, v. NORTH CAROLINA DEPARTMENT OF CORRECTION, Appellee.

No. 938SC645.

Court of Appeals of North Carolina.

May 3, 1994.

Eastern Carolina Legal Services by John R. Keller, Goldsboro, for petitioner appellant.

Atty. Gen. Michael F. Easley by Asst. Attys. Gen. Valerie L. Bateman and Deborah L. McSwain, Raleigh, for respondent appellee.

ARNOLD, Chief Judge.

Petitioner presents three arguments for our review, all of which maintain, for various reasons, that the superior court erred in affirming the SPC's decision. In his first argument, petitioner contends that the SPC's stated reasons for not adopting the ALJ's recommended decision are erroneous.

Respondent contends this argument is not properly before the Court and that our review is limited to a determination of whether the superior court failed to apply the standard of review set forth in G.S. § 150B-51. In support of its contention, respondent argues that the petition for review by the superior court alleged only violations reviewable under G.S. § 150B-51(b)(5), which entitles a petitioner to judicial review to determine whether the decision was "unsupported by substantial evidence." N.C.Gen.Stat. § 150B-51(b)(5) (1991).

G.S. § 150B-51(a), under which petitioner contends he is entitled to this review, allows the court to determine whether the "agency's decision states the specific reasons why the agency did not adopt the recommended decision." G.S. § 150B-51(a) (1991). The superior court determined that the SPC's decision satisfied this requirement. Petitioner argues, however, that G.S. § 150B-51(a) also entitles him to review of whether those stated reasons were correct. We disagree, believing that the review urged by petitioner is not contemplated by that portion of G.S. § 150B-51. See Webb v. N.C. Dept. of Envir., Health, and Nat. Resources, 102 N.C.App. 767, 404 S.E.2d 29 (1991). We note also that petitioner cites Webb for the proposition that a reviewing court must not only gauge whether a reason is specifically stated, but also whether it is correct. Petitioner interprets both Webb and G.S. § 150B-51(a) incorrectly. Furthermore, we reject petitioner's contention, made in his reply brief, that he intended the review suggested in his original brief to fall under G.S. § 150B-51(b)(4). At no time did petitioner cite that provision in his original brief, nor did he cite it in his petition for judicial review presented to the superior court. We will not entertain what amounts to a new argument presented in this reply brief. See Animal Protection Society v. State of North Carolina, 95 N.C.App. 258, 382 S.E.2d 801 (1989) (stating that the original brief sets the issues to be decided on appeal and that a new matter, raised for the first time in a reply brief, will not be considered).

In his next argument, petitioner contends the SPC acted arbitrarily in disregarding the ALJ's credibility determinations. More specifically, petitioner questions the SPC's failure to adopt ALJ finding of fact forty-three which states Based upon the inconsistencies in his recollection and upon his demeanor while testifying, the undersigned finds that Bell was not a credible witness and his testimony that he saw the Petitioner eating a sandwich which was made from supplies taken from the Central Prison kitchen was not believable.

In its stead, the SPC added findings of its own pertaining to Officer Bell. These findings state only that Officer Bell saw petitioner and three inmates eating in the sergeant's office, that petitioner offered him food in styrofoam trays, and that his experience told him that the food had come from Central Prison's kitchen.

Credibility determinations "and the probative value of particular testimony are for the administrative body to determine, and it may accept or reject in whole or part the testimony of any witness." Jarrett v. N.C. Dept. of Cultural Resources, 101 N.C.App. 475, 482, 400 S.E.2d 66, 70 (1991) (upholding the SPC's decision to decline to adopt the ALJ's credibility findings). Moreover, even though the ALJ has made a recommended decision, credibility determinations, as well as conflicts in the evidence, are for the agency to determine. Webb, 102 N.C.App. 767, 404 S.E.2d 29; see also Davis v. N.C. Dept. of Human Resources, 110 N.C.App. 730, 432 S.E.2d 132 (1993) (stating that the prerogative to determine the credibility of witnesses and to weigh the evidence rests with the SPC). We decline to restrict the SPC in the manner suggested by petitioner, which could foreclose meaningful review in certain situations. We believe also that the SPC's findings concerning Officer Bell have considerable support in the record.

In his last argument, petitioner contends that the SPC's decision is not supported by substantial evidence. Petitioner argues specifically that four of the SPC's conclusions are not supported by substantial evidence. Consequently, he contends the SPC's decision cannot stand and that the ALJ's recommended decision should become the final agency decision.

On review, the superior court applies the whole record test, examining all competent evidence to determine whether the SPC's findings and conclusions are supported by substantial evidence. Henderson v. N.C. Dept. of Human Resources, 91 N.C.App. 527, 372 S.E.2d 887 (1988). Substantial evidence is "relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Lackey v. N.C. Dept. of Human Resources, 306 N.C. 231, 238, 293 S.E.2d 171, 176 (1982). If the evidence reveals two conflicting views or contradictory evidence, the superior court may not replace its judgment for that of the SPC. Thompson v. Board of Education, 292 N.C. 406, 233 S.E.2d 538 (1977). Essentially, the whole record test is used to determine whether the SPC decision has a rational basis in the evidence as a whole. Henderson, 91 N.C.App. 527, 372 S.E.2d 887.

On appeal to this Court, our review is limited to a determination of whether the superior court made any errors of law and asks "whether the superior court was correct as a matter of law in holding that the ... decision and order was supported by substantial evidence in light of the whole record." Floyd v. N.C. Dept. of Commerce, 99 N.C.App. 125, 128, 392 S.E.2d 660, 662, disc. review denied, 327 N.C. 482, 397 S.E.2d 217 (1990). We will address each conclusion individually.

SPC conclusion three states that:

Further, the rules of the Office of State Personnel also provide that personal conduct discipline is intended to be imposed for those actions for which no reasonable person could, or should, expect to receive prior warnings. No reasonable State employee could or should expect to be warned that stealing food from the State is wrong. However, even if Petitioner should have been informed that such conduct was wrong, he was so warned by the memorandum of May 7, 1990, and defined that directive when he...