Soles v. City of Raleigh Civil Service Com'n

• Decision Date: 06 June 1995
• Docket Number: No. 9310SC235,9310SC235
• Citation: 119 N.C.App. 88,457 S.E.2d 746
• Court: North Carolina Court of Appeals
• Parties: John M. SOLES, Petitioner-Appellee, v. The CITY OF RALEIGH CIVIL SERVICE COMMISSION, Respondent and The City of Raleigh, Intervenor-Appellant.

Page 746

457 S.E.2d 746

119 N.C.App. 88

John M. SOLES, Petitioner-Appellee, v. The CITY OF RALEIGH CIVIL SERVICE COMMISSION, Respondent and The City of Raleigh, Intervenor-Appellant.

No. 9310SC235.

Court of Appeals of North Carolina.

June 6, 1995.

City Atty. Thomas A. McCormick by Associate City Atty. Lisa Harper Graham, Raleigh, for intervenor-appellant.

Law Offices of Jack B. Crawley, Jr. by Jack B. Crawley, Jr., Raleigh, for petitioner-appellee.

Edelstein & Payne by M. Travis Payne, and North Carolina Civil Liberties Union by William G. Simpson, Jr., Raleigh, appearing as amicus curiae.

JOHN, Judge.

Intervenor-appellant City of Raleigh (the City) appeals a judgment of the superior court finding Raleigh Civil Service Act Rule .0504 (Rule .0504) unconstitutional in having placed upon petitioner-appellee John M. Soles (Soles) the burden of proving his termination from employment with the City was "without justifiable cause." Based upon that determination, the trial court remanded the matter to respondent Raleigh Civil Service Commission (the Commission) for further proceedings consistent with the court's order. The City's sole argument on appeal is that the trial court's ruling with respect to Rule .0504 constitutes reversible error. We disagree.

Pertinent factual and procedural information is as follows: Soles was initially hired by the City on 5 April 1984 as an Engineering Aide I. On 13 August 1986, he was promoted to Engineering Aide II, a position he held until 2 December 1990 when the City terminated his employment for "personal conduct According to the City's Standard Procedures, "[a]n employee ... may be ... dismissed for just cause[,]" and "[t]he causes for ... dismissal fall into two categories [including] ... causes relating to personal conduct detrimental to City service." See Standard Procedure 300-14, Rev. B, §§ 3.1, 3.2 (1984). Among the examples of unsatisfactory personal conduct justifying dismissal listed in section 4.2 is the following:

detrimental to City service" pursuant to City of Raleigh Standard Procedure 300-14, Rev. B, Section 4.2(k) (1984).

Report[ing] to work under the influence of alcohol or illegal use of drugs ... where such would adversely reflect upon ability to perform assigned duties, or possession of or partaking of such items on the job.

Standard Procedure 300-14, Rev. B, § 4.2(k). Soles was discharged when the City Engineer's investigation produced corroboration of a co-employee's accusation that Soles had violated the foregoing provision.

Following written notification of his termination, Soles appealed unsuccessfully to the City Manager. He thereafter petitioned for an administrative hearing with the Commission on 12 April 1991. Soles alleged he had been "dismissed without justifiable cause" and requested reinstatement to his former position as Engineering Aide II, back pay and counsel fees.

Hearing on Soles' petition was conducted 17 and 31 July 1991. The Commission's proposed decision, entered 16 August 1991, included the following findings of fact and conclusions of law:

27. Mr. Soles was terminated on December 2, 1990, in accordance with City of Raleigh Standard Procedure 300-14, Rev. B, Sec. 4.2(k).

....

CONCLUSIONS OF LAW

....

The petitioner failed to establish by the greater weight of the evidence that he was terminated without justifiable cause.

The City of Raleigh adequately complied with its policies, procedures, and regulations regarding drug use by City employees and in the terminating of the employee in this case.

There was just cause sufficient to warrant the employees' [sic] termination from employment.

(Emphasis added). On 19 September 1991, the Commission issued its Final Decision, adopting verbatim the findings of fact and conclusions of law contained in the proposed decision.

On 11 October 1991, Soles appealed the Commission's Final Decision by filing a petition for judicial review with the Wake County Superior Court pursuant to "Section .0605 of the Rules of the City of Raleigh Civil Service Commission and N.C. General Statute Section 150B-43." Inter alia, Soles alleged the Commission's conclusion that he had "failed to establish by the greater weight of the evidence that he was terminated without justifiable cause" (based upon the Commission's application of the "burden of proof" set forth in Rule .0504) was "in violation of constitutional provisions." On 8 November 1991, the City moved to intervene as of right in the matter of Soles' petition, see N.C.R.Civ.P. 24(a) (1990), which motion was allowed.

After hearing arguments, the superior court entered judgment 16 December 1992, which included the following relevant language:

It further appearing to the Court that at the hearing before the City of Raleigh Civil Service Commission the Petitioner was required to establish, under Rule .0504 of the Rules of the Raleigh Civil Service Commission, that he was terminated without justifiable cause, the Court concludes that ... requiring him to prove that his dismissal was unjustified is a violation of constitutional provisions of procedural due process.

It therefore is ORDERED that Rule .0504 of the Rules of the Raleigh Civil Service Commission shifting the burden of proof to Petitioner in these proceedings is a violation of constitutional provisions and this matter is remanded to the Raleigh Civil Service Commission for further proceedings consistent with the Court's determination that Rule .0504 of the Rules of the Civil Service Commission is unconstitutional.

________

The City's four assignments of error have been condensed in its appellate brief into one argument. Specifically, the City contends the court committed prejudicial error by ruling that the burden of proof established in Rule .0504 violated Soles' procedural due process rights under the Fourteenth Amendment to the United States Constitution. We are not persuaded by the City's argument.

It is uncontroverted that the threshold question in determining whether an individual is entitled to due process protection with respect to an occupation is whether that individual possesses a property interest or right in continued employment. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494, 501 (1985) (citations omitted). "A [constitutionally] protected property interest arises when one has a legitimate claim of entitlement as decided by reference to state law." Dyer v. Bradshaw, 54 N.C.App. 136, 139, 282 S.E.2d 548, 550 (1981) (citation omitted). If such an interest exists, a person cannot be deprived of employment unless the employer "first compl[ies] with appropriate procedural safeguards." Nix v. Dept. of Administration, 106 N.C.App. 664, 666, 417 S.E.2d 823, 825 (1992) (citation omitted).

Soles emphasizes that the Raleigh Civil Service Act (the Civil Service Act) and personnel policies enacted pursuant thereto establish that "just cause" must be shown before a City employee may be discharged. Because of such provisions, Soles continues, he indeed possessed a constitutionally protected property interest in continued employment as an Engineering Aide II. Soles' reasoning is valid.

An examination of North Carolina law, see, e.g., id., reveals our courts have previously established that the "just cause" provision contained in the State Personnel Act, see N.C.Gen.Stat. § 126-35 (1993), creates a "property interest of continued employment ... protected by the Due Process Clause of the United States Constitution." Leiphart v. N.C. School of the Arts, 80 N.C.App. 339, 348, 342 S.E.2d 914, 921 (citations omitted), disc. review denied, 318 N.C. 507, 349 S.E.2d 862 (1986); see also Nix, 106 N.C.App. at 666, 417 S.E.2d at 825; see also Loudermill, 470 U.S. at 538-39, 105 S.Ct. at 1491, 84 L.Ed.2d at 501.

The Civil Service Act and related personnel policies governing Soles' employment likewise establish that "just cause" must be shown in order for a City employee to be terminated. See, e.g., Howell v. Town of Carolina Beach, 106 N.C.App. 410, 417, 417 S.E.2d 277, 281 (1992) ("The Town's ordinance, in effect, is comparable to rights given State employees pursuant to N.C.G.S. § 126-35.")

For example, Raleigh Standard Procedure 300-14 (upon which Soles' discharge was based) in pertinent part provides that:

3.1 An employee, regardless of occupation, position, profession or work performed, may be warned, reprimanded, placed on probation, demoted, transferred, suspended or dismissed for just cause. The degree and kind of action to be taken will be based upon the sound and considered judgment of the appropriate authority in accordance with the provisions of this policy.

3.2 The causes for suspension or dismissal fall into two categories: (1) Causes relating to performance of duties; (2) causes relating to personal conduct detrimental to City service.

....

4.2 Personal Conduct--The following are examples of unsatisfactory personal conduct ...:

....

k. Report to work under the influence of alcohol or illegal use of drugs, ... where such would adversely reflect upon ability to perform assigned duties, or possession of or partaking of such items on the job.

(Emphasis added).

In addition, the Commission itself expressly recognized the need for Soles' dismissal to be based upon "cause." First, the Chairman stated at the close of Soles' hearing that the Commission would make findings on "the issues of whether or not there was justifiable cause to terminate Mr. Soles...." Further, the Commission included the following among the Conclusions of Law in its Final Decision: "[Soles] failed to establish by the greater weight of the evidence that he was terminated without justifiable cause." (Emphasis added).

We therefore hold petitioner Soles possessed a constitutionally protected property interest in retaining his position as Engineering Aide II with the City. Consequently, the City "could not deprive [him] of [his job] without due...