Vereen v. Holden

• Decision Date: 05 August 1997
• Docket Number: No. COA94-1150,COA94-1150
• Citation: 127 N.C.App. 205,487 S.E.2d 822
• Parties: Pearly VEREEN, Plaintiff, v. Kelly HOLDEN, Individually and In his official capacity as Brunswick County Commissioner; Donald Shaw, Individually and In his official capacity as Brunswick County Commissioner; Jerry Jones, Individually and In his official capacity as Brunswick County Commissioner; Wayland Vereen, In his official capacity as Brunswick County Commissioner; Don Warren, In his official capacity as Brunswick County Commissioner; Tom Rabon, In his official capacity as Brunswick County Commissioner; Gene Pinkerton, In his official capacity as Brunswick County Commissioner; Frankie Rabon, In his official capacity as Brunswick County Commissioner; David Clegg, Individually and In his official capacity as Interim Manager; and Brunswick County, Defendants.
• Court: North Carolina Court of Appeals

Page 822

487 S.E.2d 822

127 N.C.App. 205

Pearly VEREEN, Plaintiff, v. Kelly HOLDEN, Individually and In his official capacity as Brunswick County Commissioner; Donald Shaw, Individually and In his official capacity as Brunswick County Commissioner; Jerry Jones, Individually and In his official capacity as Brunswick County Commissioner; Wayland Vereen In his official capacity as Brunswick County Commissioner Don Warren, In his official capacity as Brunswick County Commissioner; Tom Rabon, In his official capacity as Brunswick County Commissioner; Gene Pinkerton, In his official capacity as Brunswick County Commissioner; Frankie Rabon, In his official capacity as Brunswick County Commissioner; David Clegg, Individually and In his official capacity as Interim Manager; and Brunswick County, Defendants.

No. COA94-1150.

Court of Appeals of North Carolina.

Aug. 5, 1997.

Sheila K. McLamb and Laura E. Thompson, Shallotte, for plaintiff-appellant.

Faison & Gillespie by Reginald B. Gillespie, Jr., Michael R. Ortiz and Keith D. Burns, Durham, for defendants-appellees.

LEWIS, Judge.

The Supreme Court has remanded this matter to us for consideration of one issue: whether our decision that judgment on the pleadings was improper on plaintiff's procedural due process claim is correct in light of its decision in Soles v. City of Raleigh Civil Service Comm., 345 N.C. 443, 480 S.E.2d 685 (1997). We do not set forth the facts of this case as they are reported in our earlier decision, Vereen v. Holden, 121 N.C.App. 779, 468 S.E.2d 471 (1996).

Initially, we recognize the standard in cases involving judgments on the pleadings: the movant must show that there is no material issue of fact and that he is entitled to judgment as a matter of law. Hedrick v. Rains, 121 N.C.App. 466, 468, 466 S.E.2d 281, 283, aff'd per curiam, 344 N.C. 729, 477 S.E.2d 171 (1996). Therefore, if any issues of material fact remain despite the Supreme Court's decision in Soles, our initial decision must stand.

In Soles, the Supreme Court ruled that absent incorporation into an employment contract, a city's personnel policy does not bestow a property interest in continued employment unless it is passed by legislative adoption. Soles, 345 N.C. at 447, 480 S.E.2d at 687-88. In that case, since the policy was not a city ordinance passed into law, the petitioner had no constitutionally protected property interest. Id.

The present case is factually dissimilar. The policy at issue here was passed at a meeting of the Brunswick County Board of Commissioners and was designated an "ordinance." We find no merit in defendants' suggestion that we look beyond the legislative enactment and label "ordinance" to find that, in substance, the policy was not an ordinance. Clearly, the dispositive factor considered by the Soles Court was whether the personnel policy was adopted as law or something less by a legislative body. Here, the...