Vereen v. Holden, COA94-1150

• Citation: 468 S.E.2d 471,121 N.C.App. 779
• Decision Date: 05 March 1996
• Docket Number: No. COA94-1150,COA94-1150
• Court: North Carolina Court of Appeals
• 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.

Page 471

468 S.E.2d 471

121 N.C.App. 779

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.

March 5, 1996.

Anderson & McLamb, by Sheila K. McLamb, Shallotte, and Laura Thompson, Rockingham, for plaintiff.

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

LEWIS, Judge.

Plaintiff instituted this action for wrongful termination, restraint against free political association, violation of due process and breach of contract; he sought damages, injunctive relief, specific performance, and punitive damages. Defendants moved to dismiss plaintiff's claims. Defendants also pled the defense of legislative immunity and moved for judgment on the pleadings. The trial court dismissed the claims designated by the plaintiff as wrongful termination, specific performance, and breach of contract as to all the defendants and dismissed the restraint against free political association claim as to some of the defendants in their individual capacities. The trial court also granted defendants' motion for judgment on the pleadings as to the due process claim. However, the court denied defendants' motion for judgment on the pleadings based on their defense of legislative immunity. Both plaintiff and defendants appeal.

Since the claims at issue were dismissed pursuant to Rule 12(b)(6) and Rule 12(c), we look to the allegations of the plaintiff's complaint. Essentially, the complaint alleges that Plaintiff was employed by defendant Brunswick County as an Assistant Operations Service Director and Water Coordinator. In June 1991, the Board of Commissioners of Brunswick County voted to eliminate plaintiff's position. Plaintiff was notified on 18 June 1991, that an upcoming reduction in force (RIF) would eliminate his position.

The termination came 41 days prior to the vesting of plaintiff's retirement benefits. His performance was satisfactory and he had never received any reprimands or indications of poor performance.

We first address defendants' contention that the trial court erred in denying their motion for judgment on the pleadings based on legislative immunity. Motions for judgment on the pleadings pursuant to Rule 12(c) are designed to "dispose of baseless claims or defenses when the formal pleadings reveal their lack of merit." Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974). The movant bears the burden of proving that, after viewing the facts and permissible inferences in the light most favorable to the non-movant, he or she is entitled to judgment as a matter of law. DeTorre v. Shell Oil Co., 84 N.C.App. 501, 504, 353 S.E.2d 269, 271 (1987).

The subject of legislative immunity has never before been addressed by a North Carolina appellate court. However, the United States Supreme Court has recognized the deep roots of legislative immunity in American and English common law and its application to state legislators. Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). In Tenney, the Supreme Court explained the reason for legislative immunity:

"In order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offence."

Tenney, 341 U.S. at 373, 71 S.Ct. at 786, 95 L.Ed. at 1025 (quoting II Works of James Wilson (Andrews ed. 1896) 38). Later, the Court found legislative immunity equally applicable at the regional government level. Lake Country Estates v. Tahoe Planning Agcy., 440 U.S. 391, 405, 99 S.Ct. 1171, 1179, 59 L.Ed.2d 401, 413 (1979).

Although the United States Supreme Court has not, a majority of federal circuit courts have extended legislative immunity to local legislators. Rini v. Zwirn, 886 F.Supp. 270, 280 (E.D.N.Y.1995). The Fourth Circuit has acknowledged legislative immunity for county legislators, known as county commissioners in North Carolina, provided they are able to prove: (1) that they were acting in a legislative capacity at the time of the alleged incident; and (2) their acts were not illegal acts. Scott v. Greenville County, 716 F.2d 1409, 1422 (4th Cir.1983). Because we conclude that this test fairly, succinctly and clearly states the purpose of legislative immunity, we adopt it as a test in suits against local governments and local officials.

Whether an action is legislative or administrative has been determined on a case by case basis. While eliminating a position for budgetary reasons has generally been found to be legislative, e.g., Baker v. Mayor and City Council of Baltimore, 894 F.2d 679, 682 (4th Cir.), cert. denied, 498 U.S. 815, 111 S.Ct. 56, 112 L.Ed.2d 31 (1990), overruled on other grounds, Berkley v. Common Council of City of Charleston, 63 F.3d 295 (4th Cir.1995); Rateree v. Rockett, 852 F.2d 946, 950 (7th Cir.1988), hiring, firing and other employment decisions have been held to be administrative and not deserving of legislative immunity, e.g. Alexander v. Holden, 66 F.3d 62, 67 (4th Cir.1995); Detz v. Hoover, 539 F.Supp. 532, 534 (E.D.Pa.1982).

Applying the Scott rule to the case before us, it is clearly too early in the proceedings to determine the applicability of legislative immunity. Defendants have not had the opportunity to prove either provision of the legislative immunity test. Additionally, plaintiff has alleged sufficient facts that, if true, would establish that he was dismissed in an administrative action which violated his constitutional rights. As a result, we affirm the trial court's denial of defendants' motion for judgment on the pleadings with respect to their defense of legislative immunity.

We now address the substance of plaintiff's assignments of error.

Plaintiff first argues that the trial court erred in dismissing his wrongful termination claim because his complaint adequately states a claim under the public policy exception to the employment-at-will doctrine. We agree. A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint by determining "whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief can be granted under some legal theory." Lynn v. Overlook Development, 328 N.C. 689, 692, 403 S.E.2d 469, 471 (1991). A Rule 12(b)(6) motion to dismiss for failure to state a claim should not be granted unless it "appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim." Sutton v. Duke, 277 N.C. 94, 103, 176 S.E.2d 161, 166 (1970).

Ordinarily, an employee without a definite term of employment is an employee-at-will and may be discharged for any reason. Still v. Lance, 279 N.C. 254, 259, 182 S.E.2d 403, 406 (1971). However, the North Carolina Supreme Court has recognized a public policy exception to the employee-at-will rule, stating:

[W]hile there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. A different interpretation would encourage and sanction lawlessness, which law by its very nature is designed to discourage and prevent.

Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989) (quoting Sides v. Duke University, 74 N.C.App. 331, 328 S.E.2d 818, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985)).

In the present case, plaintiff alleges that he was fired by defendants due to his political affiliation and activities. If true, this would contravene rights guaranteed by our State Constitution, see State v. Ballance, 229 N.C. 764, 769, 51 S.E.2d 731, 734 (1949), and the prohibition against political...