# Thompson v. Wake County Board of Education

> Court of Appeals of North Carolina · November 17, 1976 · 31 N.C. App. 401

URL: https://www.frixlaw.com/law-library/cases/9565404

## Case

- **Full name:** Leonard K. Thompson v. Wake County Board of Education
- **Court:** Court of Appeals of North Carolina
- **Decided:** November 17, 1976
- **Citations:** 31 N.C. App. 401; 230 S.E.2d 164; 1976 N.C. App. LEXIS 2015
- **Precedential status:** Published
- **Opinion:** Dissent by Clark
- **Judges:** Clark, Morris, Vaughn
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Thompson v. Wake County Board of Education, 292 N.C. 406 (1977).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9565404

## Opinion text

*427 Judge Clark
dissenting.
I regret that I am unable to agree with the majority opinion in this case. It is obviously based on a thorough analysis of the evidence. I do not voice extravagant forebodings but seek to mildly refute error. Since the majority opinion includes a detailed listing of unproved allegations and irrelevant findings, some comparison between innuendo and fact, between what was charged and that the majority upholds, is in order.
The Superintendent of Schools preferred four charges against petitioner to justify the immediate suspension without pay and the recommendation to fire: (1) mental incapacity, (2) immorality, (3) insubordination, and (4) neglect of duty. Mr. Thompson was not charged with “inadequate performance” under G.S. 115-142 (e) (l)a.
The Superintendent listed eight specifications under the four charges. The Board of Education held hearings on three occasions and the transcript of these hearings amounts to over 500 pages. The Board made seven findings of fact and reached seven conclusions of law. It found sufficient evidence to fire Mr. Thompson on all four grounds. Much time and effort were obviously spent in attempting to establish the charges against petitioner. After all was said and done and after all the unfounded accusations and evidence not remotely relevant to the charges have been disregarded, the majority sustains the firing of petitioner on the basis of a single incident, whose telling in the record on appeal takes approximately three pages out of 177 pages of testimony.
Since the reversal by the majority rests upon only one finding of fact and one conclusion of law, I will concern myself only with those parts of the order of the Superior Court. I might note that I would be inclined to treat more sympathetically other parts of the order of the Superior Court reviewing other findings of fact were they germane to the majority holding.
The majority has correctly stated the proper scope of review in the Superior Court to the extent that it holds that appellate courts do not sit to reweigh the evidence in a trial de novo. The majority errs in its interpretation and application *428 of the revelant review statute. G.S. 150A-51 (then G.S. 143-315) provides that the decision of the school board may be reversed if
“[T]he substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
* sfc * *
(5) Unsupported by competent, material, and substantial evidence in view of the entire record as submitted; ...” (Emphasis added.)
Our Supreme Court has clearly stated that under G.S. 150A-51 (then G.S. 143-315) “the ‘whole record’ test is applicable. . . . The ‘whole record’ test must be distinguished from the ‘any competent evidence’ standard.” Underwood v. Board of Alcoholic Control, 278 N.C. 623, 629 , 181 S.E. 2d 1, 5 (1971).
In determining the substantiality of evidence supporting a decision of the Board, under the whole record test, a reviewing court must take into account whatever in the record fairly detracts from the weight of the evidence. A decision of the Board cannot be upheld merely on the basis of evidence which in and of itself justifies the action, without taking into account contradictory evidence or evidence on which conflicting inferences could be drawn. Universal Camera Corp. v. NLRB, 340 U.S. 474 , 71 S.Ct. 456 , 95 L.Ed. 456 (1951).
The majority feels that the order of the Superior Court was based upon an unduly restrictive definition of “competent” evidence and that because some competent evidence was apparently disregarded by the coui't, its review of the record violated the statutory standard. While focusing on the supposed evidentiary errors of the reviewing court, the majority overlooks the fact that even with the inclusion of this “competent” evidence, the entire record as submitted does not support the action of the Board in firing petitioner.
Thus the majority may not properly sustain the decision of the Board because there is “any competent evidence” to support it. When the “whole record” test is applied, it becomes clear that the Superior Court did not, as stated by the majority, weigh the credibility of the evidence but properly reviewed the “entire record as submitted.”
*429 Using the “whole record” test for reviewing the decision of an administrative agency under G.S. 150A-51 it is appropriate to evalute the decision of the Board and the order of the Superior Court. The majority bases its reversal upon the portions of the Board’s seventh finding of fact and fifth conclusion of law that pertain to the fight between Mike Novick and Eddie Barker. The Board found that “Mr. Thompson allowed students under his supervision to settle disputes by fighting among themselves” and concluded that this constituted neglect of duty.
The finding of the Board rested upon the testimony of two students, Joe Jungers and Johnette Smith. The majority opinion has quoted only portions of their relevant testimony as proof of “competent” evidence which Judge Alvis ignored. When the “whole record” is surveyed, a different picture emerges. Joe Jungers also testified that he was not in the immediate vicinity of the fight and that he was not in a position to know why the fight had started. (“I came in the class a bit late. I was sitting over there playing chess and they started fighting for some reason.”) Nor did he know when Mr. Thompson.entered the room because he was playing chess. He did not deny Mr. Thompson’s version of the incident or state that he was sure he had heard everything that Mr. Thompson said. He merely said “That’s all I heard said.” (Emphasis added.) In short, Joe Jungers was not in a position to testify to the complete content of Mr. Thompson’s remarks. At the least the whole record standard requires that all the evidence of a single witness be considered and, in the terms of Universal Camera Corp., be evaluated by “taking into account evidence on which conflicting inferences could be drawn.” It is consistent with the statements of Joe Jungers to conclude that his attention was drawn away from his chess game and to the fight by the noise and commotion and that only then did he see Mr. Thompson and hear what he was saying.
The quotation by the majority of the testimony of Johnette Smith is similarly selective. She testified more fully that
“He would probably be out of the room and they would be fighting. He would come in and more than likely he would look at them and he would probably tell them more than likely, say ‘Go ahead and beat the hell out of each other!’ . . .” (Emphasis added.)
*430 I do not believe that such an unclear and inconclusive statement is a sufficient basis to uphold a man’s firing. Applying the whole record test, I do not believe that the testimony of Joe Jungers, which itself revealed an insufficient opportunity to observe the entire incident and the testimony of Johnette Smith, which manifestly is unclear and inconclusive are “substantial in view of the entire record as submitted.”
Finally, although I believe that the testimony of the two students alone does not rise to the level of “substantial,” I believe this conclusion becomes even more apparent when petitioner’s version is considered, as Underwood makes clear is proper. In that case, our Supreme Court held that the Superior Court had properly considered the licensee’s evidence in reviewing an administrative decision to the extent it did not explicitly contradict that of the Board. There the Board had revoked a liquor license on the basis of evidence which showed there had been a fight on the licensee’s premises. Petitioner did not dispute that the fight had taken place, but offered complementary evidence showing he had acted properly in the circumstances. On two other charges the Superior Court also properly considered the petitioner’s testimony to the extent it did not explicitly contradict the Board’s evidence.
Here petitioner’s version is that he admonished the boys by telling them that animals settled their disputes by fighting and added sarcastically that if they couldn’t settle their disputes with their brains then they should go ahead and beat the hell out of each other. This testimony does not explicitly contradict that of the students. Rather, as in Underwood , it complements the version presented by the agency. It provides the preface for the remarks heard by Joe Jungers when his attention was finally drawn to the fight. It was properly considered by the Superior Court under the “whole record” standard.
We do not sit to judge the wisdom of the legislature in extending the concept of tenure to secondary schoolteachers. The procedures and. grounds for firing have been set by the proper constitutional body. Under G.S. 150A-51 the Superior Court may reverse a decision of the school board which is not supported by “material, competent and substantial evidence in view of the entire record as submitted.” The majority has erroneously applied the “any competent evidence” test. For reasons already stated I do not believe that the few lines of *431 testimony by the two students are “substantial.” When the petitioner’s version is also considered, as is proper under the “whole record” standard, this conclusion is even more apparent.
Because I would affirm the order of the Superior Court on statutory grounds, I would not need to reach the constitutional question and therefore express no opinion on that issue.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9565404. Public record. Not legal advice.