“The fact that [the] notice was given simultaneously' with the disciplinary action in this case is not a violation of N.C. G. S. § 126-35.”
How later courts described this case
- “The fact that [the] notice was given simultaneously' with the disciplinary action in this case is not a violation of N.C. G. S. § 126-35.”
- applying whole record test to factual issues in public employee discipline case
Written by the judges who cited it.
The opinion
HUDSON, Judge,
dissenting.
While I agree with the majority that we should remand this case to the superior court, I do not believe that we are in a position to order reinstatement of the Decision and Order of the State Personnel Commission (SPC). Instead, I believe that a remand is appropriate because the order of the superior court does not separately delineate which standard of review it applied to which issue before it. Thus, according to applicable precedent, remand is necessary for the superior court to so delineate, before we may review the merits.
*607 Our appellate Courts have held repeatedly that “[t]he proper standard of review by the trial court [of an administrative appeal] depends upon the particular issues presented by the appeal.” Deep River Citizen’s Coalition v. N. C. Dep’t of Env’t and Natural Res., 149 N.C. App. 211 , 213 S.E.2d 814, 816 (2002), citing ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706 , 483 S.E.2d 388, 392 (1997); Brooks v. McWhirter Grading Co., Inc., 303 N.C. 573, 580 , 281 S.E.2d 24, 28 (1981). In Deep River, where the trial court simply stated that it was applying the standard of review set forth in the briefs, we remanded to the trial court for delineation of the standard of review applicable to each issue. In so doing, we relied upon the cases cited above, and upon Hedgepeth v. N.C. Div. of Servs. for the Blind, 142 N.C. App. 338 , 543 S.E.2d 169 (2001), where we held:
[T]he trial court in the case sub judice stated the proper standards of review sought by petitioner. However, it . . . “failed to delineate which standard the court utilized in resolving each separate issue raised.” Furthermore, it is difficult to discern whether the trial court actually conducted both a “whole record” and de novo review .... We are left to question whether [the trial court] referred to only a “whole record” review, de novo review, or both .... Given the nature of the trial court’s order, we find ourselves unable to conduct our necessary threshold review.
Id. at 349 , 543 S.E.2d at 176 (citations omitted). Here, the order refers to the standard of review only in the introductory paragraph, where it states that it reached its conclusions based “[o]n consideration of the oral arguments, a review of the whole record, and conducting a de novo review.” Because I do not see a meaningful distinction between the order in this case and the orders in Deep River and Hedgepeth , I would remand, as we did in those cases, for the trial court to:
(1) advance its own characterization of the issues presented by petitioners; and (2) clearly delineate the standards of review, detailing the standards used to resolve each distinct issue raised.
Deep River, 149 N.C. App. at 215 , 560 S.E.2d at 817 .