“The SPA [SPS] provides certain protections for state employees subject to its provisions. However, some state employees are not protected by the SPA. Elected officials, public school superintendents, principals, teachers, and other public school employees, for example, are not subject to most of the provisions of the SPA.”
How later courts described this case
- “The SPA [SPS] provides certain protections for state employees subject to its provisions. However, some state employees are not protected by the SPA. Elected officials, public school superintendents, principals, teachers, and other public school employees, for example, are not subject to most of the provisions of the SPA.”
- applied in the context of conducting a “whole record” review of an agency decision
Written by the judges who cited it.
The opinion
*626 Justice Orr
dissenting.
Superior Court Judge Donald W. Stephens, in reviewing the “whole record” in this case, concluded that
there is no competent evidence to support a conclusion that this position was one vested with authority to impose the final decision on any department-wide course of action or many [sic] agency-wide course of action or on any division-wide course of action. The Petitioner’s position did not meet any legal definition of policymaking under G.S. § 126-5(b) and, as such, the reclassification to exempt status for this position was contrary to law.
Similarly, a unanimous Court of Appeals panel, in an opinion written by Judge John B. Lewis, Jr., concluded that “[t]here is no substantial evidence to support the conclusion that she [Ms. Powell] had decision-making authority of such scope as would enable her to make or impact policies on a department-wide, agency-wide, or decision-wide level at the DOT.” Accordingly, the Court of Appeals affirmed the trial court’s ruling.
Having carefully reviewed the transcripts in this case, as well as the Administrative Law Judge’s (ALJ) and Personnel Commission’s findings of fact, I agree with the conclusion of the trial court and Court of Appeals. There is no substantial evidence to support the conclusion that Ms. Powell’s position as Director of the Highway Beautification Program falls within the definition of “policymaking.” There is simply no evidence to permit its redesignation to “exempt” after years of being a nonexempt position vested with the protections given to state employees under the State Personnel Act. N.C.G.S. ch. 126 (1995).
In addition, the majority points to no specific evidence that would allow a conclusion that Ms. Powell could “impose the final decision as to a settled course of action to be followed within a department, agency, or division.” N.C.G.S. § 126-5(b). Instead, the majority focuses on the Personnel Commission’s findings of fact. The Personnel Commission adopted the ALJ’s findings numbered one through six and eight, but specifically declined to adopt number seven. The Personnel Commission also made additional findings on its own. A close examination shows that absolutely none of these findings specifically address the critical factor in this case — the petitioner’s ability to impose a final decision. While the ALJ’s findings *627 include a general description of the position’s duties, the Personnel Commission’s findings focus on the fact that “[t]o . . . volunteers and other citizens across the state, the Director of the Beautification Program was the eyes and ears of the Governor, the Administration and the department with respect to beautification and other related issues.” Being “the eyes and ears of the Governor,” or of anyone else in state government, does not equate with the statutory test for policymaking so as to warrant exempting this position.
The majority states that “the evidence was capable of two reasonably conflicting views.” I agree with the trial court’s and the Court of Appeals’ conclusion that there is a total lack of substantial evidence to support the State’s position in this case. Therefore, I respectfully dissent.
Justice Lake joins in this dissenting opinion.