# Caudill v. Dellinger

> Court of Appeals of North Carolina · June 16, 1998 · 129 N.C. App. 649

URL: https://www.frixlaw.com/law-library/cases/9624927

## Case

- **Full name:** SHANNON CAUDILL, Plaintiff v. JAMES L. DELLINGER, C. RICKY BOWMAN, in His Official Capacity as District Attorney of Judicial District 17-B, and THE ADMINISTRATIVE OFFICE OF THE COURTS, Defendants
- **Court:** Court of Appeals of North Carolina
- **Decided:** June 16, 1998
- **Citations:** 129 N.C. App. 649; 501 S.E.2d 99; 14 I.E.R. Cas. (BNA) 44; 1998 N.C. App. LEXIS 755
- **Precedential status:** Published
- **Opinion:** Dissent by Lewis
- **Judges:** Greene, Lewis
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9624927

## Opinion text

Judge Lewis
dissenting.
I respectfully dissent only as to Part I of the majority opinion; I concur in all other parts.
Mr. Dellinger, a former district attorney, was sued in his official capacity for violating G.S. § 126-85, also known as the “whistle-blower” statute. Section 126-85 is contained within Article 14 of Chapter 126 of the General Statutes. I believe the General Assembly has excepted constitutional officers such as Mr. Dellinger from the *661 provisions of Article 14. I reach this conclusion because I do not believe that constitutional officers are “State employees” as that term is used in G.S. 126-5(c5) and G.S. 126-85.
General Statute section 126-5(cl) states that, except as to Articles 6 and 7, the provisions of Chapter 126 shall not apply to “(1) Constitutional officers of the State[,] (2) Officers and employees of the Judicial Department!,] (3) Officers and employees of the General Assembly!,]” and various other persons. As the majority correctly notes, district attorneys are constitutional officers of the State. Section 126-5(cl) provides that constitutional officers are not subject to Article 14.
I cannot agree that G.S. 126-5(c5) requires a contrary result. Section 126-5(c5) reads, “Notwithstanding any other provision of this Chapter, Article 14 of this Chapter shall apply to all State employees, public school employees, and community college employees.” Although the term “State employees” is not expressly defined in Chapter 126,1 believe that the legislature did not intend that term to include constitutional officers.
As noted above, an earlier subsection of the same statute lists officers and employees separately: G.S. 126-5(cl) states that the provisions of Chapter 126 do not apply to “officers and employees of the Judicial Department,” or to “officers and employees of the General Assembly” (emphasis added). This demonstrates that the terms “officers” and “employees” were not intended to be synonymous.
When it enacted G.S. 126-5(c5) in 1989, the legislature could have expressly included “officers of the Judicial Department,” “officers of the General Assembly,” and “constitutional officers of the State” among the persons subject to Article 14. It did not. Instead, the legislature used the term “State employees,” a term which does not embrace or include “officers.”
Nothing in G.S. 126-85(a) suggests otherwise. That statute reads in relevant part,
No head of any State department, agency or institution or other State employee exercising supervisory authority shall discharge, threaten, or otherwise discriminate against a State employee regarding the State employee’s compensation, terms, conditions, location or privileges of employment because the State employee . . . reports . . . any activity described in G.S. 126-84 ....
*662 A district attorney is not the “head of any State department, agency or institution.” While a district attorney does exercise supervisory authority over his administrative assistant, see N.C. Gen. Stat. § 7A-68(a) (1995), there is no indication in G.S. 126-85(a) that a district attorney- — a constitutional officer of the State — is a “State employee” as contemplated by the legislature.
For the foregoing reasons, I believe that constitutional officers are excepted from the “whistleblower” statute. Why the legislature did not create a “whistleblower” statute without any exceptions is not before us, and could not be.
I respectfully dissent.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9624927. Public record. Not legal advice.