The trial court erred by affirming the advisory decision of the State Personnel
Commission holding that local area mental health, mental retardation, and substance abuse
authorities did not have to apply a veteran's preference to plaintiff-veteran's job application
since the clear, unambiguous language of the pertinent statutes establishes that N.C.G.S. § 126-
83 makes the N.C.G.S. § 128-15 preference applicable to local area authorities covered by
N.C.G.S. § 126-5(a)(2). Appeal by petitioner from judgment entered 5 June 1998 by
Judge Ronald K. Payne in Buncombe County Superior Court. Heard
in the Court of Appeals 19 April 1999.
Ferguson, Stein, Wallas, Adkins, Gresham and Sumter, P.A.,
by John Gresham and S. Luke Largess, for petitioner-
appellant.
Matney and Associates, P.A., by David E. Matney, III.,
for respondent-appellee.
JOHN, Judge.
On appeal, petitioner contends the trial court erred by
affirming the advisory decision of the State Personnel
Commission [SPC] issued on June 16, 1997 and subsequently adopted
by Respondent. We reverse the trial court.
Pertinent facts and procedural history include the
following: Petitioner Allen J. Wright, Jr., a sixty-six year
old, African-American armed services veteran, served in the
Korean War between 1951 and 1953. He subsequently earned a
Bachelor of Science degree in accounting and accumulated over
thirty-four years of experience in the field of accounting.
On 15 February 1996, petitioner applied for and was denied
an Accounting Tech III position with respondent Blue Ridge Area
Authority. The position was offered to an individual with no
military background. On 3 June 1996, petitioner filed a Petition for Contested
Case Hearing with the Office of Administrative Hearings alleging,
inter alia, that respondent's denial of employment was based upon
its failure to apply a Veteran's Preference (the Preference) to
his application as required by N.C.G.S. § 128-15 (1999). In the
parties' Stipulation of Factual Issues contained in the record,
respondent concedes it does not apply veteran's preferences in
making employment decisions, including the decision to fill the
position at issue in this case.
Petitioner and respondent subsequently filed cross-motions
for partial summary judgment and, on 22 October 1996, the
Administrative Law Judge (the ALJ) granted partial summary
judgment in favor of respondent, holding the Preference
inapplicable to those persons covered by N.C.G.S. § 126-
5(a)(2)(1999), including employees of area authorities such as
respondent. Subsequently, the ALJ issued a 20 December 1996
Recommend Decision dismissing all remaining issues. The SPC
promulgated a Recommendation for Decision to Local Appointing
Authority on 16 June 1997, recommending that respondent adopt the
ALJ's findings and conclusions save for a single minor
modification. On 30 June 1997, petitioner was notified by
respondent that it had concurred in the [SPC's] recommendation.
On 25 August 1997, petitioner filed a Petition for JudicialReview seeking, inter alia, review by the trial court of the
Preference issue. After hearing from both parties, the court
entered judgment 5 June 1998, affirming the SPC's determination
that respondent was not obligated to afford Petitioner a
Veteran's Preference in hiring. Petitioner appeals.
The sole issue presented for our determination is
whether local area mental health authorities
are obligated to provide military veterans a
preference under G.S. § 128-15 in considering
their applications for employment.
Petitioner maintains respondent is required to accord the
Preference by logical construction of N.C.G.S. § 126-83 (1999),
G.S. §§ 126-5(a)(2) and 128-15, and by this Court's decision in
Davis v. Vance County DSS, 91 N.C. App. 428, 372 S.E.2d 88
(1988).
We observe initially that judicial review of administrative
agency decisions is governed by N.C.G.S. § 150B-51(b)(1995),
whereby
the appellate court [must] determine whether
the superior court utilized the appropriate
scope of review and, if so, whether the
superior court did so correctly.
In re Declaratory Ruling by N.C. Comm'r of Ins., 134 N.C. App.
23, 25, 517 S.E.2d 134, ___ (1999) (citation omitted). Further,
[t]he nature of the error asserted by the
party seeking review dictates the appropriate
manner of review: if the appellant contendsthe agency's decision was affected by a legal
error, de novo review is required . . . .
Id. (citations omitted); see also Brooks Com'r of Labor v.
Rebarco, Inc., 91 N.C. App. 459, 464, 372 S.E.2d 342, 345
(1988)([i]ncorrect statutory interpretation by an agency
constitutes an error of law under G.S. 150B-51(b) and allows
[appellate] court to apply a de novo review). In the case sub
judice, it is apparent from the trial court's judgment that it
applied the appropriate de novo scope of review, see Declaratory
Ruling, ___ N.C. App. at ___, ___ S.E.2d at ___, and we therefore
proceed to examine the SPC's decision de novo in order to
determine whether the trial court committed legal error, see id.
It is appropriate to commence with a complete review of all
applicable statutes. While G.S. § 126-5(a) was amended effective
1 November 1998, the amendment did not substantially affect ourdecision herein.
First, respondent is an area mental health, developmental
disabilities, and substance abuse services, N.C.G.S. § 122C-101
(1996), authority, organized and operating under N.C.G.S. § 122C-
116 (1996). As such, respondent is a local political
subdivision of the State, G.S. § 122C-116, which, [f]or the
purpose of personnel administration, N.C.G.S. § 122C-154 (1996),
is governed by the State Personnel System (the System) set out in
N.C.G.S. § 126-1 et seq. (1999), unless otherwise provided, G.S.
§ 122C-154. The System is a mode of personnel administration
applicable to State government and to local employees paid
entirely or in part from federal funds. . . . G.S. § 126-1.
The applicable version of G.S. § 126-5(a)(1995) includes the
following as employees subject to the System:
(1) All State employees not herein exempt,
and
(2) . . . all employees of area mental
health, mental retardation, substance abuse
authorities, and to employees of local social
services departments, public health
departments, and local emergency management
agencies that receive federal grant-in-aid
funds; and the provision of this Chapter may
apply to such other county employees as the
several boards of county commissioners may
from time to time determine.
G.S. § 126-5(a)(1)&(2)(emphasis added).
In addition, N.C.G.S. § 126-80 (1999) grants the Preferenceto the foregoing employees as follows:
It shall be the policy of the State of North
Carolina that, in appreciation for their
service to this State and this country during
a period of war, and in recognition of the
time and advantage lost toward the pursuit of
a civilian career, veterans shall be granted
preference in employment for positions
subject to the provisions of this Chapter
with every State department, agency, and
institution.
However, G.S. § 126-83, entitled Exceptions, operates to
exclude certain employees within the System from the Preference:
Notwithstanding G.S. 126-5, and
notwithstanding provisions in that section
that only certain Articles of this Chapter
apply to some employees, this Article
[establishing the Preference] applies to all
persons covered by this Chapter [126] except
those exempted by G.S. 126-5(c)(2), G.S.
126-5(c)(3), G.S. 126-5(c)(4), G.S.
126-5(c1), G.S. 126-5(c2), or G.S. 126-5(c3),
but this Article does not apply [i.e., the
Preference not granted] to those persons
covered by G.S. 126-5(a)(2). G.S. 128-15
shall apply to those persons exempted from
coverage of this Article, but shall not apply
to any person covered by this Article.
G.S. § 126-83 (emphasis added).
Finally, in terms identical to G.S. § 126-80, G.S. § 128-15
accords the Preference to employees with every State department,
agency, and institution, id., as follows:
(a) It shall be the policy of the State of
North Carolina that, in appreciation for
their service to this State and this country
during a period of war, and in recognition ofthe time and advantage lost toward the
pursuit of a civilian career, veterans shall
be granted preference in employment with
every State department, agency, and
institution.
G.S. § 128-15(a).
It is well established that [w]hen multiple statutes
address a single matter or subject, they must be construed
together, in pari materia, to determine the legislature's
intent. Taylor v. City of Lenoir, 129 N.C. App. 174, 178, 497
S.E.2d 715, 719 (1998). Statutes so construed must be
harmonized, to give effect, if possible, to all provisions
without destroying the meaning of the statutes involved.
Whittington v. N.C. Dept. of Human Resources, 100 N.C. App. 603,
606, 398 S.E.2d 40, 42 (1990). In the case sub judice, we
conclude that the provisions of G.S. §§ 126-5(a)(2), 126-83 and
128-15, construed in pari materia, accord the Preference to those
employees identified in G.S. § 126-5(a)(2), but excluded under
G.S. § 126-83, and described by G.S. § 126-83 as being covered
under G.S. § 128-15.
To begin, respondent, an area mental health, mental
retardation, substance abuse authority, is subject to the System
as provided in G.S. § 126-5(a)(2). G.S. § 126-5(a)(2); see also G.S. § 122C-116 (personnel administration of area authorities
governed by Chapter 126 unless otherwise provided). G.S. § 126-
80 accords the Preference to veterans for positions subject to
the provisions of . . . Chapter [126, i.e., the System] with
every State department, agency and institution. G.S. § 126-80.
Taking into consideration only the foregoing sections, therefore,
G.S. § 126-80 unambiguously mandates that those employers subject
to G.S. § 126-5(a)(2), including respondent, must grant the
Preference.
However, G.S. § 126-83 designates two categories of
employees [e]xcept[ed] from the Preference set forth in G.S. §
126-80. The first deals with employees falling within listed
statutory sections, including G.S. § 126-5(c)(2), G.S.
126-5(c)(3), G.S. 126-5(c)(4), G.S. 126-5(c1), G.S. 126-5(c2),
and G.S. 126-5(c3), see G.S. § 126-83, not applicable to the
dispute herein.
The second category excepts those persons covered by G.S. §
126-5(a)(2), G.S. § 126-83, including employees of area mental
health, mental retardation, substance abuse authorities, G.S. §
126-5(a)(2), such as respondent. Thus, nothing else appearing at
this point, respondent would not be required to grant the
Preference in selecting employees.
Nonetheless, those persons excepted by G.S. § 126-83 from the (G.S. § 126-80) Preference are expressly designated as those
persons to whom G.S. § 128-15 shall apply:
G.S. § 128-15 shall apply to those persons
exempted from coverage of this Article, but
shall not apply to any person covered by this
Article.
G.S. § 126-83.
Lastly, G.S. § 128-15 mandates that the Preference be
afforded to employees of every State department, agency, and
institution. G.S. § 128-15. Notwithstanding, respondent
insists the section is not applicable to it as an area mental
health, mental retardation, substance abuse authority. We
disagree.
First, as opposed to the restrictive phrase State
employee, G.S. § 128-15 utilizes more expansive terminology,
i.e., employee of every State department, agency, and
institution. G.S. § 128-15. See State v. Baker, 229 N.C. 73,
77, 48 S.E.2d 61, 65 (1948)(legislature presumed to have
comprehended the import of the words its employed to express its
intent). Further, as noted above, respondent is a local
political subdivision of the State, G.S. § 122C-116, and its
employees are subject to the System, G.S. § 122C-154. Finally,
this Court has previously viewed sub silentio an employee of an
area mental health, mental retardation and substance abuse authority as a State employee who therefore must contest a
dispute with the authority before the SPC. See Hill v. Morton,
115 N.C. App. 390, 391-93, 444 S.E.2d 683, 684-85, disc. review
allowed, 337 N.C. 692, 448 S.E.2d 523 (1994), review
improvidently allowed, 340 N.C. 355, 457 S.E.2d 300 (1995); see
also Clay v. Employment Security Comm., 111 N.C. App. 599, 603,
432 S.E.2d 873, 875-76 (1993), rev'd on other grounds, 340 N.C.
83, 457 S.E.2d 725 (1995)(only avenue for appeal by applicant for
state employment alleging grievance against the State is to SPC
under N.C.G.S. § 126-36.1 (1999)).
In sum, construing G.S. § 126-83 and G.S. § 128-15 in pari
materia and giving effect to all provisions thereof, see Taylor,
129 N.C. App. at 178, 497 S.E.2d at 719, and Whittington, 100
N.C. App. at 606, 398 S.E.2d at 42, we believe the intent of our
General Assembly was to provide unambiguously, pursuant to G.S. §
126-83, that employees of the System designated in G.S. § 126-
5(a)(2) are expressly excluded from the Preference afforded by
G.S. § 126-80 but, if qualified under G.S. § 128-15, are entitled
to the Preference thereunder applicable to all employees of State
departments, agencies and institutions, specifically including
G.S. § 126-5(a)(2) employees. See G.S. § 126-83. Accordingly,
under G.S. § 126-83 and G.S. § 128-15, respondent must provide
the Preference to applicants for employment meeting the veteran qualification.
Respondent counters that G.S. § 126-5(a)(2) employees do not
fall within the category of exempted employees subject to G.S.
§ 128-15. Respondent seeks to distinguish use of the word
exempted in G.S. § 126-83 from the phrase does not apply in
that section. According to respondent, G.S. § 126-5(a)(2)
employees were not expressly deemed exempt within G.S. § 126-83
as were employees under the statutory sections specifically
designated in G.S. § 126-83. We believe respondent's reading of
G.S. § 126-83 is far too strained.
We note that the title Exceptions was given to G.S. § 126-
83 by our General Assembly, thus indicating its intended function
of providing exceptions to the G.S. § 126-80 Preference. Thus,
among the exceptions is that G.S. § 126-80 shall not apply to
those persons covered by G.S. 126-5(a)(2), G.S. § 126-83, and
that G.S. § 128-15 shall apply to those persons exempted from
coverage of [G.S. § 126-80], G.S. § 126-83. To adopt
respondent's convoluted construction of G.S. § 126-83 would lead
to misinterpretation of the specified operation of the section,
that is, to set forth Exceptions to the Preference granted in
G.S. § 126-80.
The term exempted, as used in the last sentence of G.S. §
126-83, thus creates an overall [e]xception so as to allow receipt of the G.S. § 128-15 Preference by any employee excluded
or exempted by G.S. § 126-83 from entitlement to the G.S. § 126-
80 Preference. Simply stated, under G.S. § 126-83, the
Preference provided in G.S. § 126-80 applies except as to those
employees described or named in G.S. § 126-83, to whom the G.S. §
126-80 Preference shall not apply. G.S. § 126-83. As to these
employees, the Preference provided in G.S. § 128-15 does apply.
Both parties cite Davis v. Vance County Department of Social
Services. The decision is the sole reported case interpreting
G.S. § 128-15, and we agree with respondent's concession that our
holding therein
implicitly and indirectly supports the
conclusion that [] G.S. § 128-15 applies to
employees covered under [] G.S. § 126-
5(a)(2).
In Davis, the petitioner, a local employee subject to the
System pursuant to G.S. § 126-5(a)(2), applied for promotion to a
position requiring a four-year college degree. Davis, 91 N.C.
App. at 429, 372 S.E.2d at 88-89. The petitioner was not
selected by respondent, Vance County Department of Social
Services (DSS), because he had not obtained a four-year degree
and thereby lacked the minimum educational requirement for the
position. Id. The petitioner instituted suit against DSS,
asserting the G.S. § 128-15 Preference was applicable and that his military service might serve as an educational equivalent or
substitute. Id. at 431, 372 S.E.2d at 90. This Court rejected
the petitioner's argument in Davis, observing that
[a]lthough the statute awards a preference
rating of ten points to veterans who apply
for employment with the State or any of its
departments, it states nowhere that the
minimum requirements specified for a position
may be ignored. In fact, the statute
specifically states that [a]ll the
departments or institutions of the State, or
their agencies, shall give preference in
appointments and promotional appointments to
qualified veteran applicants. . . .
Id. (emphasis added).
Significantly, this Court did not rule that the Davis
petitioner was ineligible for the Preference under G.S. § 128-15,
but rather that the Preference did not serve to qualify him for a
position he was otherwise unqualified to hold. Thus, this Court
implicitly ruled that DSS, a local social services department
covered under G.S. § 126-5(a)(2), was subject to the mandate of
G.S. § 128-15.
However, we note the scope of Davis is limited and that the
case was decided prior to the 1991 revision of G.S. § 126-83,
which added the last sentence explicitly applying G.S. § 128-15
to employees excepted thereunder from the G.S. § 126-80
Preference. The 1991 amendment to G.S. § 126-83 may be seen as a
legislative clarification of Vance, i.e., to make explicit what had only been implied in the opinion. See Blackmon v. N.C. Dept.
of Correction, 118 N.C. App. 666, 673, 457 S.E.2d 306, 310
(1995), aff'd, 343 N.C. 259, 470 S.E.2d 8 (1996)(it is
appropriate to assume the legislature is aware of any judicial
construction of a statute).
In any event, we hold the clear, unambiguous language of
each pertinent statute establishes that G.S. § 126-83 makes the
G.S. § 128-15 Preference applicable to local area authorities
covered by G.S. § 126-5(a)(2). Accordingly, the judgment of the
trial court is reversed and this matter remanded to that court
with instruction that it further remand to respondent, the Local
Appointing Authority, see N.C.G.S. § 126-37(b1)(1999), for
disposition not inconsistent with our opinion herein.
Reversed and remanded with instructions.
Chief Judge EAGLES and Judge EDMUNDS concur.
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