Public Officers and Employees--firing of police officer--superior court order--
characterization of issues and standard of review
The trial court's order affirming the Civil Service Board's decision to dismiss plaintiff
from his employment with the city's police department is reversed and remanded for entry of a
new order characterizing the issues before the court and setting forth the standard of review
applied by the court in resolving each separate issue.
Lesesne & Connette, by Louis L. Lesesne, Jr. and Richard L.
Hattendorf, for petitioner-appellant.
Dozier, Miller, Pollard & Murphy, by W. Joseph Dozier, Jr.,
for respondent-appellees.
HUNTER, Judge.
Petitioner-appellant Shannon N. Jordan (“Jordan”) appeals the
superior court's order affirming the decision of respondent-
appellee, Civil Service Board for the City of Charlotte's (“Board”)
decision dismissing him from his employment with the Charlotte-
Mecklenburg Police Department (“Police Department”). Unable to
determine what standard of review the trial court applied, we
reverse and remand to that court for entry of a new order in
accordance with this opinion.
In view of our disposition of this matter, we recite only a
brief history of this case: On 8 April 1997, Jordan was discharged
from his employment with the Police Department following anincident in which Jordan fired his gun at a moving automobile,
striking and killing the passenger therein. On 2 August 1997,
Jordan was cited by the Chief of Police D. E. Nowicki for alleged
violations of Rule of Conduct #28(A) and General Order #2, which
essentially cover when and how a police officer is authorized to
use deadly force. Chief Nowicki suspended Jordan without pay and
memoed the Board with the recommendation that his employment with
the Police Department be terminated for those violations. Jordan's
case was heard by the Board on 13-17 October 1997, and the Board
concluded that Jordan had, in fact, violated both of the cited
procedures. Thus, the Board terminated Jordan's employment with
the Police Department, effective immediately.
Acting upon his appeal, the trial court affirmed the Board's
decision to terminate Jordan, the body of its order reading in its
entirety:
This matter was heard before the
undersigned Judge Presiding over the July 16,
1998, Session of Superior Court for
Mecklenburg County on appellant's request for
judicial review of a decision by the Civil
Service Board for the City of Charlotte, North
Carolina (Board), entered on December 3, 1997,
dismissing appellant Shannon N. Jordan
(Jordan) as an employee of the Charlotte-
Mecklenburg Police Department (the department)
for violating departmental rules and orders
resulting in the death of Ms. Carolyn Sue
Boetticher.
The Court having considered the arguments
and briefs of counsel and having reviewed theentire record herein, FINDS that the findings,
conclusions, and decision of the Board are
supported by competent, material, and
substantial evidence in view of the entire
record as submitted. The Court further finds
that the parties have agreed that this ORDER
may be signed out of Term, Session, County,
and District.
IT IS NOW, THEREFORE, ORDERED that the
decision of the Board terminating Jordan's
employment as an officer of the Charlotte-
Mecklenburg Police Department is hereby
AFFIRMED.
We begin by noting that in his brief to this Court, “Jordan
does not challenge [any of] the Board's findings of fact.” Thus,
it is not at issue whether the Board's findings of facts are
supported by competent evidence. Instead, Jordan challenges the
Board's legal conclusions based on its findings of fact.
Recent case law has clearly set out the standard of review by
the trial court in these kinds of administrative board decisions:
The proper standard of review under [N.C.
Gen. Stat. § 150B-51(b)] depends upon the
issues presented on appeal. If appellant
argues the agency's decision was based on an
error of law, then “de novo” review is
required. If however, appellant questions (1)
whether the agency's decision was supported by
the evidence or (2) whether the decision was
arbitrary or capricious, then the reviewing
court must apply the “whole record” test.
In Re Appeal by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359,
363 (1993) (citations omitted) (emphasis in original). Because
“'[d]e novo' review requires a court to consider a question anew,
as if not considered or decided by the agency” previously (Amanini
v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443
S.E.2d 114, 118 (1994)), the trial court must make its own findings
of fact and conclusions of law and cannot defer to the agency its
duty to do so. Contrarily, the “whole record” test requires the
trial court “. . . 'to examine all competent evidence (the “whole
record”) in order to determine whether the agency decision is
supported by “substantial evidence.”'” Act-Up Triangle v.
Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388,
392 (1997) (quoting Amanini, 114 N.C. App. at 674, 443 S.E.2d at
118). Then, once the trial court has entered its order, should one
of the parties appeal to this Court,
[o]ur task, in reviewing a superior court
order entered after a review of a board
decision is two-fold: (1) to determine
whether the trial court exercised the proper
scope of review, and (2) to review whether the
trial court correctly applied this scope of
review.
Whiteco Outdoor Adver. v. Johnston County Bd. of Adjust., 132 N.C.
App. 465, 468, 513 S.E.2d 70, 73 (1999).
In the case at bar, Jordan concedes the Board's findings of
fact are correct. However, he assigns reversible error to its
interpretation of law -- that is, the rules and regulations
allegedly violated. Thus, Jordan argues that interpretation does
not support his dismissal. As stated earlier, in a case such asthis in which the petitioner argues the Board's decision was based
on an error of law, the trial court was required to review that
decision de novo. Amanini, 114 N.C. App. at 674, 443 S.E.2d at
118. Contrarily, with regard to Jordan's assignments of error that
do not argue error of law, the trial court was required to apply
the “whole record” test in its review. In Re Appeal by McCrary,
112 N.C. App. 161, 435 S.E.2d 359.
In order for this Court to properly conduct its review, the
trial court must first have properly reviewed the case. From the
language of the trial court's order before us, we are able to
determine only that it employed the “whole record” test in reaching
its decision. However, the issue the trial court must necessarily
have addressed first was whether the Board correctly applied the
law -- an issue which could only be resolved by the trial court's
application of the “de novo” standard of review. It was,
therefore, inappropriate for the trial court to apply the “whole
record” test in resolving that issue. Thus, we must remand this
case to the trial court.
This Court recently held that
while the court's order in effect set out [one
of] the applicable standards of review, it
failed to delineate [the proper standard for
review of the issues at bar]. Moreover, while
the court may have disagreed with the parties'
characterization of the issues, it failed to
specify its own “determin[ation of] the actual
nature of the contended error” before
proceeding with its review. Amanini, 114 N.C.
App. at 675, 443 S.E.2d at 118.
In Re Appeal of Willis, 129 N.C. App. 499, 503, 500 S.E.2d 723, 726
(1998). Therefore, we agree with the Willis court that: As a result of these omissio
ns, this Court is
unable to make the requisite threshold
determination that the trial court “exercised
the appropriate scope of review,” [Amanini] at
675, 443 S.E.2d at 118-19, and we decline to
speculate in that regard. It follows that we
likewise are unable to determine whether the
court properly conducted its review. See Act-
Up, 345 N.C. at 706, 483 S.E.2d at 392.
Id.
We, therefore, reverse the order of the trial court and remand
this matter for a new order in accordance with our opinion herein.
Specifically, the trial court must: (1) make its own
characterization of the issues before it, and (2) clearly set out
the standard(s) for its review, delineating which standard it used
to resolve each separate issue raised by the parties.
Reversed and remanded.
Judges JOHN and McGEE concur.
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