1. Appeal and Error--appealability--denial of summary judgment-
-sovereign immunity
The denial of summary judgment was immediately appealable
where defendants asserted a claim of governmental immunity.
2.Immunity--law enforcement salaries--statutory duty
Defendant-county was not protected by sovereign immunity
from an action by Sheriff's Department personnel alleging that a
pay plan had been manipulated so that they were deprived of
rightfully earned compensation. Defendant had a statutory duty
to provide the salaries to which it had committed itself in the
enacted budget ordinance and those salaries provided the
necessary consideration for the formation of employment contracts
between the sheriff and his deputies; having availed itself of
the services provided by the law enforcement officers, defendant
could not claim sovereign immunity as a defense to its statutory
and contractual commitment.
3. Counties--sheriff's department pay plan--continuing
approval--issue of fact
The trial court correctly denied defendant-county's motion
for summary judgment in an action by Sheriff's Department
personnel alleging that a pay plan had been manipulated so that
they were deprived of rightfully earned compensation. There was
an issue of fact as to whether the Board of Commissioners had
continued to approve and allocate funds for a longevity pay plan
originally adopted in 1980.
4. Parties--unnecessary--action by sheriff's employees
The trial court should have granted defendant-sheriff's
motion to dismiss in an action by Sheriff's Department personnel
against the county and the sheriff alleging that a pay plan had
been manipulated so that they were deprived of rightfully earned
compensation. Although plaintiffs alleged that the sheriff acted
in concert with the County, there was no evidence of such
collusion and the sheriff was an unnecessary party.
Larry J. McGlothlin for plaintiff appellees.
Harris, Mitchell, Burns & Brewer, by Ronnie M. Mitchell, for
defendant appellants.
McCULLOUGH, Judge.
In a letter dated 24 March 1980, Cumberland County Sheriff
Ottis F. Jones requested the Cumberland County Board of
Commissioners' approval for a proposed longevity pay system for
Cumberland County Sheriff's Department personnel. At the time of
Sheriff Jones' letter, all Cumberland County Sheriff's Department
personnel within each rank received identical salaries, regardless
of length of service or job performance. Expressing "grave
concern" over the "extremely excessive" turnover rate among law
enforcement officers, Sheriff Jones proposed a new salary policy
that would include a longevity provision to reward deserving
individuals with incremental pay increases. The proposed plan
established a seven-step pay scale, with a one-step increase on the
completion of five years of satisfactory service, and an additional
step increase every four years thereafter. Although the proposal
would initially increase the personnel budget by one hundred
thousand dollars, Sheriff Jones assured the Board of Commissioners
that his plan would eventually save the County money by decreasing
the employee attrition rate. Sheriff Jones ended his letter by
requesting that the Board of Commissioners approve the new pay
policy to be effective 1 July 1980.
In May 1980, the Cumberland County Board of Commissionersapproved and implemented Sheriff Jones' proposed longevity
pay
system for Cumberland County Sheriff's Department personnel. On 30
June 1997, plaintiffs, who are or were Cumberland County Sheriff's
Department law enforcement officers, initiated the present action
against Cumberland County. Defendant Earl Butler, Sheriff of
Cumberland County, was later joined to the action as a potentially
necessary party. In their complaint, plaintiffs alleged that
defendants had manipulated and otherwise improperly administered
the longevity pay plan such that plaintiffs were wrongfully
deprived of rightfully earned compensation. The trial court
subsequently denied defendant Butler's motion to dismiss and
defendant County's motion for summary judgment, which defendants
now appeal to this Court.
[1]We note initially that an appeal from the denial of a
summary judgment motion, such as the instant one, is interlocutory
and generally not allowed as it does not affect a substantial right
of the parties. Smith v. Phillips, 117 N.C. App. 378, 380, 451
S.E.2d 309, 311 (1994). When the motion is made on the grounds of
sovereign immunity, however, "such a denial is immediately
appealable, because to force a defendant to proceed with a trial
from which he should be immune would vitiate the doctrine of
sovereign immunity." Id. at 380, 451 S.E.2d at 311. In the
instant case, defendants have asserted a claim of governmental
immunity and, therefore, their appeal is properly before this
Court.
[2]Defendant County argues that summary judgment should have
been granted as to plaintiffs' claims regarding manipulation of thepay plan. Summary judgment is properly granted when the pleadings,
depositions, answers to interrogatories, admissions and affidavits
show no genuine issue of material fact exists and the movant is
entitled to judgment as a matter of law. N.C. Gen. Stat. § 1A-1,
Rule 56(c) (1999); Kephart v. Pendergraph, 131 N.C. App. 559, 562,
507 S.E.2d 915, 918 (1998). The movant bears the burden of
establishing that no triable issue exists, and he may do this by
"proving that an essential element of the opposing party's claim is
nonexistent, or by showing through discovery that the opposing
party cannot produce evidence to support an essential element of
his claim or cannot surmount an affirmative defense which would bar
the claim." Collingwood v. G.E. Real Estate Equities, 324 N.C. 63,
66, 376 S.E.2d 425, 427 (1989). Defendant County contends that the
doctrine of sovereign immunity protects it from plaintiffs' suit.
Because defendant County has not waived sovereign immunity or
otherwise consented to the present action, it maintains that it is
protected from plaintiffs' suit as a matter of law. We disagree.
In general, the doctrine of sovereign immunity provides the
State, its counties, and its public officials with absolute and
unqualified immunity from suits against them in their official
capacity. Messick v. Catawba County, 110 N.C. App. 707, 714, 431
S.E.2d 489, 493, disc. review denied, 334 N.C. 621, 435 S.E.2d 336
(1993). Such immunity may be waived, however. Id. at 714, 431
S.E.2d at 493-94. For example, in Smith v. State, 289 N.C. 303,
320, 222 S.E.2d 412, 423-24 (1976), our Supreme Court held that
"whenever the State of North Carolina, through its authorizedofficers and agencies, enters into a valid contract, the State
implicitly consents to be sued for damages on the contract in the
event it breaches the contract." The Smith Court also noted that
under N.C. Gen. Stat. § 153A-11, "counties . . . may contract and
be contracted with and . . . may sue and be sued." Smith, 289
N.C. at 321, 222 S.E.2d at 424; N.C. Gen. Stat. § 153A-11 (1999).
Plaintiffs in the instant case are law enforcement officers
hired directly by the Sheriff of Cumberland County. The Sheriff is
an independent constitutionally mandated officer, elected by the
voters. N.C. Const. art. VII, § 2. Because it is the Sheriff, and
not the County, who directly hires law enforcement officers,
plaintiffs do not enjoy all of the protections of County employees.
See Peele v. Provident Mut. Life Ins. Co., 90 N.C. App. 447, 450,
368 S.E.2d 892, 894, appeal dismissed, disc. review denied, 323
N.C. 366, 373 S.E.2d 547 (1988) (holding that dispatcher was
employee of the sheriff rather than the county); see also N.C. Gen.
Stat. § 153A-103(1) (1999) (granting a sheriff "the exclusive right
to hire, discharge, and supervise the employees in his office").
"Each sheriff [however] . . . is entitled to at least two deputies
who shall be reasonably compensated by the county . . . ." N.C.
Gen. Stat. § 153A-103(2) (1999). Such compensation is provided
directly by the County. Under N.C. Gen. Stat. § 153A-92, "the
board of commissioners shall fix or approve the schedule of pay,
expense allowances, and other compensation of all county officers
and employees, whether elected or appointed, and may adopt position
classification plans." N.C. Gen. Stat. § 153A-92(a) (1999). Further, the power of the Board of Commissioners to determine such
compensation is subject to the following limitation:
If the board of commissioners reduces the
salaries, allowances, or other compensation of
employees assigned to an officer elected by
the people, and the reduction does not apply
alike to all county offices and departments,
the elected officer involved must approve the
reduction. If the elected officer refuses to
approve the reduction, he and the board of
commissioners shall meet and attempt to reach
agreement. If agreement cannot be reached,
either the board or the officer may refer the
dispute to arbitration by the senior resident
superior court judge of the superior court
district . . . .
N.C. Gen. Stat. § 153A-92(b)(3) (1999). We also note that under
N.C. Gen. Stat. § 153A-13, a "county may enter into continuing
contracts" for which the county "must have sufficient funds
appropriated to meet any amount to be paid under the contract in
the fiscal year in which it is made." N.C. Gen. Stat. § 153A-13
(1999).
In addition, all counties are subject to The Local Government
Budget and Fiscal Control Act, (LGBFCA), N.C. Gen. Stat. §§ 159-7
through 159-41. Under LGBFCA, "each department head shall transmit
to the budget officer the budget requests and revenue estimates for
his department for the budget year." N.C. Gen. Stat. § 159-10
(1999). Thereafter, "the governing board shall adopt a budget
ordinance making appropriations and levying taxes for the budget
year in such sums as the board may consider sufficient and
proper . . . ." N.C. Gen. Stat. § 159-13(a) (1999). The governing
board, in adopting the budget ordinance, is bound to appropriate
the full amount estimated by the finance officer that is required
for debt service during the budget year. N.C. Gen. Stat. § 159-13(b)(1) (1999). The board must also appropriate "[s]ufficient
funds to meet the amounts to be paid during the fiscal year under
continuing contracts previously entered into . . . ." N.C. Gen.
Stat. § 159-13(b)(15) (1999). Once the budget ordinance is in
place, it becomes the statutory duty of the county's finance
officer to "disburse all funds of the local government or public
authority in strict compliance with [the LGBFCA and] the budget
ordinance . . ." and to "receive and deposit all moneys accruing to
the local government or public authority, or supervise the receipt
and deposit of money by other duly authorized officers or
employees." N.C. Gen. Stat. §§ 159-25(a)(2) and (4) (1999).
Defendant County has a statutory duty to provide the salaries
to which it has committed itself in the enacted budget ordinance.
Such salaries provide the necessary consideration for the formation
of employment contracts between the Sheriff and his deputies. See
Pritchard v. Elizabeth City, 81 N.C. App. 543, 552, 344 S.E.2d 821,
826, disc. reviews denied, 318 N.C. 417, 349 S.E.2d 598 (1986)
(holding that once employment was offered and accepted by plaintiff
firefighters under the compensation plan set forth in the city
ordinance, its provisions became part of the employment contract);
see also Burns v. Brinkley, 933 F.Supp. 528, 533 (E.D.N.C. 1996)
(noting that the pension system established for deputy sheriffs was
part of the consideration forming the basis of their public
employment contracts). Defendant County, after having availed
itself of the services provided by the law enforcement officers,
may not claim sovereign immunity as a defense to its statutory andcontractual commitment. We determine that, under the facts of this
case, defendant County is not protected by sovereign or
governmental immunity.
[3]Plaintiffs have alleged that defendant County failed to
comply with its duties under the budget ordinance. Plaintiffs
offer the affidavit of a certified public accountant, who, after
examining plaintiffs' pay records and the budget ordinances, stated
that "there were irregularities . . . in the application of the
policy over a period of years." Defendant County clearly has a
statutory duty to abide by the terms of the budget ordinance which
it approves. The Board of Commissioners is not obligated to accept
a submitted budget proposal from a Sheriff, of course, but once it
approves a budget and salary plan and enacts such in the budget
ordinance, the County is obligated to abide by the budget ordinance
and pay out monies appropriated therefor. It is unclear from the
record before us whether the Board continued to approve and
appropriate in their budget ordinance each year the longevity pay
plan originally proposed by Sheriff Jones and adopted by the county
in 1980.
(See footnote 1)
As such, there are genuine issues of material fact that
render a grant of summary judgment inappropriate at this time. We
hold, therefore, that the trial court correctly denied defendant
County's motion for summary judgment. We now examine whether the
trial court correctly denied defendant Butler's motion to dismiss.
[4]The essential question on a motion to dismiss is whether,as a matter of law, the allegations of the complaint,
when
liberally construed, are sufficient to state a claim upon which
relief may be granted under any legal theory. See N.C. Gen. Stat.
§ 1A-1, Rule 12(b)(6); Harris v. NCNB, 85 N.C. App. 669, 670, 355
S.E.2d 838, 840 (1987). As plaintiffs acknowledge, "it is not the
Sheriff's responsibility to fund the Sheriff's Department but that
of the County." See N.C. Gen. Stat. § 153A-103(2). Nor does the
Sheriff administer the funds. See N.C. Gen. Stat. § 159-25.
Although plaintiffs' complaint alleges that defendant Sheriff
"acted in concert" with defendant County, there is no evidence of
such collusion in the record. Because there is absolutely no
evidence that defendant Butler had anything to do with the
administration of plaintiffs' salaries, he is an unnecessary party
to this case, and therefore his motion to dismiss should have been
granted by the trial court.
We decline to address additional arguments by defendant
County, as they are interlocutory and do not affect defendant
County's substantial rights. Because there are genuine issues of
material fact outstanding, and because defendant County is not
protected by sovereign immunity, we hereby affirm the trial court's
order denying summary judgment to defendant County. We reverse the
trial court's order denying defendant Butler's motion to dismiss
and remand this case for entry of an order granting such to
defendant Butler.
Affirmed in part, reversed in part.
Judges GREENE and HUDSON concur.
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