DOWELL GRAY,
Petitioner,
v
.
NORTH CAROLINA DEPARTMENT OF ENVIRONMENT, HEALTH AND NATURAL
RESOURCES,
Respondent,
DOWELL GRAY,
Petitioner,
v.
ONSLOW COUNTY DEPARTMENT OF HEALTH,
Respondent.
Jeffrey S. Miller, for petitioner-appellee.
Attorney General Roy A. Cooper, by Assistant Attorney General
Judith Tillman, for respondent-appellant North Carolina
Department of Environment and Natural Resources, formerly
North Carolina Department of Environment, Health and Natural
Resources.
Womble, Carlyle, Sandridge & Rice, by Mark A. Davis, for
respondent-appellant Onslow County Department of Health.
HUDSON, Judge.
Respondents appeal an order of the Superior Court which
reviewed consolidated final agency decisions of the State Health
Director (“SHD”) and the State Personnel Commission (“SPC”). The
Superior Court order required respondent-appellant North Carolina
Department of Environment and Natural Resources (“DENR”) to
reinstate to petitioner his authority to issue permits, orderedOnslow County Department of Health (“OCDH”) to pay petitioner lost
wages, and ordered DENR and OCDH to each pay equal shares of
petitioner's attorney's fees and court costs. For the reasons
stated herein, we reverse the trial court's order and remand.
We begin with a brief summary of the facts. Petitioner-
appellee worked as an Environmental Health Specialist for OCDH from
9 September 1983 until 10 February 1997. Among other duties, he
inspected sites for proposed septic systems and issued permits for
the installation of these systems when they met applicable
standards. For this position, the agency required petitioner to
maintain a “valid authorization card” issued by DENR. See
Respondent OCDH's Attachment III, Position Description Form (PD-
102R-8), State of North Carolina, Office of State Personnel, pA-43.
As the parent agency for county health departments in the
state, DENR regulated the administration of OCDH, pursuant to N.C.
Gen. Stat. § 130A-4(b) (1999). In May 1996, DENR sent Regional
Soil Specialist, John Williams, to Onslow County to conduct a
quality assurance review. During that visit, Williams learned that
petitioner had improperly issued a permit for a septic system in
Onslow County, and notified the County that it should revoke the
permit. Concerned about petitioner's ability to work
independently, Williams returned to Onslow County for three days in
June 1996 to work with petitioner and evaluate his job performance.
Williams formally recommended on 8 June 1996 that DENR place
petitioner on probation, but action was delayed by the two
hurricanes that came through North Carolina later that summer. DENR placed petitioner on probation by letter dated 22 October
1996, and DENR sent Williams back to Onslow County to further
evaluate petitioner. Based on this evaluation, which included
field work as well as a written test, DENR wrote to OCDH on 31
December 1996 and again on 10 January 1997, stating that it was
revoking petitioner's authority to issue permits for septic
systems, effective thirty days from the date of the letter.
Relying on the second letter from DENR, OCDH Health Director Danny
Jacob wrote petitioner on 15 January 1997 informing him that his
employment would be terminated effective 5:00 p.m. on 10 February
1997.
The following is a summary of the procedural path that ensued.
Petitioner filed two petitions for contested case hearings: the
first challenged DENR's revocation of his authority to issue
permits, and the second challenged OCDH's decision to terminate his
employment.
On 8 May 1997, an Administrative Law Judge (“ALJ”) ordered
petitioner's cases against DENR and OCDH consolidated for a
hearing, which was held on 26 August 1997. In a recommended
decision filed 24 November 1997, the ALJ found facts and concluded
as law that: (1) petitioner's “delegation of authority” to issue
permits is a “license” within N.C. Gen. Stat. § 150B-2(3) (1999);
(2) DENR erred when it failed to give proper notice to petitioner
before the commencement of proceedings to revoke or suspend the
license, see N.C. Gen. Stat. 150B-23(f) (1999) (requiring the time
limitation to “commence when notice is given of the agencydecision”); (3) OCDH did not have “just cause” to dismiss
petitioner, a career state employee; and (4) OCDH erred in relying
on DENR's improper revocation of petitioner's license to terminate
petitioner. The ALJ recommended that petitioner's delegation of
authority and employment be reinstated, and that DENR and OCDH each
pay an equal share of petitioner's attorney's fees and court costs.
Both DENR and OCDH noted exceptions to the recommended decision of
the ALJ, and both submitted alternative proposed findings and
conclusions to the SHD and to the SPC, respectively.
The SHD declined to adopt the ALJ's recommended decision, but
instead adopted verbatim DENR's alternative proposals. In pertinent
part, SHD's Order: (1) held that petitioner's right to inspect and
issue permits for septic systems was not a license, so that the
provisions of N.C.G.S. § 150B-3 did not apply, and (2) affirmed the
revocation of the delegation of authority by DENR.
The SPC calendared the OCDH case for its meeting 2 April 1998
and considered the ALJ's recommended decision, as well as the whole
record, including the proposals and exceptions filed by OCDH. The
SPC recommended that Onslow County Board of Health, as local
appointing authority, find and conclude that OCDH had “just cause to
dismiss the Petitioner from his employment with the Respondent
[OCDH].” In its Final Decision, the local Board accepted the
recommendations of the SPC.
The SHD issued its Final Decision 1 June 1998, and the SPC
issued its Final Decision on 21 July 1998. Petitioner sought
Judicial Review of both decisions in Superior Court and the two wereconsolidated for review by Order of Judge Robert F. Floyd on 8
December 1998. From that date to the present, the two matters have
been litigated together.
In his petition to the Superior Court for review of the
decision of the SHD, petitioner-appellee contended, as to DENR,
that: (1) the SHD erroneously determined that petitioner's
delegation of authority was not a license within N.C.G.S. § 150B-
2(3), (2) DENR's decision to revoke petitioner's license was
“arbitrary, capricious, and is not supported by competent and
substantial evidence in the record,” (3) DENR's actions affected
petitioner's employment, (4) DENR'S actions violated petitioner's
due process rights, and (5) the ALJ's “decision is supported by
competent evidence which supports the sufficient findings of fact
and is correct as a matter of law.”
In his petition for review of the final decision of the Onslow
County Board of Health, petitioner-appellee contended, as to OCDH,
that: (1) OCDH wrongfully relied on DENR's revocation of
petitioner's delegation of authority, (2) OCDH erroneously
determined that it had just cause to terminate him, (3) OCDH failed
to follow proper procedures for terminating him, (4) OCDH violated
his rights to due process, and (5) the decision of the ALJ was
correct and “supported by competent and substantial evidence and
sufficient findings of fact, and is correct as a matter of law.”
The Superior Court affirmed the ALJ's decision, awarding petitioner
attorney's fees and court costs from both respondents, as well as
lost wages from OCDH. The trial court also ordered DENR toreinstate petitioner's delegation of authority.
Both respondents appealed to this Court, raising separate
assignments of error, and filing separate briefs. We need only
address DENR's first assignment of error, which challenges the
jurisdiction of the Superior Court. Having determined that the
court did have jurisdiction over these matters, we remand to that
court because of our inability to review the order, as explained
below.
In its first assignment of error and its Motion to Dismiss,
DENR contends that petitioner did not timely file his petition for
a contested case hearing in the Office of Administrative Hearings
(“OAH”), and that neither the Superior Court nor this Court has
subject matter jurisdiction over the case. While we agree that
timely filing of a petition is necessary to confer subject matter
jurisdiction on the agencies as well as the courts, we believe this
petition was timely filed. See Nailing v. UNC-CH, 117 N.C. App.
318, 451 S.E.2d 351 (1994) (holding that the OAH did not have
subject matter jurisdiction over petitioner's case if she did not
timely file her petition), disc. rev. denied, 339 N.C. 614, 454
S.E.2d 255 (1995); Gummels v. N.C. Dept. of Human Resources, 98 N.C.
App. 675, 677, 392 S.E.2d 113, 114 (1990) (holding that a petition
for a contested case hearing must be filed within thirty days and
this leaves “no room for judicial construction”).
DENR notified petitioner by letter dated 10 January 1997 that
it was revoking his delegation of authority, effective thirty daysfrom the date of the letter.
(See footnote 1)
The letter also informed petitioner
that he had the right to appeal that decision within thirty days of
the date of the letter by filing a petition for a contested case
hearing “with the Office of Administrative Hearings pursuant to
North Carolina General Statutes 130A-24. The address for the Office
of Administrative Hearings is P.O. Drawer 17447, Raleigh, N.C.
27611-7447.” The correct address for the OAH is P.O. Drawer 27447.
It is undisputed that the address in the letter was incorrect and we
see nothing in the record to indicate that DENR sent a corrected
letter to petitioner.
Petitioner alleges in his brief that he sent his petition for
a contested case hearing to OAH on or about 5 February 1997, and
that it did not come back to him in the mail. On or about the same
date, petitioner mailed a copy of his petition to DENR. The return
receipt, attached to his response to the Motion to Dismiss, shows
that it was picked up 7 February 1997 by one Nelson Avery for DENR.
It is also undisputed that someone from DENR faxed the copy to OAH,
which received the petition 20 February 1997. Subsequently, both
parties participated in pre-hearing motions and discovery. OAH
scheduled a hearing, which was held in August 1997. DENR raised no
issue about timeliness of the petition until 15 October 1997.
The terms of N.C.G.S. § 150B-23(f) require, in pertinent part,
the following: “[t]he notice shall be in writing, and shall set
forth the agency action, and shall inform the persons of the right,the procedure, and the time limit to file a contested case
petition.” Pursuant to the same section, “[u]nless another statute
or a federal statute or regulation sets a time limitation for the
filing of a petition in contested cases against a specified agency,
the general limitation for the filing of a petition in a contested
case is 60 days.” N.C.G.S. § 150B-23(f). N.C. Gen. Stat. § 130A-
24(a1) (1999) requires that a petition appealing an action taken by
an agency “shall be filed not later than 30 days after notice of
the action.” DENR complied with N.C.G.S. § 150B-23(f) in notifying
petitioner, but also supplied the incorrect address of OAH. While
we need not decide whether DENR must provide the address for OAH,
we believe that if it does supply an address, it must do so
accurately in order to trigger the running of the thirty day filing
period. See N.C. Gen. Stat. §§ 130A-23, 130A-24(a1), 150B-23
(1999).
In addition, 26 N.C. Admin. Code tit. 26, r. 3.0101(3) (Feb.
2000) requires that a faxed petition be followed by an original
copy within five days. This did not occur, apparently because
petitioner believed he had already filed an original copy of his
petition with OAH. Since DENR never corrected its notice letter to
petitioner, the petition that was filed by facsimile, and
admittedly received by the OAH on 20 February 1997, must be
considered timely. Although petitioner did not file a subsequent
original petition until after the motion to dismiss, we believe
that by failing to object to this omission, and by actively
participating in the pre-hearing procedures and hearing,respondents have waived this objection. See e.g., Alford v. Shaw,
327 N.C. 526, 398 S.E.2d 445 (1990); Clement v. Clement, 230 N.C.
636, 55 S.E.2d 459 (1949) (noting that procedural rights may be
waived by failing to raise the issue over a period of time).
Accordingly, the tribunals involved here correctly exercised
subject matter jurisdiction over this case. Respondent-DENR's
first assignment of error is overruled, and its Motion to Dismiss
this appeal is denied.
Next, we address our inability to review the Superior Court's
Order. On review, we are required to “examine[] the trial court's
order for error[s] of law” by “(1) determining whether the trial
court exercised the appropriate scope of review and, if
appropriate, (2) deciding whether the court did so properly.”
Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 675,
443 S.E.2d 114, 118-19 (1994); see also ACT-UP Triangle v.
Commission for Health Services, 345 N.C. 699, 483 S.E.2d 388
(1997). “[T]he proper manner of review depends upon the particular
issues presented on appeal.” Amanini, 114 N.C. App. at 674, 443
S.E.2d at 118 (citing In re Appeal by McCrary, 112 N.C. App. 161,
165, 435 S.E.2d 359, 363 (1993)). If the petitioner alleges that
the agency's decision was based on an error of law, then the
superior court applies de novo review. See id. De novo review
requires the court “to consider a question anew, as if not
considered or decided by the agency.” Id. If the petitioner
alleges either that the agency's decision was not supported by the
evidence, or that the agency's decision was arbitrary andcapricious, then the superior court applies the “whole record”
test. See id; see also N.C. Gen. Stat. § 150B-51(b) (1999). “The
'whole record' test requires the reviewing court to examine all
competent evidence (the 'whole record') in order to determine
whether the agency decision is supported by 'substantial
evidence.'” Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118
(quoting Rector v. N.C. Sheriffs' Educ. and Training Standards
Comm., 103 N.C. App. 527, 532, 406 S.E.2d 613, 616 (1991)).
[W]hile [t]he nature of the contended error
dictates the applicable scope of review, this
rule should not be interpreted to mean the
manner of . . . review is governed merely by
the label an appellant places upon an
assignment of error; rather, [the court] first
determine[s] the actual nature of the
contended error, then proceed[s] with an
application of the proper scope of review.
In re Appeal of Willis, 129 N.C. App. 499, 501, 500 S.E.2d 723,
725-26 (1998) (citing Utilities Comm. v. Oil Co., 302 N.C. 14, 21,
273 S.E.2d 232, 236 (1981); Amanini, 114 N.C. App. at 675, 443
S.E.2d at 118)) (internal quotations omitted).
Accordingly, the first question we reach in this analysis is
“whether the trial court exercised the appropriate scope of
review.” See ACT-UP, 345 N.C. at 706, 483 S.E.2d at 392. “Absent
a declaration by the superior court denominating its process of
review, we look to the parties' characterization of the alleged
error on appeal [to the trial court].” Willis, 129 N.C. App. at
502, 500 S.E.2d at 726 (internal citations and quotations omitted).
We noted in Willis, 129 N.C. App. at 503, 500 S.E.2d at 726-27, and
Hedgepeth v. N.C. Div. of Servs. for the Blind, 142 N.C. App. 338,349, 543 S.E.2d 169, 176 (2001), that in reviewing a decision from
an agency, a trial court's order must: (1) set out the appropriate
standards of review, and (2) “delineate which standard the court
utilized in resolving each separate issue.” Without these two
necessary steps, “this Court is unable to make the requisite
threshold determination that the trial court 'exercised the
appropriate scope of review.'” See Hedgepeth, 142 N.C. App. at
348, 543 S.E.2d 175 (quoting Willis, 129 N.C. App. at 503, 500
S.E.2d at 726).
Here, there are multiple issues on appeal, some requiring de
novo review and others requiring the “whole record” test. See
McCrary, 112 N.C. App. at 165, 435 S.E.2d at 363 (“A reviewing
court may even utilize more than one standard of review if the
nature of the issues raised so requires”). Neither the petitioner
nor the trial court specified which standard of review it applied
to each alleged error. See Amanini, 114 N.C. App. at 675, 443
S.E.2d at 118 (noting that the Court is not limited to the manner
of review specified by an appellant; the Court must determine for
itself the actual nature of the error). “Given the nature of the
trial court's order, we find ourselves unable to conduct our
necessary threshold review,” and “'we decline to speculate in that
regard.'” Hedgepeth, 142 N.C. App. at 349, 543 S.E.2d at 176
(quoting Willis, 129 N.C. App. at 503, 500 S.E.2d at 726).
Accordingly, we reverse the trial court's order and remand
this matter so that the trial court may (1) provide its own
characterization of the issues presented by petitioner and (2)clearly and separately detail the standards of review used to
resolve each distinct issue raised.
Motion to Dismiss denied.
Reversed and remanded.
Judges TIMMONS-GOODSON and JOHN concur.
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