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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Petitioner, v.
MARTIN FEINSTEIN, Respondent
UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Petitioner, v.
HOWARD GORMAN, Respondent
NORTH CAROLINA STATE UNIVERSITY, Petitioner, v. PEARL A. WILKINS,
Filed: 16 December 2003
Public Officers and Employees-_termination of university employees--reduction in force_-
jurisdiction of Office of Administrative Hearings
The trial court erred by holding that the later enacted N.C.G.S. § 126-34.1 did not
supersede N.C.G.S. § 126-35(c) and that the Office of Administrative Hearings (OAH) had
jurisdiction to determine whether petitioners had just cause to terminate respondent university
employees through a reduction in force (RIF), because: (1) N.C.G.S. § 126-34.1 was enacted five
years after N.C.G.S. § 126-35, and by its own terms of exclusion, N.C.G.S. § 126-34.1
supersedes and controls over any contrary earlier enactments; (2) N.C.G.S. § 126-34.1 supplants
N.C.G.S. § 126-35 or otherwise the evident intent of the later enacted N.C.G.S. § 126-34.1 in
setting out the specific contested cases that are appealable to OAH would be eliminated; and (3)
N.C.G.S. § 126-34.1 is the sole source of appellate rights for university employees covered by
the State Personnel Act, and it excludes appeals to OAH of RIFs on grounds of lack of just cause
and procedural violations.
Appeal by petitioners from order entered 12 November 2002 by
Judge Howard E. Manning, Jr. in Wake County Superior Court. Heard
in the Court of Appeals 12 November 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General Thomas J. Ziko, for petitioners-appellants.
Schiller & Schiller, PLLC, by Marvin Schiller and David G.
Schiller, for respondents-appellees Howard Gorman and Pearl A.
Martin Feinstein, respondent-appellee, pro se.
The University of North Carolina at Chapel Hill (UNC-CH) and
North Carolina State University (NCSU) (collectively,
petitioners) appeal from the 12 November 2002 order holding that: (1) N.C. Gen. Stat. § 126-34.1 does not supersede N.C. Gen. Stat.
§ 126-35(c), and (2) that the Office of Administrative Hearings
(OAH) has jurisdiction to determine whether petitioners had just
cause to terminate the employment of Howard Gorman (Gorman),
Pearl A. Wilkins (Wilkins), and Martin H. Feinstein (Feinstein)
(collectively, respondents) through a reduction in force (RIF).
We reverse and remand.
Feinstein worked in the Academic Technology and Networks
Department at UNC-CH. On 17 December 2001, Feinstein was dismissed
from his position due to permanent reductions in State funding
reductions to UNC-CH's budget. UNC-CH's Information Technology
Division was ordered to reduce their budget by four percent for
fiscal year 2001-2002. UNC-CH decided to eliminate Feinstein's
position. Feinstein's RIF was upheld after review within the UNC-
CH internal grievance process.
Gorman worked as manager of UNC-CH's Materials and Support
Department. On 31 December 2001, Gorman's position was also
eliminated due to permanent reductions in State funding received by
UNC-CH. In UNC-CH's internal grievance process, Gorman claimed his
notice did not conform to UNC-CH's RIF policy. Chancellor James
Moeser (Chancellor Moeser) found that the notice did not address
the efforts made to avoid the elimination of Gorman's position.
Accordingly, Chancellor Moeser directed Roger Patterson, Associate
Vice Chancellor for Finance, to address these issues and to give
Gorman an additional thirty days' pay with benefits, in order to
satisfy UNC-CH's RIF requirements. Wilkins worked as the Customer Operations Manager in the
Office of Communication Technologies at NCSU. Wilkins' position
was eliminated due to reductions of State funding received by NCSU.
Wilkins appealed her layoff through NCSU's grievance process. The
review panel concluded that elimination of her position was
appropriate. George Worsley, Vice Chancellor for Finance and
Business, reviewed the panel's findings, accepted the panel's
recommendation, and upheld Wilkins' RIF.
Respondents, subsequently filed OAH petitions in 2002 for
contested case hearings alleging improper RIFs. Petitioners moved
for, but were denied, dismissal of OAH petitions. Petitioners
filed Petitions for Writ of Supersedeas, Certiorari, and
Prohibition to OAH in Wake County Superior Court. The trial court
found that respondents were entitled to OAH hearings to determine
whether petitioners had just cause to terminate respondents'
positions. Petitioners appeal.
Did the trial court err in upholding OAH of jurisdiction over
RIF appeals on lack of just cause and procedural violations?
III. Jurisdiction of OAH
Petitioners contend that N.C. Gen. Stat. § 126-34.1 is the
sole source of appellate rights for university employees covered by
the State Personnel Act. They argue the statute excludes appeals
to OAH of RIFs on grounds of lack of just cause and procedural
violations. We agree.
The General Assembly expressly exempted the University of
North Carolina from all provisions of the North CarolinaAdministrative Procedure Act except those of Article 4. N.C. Gen.
Stat. § 150B-1(f) (2001); see also Beauchesne v. University of N.C.
at Chapel Hill
, 125 N.C. App. 457, 468, 481 S.E.2d 685, 692 (1997).
The rights of university employees to challenge any employment
action in OAH must arise independently from The State Personnel
Act. N.C. Gen. Stat. § 126 (2001); see also Batten v. N.C. Dep't
, 326 N.C. 338, 342-343, 389 S.E.2d 35, 38 (1990),
rev'd on other grounds
, Empire Power Co. v. N.C. Dep't of E.H.N.R.
337 N.C. 569, 447 S.E.2d 768, reh'g denied
, 338 N.C. 314, 451
S.E.2d 634 (1994). OAH's jurisdiction over appeals of university
employee grievances exists solely within the limits established by
the State Personnel Act. Empire Power Co.
, 337 N.C. at 579, 447
S.E.2d at 774.
In 1995, the General Assembly enacted N.C. Gen. Stat. § 126-
34.1, which specifically defined which employee appeals constitute
contested case issues OAH may hear. N.C. Gen. Stat. § 126-34.1(a)
(2001) explicitly states that university employees may file in OAH
only as to the following personnel actions or issues.
Stat. § 126-34.1(e) states that [a]ny issue for which appeal to
the State Personnel Commission through the filing of a contested
case . . . [that] has not been specifically authorized
section shall not
be grounds for a contested case under Chapter
126. N.C. Gen. Stat. § 126-34.1(e) (2001) (emphasis supplied).
OAH's jurisdiction over state employee RIFs are specifically
limited to two narrowly defined circumstances:
(2)(b) Demotion, reduction in force, or
termination of an employee in retaliation for
the employee's opposition to alleged
discrimination . . . .
. . . .
(4) Denial of the veteran's preference . . .
or in connection with a reduction in force,
for an eligible veteran . . . .
N.C. Gen. Stat. § 126-34.1 (2001). Respondents do not fall into
either one of these two defined circumstances.
A. Lack of Just Cause
Respondents claim that they were separated from State
employment without just cause and that N.C. Gen. Stat. § 126-
34.1(a)(1) provides them with a basis for appealing their RIFs.
They assert N.C. Gen. Stat. § 126-34.1(a)(1) specifically refers to
N.C. Gen. Stat. § 126-35, which defines actions based on just
N.C. Gen. Stat. § 126-34.1(a)(1) specifically refers to
dismissal, demotion, or suspension without just cause but does
not mention RIFs for lack of just cause as a basis for appealing a
RIF. RIFs are specifically referred to only twice in the statute.
The General Assembly clearly stated in N.C. Gen. Stat. § 126-34.1
that a contested case that has not been specifically authorized by
this section shall not be grounds for a contested case under
Chapter 126. N.C. Gen. Stat. § 126-34.1(e) (2001) (emphasis
A fundamental rule of statutory interpretation requires the
plain meaning of the statute to control its applicability.
Campbell v. Church, 298 N.C. 476, 484, 259 S.E.2d 558, 564 (1979).
A statute that provides a clear enumeration of its inclusion is
read to exclude what the General Assembly did not enumerate. See
Dunn v. N.C. Dep't of Human Resources, 124 N.C. App. 158, 161, 476S.E.2d 383, 385 (1996); see also Morrison v. Sears, Roebuck & Co.,
319 N.C. 298, 303, 354 S.E.2d 495, 498 (1987) (the statutory
inclusion of specific things implies the exclusion of others).
Where statutory language is clear and unambiguous, there is no room
for judicial construction. Begley v. Employment Security Comm'n,
50 N.C. App. 432, 436, 274 S.E.2d 370, 373 (1981). The language of
N.C. Gen. Stat. § 126-34.1 clearly and unambiguously states that
the statutory list of appeal grounds in N.C. Gen. Stat. § 126-34.1
is exclusive. This list does not provide for appeals to OAH of
RIFs based on lack of just cause.
Furthermore, N.C. Gen. Stat. § 126-34.1 was enacted in 1995,
five years after N.C. Gen. Stat. § 126-35. By its own terms of
exclusion, N.C. Gen. Stat. § 126-34.1 supersedes and controls over
any contrary earlier enactments. N.C. Gen. Stat. § 126-35(c)
existed as statutory law when N.C. Gen. Stat. § 126-34.1(e) was
enacted. Our Supreme Court has held that construing conflicting
statutes to give validity and effect to both is only possible if it
can be done without destroying the evident intent and meaning of
the later enacted act. Bank v. Loven, 172 N.C. 719, 724, 90 S.E.
948, 950 (1916). Given its clear and unambiguous language, the
later enacted N.C. Gen. Stat. § 126-34.1 supplants N.C. Gen. Stat.
§ 126-35. Otherwise, the evident intent of the later enacted N.C.
Gen. Stat. § 126-34.1 in setting out the specific contested cases
that are appealable to OAH would be eliminated. Id.
B. Procedural Violations
Petitioners contend that N.C. Gen. Stat. § 126-34.1 also
excludes appeals of RIFs on grounds of procedural violations. Weagree.
N.C. Gen. Stat. § 126-34.1 was ratified during the 1995
legislative session. The statute was embodied in House Bill 438
and Senate Bill 405. These bills originally set forth seven
grounds for bringing contested cases before OAH. The seventh of
these grounds read: Reduction in force in violation of the
policies and rules of the State Personnel Commission. H.R. 438,
1995 Sess. (N.C. 1995); S. 405, 1995 Sess. (N.C. 1995). On 28
March 1995, the House of Representatives amended its bill by
deleting this seventh ground for a contested case hearing. H.R.
438, Committee Substitute (28 March 1995). The Senate deleted the
seventh ground as well on 20 April 1995. S. 405, Committee
Substitute (20 April 1995). The bill ultimately ratified and
enacted by the General Assembly excluded any reference to RIF
procedural violations as a contested case before OAH. S. 405, 1995
Session (N.C. 1995).
In Burgess v. Your House of Raleigh, our Supreme Court held
that legislative history documenting rejection of a statutory
provision is probative of the intent to exclude that provision from
the statute as enacted. 326 N.C. 205, 209, 388 S.E.2d 134, 141
(1990). The Court found that the General Assembly had considered
an amendment to the Communicable Disease Act that would have
extended anti-discrimination protections to individuals with Human
Immunodeficiency Virus (HIV). Id. at 217, 388 S.E.2d at 141.
The bill was amended and the anti-discrimination provisions were
deleted. Id. Relying on the General Assembly's consideration and
rejection of the anti-discrimination provisions, our Supreme Courtconcluded that the Handicapped Persons Act was not intended to
protect those with HIV and stated, [t]he General Assembly
specifically addressed the particular question at issue here and
affirmatively chose not to include persons infected with the HIV
virus within the scope of the Handicapped Persons Act. Id. at
217, 388 S.E.2d at 141-142.
Here, the General Assembly considered granting state employees
the right to bring RIF policy violations as a contested case before
OAH. Both the House and Senate bills were amended to delete this
particular ground from contested cases. The ratified bill enacted
excluded this ground. The General Assembly clearly intended to
deny OAH jurisdiction over challenges to RIFs on procedural
violation grounds and to grant state employees the right to bring
only those RIF claims that are specifically set out in N.C. Gen.
Stat. § 126-34.1 before OAH. Respondents have not challenged their
RIFs on any of the grounds set out under N.C. Gen. Stat. § 126-
34.1. We hold OAH has no jurisdiction to hear the petitions.
The trial court erred in holding that the later enacted N.C.
Gen. Stat. § 126-34.1 does not supersede N.C. Gen. Stat. § 126-
35(c) and that OAH has jurisdiction to determine whether
respondents' RIFs where based on lack of just cause or procedural
violations. The order of the trial court is reversed. We remand
with instructions to the superior court to enter an order directing
OAH to grant petitioners' motions to dismiss on the grounds of lack
of statutory authority.
Reversed and Remanded with instructions. Judges MCCULLOUGH and BRYANT concur.
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