An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.


NO. COA02-714

NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2003

        
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL
RESOURCES, DIVISION OF
PARKS AND RECREATION,
    Petitioner

    v.                                 Wake County
                                    No. 00 CVS 04126
L. CLIFTON CARROLL,
    Respondent

    Appeal by respondent from order entered 4 March 2002 by Judge Orlando F. Hudson, Jr. in Wake County Superior Court. Heard in the Court of Appeals 24 March 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Edwin Lee Gavin, II, for the State.

            The McGuinness Law Firm, by J. Michael McGuinness, for
    respondent-appellant.

    Richard Hendrix, for Amicus Curiae Southern States Police Benevolent Association and North Carolina Police Benevolent Association.

    EAGLES, Chief Judge.

    L. Clifton Carroll (“Carroll”) appeals from the trial court's order reversing the decision of the State Personnel Commission that the North Carolina Department of Environment and Natural Resources (“DENR”) did not have just cause to demote Carroll. After careful consideration of the briefs and record, we affirm.    On 21 February 1998, Carroll was working in his official capacity as a Park Ranger III at Fort Fisher State Recreation Area. That morning, Carroll was assisting with a volunteer project at Fort Fisher State Recreation Area when he received a telephone call from his wife at approximately 9:20 a.m. His wife told him that his mother had collapsed and was being taken to the hospital. Carroll's mother suffered from dementia and resided in a nursing home in Southern Pines. Carroll attempted to call the nursing home but no one answered. As Carroll left Fort Fisher, he stopped to give instructions to other park employees and volunteers. Carroll then left Fort Fisher and went approximately 6 miles to Carolina Beach State Park. At times during this trip, Carroll drove his State vehicle at a speed of 75 miles per hour in a 55 mile per hour zone and 45 miles per hour in a 35 mile per hour zone. At one point, Carroll activated the “dash mounted blue light” to get around traffic. William Harvey Jones (“Detective Jones”), a Carolina Beach Police Department detective, saw a State Park Ranger vehicle drive through Kure Beach “running blue lights and emergency four-way flashers.” Detective Jones followed the State vehicle to Carolina Beach State Park to render assistance if needed.
    When Carroll arrived at the park office, he telephoned the nursing home and spoke with Linda Reynolds, a nurse. Detective Jones arrived and went to the park office door. Lieutenant Buck Jarman and Corporal Kurt Bartley of the Carolina Beach Police Department arrived to assist Detective Jones. Detective Jones repeatedly knocked on the door and could hear Carroll talking inthe office. Carroll could not see who was at the door and contends that he yelled “[w]ait a minute.” Detective Jones and Corporal Bartley contend that Carroll used profanity when he yelled at them to wait.
    When Carroll finished on the telephone, he opened the door. Carroll told Detective Jones that “there was no immediate emergency in the park but the emergency was of a personal nature with my mother.” Detective Jones and the other officers left the park. Detective Jones submitted a written report of the incident to his lieutenant.
    DENR demoted Carroll from Park Ranger III to Park Ranger II along with a 5% salary reduction because his “actions constitute[d] a misuse of [his] authority, a misuse of state equipment, a violation of state traffic laws, a violation of written work rules, and caused needless endangerment to [himself] and to the general public.” Carroll petitioned for a contested case hearing. The matter was heard before Administrative Law Judge Beecher R. Gray on 30 July 1999. The Administrative Law Judge found that:
        9.    From the Fort Fisher State Recreation Area, it is approximately six (6) miles to the Carolina Beach State Park Office. [Carroll] traveled in a northerly direction on highway 421. After entering the city limits of Kure Beach, he observed a line of cars in his lane and he turned on his blue lights and emergency lights to help him clear this traffic. [Carroll] did not turn on his headlights. The traffic did not seem to notice him so he continued to drive at 35 MPH. As he left the Kure Beach city limits, he exceeded the 35 MPH posted speed limit by driving 45 MPH.
        10.    [Carroll] left Kure Beach on Dow Road, a more rural road with a speed limit of 55 MPH. [Carroll] speeded up to 75 MPH while in the 55 MPH part of Dow Road at a point where he observed that there was no traffic or pedestrians and he had a good view of the road for a long distance ahead.

        . . . .
        12.    While [Carroll] was on the telephone with nurse Reynolds, one or more Carolina Beach Policemen arrived at the Park Office to render assistance, if needed. The Officers knocked loudly on the door approximately four (4) different times. The officers could hear that [Carroll] was talking on the phone to someone. Upon the fourth knock, [Carroll] spoke to them through the door in a loud voice asking them to wait until he was off the telephone. The Officers could tell that [Carroll] was agitated from the sound of his telephone conversation. Corporal Kurt Bartley and Detective William Jones both testified that they heard [Carroll] use profanity in telling them to wait until he was off the telephone. [Carroll] testified that he did not use profanity and nurse Reynolds testified that she did not hear [Carroll] use any profanity even though she heard him shout for the officers to wait until he was off the telephone. Detective Jones testified that profanity use was common among police officers.

    The Administrative Law Judge concluded that:
        2.    The facts of this case establish that [Carroll] held a reasonable belief at the time he drove the State Parks' vehicle from Fort Fisher Recreation Area to the Carolina Beach State Park Office that his mother's health and welfare were in imminent collapse and that he needed to reach the nursing home by telephone as soon as possible and then drive to the hospital where she had been taken. [Carroll's] reasonable belief that he could treat the immediate situation asone of necessity which authorized him to utilize the vehicle's blue lights and emergency lights to help clear traffic and to exceed the posted speed by approximately 20 MPH along an open section of uncrowded road, prevents this from constituting conduct for which no reasonable person should expect to receive prior warning. Without the color of authority, [Carroll's] actions could constitute violations of State law and willful violation of written work rules. . . .

        3.    [Carroll] has, under the facts of this case, carried the burden of proof that [DENR] did not have adequate just cause to demote him from Ranger III to Ranger II with a five percent loss of salary. . . .

    The Administrative Law Judge issued a recommendation that Carroll be reinstated to the position of Park Ranger III with back pay. DENR excepted to the Recommended Decision. The State Personnel Commission adopted the findings and conclusions of Administrative Law Judge Gray's Recommended Decision. The State Personnel Commission ordered that Carroll be reinstated to Park Ranger III with all back pay and other applicable benefits. DENR petitioned for judicial review.
    The matter was heard before Judge Orlando F. Hudson, Jr. at the 3 December 2001 Civil Session of Wake County Superior Court. The trial court reversed the State Personnel Commission's order. Specifically, the trial court applied de novo review and concluded that Carroll's violation of the posted speed limit constituted a violation of law for which DENR could properly demote Carroll. In addition, the trial court applied “whole record” review to determine that DENR's “orders for the use of emergency vehicles didnot authorize” Carroll to exceed the speed limit, that Carroll did not possess color of authority to exceed the speed limit, and that Carroll “engaged in unprofessional behavior towards members of the Carolina Beach Police Department.” Carroll appeals.     On appeal, Carroll contends that the trial court erred in reversing the State Personnel Commission's decision by: misapplying the standard of review; substituting its judgment for that of the State Personnel Commission; finding just cause; and by failing to recognize exceptions to DENR's guidelines. After careful consideration, we disagree.
    Carroll argues that the trial court incorrectly applied the standards of review. Carroll further argues that the trial court made its own findings of fact and substituted its judgment for the Administrative Law Judge and the State Personnel Commission.
    Generally, when reviewing a superior court's order on appeal from an administrative agency decision, this Court is “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.'” Gray v. N.C. Dep't of Env't, Health & Nat. Res., 149 N.C. App. 374, 379, 560 S.E.2d 394, 398 (2002) (quoting Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114, 118-19 (1994)). Recently, this Court has provided that:
        an appellate court's obligation to review a superior court order examining an agency decision “can be accomplished by addressing the dispositive issue(s) before the agency andthe superior court without examining the scope of review utilized by the superior court.” Thus, in reviewing a superior court order examining an agency decision, an appellate court must determine whether the agency decision (1) violated constitutional provisions; (2) was in excess of the statutory authority or jurisdiction of the agency; (3) was made upon unlawful procedure; (4) was affected by other error of law; (5) was unsupported by substantial admissible evidence in view of the entire record; or (6) was arbitrary, capricious, or an abuse of discretion. In performing this task, the appellate court need only consider those grounds for reversal or modification raised by the petitioner before the superior court and properly assigned as error and argued on appeal to this Court.

Shackleford-Moten v. Lenoir Cty. DSS, __ N.C. App. __, __, 573 S.E.2d 767, 770 (2002) (citations omitted).
    “The standard of review to be employed by the superior court is dictated by the nature of the error asserted by the party seeking review.” County of Wake v. N.C. Dep't of Env't & Natural Res., __ N.C. App. __, __, 573 S.E.2d 572, 579 (2002), disc. review denied, __ N.C. __, __ S.E.2d __ (March 27, 2003) (No. 46P03). “[T]he whole record test is applied to allegations that the administrative agency decision was not supported by the evidence, or was arbitrary and capricious.” Sack v. N.C. State Univ., __ N.C. App. __, __, 574 S.E.2d 120, 126 (2002). “[U]nder the 'whole record' test, the trial court must examine all competent evidence (the 'whole record') in order to determine whether the agency decision is supported by substantial evidence.” Shackleford-Moten, __ N.C. App. at __, 573 S.E.2d at 770. “Substantial evidence is that which a reasonable mind would regard as adequately supportinga particular conclusion.” Walker v. N.C. Dept. of Human Resources, 100 N.C. App. 498, 503, 397 S.E.2d 350, 354 (1990), disc. review denied, 328 N.C. 98, 402 S.E.2d 430 (1991). “The 'whole record' test does not allow the reviewing court to replace the agency's judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been heard before it de novo.” Walls & Marshall Fuel Co. v. N.C. Dept. of Revenue, 95 N.C. App. 151, 154, 381 S.E.2d 815, 817 (1989).
    The superior court reviews errors of law de novo. Sack, __ N.C. App. at __, 574 S.E.2d at 126. “De novo review requires a court to consider the question anew, as if the agency has not addressed it.” Blalock v. N.C. Dep't of Health and Human Servs., 143 N.C. App. 470, 475-76, 546 S.E.2d 177, 182 (2001).
        [W]hen the trial court is conducting de novo review to determine whether an agency decision was affected by error of law, this Court has recently observed that the trial court is required to “'consider a question anew, as if not considered or decided by the agency' previously (citation omitted) . . . [and] must make its own findings of fact and conclusions of law and cannot defer to the agency its duty to do so.'” Moreover, when conducting de novo review, the reviewing court may substitute its judgment for that of the agency.

N.C. Dep't of Corr. v. Brunson, 152 N.C. App. 430, 435, 567 S.E.2d 416, 420 (2002) (citations omitted).
    Here, DENR excepted to the Administrative Law Judge's conclusion of law, adopted by the State Personnel Commission, that stated “[w]ithout the color of authority, [Carroll's] actions could constitute violations of State law.” The trial court applied denovo review to the issue of whether Carroll was authorized to exceed the speed limit and made the following findings of fact:
        1.    [Carroll] was a sworn, armed law enforcement officer, with the full power of arrest, and the power to use force and deadly force;

        2.    on [sic] the morning of February 21, 1998, [Carroll] drove his State Park Blazer at a speed of 75 miles per hour on Dow Road, while on duty;

        3.    The posted speed limit on Dow Road was 55 miles per hour; and

        4.    [Carroll] was not chasing or apprehending violators of the law, or persons charged with or suspected of violations of the law.

The trial court then concluded that “[t]he violation of the posted Dow Road speed limit was a violation of the law of this State, for which DENR could properly demote [Carroll] as a matter of law.”
    Whether Carroll's actions constituted a violation of state law is a question of law subject to de novo review. When applying de novo review, the trial court is to consider the question anew and must make its own findings of fact. Brunson, 152 N.C. App. at 435, 567 S.E.2d at 420. “Moreover, when conducting de novo review, the reviewing court may substitute its judgment for that of the agency.” Id.
    The record supports the finding that Carroll drove his State vehicle at a speed of 75 miles per hour on a road with a speed limit of 55 miles per hour. Carroll was asked what his maximum speed was on Dow Road and he testified that he “believe[d] it was 75 miles an hour” and that “the speedometer needle, it was movingup and hit 75.” In addition, the Administrative Law Judge and the State Personnel Commission made similar findings. The Recommended Decision by the Administrative Law Judge which was adopted by the State Personnel Commission, found as fact that “[Carroll] speeded up to 75 MPH while in the 55 MPH part of Dow Road.”
    The evidence in the record also supports the finding that Carroll was not involved in chasing or apprehending violators of the law or people suspected of violating the law. Carroll testified that he told volunteers at the park that he “had a personal emergency and that [he] was going to have to leave.” Carroll further testified that he drove to Carolina Beach State Park to get his personal vehicle to go home.
    The trial court determined that Carroll's conduct constituted a violation of G.S. § 20-145. G.S. § 20-145 states that:
        The speed limitations set forth in this Article shall not apply to vehicles when operated with due regard for safety under the direction of the police in the chase or apprehension of violators of the law or of persons charged with or suspected of any such violation, . . . . This exemption shall not, however, protect the driver of any such vehicle from the consequence of a reckless disregard of the safety of others.

    The evidence of record supports the trial court's conclusion that Carroll violated G.S. § 20-145 by operating his state vehicle twenty miles per hour in excess of the posted speed limit on Dow Road when he was neither chasing nor apprehending violators of the law.
    G.S. § 126-35(a) states that “[n]o career State employee subject to the State Personnel Act shall be discharged, suspended,or demoted for disciplinary reasons, except for just cause.” The North Carolina Administrative Code provides that “[a]ny employee may be demoted as a disciplinary measure. Demotion may be made on the basis of either unsatisfactory or grossly inefficient job performance or unacceptable personal conduct.” N.C. Admin. Code tit. 25, r. 1J.0612(a) (June 2002). Unacceptable personal conduct includes “job-related conduct which constitutes a violation of state or federal law.” N.C. Admin. Code tit. 25, r. 1J.0614(i)(2) (June 2002). “'“Just cause” is a legal basis, set forth by statute, for the termination [or demotion] of a State employee, and requires the application of legal principles. Thus, its determination is a question of law.'” Skinner v. N.C. Dept. of Corr., __ N.C. App. __, __, 572 S.E.2d 184, 191 (2002) (quoting Gainey v. N.C. Dept. of Justice, 121 N.C. App. 253, 259 n.2, 465 S.E.2d 36, 41 n.2 (1996)). This violation of a state law constitutes unacceptable personal conduct which provides “just cause” for Carroll's demotion. See N.C. Admin. Code tit. 25, r. 1J.0614(i)(2).
    The trial court then performed “whole record” review of the remaining issues. We note that the trial court made new findings of fact when it performed its “whole record” review. When reviewing an administrative decision under “whole record” review, the trial court is to “examine all competent evidence (the 'whole record') in order to determine whether the agency decision is supported by 'substantial evidence.'” Amanini v. N.C. Dept. ofHuman Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994).
        The whole record test “does not permit the court 'to replace the [agency's] judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo,'” but “merely gives a reviewing court the capability to determine whether an administrative decision has a rational basis in the evidence.”

Sack, __ N.C. App. at __, 574 S.E.2d at 127 (citations omitted). While the trial court incorrectly performed whole record review on the remaining issues, the trial court's determination that Carroll violated State law is sufficient, standing alone, to satisfy “just cause” to uphold Carroll's demotion by DENR.
    Accordingly, the decision of the trial court is affirmed.
    Affirmed.
    Judges HUNTER and CALABRIA concur.
    Report per Rule 30(e).

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