Public Officers and Employees_jurisdiction of Civil Service Board_pay raise to new hires
Summary judgment was correctly granted for plaintiff city on a grievance by a group of
existing police officers with post-secondary degrees to the increased pay levels offered to new
hires with post-secondary degrees. The officers (defendants at trial) contend that they alleged a
personnel action within the scope of the Asheville Civil Service Act sufficient to invoke the Civil
Service Board's jurisdiction because they were entitled to a raise in pay, but no evidence indicates
that defendants were eligible for this pay policy and defendants did not show that any such pay
policy was approved by the City Council, as required by statute.
Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Michelle
Rippon, for defendants-appellants.
Curtis W. Euler and William C. Morgan, Jr. for plaintiff-
appellee.
ELMORE, Judge.
Defendants are employees of the Asheville Police Department
(APD) who were hired prior to 1 July 2000 and who hold post-
secondary degrees. The dispute between defendants and the City of
Asheville arose out of changes that the APD made in its recruitment
and hiring policies. On 19 June 2000, APD Chief of Police Will
Annarino (Annarino) distributed a memorandum entitled “Changes inPolicies and Procedures Regarding Recruitment, Retention and Career
Development” to all APD employees. A subsection of this memo
outlined the APD's new policy of increasing the entry level of pay
for new employees based upon education. The memo stated that
“[a]fter July 1, any new candidate hired with a Bachelors Degree
will receive 5% above the minimum starting salary” and that “[a]ny
candidate hired with a Masters Degree will receive 10% above the
minimum starting salary.”
In response to these changes, defendants filed a grievance
with the City Manager on 16 September 2000, asserting that existing
officers should likewise receive additional compensation. The City
Manager held a grievance conference on 9 October 2000 and, after
reviewing the details of defendants' grievance, determined that
“the City does not have a policy that awards additional
compensation for obtaining post-secondary job-related degrees.”
Accordingly, the City Manager denied defendants' request for
additional salary.
Defendants appealed to the Civil Service Board of the City of
Asheville (the Board), and a hearing was held on 3 January 2001.
On 5 January 2001, the Board dismissed the grievance based upon its
conclusion that it had no jurisdiction to grant relief. In support
of this conclusion, the Board found that defendants had not been
denied a promotion or pay raise to which they were entitled.
Defendants then appealed to Buncombe County Superior Court. In an
order entered 1 May 2001, Judge Zoro Guice denied the City's motion
to dismiss; determined that the Board had jurisdiction to hear thegrievance; reversed the 5 January 2001 decision of the Board; and
remanded to the Board for a determination of whether the City's
action of denying additional compensation to current employees is
justified where the City grants additional compensation to new
employees hired after 1 July 2000 with the same degrees.
On remand, the Board heard defendants' grievance on 25
February 2002. In compliance with the trial court's order, the
Board considered whether the City's action in providing additional
compensation to new employees while denying similar consideration
to defendants was justified. The Board concluded that the City was
not justified in this action. From this decision of the Board
entered 3 March 2002, the City appealed to the Buncombe County
Superior Court for a trial de novo pursuant to Section 8(f) of the
Asheville Civil Service Act. In its complaint filed 13 March 2002,
the City (plaintiff)
(See footnote 1)
alleged two claims for relief: (1) that the
Board did not have subject matter jurisdiction to hear defendants'
grievance; and (2) that the Board's refusal to recuse one of its
members from participation created a conflict of interest.
Defendants filed an answer and moved to dismiss both claims. On 9
July 2002, Judge Charles C. Lamm, Jr. denied this motion. Both
parties moved for summary judgment on the issue of whether the
Board has subject matter jurisdiction over defendants' grievance.
Plaintiff argued that there was no genuine issue of material factas to whether defendants were entitled to a pay raise and,
therefore, the Board lacked jurisdiction. On 7 July 2004, Judge E.
Penn Dameron, Jr. entered an order granting plaintiff's motion for
summary judgment and denying defendants' motion. Defendants
appeal.
Defendants argue that the trial court erred in determining
that the Board does not have jurisdiction to hear their grievance.
As described by this Court previously in interpreting Section 8(a)
of the Asheville Civil Service Act, in deciding whether the Board
has jurisdiction to consider a party's grievance, the trial court
must first determine if that party has alleged a personnel action
within the scope of the Act. See Harper v. City of Asheville, 160
N.C. App. 209, 215, 585 S.E.2d 240, 244 (2003)(citing O'Donnell v.
City of Asheville, 113 N.C. App. 178, 180, 438 S.E.2d 422, 423
(1993)). Thereafter, the opposing party can challenge the factual
basis for the allegation. Id. at 216, 585 S.E.2d at 244. The
party requesting the hearing has the burden of showing that the
Board has subject matter jurisdiction over the personnel action in
dispute. Id. at 217, 585 S.E.2d at 245.
Under Section 8(a) of the Asheville Civil Service Act, a
person has a right to a hearing before the Civil Service Board if
he or she “is denied any promotion or raise in pay which he or she
would be entitled to[.]” 1999 N.C. Sess. Laws ch. 303, § 8(a).
Defendants contend that they have alleged a personnel action within
the scope of the Act sufficient to invoke the Board's jurisdiction.
As evidence to support their allegation that they were “entitledto” a raise in pay, defendants offer the APD pay incentive policy
outlined in the Annarino memo. However, this memo is insufficient
to create an entitlement to a pay raise. No evidence indicates
that defendants, as current employees, were eligible for this pay
policy directed towards new candidates for employment. Moreover,
defendants have failed to show that any such APD pay policy based
upon educational degree was approved by the Asheville City Council.
In cities which operate pursuant to a council-manager form of
municipal government, any new increase in salary for a class of
employees must be approved by the city council prior to becoming
effective. See N.C. Gen. Stat. § 160A-162(a) (2003) (city manager
shall administer pay plans for employees after approval by city
council). In Newber v. City of Wilmington, 83 N.C. App. 327, 330-
31, 350 S.E.2d 125, 127 (1986), this Court applied N.C. Gen. Stat.
§ 160A-162 and determined that payment policies for city employees
are invalid without the approval of the city council. Thus, the
Court concluded that plaintiff was not entitled to additional
compensation under an administrative policy of the Wilmington
Police Department where the policy had not been approved by the
Wilmington City Council. Id.
The reasoning of the Newber Court is equally applicable to the
City of Asheville, as Asheville also operates under a council-
manager form of government. Thus, in order for any increase in
salary for a class of employees to be valid and create an
entitlement, the increase must be budgeted for and approved by the
Asheville City Council. See id. Here, the record containsevidence that the Asheville City Council has not approved any pay
raise for APD employees with post-secondary degrees. In support of
its motion for summary judgment, plaintiff submitted an affidavit
from Ben Durant, the Budget Director for the City of Asheville.
Mr. Durant stated that if the APD requests a pay increase for a
group of employees which would increase the City's salary
obligations, this pay increase must be included in the proposed
budget and approved by the City Council prior to becoming a “funded
pay increase.” Mr. Durant stated that, based upon his personal
knowledge in his position as Budget Director beginning in January
1998, the City Council has never passed a budget amendment that
awarded police officers a pay increase for holding a post-secondary
degree.
Plaintiff also included with its motion for summary judgment
an affidavit of Jeffrey B. Richardson, the Assistant City Manager
of the City of Asheville. Mr. Richardson stated that he held the
position of Human Resources Director for the City for three and
one-half years prior to his current position. He stated that,
based upon his personal knowledge of the City's pay and personnel
policies, the City Council has not approved any pay policy or
included in any budget a pay increase for employees who hold post-
secondary degrees. Defendants do not contest the accuracy of these
affidavits or offer any evidence to contradict these facts. No
evidence in the record indicates that the pay incentive policy
announced in the Annarino memo could become a funded increase
without approval from the Asheville City Council. Thus, the factsof this case fall squarely within the Court's holding in Newber.
Defendants have failed to meet their burden of showing that they
were entitled to a raise in pay.
As the evidence before the trial court on plaintiff's motion
for summary judgment does not raise a genuine issue of material
fact as to whether defendants were entitled to a pay increase, the
trial court properly granted summary judgment in favor of
plaintiff. See Worley v. City of Asheville, 100 N.C. App. 596,
598, 397 S.E.2d 370, 370-71 (1990) (summary judgment for city
affirmed where no genuine issue of material fact existed with
respect to evidence that city employee was not entitled to pay
increase), disc. review denied, 328 N.C. 275, 400 S.E.2d 463
(1991). We affirm the order of the trial court.
Affirmed.
Judges STEELMAN and GEER concur.
*** Converted from WordPerfect ***