Administrative Law_contested case_administrative law judge's decision not adopted_de
novo review--findings and conclusions
A contested case involving dismissal of a Highway Patrol Trooper for unacceptable
personal conduct was remanded where the State Personnel Commission did not adopt the
administrative law judge's decision, the trial court applied the whole record test rather than de
novo review, and the court did not make findings or conclusions. N.C.G.S. § 150B-51(c).
Roy Cooper, Attorney General, by Stacey T. Carter, Assistant
Attorney General, Christopher Browning, Solicitor General and
Hal Haskins, Special Deputy Attorney General, for the State.
The Edmisten & Webb Law Firm, by William Woodward Webb, for
petitioner-appellee.
WYNN, Judge.
Under North Carolina General Statute section 150B-51(c), where
an “agency does not adopt the administrative law judge's decision,
the court shall review the official record, de novo, and shall make
findings of fact and conclusions of law.” N.C. Gen. Stat. § 150B-
51(c) (2004). Here, the trial court erroneously applied the “whole
record test” and made no findings of fact or conclusions of law in
a contested case where the State Personnel Commission did not adopt
the decision of the administrative law judge. Accordingly, we
remand this case to the trial court to review the record de novoand to make findings of fact and conclusions of law in accordance
with North Carolina General Statute section 150B-51(c).
The dispositive issue on appeal arises from an Internal
Affairs investigation on the conduct of Petitioner _ a State
Highway Patrol Officer. Following that investigation, Petitioner's
superiors recommended his dismissal from the State Highway Patrol
for conduct unbecoming of an officer. The Secretary of the
Department of Crime Control and Public Safety affirmed the decision
to dismiss Petitioner from the State Highway Patrol on 19 September
2002.
Petitioner contested that decision before an administrative
law judge who issued a decision on 25 June 2003 affirming the
decision to discipline Petitioner for unacceptable personal
conduct. However, in light of the treatment of other officers for
similar off duty criminal conduct, and to insure “consistency,
uniformity, and fairness in disciplining State Highway Patrol
Troopers”, the administrative law judge concluded that Petitioner
should be reinstated, but demoted or suspended in an appropriate
manner, with back pay and attorney's fees.
Thereafter, the matter came before the State Personnel
Commission on 16 October 2003 for final agency decision. Although
the Commission adopted the administrative law judge's recommended
findings of fact and conclusions of law, the Commission rejected
the administrative law judge's recommendation that Petitioner
should be reinstated; instead, the Commission upheld Petitioner's
dismissal from the State Highway Patrol. Petitioner filed a Petition for Judicial Review of the State
Personnel Commission's Decision and Order in Superior Court, Wake
County. On 4 November 2004, the trial court reversed the State
Personnel Commission's Decision and Order and reinstated Petitioner
to the State Highway Patrol with full back pay, front pay and
attorney's fees. The trial judge concluded that the State
Personnel Commission's Decision and Order was arbitrary and
capricious because it adopted the administrative law judge's
findings of fact and conclusions of law, but rejected the
administrative law judge's recommendation for Petitioner's
reinstatement. The trial court reasoned that “[t]he State
Personnel Commission was not at liberty to arrive at a
Decision/Order contrary to that of the Administrative Law Judge
unless it adopted different Conclusions of Law . . . which it did
not do . . . hence, its Decision/Order was arbitrary and capricious
under N.C.G.S. § 150B-51(b).” Respondent appeals to this Court.
Here, the State Personnel Commission rejected the
administrative law judge's recommendation to reinstate Petitioner,
and affirmed the decision to terminate Petitioner from his
employment as a Highway Patrol Trooper. Petitioner filed a
Petition for Judicial Review of the State Personnel Commission's
Final Order and Decision in Superior Court, Wake County. Because
this was a contested case in which the State Personnel Commission,
an administrative agency, rejected the administrative law judge's
decision, and this matter commenced after 1 January 2001, the
mandates of North Carolina General Statute subsection 150B-51(c)
apply to the trial court's review of this case.
However, the trial court's order states that it “applied the
'whole record test' for judicial review of the November 12, 2003
Decision/Order of the State Personnel Commission . . . pursuant to
N.C.G.S. § 150B-51(b) and applicable case law authority[.]”
Furthermore, the trial court did not make any findings of fact or
conclusions of law in its judgment and order. Because the trial
court failed to review the case de novo and did not make any
findings of fact or conclusions of law in accordance with section
150B-51(c), we remand this case to the trial court for a de novo
review of the record and to make findings of fact and conclusions
of law consistent with this opinion.
Remanded. Judges STEELMAN and JOHN concur.
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