An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-249


Filed: 15 March 2005


v .                         Forsyth County
                            No. 03 CVS 2834

    Appeal by respondents from judgment entered 14 November 2003 by Judge L. Todd Burke in Forsyth County Superior Court. Heard in the Court of Appeals 20 October 2004.

    Smith, James, Rowlett & Cohen, LLP, by Norman B. Smith, for petitioner-appellee.

    Womble, Carlyle, Sandridge & Rice, PLLC, by James R. Morgan, Jr., and Forsyth County Attorney's Office, by Lori Sykes, for respondents-appellants.

    CALABRIA, Judge.

    The Forsyth County Department of Public Health (the “Forsyth Health Dept.”) and the Forsyth County Board of Health (the “Forsyth Health Board”)(collectively “respondents”) appeal a trial court judgment ordering them to pay a severance salary continuation (“severance salary”) to Angel J. Miyares (“petitioner”).   (See footnote 1)  We reverse.    Petitioner was employed by the Forsyth Health Dept. from 1986 to 2001. On 7 December 2001, petitioner was terminated by the Forsyth Health Dept. pursuant to a reduction in force (“RIF”). He subsequently petitioned the Office of Administrative Hearings (“OAH”) for a contested case hearing and alleged his termination was the result of retaliation for his opposition to alleged discrimination based on his national origin, his age, and his disability. Petitioner is originally from Cuba. At the time of the events giving rise to this suit, he was sixty-two years old and had a hearing impairment.
    After the OAH hearing, the Administrative Law Judge (the “ALJ”) issued a “Decision (to the State Personnel Commission) [and] Recommended Decision (to the local appointing authority without requirement to comment)” (the “ALJ's recommended decision”). In pertinent part, the ALJ's recommended decision determined: (1) the RIF, which affected petitioner, was for “just cause”; (2) the RIF was carried out pursuant to proper procedures and requirements; (3) petitioner failed to carry the burden of showing respondents discriminated or retaliated against him; and (4) petitioner was entitled to a “severance salary” under N.C. Gen. Stat. § 143-27.2.     On 12 December 2002, petitioner's case was heard before the State Personnel Commission (the “SPC”), which issued its “Recommendation for Decision to Local Appointing Authority” (the “SPC's recommended decision”) on 6 January 2003. The SPC's recommended decision adopted the ALJ's recommended decision, except for the portion granting a severance salary to petitioner. Regarding the severance salary, the SPC's recommended decision stated:
        The Commission declines to adopt and declines to recommend the adoption of [the] portion of the [ALJ's recommended] decision [granting a severance salary] on the grounds that first, pursuant to G.S. § 143-27.2, it is solely the province of the Director of the State Budget to make decisions as to whether a State employee is entitled to severance, and second, that pursuant to G.S. § 143-27.2 and -28, it is not clear that local government employees are considered “State employees” within the meaning of this statute and for the purposes of receiving [severance] salary continuation under this statute.

On 4 April 2003, after receiving the SPC's recommended decision, the Forsyth County Health Director (the “health director”), as the “local appointing authority,” issued a final decision essentially adopting the SPC's recommended decision (the “health director's final decision”).
    On 28 April 2003, petitioner filed for judicial review of the health director's final decision. On 14 November 2003, based upon petitioner's arguments, the trial court remanded the matter for the Forsyth Health Board to act as final decision maker and ordered that respondents pay a severance salary to petitioner. The trial court's judgment concluded:
        The abolition of petitioner's position amounted to a reduction in force. Because neither the Forsyth County Department of Public Health nor Forsyth County had ever applied for a “substantial equivalency” designation from the Office of State Personnel, petitioner's employment position was subject to guidelines and policies established applicable to state government employees regarding reduction in force situations. The abolition of petitioner'sposition of employment and his dismissal were subject to the provisions of N.C.G.S. § 143-28 and 27,[   (See footnote 2)  ] applicable to employees whose dismissals result from reduction in force, and, therefore, petitioner was entitled to payment of a severance salary.

    Respondents appeal only the trial court's order requiring payment of a severance salary to petitioner and assert, inter alia, that payment of a severance salary under N.C. Gen. Stat. § 143-27.2 (2003) may only occur after a determination by the Director of the Budget. We agree.
    Questions of statutory interpretation are reviewed de novo. Downs v. State, 159 N.C. App. 220, 222, 582 S.E.2d 638, 639 (2003), aff'd, 358 N.C. 213, 593 S.E.2d 763 (2004), and it is well established that “[w]here the language of a statute is clear and unambiguous, . . . the courts must construe the statute using its plain meaning.” Burgess v. Your House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990). In pertinent part, N.C. Gen. Stat. § 143-27.2(a) states:
        When the Director of the Budget determines that the closing of a State institution or a reduction in force will accomplish economies in the State Budget, he shall pay either a discontinued service retirement allowance or severance wages to any affected State employee, provided reemployment is not available. As used in this section, “economies in the State Budget” meanseconomies resulting from elimination of a job and its responsibilities or from a lack of funds to support the job. In determining whether to pay a discontinued service retirement allowance or severance wages, the Director of the Budget shall consider the recommendation of the department head involved and any recommendation of the State Personnel Director.

See generally N.C. Gen. Stat. § 143-2 (2003) (providing “the Governor [of the State] shall be ex officio Director of the Budget”).
    Under the plain meaning of N.C. Gen. Stat. § 143-27.2, the payment of a severance salary to a state employee is dependent upon the Director of the Budget determining that “the closing of a State institution or a reduction in force will accomplish economies in the State Budget . . . .” In the instant case, even assuming arguendo petitioner, a former county department of health employee, could be classified as a “State employee” for purposes of the statute, the Director of the Budget took no part in the RIF eliminating petitioner's job. Rather, the Forsyth Health Dept. determined that the RIF eliminating petitioner's job was necessary. The Director of the Budget did not meet with “the department head involved” or “the State Personnel Director” to receive recommendations regarding “whether to pay a discontinued service retirement allowance or severance wages, . . .” and the RIF was not effected to “accomplish economies in the State Budget” as required by the statute. Id. Accordingly, without expressing any opinion regarding whether N.C. Gen. Stat. § 143-27.2 might, under different facts, apply to local department of health employees, we hold thetrial court erred as a matter of law in the instant case by ordering respondents to pay a severance salary to petitioner under N.C. Gen. Stat. § 143-27.2.
    Having so held, we need not address respondents' remaining assignments of error.
    Judges STEELMAN and GEER concur.
    Report per Rule 30(e).     

Footnote: 1
     We note these parties were before this Court in a related action, Miyares v. Forsyth County, __ N.C. App. __, 600 S.E.2d 899 (2004) (an unpublished opinion).
Footnote: 2
     North Carolina General Statutes § 143-27 (2003) directs that appropriations to educational, charitable, and correctional institutions and their related departments and agencies be treated as “in addition to such receipts of said institutions, departments or agencies, . . .” and is therefore inapplicable to the instant case. Accordingly, we interpret the trial court's reference to N.C. Gen. Stat. § 143-27 as a reference to N.C. Gen. Stat. § 143-27.2 (2003).

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