An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-806

NORTH CAROLINA COURT OF APPEALS

Filed: 7 March 2006

SHAH MAHMOUD,
        Petitioner,

v .                         Watauga County
                            No. 03 CVS 778
THE UNIVERSITY OF NORTH
CAROLINA THROUGH ITS BOARD
OF GOVERNORS; MOLLY C.
BROAD, President of the
University of North Carolina
in her official capacity;
APPALACHIAN STATE UNIVERSITY;
and HARVEY DURHAM, Interim
Chancellor of Appalachian
State University, in his
official capacity,
        Respondents.

    Appeal by petitioner from an order entered 2 March 2005 by Judge C. Phillip Ginn in Watauga County Superior Court. Heard in the Court of Appeals 25 January 2006.

    Ferguson, Stein, Chambers, Gresham & Sumter, P.A., by John W. Gresham, for petitioner-appellant.

    Attorney General Roy Cooper, by Special Deputy Attorney General Thomas J. Ziko, for respondent-appellees.

    BRYANT, Judge.

    Dr. Shah Mahmoud (petitioner) appeals from an order and judgment entered 2 March 2005 affirming his discharge from the Appalachian State University faculty for misconduct of such a nature as to indicate he is unfit to continue as a member of the faculty. For the reasons below, we affirm the trial court's order and judgment.

Facts and Procedural History

    On 10 February 1994, termination procedures were initiated against petitioner by Harvey R. Durham, then Provost and Vice Chancellor for Academic Affairs at Appalachian State University (ASU), in Boone, North Carolina (collectively “respondents” along with the University of North Carolina, Appalachian State University, and Molly C. Broad, President of the University of North Carolina). Mr. Durham cited five events in support of his decision to initiate termination proceedings against petitioner. The first three allegations related to complaints that petitioner had exposed his genitalia to ASU staff and faculty; the fourth allegation was that petitioner had kept urine in his office and had poured it into a water fountain; and the fifth was that petitioner had submitted false information regarding his age and/or date of birth on his application for employment with ASU and other documents submitted to university officials.
    Following an evidentiary hearing before a Faculty Grievance Hearing Committee, the Committee recommended that petitioner's employment be terminated based on two of the exposure incidents and petitioner's submission of false information. The Chancellor, as the final decision maker, accepted this recommendation and petitioner appealed to the ASU Board of Trustees. The ASU Board of Trustees upheld the termination decision of the Chancellor and petitioner appealed to the Board of Governors of the University of North Carolina. The Board of Governors found error had occurred in the Chancellor's decision making because he had failed to conductan independent review of the record as required by University of North Carolina Regulations, but the Board of Governors further found the error was cured by the review by the ASU Board of Trustees.
    Following the final decision by the Board of Governors, Dr. Mahmoud filed a Petition for Judicial Review on 13 June 1995. On 15 May 1996, Judge Loto Greenlee Caviness entered an Order and Judgment overturning respondents' termination decision because the decision was made upon an unlawful procedure and ordered respondents to either reinstate petitioner or conduct a new hearing that comported with all due process requirements. Respondents appealed Judge Caviness' ruling and on 7 May 1997 this Court dismissed respondents' appeal on the grounds that it was interlocutory.
    On 25 August 1997, respondents notified petitioner of their intent to terminate petitioner's employment with ASU based upon the original charges. A hearing was held before a reconstituted Faculty Grievance Hearing Committee on 15 and 16 December 1997 and the committee issued its recommendation report to ASU's Chancellor on 8 January 1998. The committee recommended that ASU not continue employing petitioner, concluding petitioner intentionally exposed his genitalia on two occasions. However, the committee could not determine whether petitioner intentionally poured urine into a drinking fountain or whether petitioner intentionally misrepresented his date of birth on documents submitted to the University.    On 19 December 2002, ASU's Chancellor Francis T. Borkowski issued his decision to terminate petitioner's employment with ASU. After a review of the evidence, Chancellor Borkowski agreed with the committee's recommendations regarding the two incidents of exposure and also found sufficient evidence to support a finding that petitioner did pour urine into a drinking fountain. Petitioner appealed through the university process wherein the ASU Board of Trustees rejected the Chancellor's decision that petitioner should be discharged for pouring urine into a drinking fountain but affirmed petitioner's dismissal based upon the two exposure incidents. On 13 November 2003, the Board of Governors of the University of North Carolina affirmed the decision to discharge petitioner from his employment with ASU based upon the two incidents of exposure.
    Petitioner subsequently filed a petition for judicial review on 22 December 2003. This matter was heard on 22 November 2004 in Watauga County Superior Court before the Honorable C. Phillip Ginn. By Order entered 2 March 2005, the trial court affirmed respondents' decision to discharge petitioner. Petitioner appeals.
_________________________

    Petitioner raises the issues of whether the trial court erred in determining that: (I) the decision to terminate petitioner's employment with ASU was in accordance with the due process requirements of the Fourteenth Amendment to the United States Constitution; and (II) the record, taken as a whole, was sufficientto support the decision to terminate petitioner's employment with ASU.
    
Standard of Review

    Appeals from final administrative decisions of the University of North Carolina and its constituent institutions are subject to judicial review under Article 4 of Chapter 150B of the North Carolina General Statutes. N.C. Gen. Stat. § 150B-1(f) (2005). Under Article 4,
        an agency's final decision may be reversed or modified only if the reviewing court determines that the petitioner's substantial rights may have been prejudiced because the agency's findings, inferences, conclusions, or decisions are:

            (1)    In violation of constitutional provisions;

            (2)    In excess of the statutory authority or jurisdiction of the agency;

            (3)    Made upon unlawful procedure;

            (4)    Affected by other error of law;

            (5)    Unsupported by substantial evidence admissible . . . in view of the entire record as submitted; or

            (6)    Arbitrary[,] capricious[, or an abuse of discretion].

North Carolina Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 658-659, 599 S.E.2d 888, 894 (2004); N.C. Gen. Stat. § 150B-51(b) (2005).
    The first four grounds for reversing or modifying an agency's decision are considered “law based inquiries” and receive de novoreview. Carroll, 358 N.C. at 659, 599 S.E.2d at 894. “Under the de novo standard of review, the trial court considers the matter[s] anew[] and freely substitutes its own judgment for the agency's.” Id. at 660, 599 S.E.2d at 895 (citations and quotations omitted).
    The final two grounds for reversing or modifying an agency's decision are characterized as “fact-based” inquiries and are reviewed under the whole-record test. Id. at 659, 599 S.E.2d at 894. Under the whole-record test, the reviewing court “may not substitute its judgment for the agency's as between two conflicting views, even though it could reasonably have reached a different result had it reviewed the matter de novo.” Watkins v. North Carolina State Bd. of Dental Exam'rs, 358 N.C. 190, 199, 593 S.E.2d 764, 769 (2004). The court must “examine all the record evidence -- that which detracts from the agency's findings and conclusions as well as that which tends to support them -- to determine whether there is substantial evidence to justify the agency's decision.” Id. (citing Elliott v. North Carolina Psychology Bd., 348 N.C. 230, 237, 498 S.E.2d 616, 620 (1998)). Substantial evidence is “relevant evidence a reasonable mind might accept as adequate to support a conclusion.” N.C. Gen. Stat. § 150B-2(8b) (2005); Watkins, 358 N.C. at 199, 593 S.E.2d at 769.
    In the instant case, petitioner's first issue concerns a violation of constitutional provisions and will thus be reviewed de novo. Petitioner's second issue concerns whether respondents' decision to terminate petitioner's employment with ASU is supported by substantial evidence in view of the entire record as submitted. “Determining whether a public employer had just cause to [discharge] its employee requires two separate inquiries: first, 'whether the employee engaged in the conduct the employer alleges,' and second, 'whether that conduct constitutes just cause for [the discharge].'” Carroll, 358 N.C. at 665, 599 S.E.2d at 898 (quoting Sanders v. Parker Drilling Co., 911 F.2d 191, 194 (9th Cir. 1990), cert. denied, 500 U.S. 917, 114 L. Ed. 2d 101 (1991)). The first of these inquires is a question of fact and is reviewed under the whole record test, while the second inquiry is a question of law and is reviewed de novo. Carroll, 358 N.C. at 665-66, 599 S.E.2d at 898 (citations omitted).
I

    Petitioner first contends the trial court erred in determining that respondents' decision to terminate petitioner's employment with ASU was in accordance with the due process requirements of the Fourteenth Amendment to the United States Constitution. Petitioner presents three arguments in support of this contention: (1) the Chancellor did not act as a finder of fact in the dismissal proceedings, but rather engaged in some form of an appellate review in violation of the rules for termination proceedings under the Code of the University of North Carolina; (2) the Chancellor based his decision upon an incomplete transcript of the Faculty Grievance Hearing where it was the University's obligation to ensure the Chancellor had a complete transcript; and (3) the Chancellor's decision reflected a “vituperative lack of neutrality” establishing a bias against petitioner in this matter. We disagree.    As a tenured member of the ASU faculty, Mahmoud had a property right in his continued employment at ASU and was entitled to procedural due process protection. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576-77, 33 L. Ed. 2d 548, 560-61 (1972); Huang v. Bd. of Governors of the Univ. of North Carolina, 902 F.2d 1134, 1141 (4th Cir. 1990); Peace v. Employment Sec. Comm'n, 349 N.C. 315, 321, 507 S.E.2d 272, 277-78 (1998). Due process requires that decisions to discharge a state employee with tenure be made by an unbiased, impartial decision maker. Crump v. Bd. of Educ. of Hickory Admin. Sch. Unit, 326 N.C. 603, 615, 392 S.E.2d 579, 585 (1990). “A public employee facing an administrative hearing is entitled to an impartial decision maker. To make out a due process claim based on [bias], an employee must show that the decision-making board or individual possesses a disqualifying personal bias.” Leiphart v. North Carolina Sch. of the Arts, 80 N.C. App. 339, 354, 342 S.E.2d 914, 924 (1986) (citations omitted).
Chancellor as Final Decision Maker

    Petitioner argues that because the Chancellor's first decision in this matter was reversed by Judge Caviness for a failure to conduct an adequate review before making his decision and that the Chancellor's current decision contains a “long and irrelevant discourse on both state and federal cases dealing with the loss of testimony” establish that the Chancellor is not acting as a final decision maker as required by the Code of the University of North Carolina. However, petitioner cites no authority in support ofthis argument. The errors made by the Chancellor in the first decision cannot be imputed to the second decision merely because the same person made both decisions. After the first decision was reversed, respondents reinitiated proceedings to terminate petitioner's employment with ASU. A new hearing was convened before a new Faculty Grievance Committee which issued a report recommending respondents terminate petitioner's employment. The Chancellor subsequently reviewed the evidence in the record and reported his findings agreeing with the Faculty Grievance Committee's findings. The Chancellor also found sufficient evidence in the record to support a finding that petition did pour urine into a drinking fountain. The Chancellor's findings and decision show that he was acting as a final decision maker and not merely reviewing the report of the Faculty Grievance Committee for error.
Incomplete Transcript

    Petitioner next argues his procedural due process rights were violated when the Chancellor based his decision upon an incomplete transcript of the Faculty Grievance Hearing where it was the University's obligation to ensure the Chancellor had a complete transcript. While the transcript of the hearing before the Faculty Grievance Committee is incomplete because a tape, on which portions of the cross-examination of petitioner were recorded, was used to record subsequent portions of the hearing, petitioner presents no authority supporting his contention that this error violated his procedural due process rights. Further, petitioner made no attemptto assist in reconstructing the missing portions of the transcript, arguing a new hearing was required. Petitioner asserted that the record before the Chancellor could not support the findings of the Faculty Grievance Committee due to the missing testimony and thus a new hearing was required.
    A new hearing would be required where the “the transcription of the entire [proceeding] appears to be incomplete and, at places, simply inaccurate.” State v. Sanders, 312 N.C. 318, 319, 321 S.E.2d 836, 837 (1984). In the instant case, as the record before the Chancellor supports his decision, see Issue II, infra, and petitioner does not otherwise show he was prejudiced by the failure to include the missing testimony, petitioner cannot establish that his due process protections were violated.
Bias

    Petitioner lastly argues his procedural due process rights were violated because the Chancellor was biased and petitioner was not afforded a fair and impartial hearing. Petitioner contends the Chancellor's delay in making his decision to terminate petitioner's employment and the substance of the Chancellor's findings show a bias against petitioner. However, petitioner points to nothing in the Chancellor's findings as an example of bias and cites to no authority supporting a finding of bias due to a delay in the reporting of findings made by a final decision maker. Petitioner has not established a disqualifying bias on the part of the Chancellor. Accordingly, this assignment of error is overruled.
II
    Petitioner next argues the trial court erred in determining that the record, taken as a whole, was sufficient to support the decision to terminate petitioner's employment with ASU. At the hearing petitioner acknowledged that his genitals could have been exposed on the two occasions discussed by the Faculty Grievance Hearing Committee. Thus the only issues before this Court are whether there was sufficient evidence before the Chancellor to support a finding the exposure was intentional and, if so, whether that conduct would constitute just cause for terminating petitioner's employment with ASU.
    In the context of a case involving discharge from State employment, an employee's “subjective state of mind is manifestly a question of fact” and, therefore, charges which involve questions of the employee's motivation for his conduct must be reviewed under the whole-record test. Carroll, 358 N.C. at 671, 599 S.E.2d at 902. “The 'whole record' test does not allow the reviewing court to replace the [Chancellor'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.” Thompson v. Wake County Bd. of Educ., 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977); see also State ex rel. Comm'r of Ins. v. North Carolina Rate Bureau, 300 N.C. 381, 406, 269 S.E.2d 547, 565 (1980) (it is for the administrative body, “to determine the weight and sufficiency of the evidence and the credibility of the witnesses, to draw inferences from the facts, and to appraise conflicting and circumstantial evidence”).    After a review of the record before this Court, we determine there was sufficient evidence before the Chancellor to support his findings and conclusion that petitioner's employment with ASU be terminated. Further, we hold as a matter of law, there was just cause for terminating petitioner's employment with ASU. This assignment of error is overruled.
    Affirmed.
    Judges CALABRIA and JOHN concur.
    Report per Rule 30(e).

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