Appeal by Petitioner Madeline Davis Tucker from order and
judgment dated 7 September 2005 by Judge Howard E. Manning, Jr. in
Superior Court, Wake County. Heard in the Court of Appeals 22
January 2007.
Poyner & Spruill LLP, by Thomas R. West and Pamela A. Scott,
for Petitioners-Appellants Madeline Davis Tucker.
Attorney General Roy Cooper, by Assistant Attorney General
Laura E. Crumpler, for Respondents-Appellees.
ELMORE, Judge.
At issue in this case is whether Madeline Davis Tucker
(petitioner) qualifies for a twelve percent salary increase under
North Carolina's National Board for Professional Teaching Standards
program. We find that petitioner meets the requirements set out in
N.C. Gen. Stat. § 115C-296.2(b) and therefore, we reverse the trial
court's judgment.
The National Board for Professional Teaching Standards (the
National Board or NBPTS) is a nonprofit organization that grants
certification to teachers across the country. Certification by the
National Board is entirely voluntary for teachers, unlike mandatory
state certification by our State Board of Education (State Board).
At the time of the administrative hearing in this matter, the
National Board offered certification in the following areas:
Generalist, Art, Career and Technical Education, English as a New
Language, English Language Arts, Exceptional Needs, Library Media,
Mathematics, Music, Physical Education, School Counseling, Science,
Social Studies-History, and World Languages Other than English.
The National Board offered certification in Career and Technical
Education for the first time in 1999.
Our General Assembly, with the encouragement of then Governor
James B. Hunt, Jr., initiated a program designed to give incentivesto teachers who gain National Board certification. Originally, the
benefits afforded NBPTS certified teachers were established by
session law, but the provisions were ultimately codified into N.C.
Gen. Stat. § 115C-296.2, effective 1 July 2000. As codified, the
statute mandates that the State pay the participation fee, provide
paid leave for eligible teachers who pursue certification, and
“[pay] a significant salary differential to teachers who attain
national certification from [the National Board.]” N.C. Gen. Stat.
§ 115C-296.2(a) (2005).
Petitioner is employed by Onslow County as a “Career
Development Education Teaching Coordinator.” She is licensed by
the North Carolina Department of Public Instruction (respondent) as
a mentor, career development coordinator, business education
teacher grades 9 through 12, and career exploration teacher grades
6 through 9. In her role, petitioner “provides support to
vocational teachers, students and other vocational personnel within
the local school system” and “helps teachers, students, and other
vocational personnel use [a vocational tracking system] to improve
the instructional process, document student learning, and improve
vocational outcomes[.]” Petitioner's responsibilities include
working with teachers to prepare learning plans and to implement
testing and documentation, “provid[ing] information/guidance to
students for planning and updating career development plans,” and
“coordinat[ing] efforts in helping students gain skills . . .
related to employment.” Petitioner is also responsible for
providing “career planning activities . . . for students” and“support and assistance for vocational programs to all teachers and
students[.]” Finally, petitioner “serves to enhance the education
process through providing services to students, teacher,
principals, and others involved in the instructional process.”
Petitioner attended a seminar in October 1999 sponsored by
respondent. According to the organizer of the seminar, Ken Smith
(Smith), an employee of respondent, the purpose of the seminar was
to provide information about the certification process and the
advantages of becoming certified by the National Board. According
to petitioner, the presenters at the seminar, Karen Garr, Office of
the Governor; Tom Blanford, Executive Director of NC Teaching
Standards Commission; and Angela Farthing, Executive Director of
North Carolina Association of Educators, assured petitioner that
she met the criteria to qualify for the salary increase if she were
to successfully achieve NBPTS certification. Petitioner relayed
this information to Smith, who encouraged petitioner to pursue
NBPTS certification. According to petitioner, the presenters
reiterated that as long as petitioner's salary code began with a
“1,” petitioner had three years of teaching experience in North
Carolina, and petitioner was paid on the teacher salary scale, then
Petitioner would be eligible for the NBPTS salary increase upon
attaining NBPTS certification.
Petitioner began the NBPTS application process on 11 November
1999 by completing a form titled “North Carolina Department of
Public Instruction National Board for Professional Teaching
Standards Intent to Apply 1999-2000.” The form included apromissory note in which petitioner promised to repay the
application fee of $2,000.00 if she did not complete the NBPTS
certification process on or before 31 August 2000, or if she did
not teach in a North Carolina public school for at least one year
immediately after completing the process. The form also indicated
that “[t]eachers holding National Board Certification will be paid,
on an annual basis, a salary appropriate to the certification.
(Currently, this is a 12% premium.)” The criteria for funding
required applicants to be “state-paid teachers, [who] have taught
[three] full years in North Carolina Public Schools . . ., hold a
valid, clear, continuing North Carolina teaching license, and [who]
have not previously received State funds for participating in the
NBPTS assessment.”
Petitioner completed her content knowledge examination on 19
June 2000. The National Board notified petitioner on 30 November
2000 that she had achieved NBPTS certification. However, in
December, 2000, respondent informed petitioner that she would not
receive the NBPTS salary increase. Petitioner, and several other
individuals who were also denied the salary increase but who are
not parties to this appeal, appealed respondent's decision by
filing a petition for a contested case hearing on 27 December 2002.
Petitioner testified at the administrative hearing that
although her office is located at the central office, she is paid
on the teacher salary schedule and therefore is classified as a
teacher. Petitioner indicated that she was not paid as an
administrator, and did not receive the bonuses or extra leave daysthat administrators receive.
Philip Price (Price), respondent's Associate Superintendent
for Financial and Business Services, and Gary Jarrett (Jarrett),
respondent's Section Chief of School Personnel Support, testified
for respondent. The substance of their testimony was that
according to the agency's interpretation of North Carolina's NBPTS
program, petitioner was not a “teacher” for purposes of the
statute. Therefore, they testified, she was not eligible for the
salary increase because the “other than classroom instruction”
prong was designed to cover only those certified by the National
Board in the areas of media and school counseling. Jarrett
testified that the legislation did not include a list of particular
fields in the “other than classroom instruction” paragraph in order
to avoid having to revise the legislation each time the National
Board added an additional “other than direct classroom instruction”
field to their certification program. Jarrett also noted that the
Salary and Benefits Manual treats central office administrators
differently from teachers and instructional support personnel.
Administrative Law Judge Melissa Owens Lassiter (the ALJ)
presided over the contested case hearing. The ALJ reversed
respondent's decision and ordered that petitioner receive the NBPTS
salary increase from 1 July 2000. The State Board did not adopt
the ALJ's decision and issued a Final Decision, dated 2 September
2004, affirming respondent's original decision to deny the salary
increase. Petitioner filed a petition for judicial review with the
Wake County Superior Court. The trial court affirmed the StateBoard's decision in an order dated 7 September 2005. Petitioner
appeals.
I. Standard of Review
[1] N.C. Gen. Stat. § 150B-51(c) (2005) governs judicial
review in contested case petitions filed after 1 January 2001. The
provision was added to the North Carolina Administrative Procedures
Act (APA) in 2000, and provides, in pertinent part:
In reviewing a final decision in a contested
case in which an administrative law judge made
a decision, in accordance with G.S. 150B-
34(a), and the 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. In reviewing the case, the court shall
not give deference to any prior decision made
in the case and shall not be bound by the
findings of fact or the conclusions of law
contained in the agency's final decision. The
court shall determine whether the petitioner
is entitled to the relief sought in the
petition, based upon its review of the
official record.
Id. This provision requires the superior court, as the reviewing
court, “to engage in independent 'de novo' fact-finding in all
contested cases commenced on or after 1 January 2001 where the
agency fails to adopt the ALJ's initial decision.”
N.C. Dep't of
Env't & Natural Res. v. Carroll, 358 N.C. 649, 662-63, 599 S.E.2d
888, 897 (2004). The trial court's duty to engage in independent
fact-finding is only triggered when the agency rejects the ALJ's
decision.
Id.
In
Carroll, our Supreme Court noted that N.C. Gen.
Stat. § 150B-51(c) “does not redefine the 'de novo' standard
governing judicial review over questions of law.”
Id. Thus,
“under the
de novo standard of review, the trial court consider[s]the matter anew and freely substitutes its own judgment for the
agency's.”
Id. at 660, 599 S.E.2d at 895.
In
Cape Med. Transp., Inc. v. N.C. Dep't of Health & Human
Servs., 162 N.C. App. 14, 21, 590 S.E.2d 8, 13 (2004), this Court
found that “[t]he legislative intent behind section 150B-51(c)
[was] to increase the judicial scope of review in cases in which an
agency rejects the ALJ's decision.” In
Cape Medical, we also cited
one commentator's observation that N.C. Gen. Stat. § 150B-51(c)
“makes clear that unlike the
de novo review of questions of law
under the traditional standard of review, in which the court might
in some cases give 'some deference' even to questions of law, such
deference is not to be given to any aspect of any prior decision in
the case.”
Id.
N.C. Gen. Stat. § 150B-52 (2005) governs our Court's review of
the trial court's judgment in a case arising from a contested case
petition, and provides, in pertinent part:
A party to a review proceeding in a superior
court may appeal to the appellate division
from the final judgment of the superior court
as provided in G.S. 7A-27. The scope of
review to be applied by the appellate court
under this section is the same as it is for
other civil cases. In cases reviewed under
G.S. 150B-51(c), the court's findings of fact
shall be upheld if supported by substantial
evidence.
Therefore, we must uphold the trial court's findings of fact if
they are supported by substantial evidence, but, as in “other civil
cases,” we review the trial court's conclusions of law
de novo.
As to appellate review of a superior court
order regarding an agency decision, the
appellate court examines the trial court'sorder for error of law. The process has been
described as a twofold task: (1) determining
whether the trial court exercised the
appropriate scope of review and, if
appropriate, (2), deciding whether the court
did so properly.
ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699,
706, 483 S.E.2d 388, 392 (1997) (citations omitted).
In the judgment from which petitioner appeals, the trial court
“reviewed the official record
de novo, and [did] not [give]
deference to any prior decision made in the case, except to the
extent permitted by law[.]” However, the trial court further
stated, “[w]hile this Court need not defer to any prior decision in
the case, or give any greater weight to the Agency's application of
the law to the facts, the Court may nevertheless give appropriate
weight to an Agency's demonstrated expertise and consistency in
applying various statutes.” Petitioner assigns error to the trial
court's application of the standard of review, arguing that the
trial court improperly applied the
de novo standard of review by
deferring to respondent's construction of the statute at issue. In
response, respondent argues that it was proper for the trial court
to “give appropriate weight to the agency's demonstrated expertise
and consistency in applying the relevant rules and statutes.”
The parties stipulated that the petition for contested case
hearing in this matter was filed on 27 December 2002. Thus, the
amended provisions of N.C. Gen. Stat. § 150B-51(c) and N.C. Gen.
Stat. § 150B-52 apply to this case.
In this case, N.C. Gen. Stat. § 150B-51(c) mandated that the
trial court apply
de novo review, which the court recognized as theproper standard of review in its judgment. Thus, we must determine
whether the trial court erred in giving “appropriate weight to an
Agency's demonstrated expertise and consistency in applying various
statutes” when applying a
de novo standard of review under N.C.
Gen. Stat. § 150B-51(c).
The language of N.C. Gen. Stat. § 150B-51, as amended by the
addition of subsection (c), expands the role of the trial court
when the decision of the agency and the decision of the ALJ differ.
The language added to the APA mandates that in situations where the
agency does not adopt the decision of the ALJ, “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) (2005).
In doing so, “the court shall not give deference to any prior
decision made in the case and shall not be bound by the findings of
fact or the conclusions of law contained in the agency's final
decision.”
Id. Deference to the agency is inconsistent with this
mandate. We hold that the trial court erred in its application of
the standard of review.
However, “a trial court's use of an incorrect standard of
review does not automatically require remand.”
Vanderburg v. N.C.
Dep't of Revenue, 168 N.C. App 598, 607, 608 S.E.2d 831, 838
(2005).
[I]n cases appealed from an administrative
tribunal under the APA, it is well settled
that the trial court's erroneous application
of the standard of review does not
automatically necessitate remand, provided the
appellate court can reasonably determine from
the record whether the petitioner's asserted
grounds for challenging the agency's finaldecision warrant reversal or modification of
that decision[.]
Carroll, 358 N.C. at 665, 599 S.E.2d at 898. In the present case,
because “the trial court's erroneous . . . application of the
de
novo standard of review in no way interferes with our ability to
assess how that standard
should have been applied to the particular
facts of this case[,]” we review the merits of petitioner's
arguments.
Id.
II. Law Governing Petitioner's Eligibility
[2] Petitioner next argues that her eligibility for the North
Carolina NBPTS program should be governed by Session Law 1999-237,
§ 8.7(a) because N.C. Gen. Stat. § 115C-296.2 had not yet taken
effect when she completed the certification process. Accordingly,
she contends that the trial court erred when it applied N.C. Gen.
Stat. § 115C-296.2 to determine her eligibility for NBPTS
certification benefits. We disagree.
N.C. Gen. Stat. § 115C-296.2 became effective on 1 July 2000.
Prior to its enactment, the General Assembly set aside funds for
North Carolina's NBPTS program in its annual appropriations bill.
See, 1999 N.C. Sess. 1999-237. Session Law 1999-237, § 8.7(a)
requires respondent to fund payment of the participation fee and
three days of leave for teachers who participate in the NBPTS
program who “have completed three years of teaching in North
Carolina schools” as defined by the provision, and who “have not
previously received State funds for participation in any
certification area in the NBPTS program.”
Id. The session law
also provides for the repayment of the participation fee if theteacher does not complete the application process or does not teach
in a North Carolina public school for at least one year after
completing the process.
Id.
Petitioner maintains that the codified statute does not
determine her eligibility because she completed the certification
process before the statute became effective. Respondent contends
that although petitioner completed the application and testing
process in June, 2000, “the actual award of the certification
itself did not occur until the fall of 2000, well after the
effective date of the new statute[.]” On this point, we agree with
respondent.
Petitioner completed her application on 11 November 1999, and
completed her content knowledge test on 19 June 2000. However
petitioner's letter to the State Board, dated 27 June 2001, states
that she “was notified that [she] had achieved National Board
Certification” on 30 November 2000. Accordingly, petitioner was
not “certified” by the National Board until November, 2000, after
the statute had taken effect. The date when petitioner finished
submitting her application materials is not the crucial date.
Rather, the date when the National Board deemed petitioner
certified controls. Accordingly, we now determine whether
petitioner satisfies the statutory requirements of N.C. Gen. Stat.
§ 115C-296.2.
III. Statutory Interpretation of N.C. Gen. Stat. § 115C-296.2
[3] N.C. Gen. Stat. § 115C-296.2 governs North Carolina's
incentive program for teachers attaining National Boardcertification. Subsection (b)(2) defines “teacher” as follows a
person who:
(2) a. Either:
1. Is certified to teach
in North Carolina; or
2. Holds a certificate or
license issued by the
State Board of Education
that meets the
professional license
requirement for NBPTS
certification;
b. Is a State-paid employee of a
North Carolina public school;
c. Is paid on the teacher salary
schedule; and
d. Spends at least seventy percent
(70%) of his or her work time:
1. In classroom
instruction, if the
employee is employed as a
teacher. Most of the
teacher's remaining time
shall be spent in one or
more of the following:
mentoring teachers, doing
demonstration lessons for
teacher, writing
curricula, developing and
leading staff development
programs for teachers; or
2. In work within the
employee's area of
certification or
licensure, if the
employee is employed in
an area of NBPTS
certification other than
direct classroom
instruction.
N.C. Gen. Stat. § 115C-296.2 (b)(2) (2005). The statute provides
that the State will pay the NBPTS participation fee and provide upto three days of paid leave for teachers participating in the NBPTS
program who have (1) taught for three years in North Carolina
public schools, and (2) have not previously received NBPTS funds,
have repaid those funds to the State, or have received a waiver of
payment from the State Board of Education. N.C. Gen. Stat. § 115C-
296.2(c) (2005). The teacher must repay the participation fee if
the teacher does not complete the NBPTS certification process or
does not teach in a North Carolina public school for one year after
completing the process, unless the failure results from the death
or disability of the teacher. N.C. Gen. Stat. § 115C-296.2(d)-(e)
(2005). Finally, the statute gives the State Board the authority
to adopt policies and guidelines to implement the program. N.C.
Gen. Stat. § 115C-296.2(f) (2005).
“In matters of statutory construction, our primary task is to
ensure that the purpose of the legislature, the legislative intent,
is accomplished. Legislative purpose is first ascertained from the
plain words of the statute.”
Electric Supply Co. v. Swain
Electrical Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991). “In
ascertaining the legislative intent, courts should consider the
language of the statute, the spirit of the statute, and what it
seeks to accomplish.”
Department of Correction v. Hill, 313 N.C.
481, 458-86, 329 S.E.2d 377, 379-80 (1985).
Importantly, the NBPTS statute contains a statement of the
State's policy in subsection (a):
It is the goal of the State to provide
opportunities and incentives for good teachers
to become excellent teachers and to retain
them in the teaching profession; to attainthis goal, the State shall support the efforts
of teachers to achieve national certification
by providing approved paid leave time for
teachers participating in the process, paying
the participation fee, and paying a
significant salary differential to teachers
who attain national certification from the
National Board for Professional Teaching
Standards[.]
N.C. Gen. Stat. § 115C-296.2(a) (2005). Although respondent
maintained throughout its brief that the purpose of the statute was
to retain teachers in the classroom, such a goal is not reflected
in the statutory language enacted by the General Assembly. Rather,
the goal is to encourage excellence and retain excellent teachers
in the “teaching profession.” This language makes no mention of
“classroom teachers.”
Further, N.C. Gen. Stat. § 115C-296.2(b)(2)d includes two
distinct means of satisfying that part of the definition: the
“classroom instruction” prong set forth in N.C. Gen. Stat. § 115C-
296.2(b)(2)d.1., and the “other than direct classroom instruction”
prong in N.C. Gen. Stat. § 115C-296.2(b)(2)d.2. Respondent
contends that the only NBPTS certification areas the General
Assembly intended to include in the “other than direct classroom
instruction” prong were media and school counseling. This limit is
not reflected anywhere in the language of N.C. Gen. Stat. § 115C-
296.2(b)(2)d, however, and other than respondent's assurances, we
can find no support for this proposition. The National Board does
not classify its certification areas as “classroom” areas of
certification and “other than classroom instruction” areas of
certification. Thus, placing areas of NBPTS certification in thesecategories must come, if at all, from the language of our statute.
We find no language which limits the “other than classroom
instruction” to media and school counseling.
See N.C. Gen. Stat.
§ 115C-296.2(b)(2)d.2. (2005).
Respondent points us to the distinct treatment afforded to
“teachers” and “administrators” and states that “it cannot be
presumed that the General Assembly was ignorant of them when it
wrote the language in the statute at issue here.” Respondent's
interpretation of N.C. Gen. Stat. § 115C-296.2 conflicts with the
language of the statute, as enacted by the General Assembly.
Accordingly, we hold that respondent improperly withheld the salary
increase from petitioner and we reverse the judgment of the trial
court.
Reversed.
Chief Judge MARTIN and Judge STEELMAN concur.
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