Opinion
No. 7810SC687
Filed 19 June 1979
1. State 12 — State employees — demotion for just cause — private investigation of superior — refusal to cooperate in investigation As used in the statute providing that no State employee may be reduced in pay or position except for "just cause," the term "just cause" would include either the undertaking of a private investigation of a superior or the refusal to answer questions in a departmental investigation.
2. State 12 — State employee — authority of State Personnel Commission to reinstate demoted employee The provisions of G.S. 126-37 giving the State Personnel Commission the authority to restore a State employee to a position from which he has been demoted must be read in conjunction with G.S. 126-35 which forbids demotion without just cause, and the Commission therefore does not have the power to restore a State employee to a position from which he has been demoted without some finding that the employee has been treated wrongfully.
3. State 12 — State employees — demotion for refusal to cooperate in investigation — no finding of justification — no authority by Personnel Commission to reinstate The State Personnel Commission did not have the authority to reinstate an employee of the Department of Corrections to the position from which he was demoted where the Commission found upon competent evidence that the employee refused to cooperate in a departmental investigation and the Commission made no finding that the refusal to cooperate was justified.
APPEAL by petitioner from McLelland, Judge. Judgment entered 2 June 1978 in Superior Court, WAKE County. Heard in the Court of Appeals 6 April 1979.
Attorney General Edmisten, by Assistant Attorney General Ben G. Irons II, for petitioner appellant.
Hatcher, Sitton, Powell and Settlemeyer, by Claude S. Sitton, for respondent appellee.
Judge MARTIN (Robert M.) dissenting.
The respondent, Royce Byrd, has been for many years an employee of the Department of Corrections and in 1977 he was a Correctional Sergeant at the McDowell Prison Unit. In 1977 he was demoted and transferred for violating the chain of command and for failure to assist in an investigation by the Division of Prisons. On 24 June 1977 a hearing was held by the State Personnel Commission.
The evidence at the hearing was that respondent felt that one of his superiors in the Department was harassing him. Pursuant to rumors he had heard, respondent began a surveillance of the superior to determine whether the superior was having an affair with a female employee of the Department. He recorded his observations and obtained copies of certain motel receipts and telephone bills during the course of the surveillance. In December 1975, the respondent discussed the situation with Grady Waycaster, Supervisor of the McDowell Unit. Mr. Waycaster caused an investigation to be commenced by the State Bureau of Investigation as to the possible misuse of State property by respondent's superior.
In January 1976, Ralph Edwards, Director of Prisons, learned of the SBI investigation and instructed H. M. Lilly, Geographic Command Manager, to make an investigation for the Division of Prisons. Lilly questioned the respondent who admitted making personal observations of his superior and the female prison employee. Respondent refused to divulge the source of the copies of the receipts and telephone bills, giving as his reason that he felt he was being prosecuted rather than his superior. Subsequently, he told Edwards that he had received the bills and receipts anonymously through the mail. Shortly after the interviews with Lilly and Edwards, respondent was transferred and demoted because of his error in conducting a personal investigation, failing to report what he knew through the chain of command, and failing to assist the Department in its investigation.
The State Personnel Commission made findings of fact in accordance with the evidence and concluded respondent had exercised poor judgment when he undertook to monitor the off-duty activities of his superior, but that it was unreasonable to expect respondent to follow his chain of command in reporting the alleged misconduct because his superior was in that chain of command. The State Personnel Commission made no conclusion as to the facts supporting the Department of Corrections' determination that the respondent had failed to assist the Department in an investigation. The State Personnel Commission ordered the respondent reinstated to his former rank and pay grade. Amos Reed, Secretary of the Department of Corrections, petitioned the Superior Court of Wake County for review. On 2 June 1978 the superior court entered an order affirming the action of the State Personnel Commission.
Chapter 126 of the General Statutes established a State Personnel System. The State Personnel Commission was created by G.S. 126-2. G.S. 126-4 provides:
Subject to the approval of the Governor, the State Personnel Commission shall establish policies and rules governing each of the following:
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(6) The appointment, promotion, transfer, demotion and suspension.
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(9) The investigation of complaints and the hearing of appeals of applicants, employees, and former employees and the issuing of such binding corrective orders or such other appropriate action concerning employment, promotion, demotion, transfer, discharge, and reinstatement in all cases as the Commission shall find justified.
G.S. 126-35 provides:
No permanent employee subject to the State Personnel Act shall be discharged, suspended, or reduced in pay or position, except for just cause . . . . The employee, if he is not satisfied with the final decision of the head of the department, . . . may appeal to the State Personnel Commission.
G.S. 126-37 provides:
The State Personnel Commission is hereby authorized to reinstate any employee to the position from which he has been removed, to order the employment, promotion, transfer, or salary adjustment of any individual to whom it has been wrongfully denied or to direct other suitable action to correct the abuse which may include the requirement of payment for any loss of salary which has resulted from the improperly discriminatory action of the appointing authority.
Pursuant to G.S. 126-4, the State Personnel Commission has established rules and policies governing the investigation of complaints by employees and the issuing of binding corrective orders. The rules and policies set forth certain things which are causes for suspension or dismissal, but do not set forth any matters which will be considered as justification for wrongful acts.
[ 1-3] The question posed on this appeal is whether under the statutes and policies adopted pursuant thereto the State Personnel Commission exceeded its authority in ordering the reinstatement of respondent in light of the evidence and its findings of fact. We hold the Commission exceeded its authority. Looking first at the statutes, G.S. 126-35 provides no employee may be reduced in "pay or position, except for just cause." The statute does not define "just cause," but giving the words their ordinary meaning, we believe it would include either the undertaking of a private investigation of a superior or the refusal to answer questions in an investigation within the Department. The Commission has made a finding of justification for undertaking the surveillance, but has not made any conclusion as to the refusal to cooperate. We are left then with a finding supported by the evidence that the respondent has refused to cooperate in a departmental investigation. This would be just cause for a reduction in pay or position under G.S. 126-35. G.S. 126-37 gives the State Personnel Commission power to grant relief to employees by reinstating them to positions from which they have been removed. The clause which gives the Commission this power does not say the employee must have been wrongfully removed in order for the Commission to exercise this power. Other clauses in the section use the terms "wrongfully denied" and "correct the abuse" in stating the conditions which must be met in order for the Commission to enter an order affecting an employee's status. We do not believe the General Assembly intended that the State Personnel Commission would have the power to restore a State employee to a position from which he had been demoted without some finding that the employee had been treated wrongfully. We believe G.S. 126-37 must be read in conjunction with G.S. 126-35 which forbids demotion without just cause. The conclusion of the Commission is that the respondent did not act unreasonably in not following the chain of command. There was no conclusion as to his failure to cooperate in the investigation. Assuming the conclusion of the Commission was proper, it leaves a finding of fact by the Commission that the respondent failed to cooperate with his superiors with no conclusion that this was justified in any way. On this finding of fact it cannot be said the defendant was demoted wrongfully or without just cause. Based on this finding we hold the Commission could not under G.S. 126-37 reinstate respondent to the position from which he had been demoted.
G.S. 126-4 gives the Commission the power with the approval of the Governor to establish policies under the act. We are not faced with the question of whether the Commission can establish a policy with the approval of the Governor under which it can excuse improper conduct by an employee because it has made and the Governor has approved no such policy. Since the Governor must approve policies under the statute, the Commission does not have the power to alter such policies by ad hoc decision in each case. The Commission must follow the policy which has been set and as it was approved by the Governor.
In this case the Commission has found, based on competent evidence, that Royce Byrd refused to cooperate in a departmental investigation. The Commission did not make any finding of justification for this and we can find no evidence of justification in the record. We hold that under the statute and policies adopted thereto, this was wrongful conduct and just cause for demotion. The Commission does not have the power to order the reinstatement of respondent Royce Byrd under the circumstances. We make no decision as to the Commission's conclusion that the respondent was justified in not going through the chain of command because it is not necessary for a decision in this case. Nor do we pass on what the result would be if the Commission had made a policy with the approval of the Governor that it could order an employee reinstated although it finds he has done something wrongful. That question is not before us.
The petitioner has not sought to have us consider whether the unfettered discretion which the respondent Byrd contends the General Assembly has granted to the Commission by enacting the statutes previously referred to herein would constitute an unconstitutional delegation of the legislative power of the General Assembly to the Commission in violation of Article I, 6 and Article II, 1 of the Constitution of North Carolina. For this reason, we need not consider that issue.
We hold the superior court was in error in affirming the order of the State Personnel Commission. On the evidence and facts found by the Commission, the Department of Corrections was justified in the action it took in regard to respondent. We reverse and order this case returned to the Superior Court of Wake County for the entry of an order consistent with this opinion.
Reversed and remanded.
Judge MITCHELL concurs.
Judge MARTIN (Robert M.) dissents.