Reed v. Byrd , 41 N.C. App. 625 ( 1979 )

WEBB, Judge.

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.

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 statutue 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.