On appeal as a matter of right by defendant from the decision of the Court of Appeals reported at
Plaintiff, a career public school teacher with over fifteen years of service in the North Carolina public schools, initiated this action to contest his dismissal by defendant for "neglect of duty." In his complaint he sought reversal of the order of the Goldsboro City Board of Education (hereinafter "Board") and reinstatement to his position as a career teacher. He also prayed for back pay, costs and attorney's fees incurred in bringing this action. The events which led to his dismissal by the Board are as follows:
On 24 April 1979 plaintiff was employed by defendant as a physical education teacher at Middle School South. That morning he learned from a radio news announcement that he had been indicted by a Wayne County grant jury on felony drug charges. After contacting his minister, plaintiff called the school principal, William Charlton, and informed him that he, plaintiff, was in trouble and would not be at work that day and possibly not for the rest of the year. He requested that Charlton retain a teacher to substitute in his classes. Later that morning Charlton relayed plaintiff's message to the Superintendent of the Goldsboro City Schools, William Johnson. During the course of the day Charlton and Johnson learned of the charges against plaintiff.
On 26 April 1979 plaintiff met with Superintendent Johnson to inform him of the charges and to profess his innocence. Johnson reviewed with plaintiff the statutes governing teacher dismissal. Plaintiff told Johnson that he was placing his fate in the hands of the Board and had confidence in so doing. Johnson neither instructed plaintiff to resume his teaching responsibilities nor did he indicate approval of plaintiff's absence. During this meeting plaintiff indicated to Johnson that he thought it would be in the best interest of his students if he did not return to school until his name had been cleared.
On 3 May 1979 plaintiff again met with Superintendent Johnson. At this meeting Johnson informed plaintiff that the Goldsboro City Board of Education had met to discuss plaintiff's case and had requested that plaintiff submit his resignation by noon on 8 May 1979. Although plaintiff asked why his resignation was being requested Johnson told him only that "we felt we did need his resignation." Nothing was said to plaintiff about neglect of duty. Johnson did not instruct him to return to school, nor did he inform plaintiff that dismissal procedures would be initiated if his resignation was not received by noon on 8 May 1979. At either the 3 May meeting or the 26 April meeting plaintiff did request a leave of absence without pay. Although Mr. Johnson never instructed plaintiff to return to or to stay away from school, he did agree with plaintiff that it would be better for plaintiff not to be in the classroom while the charges were pending.
Plaintiff did not submit his resignation but, instead, requested in a letter dated 8 May 1979, addressed to Superintendent Johnson, that he be granted a leave of absence without pay pending the disposition of the drug charges. Johnson received the letter on 9 May 1979.
On 10 May 1979 the school board met and, upon Mr. Johnson's recommendation, voted to suspend plaintiff without pay and to initiate dismissal proceedings. The Board was informed of plaintiff's request for leave of absence without pay.
On 16 May 1979, Mr. Johnson informed plaintiff by letter of the Board's action. This letter was the first notice given to plaintiff that his absence was considered a neglect of duty.
Upon notice of the Board's action, plaintiff requested a hearing before a panel of the Professional Review Committee (hereinafter "Committee") pursuant to his rights under G.S. 115-142(h). That Committee held a hearing on 5 July 1979. The Committee heard evidence on the charges of inadequate performance and neglect of duty as grounds for dismissal. During the hearing the charge of inadequate performance was dropped. The Committee found the facts essentially as noted above and concluded that the charge of neglect of duty "[was] not true and substantiated." The Committee, in its Report, stated: "Mr. Overton made good faith efforts to communicate with his superintendent and
principal and to cooperate with them. He was not told that he should return to the classroom under these circumstances. A reasonable man could assume that his continued absence was approved until he was instructed otherwise."
Despite the conclusion of the Committee that plaintiff had not neglected his duty, Superintendent Johnson pursued the dismissal proceedings and recommended to the Board that plaintiff be dismissed. At plaintiff's request, the Board held a hearing on 10 December 1979 to review the charges against him. Based on the evidence presented at the hearing, the Board found as fact that plaintiff voluntarily had absented himself from school without permission and that he had not requested sick leave or personal leave. Although the Board also found that plaintiff was never instructed to return to his teaching duties, it found that his failure to report to school constituted a neglect of duty and concluded that, because of his contract, the plaintiff should have been aware of his duty to report to school regardless of his personal problems. The Board concluded that the charge of neglect of duty was true and substantiated and that plaintiff should be dismissed. Based on these findings and conclusions, the Board ordered plaintiff's dismissal.
From the order of the Board plaintiff appealed to the Superior Court, Wayne County, pursuant to G.S. 115-142(a) (1978) by filing notice of appeal on 16 January 1980. With his notice plaintiff filed a complaint requesting that the court reverse the Board's order, that he be reinstated as a career teacher with tenure, and that he recover back pay, costs and attorney's fees. The appeal was heard by Judge Peel at the 28 April 1980 Session of Superior Court, Wayne County. After reviewing the Board's order, the transcript of the hearing before the Board and the report of the Professional Review Committee, Judge Peel concluded "that the charges brought by the Superintendent against the petitioner/appellant are not substantiated" and reversed the decision of the Board. No mention was made in Judge Peel's order of plaintiff's request for reinstatement, back pay, costs and attorney's fees. The Board excepted to the order and gave notice of appeal.
On appeal, the Court of Appeals affirmed the order of the Superior Court. After setting out the ...