Heard in the Court of Appeals November 20, 2014
Mecklenburg County, No. 12 CVS 1017.
Kennedy, Kennedy, Kennedy, and Kennedy, LLP, by Harold L. Kennedy, III, and Harvey L. Kennedy, for plaintiff-appellants.
Womble, Carlyle, Sandridge and Rice, LLP, by Sean F. Perrin, for defendant-appellee.
Edmond W. Caldwell, Jr., for amicus curiae North Carolina Sheriffs' Association.
Judge STEPHENS concurs.
Judge GEER concurring in part and dissenting in part.
The employees of a county sheriff, including deputies and others hired by the sheriff, are directly employed by the sheriff and not by the county or by a county department. Sheriff's employees are not " county employees" as defined in N.C. Gen. Stat. § 153A-99 and are not entitled to the protections of that statute. As a sworn deputy sheriff, plaintiff Stanley could be discharged based upon political conduct without violating free speech rights under the North Carolina Constitution. Where defendant produced evidence that plaintiff McLaughlin was discharged for failure to comply with sheriff's department rules and policies, and McLaughlin failed to
produce specific evidence that his discharge was politically motivated, the trial court properly dismissed his claim for violation of his rights to free speech under the North Carolina Constitution.
I. Factual and Procedural Background
Ivan McLaughlin and Timothy Stanley (plaintiffs) were employed by former Mecklenburg County Sheriff Daniel Bailey (defendant, with Ohio Casualty Insurance Company, collectively, defendants). Stanley was hired in 1998 as a detention officer at the Mecklenburg County jail, and as a deputy sheriff in 2008. He worked primarily as a courtroom bailiff. McLaughlin was hired as a juvenile counselor at the Gatling Juvenile Detention Center in 1998, and was not a sworn law enforcement officer. When the Mecklenburg County Sheriff's Department assumed responsibility for Gatling, McLaughlin became a detention counselor for youthful offenders housed in Mecklenburg County's Jail North.
In June 2009 defendant, a registered Democrat, sent a letter to approximately 1,350 of his employees, announcing his candidacy for reelection and stating that he would appreciate campaign contributions. Plaintiffs, who were Republicans, did not contribute to defendant's reelection campaign or attend a fund-raising barbeque sponsored by the campaign. Defendant was reelected in November 2010.
Stanley received favorable performance reviews between 2007 and 2010. However, shortly before the election, Stanley's supervisor reported to defendant that Stanley had been disruptive during the morning briefings by talking in the back of the room and making remarks expressing a preference for defendant's opponent in the election. On 30 November 2011 Stanley was terminated from his employment as a deputy sheriff. Defendant testified in his deposition that Stanley was terminated for being disruptive.
McLaughlin also received favorable performance reviews for several years prior to the election. However, in August 2010 the staff at Jail North, including McLaughlin, received a memo emphasizing the importance of " pod tours" to verify that inmates were present and were not in distress, and warning that failure to conduct pod tours would result in termination. McLaughlin's supervisor testified in his deposition that the " purpose of a pod tour . . . is to make sure that a pod officer can account for every inmate . . . being alive[.]" On 19 November 2010 McLaughlin's supervisors visited Jail North and observed a number of violations of the rules for supervision of the youthful offender population, including failure to conduct pod tours. The supervisors also reviewed a videotape that showed McLaughlin committing additional violations of Sheriff's Department rules. The supervisors documented McLaughlin's violations and submitted a report to the Office of Professional Compliance, which interviewed McLaughlin on 30 November 2010. During the interview, McLaughlin conceded that he had failed to follow Sheriff's Department rules on a number of occasions. On 10 January 2011 McLaughlin received a memorandum setting forth his violations of the Sheriff's Department rules, and the resultant decision to terminate his employment. McLaughlin's termination was confirmed by the Sheriff's Department review board.
On 17 January 2012 plaintiffs filed a complaint, asserting claims against defendants for wrongful termination of employment in violation of public policy, and for violation of their rights under the Constitution of North Carolina, Article 1, § § 14 and 36. Plaintiffs asserted that they were terminated " for failing to make contributions to [Sheriff] Bailey's re-election campaign and for failing to volunteer to work in his campaign," and that McLaughlin was terminated based on " his Republican beliefs." Plaintiffs asserted that their termination was " in violation of [the] public policy" enunciated in N.C. Gen. Stat. § 153A-99. Defendants filed separate answers denying the material allegations of plaintiffs' complaint. On 13 June 2013 defendants filed a joint motion for summary judgment on all claims. On 6 January 2014 the trial court entered summary judgment in favor of defendants and dismissed plaintiffs' complaint.
Plaintiffs appealed. Although plaintiffs' complaint asserted claims against defendant in both his individual and official capacities, plaintiffs only appeal the entry of summary
judgment on their claims against defendant in his official capacity.
II. Standard of Review
Under N.C. Gen. Stat. § 1A-1, Rule 56(a), summary judgment is properly entered " if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." " 'In a motion for summary judgment, the evidence presented to the trial court must be admissible at trial, N.C.G.S. § 1A-1, Rule 56(e) [(2013)], and must be viewed in a light most favorable to the non-moving party.'" Patmore v. Town of Chapel Hill N.C., __ N.C.App. __, __, 757 S.E.2d 302, 304 (quoting Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 467, 597 S.E.2d 674, 692 (2004) (internal citation omitted)), disc. review denied, 367 N.C. 519, 758 S.E.2d 874 (2014).
In a trial court's ruling on a motion for summary judgment, " '[a] verified complaint may be treated as an affidavit if it (1) is made on personal knowledge, (2) sets forth such facts as would be admissible in evidence, and (3) shows affirmatively that the affiant is competent to testify to the matters stated therein.' On the other hand, 'the trial court may not consider an unverified pleading when ruling on a motion for summary judgment.' Plaintiff[s'] complaint in this case was not verified, so it could not be considered in the course of the trial court's deliberations concerning Defendants' summary judgment motion." Rankin v. Food Lion, 210 N.C.App. 213, 220, 706 S.E.2d 310, 315-16 (2011) (quoting Merritt, Flebotte, Wilson, Webb & Caruso, PLLC v. Hemmings, 196 N.C.App. 600, 605, 676 S.E.2d 79, 83-84 (2009) (internal quotation omitted), and Tew v. Brown, 135 N.C.App. 763, 767, 522 S.E.2d 127, 130 (1999)).
III. Termination in Violation of Public Policy
In plaintiffs' first argument, they contend that they were wrongfully terminated in violation of the public policy articulated in N.C. Gen. Stat. § 153A-99. Plaintiffs assert that they were " county employees" as defined in § 153A-99, and that their termination from employment violated this statute. We disagree.
A. Legal Principles
" In North Carolina, 'in the absence of an employment contract for a definite period, both employer and employee are generally free to terminate their association at any time and without any reason.'" Elliott v. Enka-Candler Fire & Rescue Dep't, Inc., 213 N.C.App. 160, 163, 713 S.E.2d 132, 135 (2011) (quoting Salt v. Applied Analytical, Inc., 104 N.C.App. 652, 655, 412 S.E.2d 97, 99 (1991)). " However, the employee-at-will rule is subject to certain exceptions. . . . '[W]hile there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy.'" Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175, 381 S.E.2d 445, 446-47 (1989) (quoting Sides v. Duke University, 74 N.C.App. 331, 342, 328 S.E.2d 818, 826 (1985), overruled in part on other grounds as stated in Kurtzman v. Applied Analytical Industries, Inc., 347 N.C. 329, 493 S.E.2d 420 (1997)).
Plaintiffs argue that they were terminated in violation of the public policy set forth in N.C. Gen. Stat. § 153A-99:
(a) The purpose of this section is to ensure that county employees are not subjected to political or partisan coercion while performing their job duties, [and] to ensure that employees are not restricted from political activities while off duty[.] . . . Employees shall not be restricted from affiliating with civic organizations of a partisan or political nature, nor shall employees, while off duty, be restricted from attending political meetings, or advocating and supporting the principles or policies of civic or political organizations, or supporting partisan or nonpartisan candidates of their choice in accordance with the Constitution and laws of the State and the Constitution and laws of the United States of America.
(b) Definitions. For the purposes of this section: (1) " County employee" or " employee" means any person employed by a
county or any department or program thereof that is supported, in whole or in part, by county funds[.] . . .
" The express purpose of N.C. Gen. Stat. § 153A-99 is 'to ensure that county employees are not subjected to political or partisan coercion while performing their job duties[.]' N.C. Gen. Stat. § 153A-99 (2002). In Vereen v. Holden, this Court noted that if a county employee was fired due to his political affiliations and activities, 'this would contravene rights guaranteed by our State Constitution. . . . and the prohibition against political coercion in county employment stated in N.C. Gen. Stat. § 153A-99,' hence violating North Carolina public policy." Venable v. Vernon, 162 N.C.App. 702, 705-06, 592 S.E.2d 256, 258 (2004) (quoting Vereen v. Holden, 121 N.C.App. 779, 784, 468 S.E.2d 471, 474 (1996) (internal citations omitted)).
The threshold question is whether plaintiffs were county employees. N.C. Gen. Stat. § 153A-99 defines a county employee as an individual who is " employed by a county or any department or program thereof that is supported, in whole or in part, by county funds[.]" It is undisputed that a county sheriff's department is " supported, in whole or in part, by county funds" and that a county's administrators interact in various ways with the sheriff's department. The crucial question, however, is whether or not the persons hired by a sheriff are " employed by" a county department, in this case the " sheriff's department." We conclude that the plaintiffs are employees of the defendant sheriff individually, and are not employed by the county.
Preliminarily, we note that our common law unequivocally establishes that sheriff's deputies are employees of the sheriff, and are not county employees. In Styers v. Forsyth County, 212 N.C. 558, 194 S.E. 305, (1937), the widow of a deceased deputy sheriff was denied workers compensation benefits based on the trial court's determination that the deputy was an employee of the sheriff rather than of the county. On appeal, our Supreme Court held that a statute allowing Forsyth County to provide a fixed salary for certain deputies was not applicable to the facts of the case, given that the deceased deputy had been hired directly by the sheriff. The Court also discussed the legal relationship between the sheriff and his deputies:
" The deputy is not the agent or servant of the sheriff but is his representative, and the sheriff is liable for his acts as if they had been done by himself." . . . . The acts of the deputy are acts of the sheriff. For this reason the sheriff is held liable on his official bond for acts of his deputy. " A sheriff is liable for the acts or omissions of his deputy as he is for his own." In short, a deputy is a lieutenant, the sheriff's right-hand man, whose duties are coequal in importance with those of his chief. One who represents the high sheriff of the county in the capacity of deputy occupies no mean place. . . . He holds an appointment as distinguished from an employment.
Styers at 563, 563-64, 194 S.E. at 308-309 (quoting Michel v. Smith, 188 Cal. 199, 202, 205 P. 113, 114 (1922), citing Horne v. Allen, 27 N.C. 36 (1844), and Spencer v. Moore, 19 N.C. 264 (1837), and quoting Sutton v. Williams, 199 N.C. 546, 548, 155 S.E. 160, 162 (1930) (other citations omitted).
The holding of Styers, that a deputy is an employee of the sheriff and acts as his " alter ego," has been followed in subsequent cases. In Clark v. Burke County, 117 N.C.App. 85, 89, 450 S.E.2d 747, 749 (1994), we held that Burke County was not liable for the alleged negligence of a sheriff's deputy:
A deputy is an employee of the sheriff, not the county. Therefore, any injury resulting from Deputy Smith's actions in this case cannot result in liability for Burke County and summary judgment is therefore affirmed for Burke County.
(citation omitted). Similarly, in Peele v. Provident Mut. Life Ins. Co., 90 N.C.App. 447, 368 S.E.2d 892 (1988), we rejected the argument by the plaintiff, a dispatcher for the sheriff's department, that she was a county employee:
Plaintiff argues that even though she was hired by the sheriff, she remained the employee of Watauga County and thus all the protections and privileges provided by the
Board of Commissioners to other county employees should have been afforded her[.] . . . We cannot agree. Plaintiff's esoteric analysis of the issue is misplaced. It is clear to this Court that plaintiff was an employee of the sheriff and not Watauga County and its Board of Commissioners. . . . Furthermore, " under state law the sheriff has the exclusive right to fire any deputy [or employee] in his office." . . . [P]laintiff was not an 'employee' of Watauga County or its Board of Commissioners[.]
Peele, 90 N.C.App. at 449-50, 368 S.E.2d at 893-94 (quoting Joyner v. Lancaster, 553 F.Supp. 809, 816 (M.D.N.C. 1982)). See also, e.g., Greene v. Barrick, 198 N.C.App. 647, 653, 680 S.E.2d 727, 731 (2009) (" Our law is well-settled. 'A sheriff is liable for the acts or omissions of his deputy as he is for his own.'" ) (quoting Prior v. Pruett, 143 N.C.App. 612, 621, 550 S.E.2d 166, 172 (2001) (internal quotation omitted).
The fact that the county is the source of funding to pay deputies does not change their status as employees of the sheriff. In Hubbard v. Cty. of Cumberland, 143 N.C.App. 149, 152, 544 S.E.2d 587, 589-90 (2001), this Court acknowledged that deputies are paid from county funds, but held that:
Plaintiffs in the instant case are law enforcement officers hired directly by the Sheriff of Cumberland County. The Sheriff is an independent constitutionally mandated officer, elected by the voters. N.C. Const. art. VII, § 2. Because it is the Sheriff, and not the County, who directly hires law enforcement officers, plaintiffs do not enjoy all of the protections of County employees.
(citing Peele at 450, 368 S.E.2d at 894, and N.C. Gen. Stat. § 153A-103). Although our common law uniformly holds that the sheriff's employees are not employed by the county, it does not articulate a general definition of a " county employee." Nor do the cases discussed above restrict their holdings by, for example, stating that a deputy is not a county employee " for purposes of respondeat superior."
Our common law is undergirded by certain statutory and constitutional provisions. N.C. Const. art. VII, § 2 states that " [i]n each county a Sheriff shall be elected by the qualified voters thereof at the same time and places as members of the General Assembly are elected and shall hold his office for a period of four years[.]" N.C. Gen. Stat. § 153A-103 provides that:
(1) Each sheriff and register of deeds elected by the people has the exclusive right to hire, discharge, and supervise the employees in his office. . . .
(2) Each sheriff and register of deeds elected by the people is entitled to at least two deputies who shall be reasonably compensated by the county[.] . . . Each deputy so appointed shall serve at the pleasure of the appointing officer. . . .
" Under North Carolina law, sheriffs have substantial independence from county government." Under the North Carolina Constitution, voters directly elect the sheriff. See N.C. Const. art. VII, § 2. County governments do not hire sheriffs. By statute, " the sheriff, not the county encompassing his jurisdiction, has final policymaking authority over hiring, supervising, and discharging personnel in the sheriff's office."
Jones v. Sheriff, *5 (E.D.N.C. 2013) (quoting Parker v. Bladen Cnty., 583 F.Supp.2d 736, 739 (E.D.N.C. 2008), and citing Little v. Smith, 114 F.Supp.2d 437, 446 (W.D.N.C. 2000), and Clark, 117 N.C.App. at 89, 450 S.E.2d at 749 (other citation omitted)), dismissed by Jones v. Harrison, (E.D.N.C. 2014).
In the instant case, plaintiff's claim for wrongful discharge in violation of public policy is based on their argument that the strictures of N.C. Gen. Stat. § 153A-99 protect them, as " county employees," from being terminated for political reasons. As noted above, this statute states that " 'County employee' or 'employee' means any person employed by a county or any department or program thereof that is supported, in whole or in part, by county funds[.]" We conclude
that this statute does not apply to plaintiffs, who are employed by the sheriff and ...