in the Court of Appeals 21 May 2019.
by respondent from order entered 24 August 2018 by
Administrative Law Judge Melissa Owens Lassiter in the Office
of Administrative Hearings. No. 17 OSP 1269
Attorney General Joshua H. Stein, by Assistant Attorney
General Tamika L. Henderson, for the State.
Offices of Michael C. Byrne, by Michael C. Byrne, for
McGuinness Law Firm, by J. Michael McGuinness, for amicus
curiae North Carolina Police Benevolent Association and
Southern States Police Benevolent Association.
North Carolina Department of Public Safety ("DPS"
or "respondent") appeals from an order of the North
Carolina Office of Administrative Hearings (the
"OAH") granting Jeffrey Hunt
("petitioner")'s petition for appellate
attorneys' fees. For the reasons stated herein, we affirm
the order of the administrative law judge ("ALJ").
November 2016, petitioner was a career status State employee,
working for DPS as a correctional officer at Scotland
Correctional Institution. Petitioner's unit manager, Ms.
Queen Gerald, requested a meeting with petitioner on 3
November 2016. During the meeting, Ms. Gerald informed him
that she was investigating his alleged absence from work on
18 August 2016. She asked him to sign paperwork regarding the
absence. Petitioner refused, and became upset. He said he was
tired of "this s***" and stated either "I
quit" or "I'm quitting" before walking out
of the prison, through the main door. Instead of
"swiping out" at the security checkpoint,
petitioner informed the officer-in-charge that he had
November 2016, petitioner spoke with the Superintendent at
Scotland Correctional Institution, Ms. Katy Poole, by
telephone. Petitioner asked Ms. Poole if he could return to
work. In response, Ms. Poole asked whether petitioner was
rescinding his resignation. Petitioner replied,
"Yes." Ms. Poole informed him that she had already
accepted his resignation, and was unwilling to rescind it
based on "his history of pending investigations and
corrective actions[, ]" and his behavior on 3 November
2016. That same day, petitioner received a letter confirming
he tendered his resignation on 3 November 2016. Although
petitioner attempted to use DPS's internal grievance
procedure, he was notified that the agency would not process
his grievance because he had resigned from employment.
filed a petition for a contested case hearing in the OAH on
22 February 2017. The matter came on for hearing before ALJ
Melissa Owens Lassiter on 15 June 2017. The ALJ issued a
final decision pursuant to N.C. Gen. Stat. § 150B-34 on
17 August 2017, holding petitioner was terminated without
just cause because petitioner "never submitted a verbal
statement of resignation to any DPS employee authorized to
accept it." Accordingly, the ALJ ordered that petitioner
be reinstated and receive back pay. After the issuance of the
final decision, petitioner filed a petition for
attorneys' fees, which the ALJ granted in an order
entered 28 August 2017. The order awarded $11, 720.00 in
attorneys' fees and $20.00 in filing fees. Respondent
Court affirmed the ALJ's final decision in Hunt v.
N.C. Dep't of Pub. Safety ("Hunt
I"), __ N.C.App. __, 817 S.E.2d 257 (2018).
Following the entry of Hunt I in the OAH, petitioner
filed a petition for attorneys' fees incurred during
petitioner's appeal. Petitioner argued the OAH had the
authority to grant this petition pursuant to N.C. Gen. Stat.
§ 126-34.02(e). The OAH granted the petition and awarded
petitioner $14, 700.00 in attorneys' fees. Respondent
argues the OAH erred by awarding appellate attorneys'
fees absent statutory authority. Alternatively, respondent
argues an award of appellate attorneys' fees was not
warranted because the agency had substantial justification to
appeal the underlying order. We disagree with both arguments.
Standard of Review
150B, the Administrative Procedure Act, specifically governs
the scope and standard of this Court's review of an
administrative agency's final decision." Harris
v. N.C. Dep't of Pub. Safety, __ N.C.App. __, __,
798 S.E.2d 127, 132, aff'd per curiam, 370 N.C.
386, 808 S.E.2d 142 (2017). Chapter 150B provides:
The court reviewing a final decision may affirm the decision
or remand the case for further proceedings. It may also
reverse or modify the decision if the substantial rights of
the petitioners may have been prejudiced because ...