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Hunt v. N.C. Department of Public Safety

Court of Appeals of North Carolina

June 18, 2019

JEFFREY HUNT, Petitioner

          Heard in the Court of Appeals 21 May 2019.

          Appeal 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.

          Law Offices of Michael C. Byrne, by Michael C. Byrne, for petitioner.

          The McGuinness Law Firm, by J. Michael McGuinness, for amicus curiae North Carolina Police Benevolent Association and Southern States Police Benevolent Association.

          ARROWOOD, JUDGE.

         The 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").

         I. Background

         In 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 resigned.

         On 9 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.

         Petitioner 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 appealed.

         Our 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 appeals.

         II. Discussion

         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.

         A. Standard of Review

         "Chapter 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 ...

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