In Re Appeal of Brunswick County ( 1986 )

344 S.E.2d 584 (1986)

In re Appeal of BRUNSWICK COUNTY.

No. 8510SC1106.

Court of Appeals of North Carolina.

June 17, 1986.

Womble, Carlyle, Sandridge and Rice by Allan R. Gitter and William A. Blancato, and David L. Clegg, Co. Attorney, Brunswick County, Winston-Salem, for petitioner-appellee.

McGougan, Wright and Worley by Dennis T. Worley, Tabor City, for respondent-appellant.

PARKER, Judge.

In her first assignment of error, respondent contends the trial court erred in reviewing the final agency decision issued by Director Webb because Brunswick County (i) is not a party to the proceedings, (ii) failed to file a motion to intervene in the proceedings pursuant to G.S. 150A-23(d) and (iii) failed to file a petition for judicial review within thirty days "after a written copy of the decision [was] served upon the person seeking the review by personal service or by registered mail" as required by G.S. 150A-45. We disagree.

Under G.S. 150A-43, any person aggrieved by a final agency decision may seek judicial review of that decision. A county may be an aggrieved person when an agency issues a ruling that could affect the county's revenue. In re Appeal of Harris, 273 N.C. 20, 159 S.E.2d 539 (1968). Pursuant to Director Webb's ruling, the Board resolved to reinstate respondent, and to pay her back wages and attorney fees. This resolution was then sent to the County Commissioners for funding. Because this ruling affected the expenditure of county revenues, Brunswick County was an aggrieved person pursuant to G.S. 150A-43.

Further, Brunswick County's failure to intervene in the administrative proceedings does not bar their right to seek judicial review of any resulting final agency decision. The intervention statute, G.S. 150A-23, is permissive only, and did not require Brunswick County to intervene.

Finally, because Brunswick County was never properly served with a copy of the declaratory ruling, the thirty-day period for seeking review established by G.S. 150A-45 never commenced. Although the affidavit of Betty S. Varnam stated that she "personally hand delivered on October 25, 1984, a copy of the settlement agreement to William D. Carter, County Manager for the County of Brunswick" and that certified copies were mailed, return receipt requested, to the individual members of the Board of Commissioners, she did not state that she delivered a copy of the declaratory ruling to these individuals as required by G.S. 150A-45. Further, the affidavit of Dennis T. Worley, attorney for respondent, stated that "on November 7, 1984, a copy of the Declaratory Ruling issued by Harold Webb, dated July 27, 1984, and the Settlement Agreement... was delivered personally to David Clegg, Brunswick County Attorney ...." The county attorney is not the person authorized to accept service for the county. Service upon the county manager or on the chairman, clerk or any member of the board of commissioners is necessary for service upon the county to be effective. G.S. 1A-1, Rule 4(j)(5)(b). Because the declaratory ruling was not served on Brunswick County in accordance with statute, it has not waived its right to seek judicial review by waiting more than thirty days after it received a copy of the decision to file its petition for review. In re Appeal of Harris, 273 N.C. at 27, 159 S.E.2d at 545. The assignment of error is overruled.

In her final assignment of error, respondent contends the Court committed reversible error in concluding that Director Webb was in error in the issuance of the declaratory ruling dated 27 July 1984. Respondent asserts that "the broad managerial authority [in G.S. 108A] should impliedly and implicitly include the authority to resolve legal issues, especially when the Board was without the services of a full-time Director." We disagree.

General Statute 108A-14(2) gives the director of a county department of social services the exclusive power to hire and fire the department's personnel. Director Webb ruled that (i) an acting director does not have the power to appoint personnel and (ii) in the absence of a permanent full-time director, the Board becomes the "local appointing authority" under G.S. 126-37. We find no implied or implicit authority in the statutes that the local Board has any authority to appoint personnel in the absence of a permanent full-time director. The General Assembly has delegated certain responsibilities to the local boards, G.S. 108A-9, and certain responsibilities to the director of the local board. G.S. 108A-14. The statute makes no distinction between "acting" and "permanent" directors. Our reading of the statutes reveals that the Board's sole involvement in personnel matters is "[t]o select the county director of social services...." G.S. 108A-9(1). The director derives his authority to appoint personnel directly from the General Assembly, not from the Board. Judge Bailey was correct when he ruled that Director Webb erred in concluding that the local board became the "local appointing authority" pursuant to G.S. 126-37 in the absence of a permanent full-time director.

Accordingly, the Order appealed from is

Affirmed.

HEDRICK, C.J., and WEBB, J., concur.