Herron v. N.C. Bd. of Examiners for Eng'rs & Surveyors

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1382
Filed: 5 July 2016
Buncombe County, No. 13 CVS 4551
J. RANDY HERRON, Petitioner,
v.
NORTH CAROLINA BOARD OF EXAMINERS FOR ENGINEERS AND
SURVEYORS, Respondent.
Appeal by respondent from order entered 15 September 2015 by Judge Marvin
P. Pope, Jr., in Buncombe County Superior Court. Heard in the Court of Appeals 26
May 2016.
Long Parker Warren Anderson & Payne, P.A., by Robert B. Long, Jr., and
Andrew B. Parker, for petitioner-appellee.
Hedrick Gardner Kincheloe & Garofalo, LLP, by Patricia P. Shields, for
respondent-appellant.
ZACHARY, Judge.
The North Carolina Board of Examiners for Engineers and Surveyors
(respondent) appeals from an order of the trial court that reversed respondent’s order
revoking the land surveyor’s license held by J. Randy Herron (petitioner). In its
order, the trial court concluded that the procedures followed by respondent in its
revocation of petitioner’s surveyor’s license “violated the Petitioner’s Due Process
rights to a fair and impartial hearing by an unbiased fact-finder” and “constituted
unlawful procedure.” On this basis, the trial court reversed and vacated respondent’s
HERRON V. NC BD. OF EXAM’RS FOR ENG’RS & SURVEYORS
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order revoking petitioner’s surveyor’s license, and remanded for a hearing de novo
before an Administrative Law Judge. On appeal, respondent argues that the trial
court erred in reaching these conclusions and in reversing respondent’s order. We
agree.
I. Background
Respondent is an administrative agency that was established under Chapter
89C of the North Carolina General Statutes and that is charged with regulation of
the practice of land surveying in North Carolina. “Chapter 89C of the General
Statutes . . . provides that, ‘[i]n order to safeguard life, health, and property, and to
promote the public welfare, the practice of engineering and the practice of land
surveying in this State are hereby declared to be subject to regulation in the public
interest.’ ” In re Suttles Surveying, P.A., 227 N.C. App. 70, 75, 742 S.E.2d 574, 578
(2013), disc. review improvidently allowed, 367 N.C. 319, 754 S.E.2d 416 (2014).
Petitioner was first licensed as a land surveyor in 1989. In July 2004,
respondent notified petitioner that, after a review of plats prepared by petitioner,
respondent found “sufficient evidence which supports a charge of gross negligence,
incompetence, or misconduct.” Respondent issued a formal reprimand against
petitioner, imposed a civil penalty of $2000.00, and required petitioner to complete a
continuing education course in professional ethics within ninety days. Petitioner
failed to complete the required course within ninety days and in April 2005,
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respondent suspended petitioner’s surveyor’s license, which was reinstated after he
completed the professional ethics class. In November 2009, respondent again notified
petitioner that, following its investigation into several plats prepared by petitioner,
respondent had evidence of gross negligence, incompetence, or misconduct.
Petitioner did not contest this ruling and in May 2010, respondent imposed a civil
penalty of $2000.00 against petitioner and suspended petitioner’s surveyor’s license
for a period of three months, after which petitioner’s license was reinstated. The
record thus establishes that at the time of the events giving rise to this appeal,
respondent had previously imposed formal discipline against petitioner on two
occasions.
In November 2011, less than two years after respondent had suspended
petitioner’s surveyor’s license for three months, respondent sent petitioner an annual
notification regarding renewal of his surveyor’s license. Respondent informed
petitioner that his surveyor’s license would expire on 31 December 2011 unless
renewed. Although petitioner had been subject to the annual renewal requirement
for more than twenty years, he failed to renew his surveyor’s license in a timely
fashion. Petitioner’s surveyor’s license was suspended from 31 January 2012 until
petitioner renewed his license on 28 February 2012. During February 2012, while
petitioner’s surveyor’s license was suspended, petitioner conducted surveys, signed
and certified five plats, and recorded one survey plat with the Haywood County
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Register of Deeds. Petitioner admitted that he practiced surveying while his license
was inactive or expired, in violation of N.C. Gen. Stat. § 89C-16(c) (2015).
On 13 June 2012, respondent sent petitioner a letter informing him that it was
investigating petitioner’s practice of surveying while his license was expired. The
letter stated that during this investigation respondent had reviewed the five plats
that petitioner signed and sealed in February 2012, and had determined that these
plats violated certain provisions of the North Carolina Administrative Code (NCAC)
governing the practice of surveying. On 14 November 2012, respondent mailed
petitioner a Notice of Contemplated Board Action, informing petitioner that
respondent intended to revoke petitioner’s surveyor’s license, but that petitioner had
the right to request “a settlement conference and a formal hearing of [this] matter in
the event that it could not be resolved consensually.” Petitioner requested a
settlement conference and on 28 February 2013, petitioner and his counsel met with
respondent’s Settlement Conference Committee. The Committee’s recommendation
was that petitioner’s surveyor’s license be revoked without a hearing, unless a
hearing was requested by petitioner.
On 13 March 2013, respondent conducted a meeting of its Board. During this
meeting a Board member moved that the Board “approve [the] consent agenda as
presented.” The “consent agenda” included “Board-authorized case openings, comity
applications, firm applications for nine professional corporations, 17 limited liability
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companies, [and] two business firms, one Chapter 87 corporation name change
request, four d/b/a requests, minutes, settlement committee recommendations, and
[a] request for retired status[.]” The written materials that accompanied the consent
agenda included a written report by the Settlement Conference Committee
concerning petitioner’s case, with all identifying information redacted. The
Settlement Conference Committee recommended that petitioner’s surveyor’s license
should be revoked “without [a] hearing unless requested by [petitioner].” However,
none of the Board members reviewed the written materials associated with
petitioner’s case. Instead, the Board summarily passed the motion to approve the
consent agenda in its entirety, without discussion or review of the individual items
on the agenda. As a result, although respondent unanimously approved the consent
agenda that included petitioner’s case, none of the Board members were “aware of
the facts of the settlement conference . . . [or ] of the settlement recommendations” of
the committee until the formal hearing on petitioner’s case.
On 14 August 2013, respondent wrote to petitioner, acknowledging his request
for a formal hearing and setting out the specific allegations against petitioner. On 11
and 12 September 2013, several months after the Board meeting at which the Board
had approved the consent agenda that included the Settlement Conference
Committee’s recommendation concerning petitioner’s case, respondent conducted a
hearing on the allegations against petitioner. The two Board members who had
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served on the Settlement Conference Committee - the Board’s public member and
Gary Thompson, a surveyor member of the Board - were recused from participation
in the hearing. Despite this precaution, at the outset of the hearing, petitioner moved
that his case be heard by an Administrative Law Judge instead of by respondent.
Petitioner’s motion was based on the fact that at the March 2013 Board meeting,
respondent had approved the consent agenda that included a recommendation by the
Settlement Conference Committee that petitioner’s surveyor’s license be revoked
without a hearing unless a hearing was requested by petitioner. The record indicates,
as discussed above, that the Board had passed a motion for a blanket approval of the
entire consent agenda, but had not read or heard any information concerning
petitioner’s case in particular, and had not even known that the Committee was
recommending revocation of petitioner’s license. Petitioner, however, argued that the
fact that the Board previously approved a consent agenda including his case was
sufficient to establish that respondent had prejudged his case and could not afford
him a “disinterested” review of the evidence. After a brief recess, petitioner’s motion
was denied, and each of the Board members stated on the record that he could be
impartial.
At the hearing, David Evans, respondent’s assistant executive director,
testified that in February 2012 he was informed that petitioner was practicing
surveying without a license. Review of the records of the Haywood County Register
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of Deeds revealed that petitioner had signed five plats during February 2012, while
his license was suspended. Respondent therefore established a Settlement
Conference Committee to conduct further investigation into petitioner’s practice of
surveying while his license was suspended and also into whether the plats that
petitioner signed in February 2012 complied with respondent’s rules for the
preparation of plats.
Kristopher Kline was respondent’s primary witness on the issue of petitioner’s
compliance with the standards of practice for land surveyors. Mr. Kline had been a
licensed land surveyor for over twenty years, had extensive experience in teaching
and writing on subjects related to surveying, and had served for three years as the
chairman of the education committee of the North Carolina Society of Surveyors.
Although Mr. Kline practices surveying in Haywood County, he also testified that the
rules and standards for surveying and preparation of plats are uniform across North
Carolina. Mr. Kline was familiar with petitioner’s work as a surveyor, and had
observed a “regular pattern of substandard work” by petitioner over a period of years.
Mr. Kline had previously reported petitioner to respondent for failure to comply with
the requirements for surveyors. Mr. Kline had examined the plats signed by
petitioner while his license was suspended and found numerous violations of the rules
for the preparation of plats or property survey maps. The defects that Mr. Kline
observed in petitioner’s plats may be generally summarized as follows:
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1. Practice of surveying without a license.
2. Failure to indicate or mark any ties or tie lines on some
of his plats.1
3. Failure to employ ties that are external to the parcel
being surveyed, including ties to the corners of an adjoining
parcel so long as neither corner is on a common boundary
line.
4. Repeated failure to properly mark right of ways (ROWs),
including failure to indicate the source of a ROW, its width,
and where the ROW crosses the property’s boundary line.
5. Failure to include a ROW that appeared in a prior map,
based on petitioner’s belief that it was not a valid ROW or
easement.
6. Lack of monumentation.2
7. Petitioner’s practice of signing his plats in red ink, which
he admitted was done to make it harder for a plat to be
copied, although N.C. Gen. Stat. § 37-40 requires the
signature to be legible and the plat to be reproducible.
Mr. Kline testified that the ties employed by petitioner in his plats did not
comply with the purpose of a surveying tie as stated in respondent’s Survey Ties
Guidelines manual (“the Guidelines”), which is provided to North Carolina surveyors.
The Guidelines provide that “[t]he purpose of a tie is to reproduce a boundary when
all or most of the property corners have been destroyed, or to verify the position of
1 In the practice of surveying, a tie consists of a link between a point on the property being
surveyed with another point that has previously been surveyed.
2 The United States Bureau of Land Management defines a “monument” as a “physical
structure, such as an iron post . . . which marks the location of a corner point.”
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any given corner without the necessity of resurveying the entire tract of land.” The
Guidelines further instruct surveyors that:
The North Carolina Board of Examiners for Engineers and
Surveyors is providing this document to serve as an
interpretative guide for proper ties to comply with Board
Rule 21-56.1602(g). The variation in surveys makes it
difficult to prepare a finite list of procedures for proper ties.
Use of the ties shown and described herein will assure the
Professional Land Surveyor (PLS) that a tie will comply
with the requirements for a tie in the Board Rules.
Professional judgment must be used to prepare and
document a tie on a plat or report of survey. Variations
from the examples given here may be acceptable to the
Board if the intent of the rule is met.
The ties depicted in the Guidelines are all ties to points outside the property
being surveyed. Mr. Kline testified that without a tie to an external point, it would
not be possible to reproduce the survey without conducting a new survey. No evidence
was elicited to contradict that point.
Petitioner presented the testimony of three local attorneys whose practices
included real estate transactions, each of whom testified that he considered petitioner
to be a competent surveyor and had found petitioner’s surveys to be adequate for his
use. However, each of petitioner’s witnesses also testified that he was unfamiliar
with the rules and regulations governing the practice of surveying and did not know
whether petitioner’s plats met these requirements.
Petitioner testified at the hearing and admitted that he had practiced
surveying during February 2012 while his license was suspended. Petitioner also
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admitted that the Guidelines stated that the purpose of marking and indicating ties
in a plat was to enable another surveyor to reconstruct the survey in the event that
the property’s corners were destroyed, and that without external ties this situation
would require a new survey. However, petitioner also tendered various explanations
for why he believed that his plats were in compliance with the rules for the practice
of surveying. Petitioner generally conceded that he was “in the wrong” and that it
was appropriate for respondent to impose discipline against him, and admitted that
he had been disciplined by respondent on two prior occasions.
On 19 September 2013, respondent issued its final decision revoking
petitioner’s land surveying license. Petitioner appealed to the Buncombe County
superior court. Following a review of the record in August 2015, the trial court
entered an order on 15 September 2015. In its order, the trial court concluded that
the administrative procedure followed by respondent, in which the Settlement
Conference Committee made a recommendation, followed by a full hearing if
requested by petitioner, constituted a violation of petitioner’s due process right to a
“fair and impartial hearing by an unbiased fact finder and adjudicator[.]” The trial
court reversed and vacated respondent’s final decision and ordered that the case be
“remanded to Respondent to cause an Administrative Law Judge to be appointed,
which appointed Administrative Law Judge shall hear this matter de novo to render
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a final decision in this matter.” Respondent noted an appeal to this Court from the
trial court’s order.
II. Standard of Review
N.C. Gen. Stat. § 150B-43 provides that “[a]ny person who is aggrieved by the
final decision in a contested case, and who has exhausted all administrative remedies
made available to him by statute or agency rule, is entitled to judicial review of the
decision.” N.C. Gen. Stat. § 150B-51(b) authorizes a trial court to reverse or modify
an agency’s decision if the petitioner’s substantial rights have been prejudiced
because the agency’s findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional provisions;
(2) In excess of the statutory authority or jurisdiction of the
agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence admissible under
[N.C. Gen. Stat. §§] 150B-29(a), 150B-30, or 150B-31 in
view of the entire record as submitted; or
(6) Arbitrary, capricious, or an abuse of discretion.
“ ‘The North Carolina Administrative Procedure Act governs both trial and
appellate court review of administrative agency decisions.’ ‘On judicial review of an
administrative agency’s final decision, the substantive nature of each [issue on
appeal] dictates the standard of review.’ ” Nanny's Korner Care Ctr. v. N.C. Dep’t of
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Health & Hum. Servs., 234 N.C. App. 51, 57, 758 S.E.2d 423, 427 (2014) (quoting Eury
v. N.C. Employment Security Comm., 115 N.C. App. 590, 596, 446 S.E.2d 383, 387,
disc. review denied, 338 N.C. 309, 451 S.E.2d 635 (1994), and N.C. Dep’t of Env’t &
Natural Res. v. Carroll, 358 N.C. 649, 658, 599 S.E.2d 888, 894 (2004)). “ ‘The first
four grounds for reversing or modifying an agency’s decision . . . may be characterized
as ‘law-based’ inquiries,’ while ‘[t]he final two grounds . . . may be characterized as
‘fact-based’ inquiries.’ ” Nanny’s Korner, 234 N.C. App. at 58, 758 S.E.2d at 427
(quoting Carroll, 358 N.C. at 659, 599 S.E.2d at 894).
“ ‘[Q]uestions of law receive de novo review,’ whereas fact-intensive issues ‘such
as sufficiency of the evidence to support [an agency’s] decision are reviewed under the
whole-record test.’ ” Carroll, at 358 N.C. 659, 599 S.E.2d at 894 (quoting In re Greens
of Pine Glen Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)). “ ‘Under a
de novo review, the court considers the matter anew and freely substitutes its own
judgment’ for that of the lower tribunal.” Craig v. New Hanover Cty. Bd. of Educ., 363
N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (quoting Pine Glen, 356 N.C. at 647, 576
S.E.2d at 319). “ ‘Under the whole record test, the reviewing court must examine all
competent evidence to determine if there is substantial evidence to support the
administrative agency’s findings and conclusions.’ ” Blackburn v. N.C. Dep’t of Pub.
Safety, __ N.C. App. __, __, 784 S.E.2d 509, 517-18 (2016) (quoting Henderson v. N.C.
Dept. of Human Resources, 91 N.C. App. 527, 530, 372 S.E.2d 887, 889 (1988)).
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“Substantial evidence” is defined as “relevant evidence a reasonable mind might
accept as adequate to support a conclusion.” N.C. Gen. Stat. § 150B-2(8b) (2015). It
is well-established that:
In reviewing the whole record, the trial court “is not the
trier of fact but rather sits as an appellate court and may
review both (i) sufficiency of the evidence presented to the
municipal board and (ii) whether the record reveals error
of law.” “It is not the function of the reviewing court, in
such a proceeding, to find the facts but to determine
whether the findings of fact made by the Board are
supported by the evidence before the Board.” . . . The trial
court examines the whole record to determine whether the
Board’s decision is supported by competent, material, and
substantial evidence. In doing so, “the trial court may not
weigh the evidence presented to the agency or substitute
its own judgment for that of the agency.”
Good Neighbors v. County of Rockingham, __ N.C. App. __, __, 774 S.E.2d 902, 907-
08 (quoting Capricorn Equity Corp. v. Town of Chapel Hill Bd. of Adjust., 334 N.C.
132, 136, 431 S.E.2d 183, 186 (1993), In re Campsites Unlimited, 287 N.C. 493, 498,
215 S.E.2d 73, 76 (1975), and Cumulus Broadcasting, LLC v. Hoke Cnty. Bd. of
Comm’rs, 180 N.C. App. 424, 426, 638 S.E.2d 12, 15 (2006)), disc. rev. denied, 368
N.C. 429, 778 S.E.2d 78 (2015).
III. Trial Court’s Ruling on Due Process
The trial court vacated and reversed respondent’s final decision and remanded
the case for the appointment of an administrative law judge, based upon the trial
court’s conclusion that the procedure employed by respondent violated petitioner’s
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right to due process of law. We conclude that the trial court erred in reaching this
conclusion.
Without question, “ ‘[p]rocedural due process requires that an individual
receive adequate notice and a meaningful opportunity to be heard before he is
deprived of life, liberty, or property.’ Moreover, a professional license, such as a
surveyor’s license, is a property interest, and is thus protected by due process.”
Suttles, 227 N.C. App. at 77, 742 S.E.2d at 579 (quoting In re Magee, 87 N.C. App.
650, 654, 362 S.E.2d 564, 566 (1987)). In this case, the trial court found and concluded
that petitioner’s right to due process was violated in that he did not receive a hearing
before a fair and unbiased tribunal.
Whenever a government tribunal . . . considers a case in
which it may deprive a person of life, liberty or property, it
is fundamental to the concept of due process that the
deliberative body give that person’s case fair and open-
minded consideration. “A fair trial in a fair tribunal is a
basic requirement of due process.”
Crump v. Bd. of Education, 326 N.C. 603, 613, 392 S.E.2d 579, 584 (1990) (quoting In
re Murchinson, 349 U.S. 133, 136, 99 L. Ed. 942, 946 (1955)). In Crump, our Supreme
Court discussed the term “bias”:
While the word “bias” has many connotations in general
usage, the word has few specific denotations in legal
terminology. Bias has been defined as “a predisposition to
decide a cause or an issue in a certain way, which does not
leave the mind perfectly open to conviction,” Black’s Law
Dictionary 147 (5th ed. 1979)[.] . . . Bias can refer to
preconceptions about facts, policy or law; a person, group
or object; or a personal interest in the outcome of some
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determination. [The plaintiff] . . . alleged that one or more
Board members came into his hearing having already
decided to vote against him, based on “factual” information
obtained outside the hearing process. This type [of] bias
can be labeled a “prejudgment of adjudicative facts.”
Crump, 326 N.C. at 615, 392 S.E.2d at 585. In the instant case, as in Crump,
petitioner has alleged that respondent prejudged the adjudicative facts of his case.
“A party claiming bias or prejudice may move for recusal and in such event has the
burden of demonstrating ‘objectively that grounds for disqualification actually
exist.’ ” In re Ezzell, 113 N.C. App. 388, 394, 438 S.E.2d 482, 485 (1994) (quoting State
v. Kennedy, 110 N.C. App. 302, 305, 429 S.E.2d 449, 451 (1993)). “ ‘However, in order
to prove bias, it must be shown that the decision-maker has made some sort of
commitment, due to bias, to decide the case in a particular way.’ ” Smith v. Richmond
Cty. Bd. of Education, 150 N.C. App. 291, 299, 563 S.E.2d 258, 265-66 (2002) (quoting
Evers v. Pender County Bd. of Educ., 104 N.C. App. 1, 15, 407 S.E.2d 879, 887 (1991),
aff’d, 331 N.C. 380, 416 S.E.2d 3 (1992)), disc. review denied, 356 N.C. 678, 577 S.E.2d
297 (2003). “This Court has held that there is a ‘presumption of honesty and integrity
in those serving as adjudicator’ on a quasi-judicial tribunal.” In re N. Wilkesboro
Speedway, Inc., 158 N.C. App. 669, 675-76, 582 S.E.2d 39, 43 (2003) (quoting Taborn
v. Hammonds, 83 N.C. App. 461, 472, 350 S.E.2d 880, 887 (1986)).
The trial court made the following findings of fact directly pertinent to its
conclusion that petitioner’s due process rights were violated. Other findings by the
trial court might be construed as part of the trial court’s analysis of due process. For
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example, the court’s finding that there was no substantial evidence to support
respondent’s findings that petitioner failed to comply with surveying regulations
might be intended to support the trial court’s conclusion that respondent was biased.
However, the findings and conclusions listed below are the ones that are more directly
pertinent to the issue of due process.
...
11. . . . [O]n November 14, 2012, the Board mailed Herron
a Notice of Contemplated Board Action, stating that the
Board intended to revoke the land surveying certificate of
licensure of Petitioner, and offering him an opportunity for
a settlement conference and a formal hearing of his matter
in the event it could not be resolved consensually.
12. Herron requested and engaged in a settlement
conference accompanied by his counsel on February 28,
2013 with the Settlement Conference Committee of the
Board, composed of two Board members, along with the
Executive Director of the Board and Board Counsel.
13. The Settlement Conference Committee and Herron
were unable to resolve the issues, and Petitioner’s counsel
requested a Board hearing.
...
15. . . . [A]t the March 13, 2013 Board meeting of
Respondent (“March Board Meeting”), before any notice of
any hearing at which Herron or his counsel were permitted
to attend and present evidence, cross-examine witnesses,
or otherwise present a defense, the Board received factual
information concerning this disputed matter from the
Settlement Committee . . . without the use of Herron’s
name, and further received the recommendation of the
Settlement Conference Committee to revoke Herron’s
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license, and then affirmatively and unanimously voted to
approve the recommendation for license revocation upon
the alleged facts then made known to it.
16. The Board’s vote to revoke Herron’s surveying license
at the March Board Meeting was confirmed by letter to
Petitioner’s counsel . . . [stating] in pertinent part, that:
“The full Board at its March 13, 2013 meeting approved the
recommendation of the Settlement Conference Committee
which was to revoke Herron’s surveying Certificate of
License. The Board acknowledges the request of your client
for a hearing. . . . ”
17. Thereafter, the Board provided notice of a hearing . . .
on or about August 14, 2013 to Petitioner.
18. The hearing was held before the Board on September
11 and 12, 2013, at which hearing Herron was represented
by his counsel.
19. At the outset of such hearing, Petitioner, by and
through his counsel, moved to disqualify the Board from
hearing the contested case and that an Administrative Law
Judge should be appointed because the Board had already
made a decision before hearing evidence to approve the
recommendation of the Settlement Conference Committee
to revoke Petitioner’s license from a range of penalty
options that were available, and that constituted
prejudgment of this matter and a biased fact-finder and
adjudicator of the outcome of this matter.
20. The motion to disqualify [respondent] . . . was denied
following a closed session during which members of the
Board deliberated without further participation by
Petitioner Herron or his counsel.
21. All of the participating Board members at the
September 11, 2013 hearing, with the exception of Board
Member Willoughby, were in attendance and voted to
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approve the recommendation of the Settlement Conference
Committee at the March Board Meeting.
22. The Final Decision entered by the Board did in fact
revoke Petitioner’s Professional Land Surveying License[.]
Based on its findings of fact, the trial court made the following conclusions of
law regarding petitioner’s right to due process:
3. Petitioner was entitled to a fair and impartial hearing by
an unbiased fact finder and adjudicator under the Fifth
Amendment to the United States Constitution, made
applicable to the States by the Fourteenth Amendment to
the Constitution, and under Article I, Section 19 of the
Constitution of North Carolina.
4. That at the March Board Meeting, where Petitioner and
his counsel were not present or provided an opportunity to
be heard, and prior to any hearing, the entire Board, except
for one absent member, received facts of the case as
submitted by the Settlement Conference Committee,
without the name of Petitioner, and voted affirmatively to
approve the recommendation of the Settlement Conference
Committee to revoke Petitioner’s certificate of licensure
without hearing unless requested by the respondent, and
thereby was made upon unlawful procedure and violated
the Petitioner’s Due Process rights to a later fair and
impartial hearing.
5. The denial of Petitioner’s motion to disqualify the Board
from hearing the matter and for reference to an
Administrative Law Judge, as provided in NCGS § 150B-
40(e), and thereafter conducting the hearing violated the
Petitioner’s Due Process rights to a fair and impartial
hearing by an unbiased fact-finder and adjudicator
contrary to both the aforesaid constitutional provisions and
constituted unlawful procedure.
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We note that petitioner did not claim, and the trial court did not find, that
anyone involved in this matter had a personal bias against petitioner individually or
on the basis of an aspect of petitioner’s identity such as race or religion. Instead, the
trial court’s ruling is based solely on an analysis of the administrative structure under
which respondent decided petitioner’s case. The trial court’s conclusion that
petitioner’s right to due process was violated was based on the following:
1. During respondent’s March 2013 Board meeting,
respondent passed a motion approving an extensive
“consent agenda” that included the recommendation of the
Settlement Conference Committee on petitioner’s case.
None of the Board members reviewed the Committee’s
written report, which had redacted all identifying
information.
2. In September 2013, respondent conducted a hearing on
the allegations against petitioner, at which the Board
members heard sworn testimony, received documentary
evidence, and rendered a decision. All but one of the Board
members at the hearing were also present at the earlier
meeting.
We conclude that these circumstances, which were not accompanied by
evidence that any member of respondent’s Board was personally biased against
petitioner, do not support the trial court’s holding on the issue of due process. We
have reached this conclusion for several reasons.
We first clarify the nature of the action taken by respondent at its March 2013
meeting. The trial court found that at this meeting respondent “received factual
information concerning this disputed matter” and then “unanimously voted to
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approve the recommendation for [petitioner’s] license revocation.” The trial court also
found that respondent’s “vote to revoke” petitioner’s surveying license was confirmed
in a letter to Petitioner’s counsel. These findings suggest that at its March 2013
meeting respondent evaluated the evidence against petitioner and rendered a
decision as to the appropriate level of discipline. This implication is not accurate.
As discussed above, the Board did not receive a presentation from the
Settlement Conference Committee at the March 2013 Board meeting. Although the
Board passed a motion for a blanket approval of the entire consent agenda that
included written materials prepared by the Committee in petitioner’s case, it did so
without reading these documents or discussing petitioner’s case. The wisdom of this
procedure, whereby significant decisions are made without discussion or review, may
be subject to question. However, our focus is not on the merits of respondent’s
internal procedures, but on whether these procedures violated petitioner’s due
process rights. The record shows that respondent’s approval of the consent agenda
did not include any review or assessment by the Board of the evidence in petitioner’s
case, or any analysis of whether revocation of petitioner’s license would be
appropriate. As a result, the trial court’s findings of fact to the contrary lack
evidentiary support.
The trial court essentially held that the respondent’s blending of investigative
and adjudicative functions violated petitioner’s constitutional right to due process as
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a matter of law, without requiring evidence that any individual on respondent’s
Board was biased against petitioner. We conclude that although respondent
technically “approved” the Settlement Conference Committee’s recommendation, it
did so without learning that the Committee recommended revocation of petitioner’s
license and without any exposure to the evidence or investigation that had led to this
recommendation. Moreover, this Court has previously held that “[t]there is a critical
distinction between disqualifying bias against a particular party and permissible pre-
hearing knowledge about the party’s case.” Wilkesboro Speedway, 158 N.C. App. at
676, 582 S.E.2d at 43 (citing Farber v. N.C. Carolina Psychology Bd., 153 N.C. App.
1, 9, 569 S.E.2d 287, 294 (2002), cert. denied, 356 N.C. 612, 574 S.E.2d 679 (2003)).
“ ‘[M]ere familiarity with the facts of a case gained by an agency in the performance
of its statutory duties does not disqualify it as a decisionmaker.’ ” Farber, 153 N.C.
App. at 9, 569 S.E.2d at 294 (quoting Thompson v. Board of Education, 31 N.C. App.
401, 412, 230 S.E.2d 164, 170 (1976), reversed on other grounds, 292 N.C. 406, 233
S.E.2d 538 (1977)).
In Farber, the North Carolina Psychology Board (the respondent) assigned a
staff psychologist to investigate a report that the petitioner, a licensed psychologist,
had engaged in an improper romantic relationship with a patient. The investigator
presented his findings to respondent, with the petitioner’s name redacted, and the
respondent found probable cause to issue a formal complaint against the petitioner.
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At the formal hearing on the matter, the petitioner moved to disqualify those board
members who had heard the investigator’s report and sought to have his case heard
by an administrative law judge. The petitioner’s motion was denied and following
the hearing respondent suspended the petitioner’s license for two years. The
petitioner appealed to the superior court, which reversed on the grounds that the
respondent had violated the petitioner’s due process and statutory rights. This Court
reversed the trial court, holding that:
Regarding bias in the context of an administrative agency,
the United States Supreme Court has cautioned that “[t]he
contention that the combination of investigative and
adjudicative functions necessarily creates an
unconstitutional risk of bias in administrative adjudication
has a much more difficult burden of persuasion to carry. It
must overcome a presumption of honesty and integrity in
those serving as adjudicators[.]” . . . This Court has echoed
the Supreme Court’s warning, stating that “there is no per
se violation of due process when an administrative tribunal
acts as both investigator and adjudicator on the same
matter.” Thus, “[a]bsent a showing of actual bias or unfair
prejudice petitioner cannot prevail.”
Farber, at 153 N.C. App. 9, 569 S.E.2d at 294 (quoting Withrow v. Larkin, 421 U.S.
35, 47, 43 L. Ed. 2d 712, 723-24 (1975), and Hope v. Charlotte-Mecklenburg Bd. of
Education, 110 N.C. App. 599, 603-04, 430 S.E.2d 472, 474-75 (1993)). We conclude
that Farber is controlling on the issue of whether respondent’s administrative
procedure constitutes a per se violation of petitioner’s right to due process.
Petitioner attempts to distinguish Farber from this case on the grounds that
in Farber the pre-hearing knowledge of the petitioner’s case arose when the board
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made a preliminary finding of probable cause to pursue the allegations against the
petitioner. However, because the board in Farber made a finding of probable cause
based upon an assessment of the evidence against that petitioner, there was more,
rather than less, opportunity for the board in Farber to develop a bias against the
petitioner than in the case now before this Court, in which respondent approved the
recommendation of the Settlement Conference Committee without review of the
evidence or even of the nature of that recommendation.
We conclude that the trial court erred by holding that petitioner’s due process
rights were violated. We reverse the trial court’s order and remand for further
proceedings applying the standard of review discussed above, in Section II of this
opinion.
REVERSED AND REMANDED.
Judges STEPHENS and McCULLOUGH concur.
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