Butler v. Scotland Cty. Bd. of Educ.Â

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-501
Filed: 6 February 2018
Scotland County, No. 16 CVS 517
ANTHONY BUTLER, Petitioner,
v.
SCOTLAND COUNTY BOARD OF EDUCATION, Respondent.
Appeal by petitioner from order entered 23 January 2017 by Judge Tanya T.
Wallace in Scotland County Superior Court. Heard in the Court of Appeals 5 October
2017.
Van Camp, Meacham & Newman, PLLC, by Amanda L. Tomblyn and Thomas
M. Van Camp, for petitioner-appellant.
Tharrington Smith, L.L.P., by Kenneth A. Soo and Lindsay Vance Smith, for
respondent-appellee.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Jill R. Wilson and
Elizabeth L. Troutman, and Allison B. Schafer, for amicus curiae North
Carolina School Boards Association.
DAVIS, Judge.
This appeal requires us to revisit the issue of which provisions from North
Carolina’s Administrative Procedure Act (“APA”) should be used to fill gaps existing
in statutes authorizing appeals to superior court from decisions by a local school
board. Anthony Butler appeals from the trial court’s order dismissing his petition for
judicial review in which he sought to challenge the termination of his employment as
BUTLER V. SCOTLAND CTY. BD. OF EDUC.
Opinion of the Court
a teacher by the Scotland County Board of Education (the “Board”). Because we
conclude that Butler’s petition failed to comply with several essential requirements
under N.C. Gen. Stat. § 150B-46, we affirm.
Factual and Procedural Background
In 2016, Butler was a career teacher employed at Scotland County High School.
On 9 May 2016, the Superintendent of Scotland County Schools notified him that he
was being placed on suspension without pay and that his dismissal had been
recommended to the Board. On 9 June 2016, the Board held a hearing and entered
an order terminating his contract of employment.
On 7 July 2016, Butler filed a document captioned “Notice of Appeal and
Petition for Judicial Review” in Scotland County Superior Court. Butler served the
petition by mailing a copy to the attorney who had represented the Board in the
administrative proceeding. On 3 August 2016, the Board filed a motion to dismiss in
which it asserted that a number of errors existed in the petition and that Butler had
failed to properly serve the petition upon the Board.
A hearing was held on the Board’s motion to dismiss on 28 November 2016
before the Honorable Tanya T. Wallace. On 23 January 2017, the trial court entered
an order granting the Board’s motion. Butler filed a timely notice of appeal to this
Court.
Analysis
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It is well established that “[o]n appeal of a decision of a school board, a trial
court sits as an appellate court and reviews the evidence presented to the school
board.” Davis v. Macon Cty. Bd. of Educ., 178 N.C. App. 646, 651, 632 S.E.2d 590,
594 (2006) (citation omitted), disc. review denied, 360 N.C. 645, 638 S.E.2d 465 (2006).
“The proper standard of review depends upon the nature of the asserted error.” Id.
(citation omitted). Because Butler’s appeal to this Court concerns the purely legal
issues of whether his petition for judicial review was legally sufficient and whether
he properly served the petition on the Board, we review de novo the trial court’s order
dismissing his appeal. See In re Taylor, 242 N.C. App. 30, 34, 774 S.E.2d 863, 866
(2015).
Butler’s petition stated as follows:
NOW COMES Petitioner, Anthony Butler, by and
through his undersigned counsel, and pursuant to N.C.
Gen. Stat. § 115C-325.8, et. seq., N.C. Gen. Stat. § 150B-
43, et. seq., N.C. Gen. Stat. § 150B-45, et. seq., and N.C.
Gen. Stat. § 7A-250(a), et. seq., and hereby gives Notice of
Appeal to the Superior Court of Scotland County, North
Carolina from the Order of Dismissal by the Scotland
County Board of Education, dated June 9, 2016. Petitioner
respectfully requests that the Court enter an appropriate
Order requiring the Respondent to promptly transmit and
deliver to this Court a complete copy of the administrative
record compiled in this matter, including any and all
transcripts, exhibits, evidence, or other similar matters,
pursuant to N.C. Gen. Stat. § 115C-325.8(b).
Chapter 115C of the North Carolina General Statutes governs appeals from
various types of decisions made by local school boards. The particular statute within
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Chapter 115C relied upon by Butler in challenging his dismissal was N.C. Gen. Stat.
§ 115C-325.8, which states as follows:
(a) A teacher who (i) has been dismissed, demoted, or
reduced to employment on a part-time basis for
disciplinary reasons during the term of the contract as
provided in G.S. 115C-325.4, or has received a disciplinary
suspension without pay as provided in G.S. 115C-325.5,
and (ii) requested and participated in a hearing before the
local board of education, shall have a further right of
appeal from the final decision of the local board of
education to the superior court of the State on one or more
of the following grounds that the decision:
(1) Is in violation of constitutional provisions.
(2) Is in excess of the statutory authority or
jurisdiction of the board.
(3) Was made upon unlawful procedure.
(4) Is affected by other error of law.
(5) Is unsupported by substantial evidence in view
of the entire record as submitted.
(6) Is arbitrary or capricious.
(b) An appeal pursuant to this section must be filed
within 30 days of notification of the final decision of the
local board of education and shall be decided on the
administrative record. The superior court shall have
authority to affirm or reverse the local board’s decision or
remand the matter to the local board of education. The
superior court shall not have authority to award monetary
damages or to direct the local board of education to enter
into an employment contract of more than one year, ending
June 30.
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N.C. Gen. Stat. § 115C-325.8 (2017).
Because N.C. Gen. Stat. § 115C-325.8 does not specifically address the
contents of a petition for judicial review of a school board’s decision or the manner in
which it must be served, the Board contends that N.C. Gen. Stat. § 150B-46 — a
statute within the APA — governs these issues. N.C. Gen. Stat. § 150B-46 states, in
pertinent part, as follows:
The petition shall explicitly state what exceptions are
taken to the decision or procedure and what relief the
petitioner seeks. Within 10 days after the petition is filed
with the court, the party seeking the review shall serve
copies of the petition by personal service or by certified mail
upon all who were parties of record to the administrative
proceedings. . . .
N.C. Gen. Stat. § 150B-46 (2017).
It is undisputed that Butler’s petition failed to comply with N.C. Gen. Stat.
§ 150B-46 in several respects. First, the petition did not contain any specific
exceptions to the Board’s decision or state what relief was being sought by Butler.
Second, Butler failed to personally serve the Board within ten days of the filing of the
petition by means of either personal service or certified mail. Thus, the question
before us is whether N.C. Gen. Stat. § 150B-46 applied to Butler’s appeal to superior
court.
As an initial matter, it is clear that “local school boards and local school
administrative units are local governmental units, and, as such, are not ‘agencies’ for
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the purpose of the APA.” Thomas Jefferson Classical Acad. Charter Sch. v. Cleveland
Cty. Bd. of Educ., 236 N.C. App. 207, 215, 763 S.E.2d 288, 295 (2014) (citation
omitted). However, although school board appeals are exempted from the scope of
the APA as a general proposition, our appellate courts have nevertheless repeatedly
“borrowed” certain provisions of the APA to fill gaps existing in the judicial review
provisions of Chapter 115C. Thus, it is helpful to review the pertinent case law from
our appellate courts on this subject.
In Thompson v. Wake Cty. Bd. of Educ., 292 N.C. 406, 233 S.E.2d 538 (1977),
a career teacher was suspended pursuant to N.C. Gen. Stat. § 115-142(f). The Wake
County Board of Education subsequently entered an order dismissing the teacher,
and he appealed to superior court. Id. at 408, 233 S.E.2d at 540. The court reversed
the Board’s decision. Id. On appeal, our Supreme Court addressed the question of
what standard of review applied to appeals to superior court from local school board
decisions. The Court held that “the whole record rule” as set out in N.C. Gen. Stat.
§ 150A-51 — a provision of the APA — was the applicable standard of review in such
appeals. Id. at 410, 233 S.E.2d at 541.
The Supreme Court reiterated the holding of Thompson in Overton v.
Goldsboro City Board of Education, 304 N.C. 312, 283 S.E.2d 495 (1981). In Overton,
a school board dismissed the plaintiff from his position as a middle school physical
education teacher. He appealed the dismissal to superior court, which determined
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that the board’s decision was not supported by substantial evidence in the record. Id.
at 316, 283 S.E.2d at 498.
In reviewing his appeal, the Supreme Court once again considered the issue of
what standard of review applied to school board appeals.
We first determine the appropriate standard of judicial
review. Plaintiff appealed the Board’s action to the
superior court pursuant to the provisions of G.S. 115-
142(n) (1978). That statute, however, provides no
standards for review. We find no standards for judicial
review for an appeal of a school board decision to the courts
set forth in Chapter 115 of our General Statutes. Moreover,
we note that G.S. 150A-2(1) expressly excepts county and
city boards of education from the coverage of the
Administrative Procedure Act (APA), Chapter 150A, N.C.
General Statutes. However, this Court held in Thompson
v. Wake County Board of Education, 292 N.C. 406, 233 S.E.
2d 538 (1977), that the standards for judicial review set
forth in G.S. 150A-51 are applicable to appeals from school
boards to the courts. Since no other statute provides
guidance for judicial review of school board decisions and
in the interest of uniformity in reviewing administrative
board decisions, we reiterate that holding and apply the
standards of review set forth in G.S. 150A-51 . . . .
Id. at 316-17, 283 S.E.2d at 498.
Since Overton, our appellate courts have routinely applied the standard of
review set out in the APA to appeals from school board decisions. See, e.g., Farris v.
Burke Cty. Bd. of Educ., 355 N.C. 225, 235, 559 S.E.2d 774, 781 (2002) (applying
standards set out in N.C. Gen. Stat. § 150B-51 (citation omitted)); Davis, 178 N.C.
App. at 651, 632 S.E.2d at 594 (“N.C. Gen. Stat. § 150B-51(b) governs judicial review
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of school board actions . . . .” (citation omitted)); Evers v. Pender Cty. Bd. of Educ., 104
N.C. App. 1, 9-10, 407 S.E.2d 879, 884 (1991) (“[O]ur Supreme Court has . . . held that
the standards for judicial review set forth in N.C. Gen. Stat. § 150A-51 (now section
150B-51) apply to appeals from school boards.” (citation omitted)), aff’d per curiam,
331 N.C. 380, 416 S.E.2d 3 (1992).
We have also, however, utilized other APA provisions in school board appeals
on issues as to which Chapter 115C was silent. For example, in Coomer v. Lee County
Board of Education, 220 N.C. App. 155, 723 S.E.2d 802, appeal dismissed and disc.
review denied, 366 N.C. 238, 731 S.E.2d 428 (2012), the petitioner appealed to
superior court pursuant to N.C. Gen. Stat. § 115C-45 from a school board’s decision
to terminate her employment as a bus driver. The superior court dismissed her
appeal as untimely based on the requirement in N.C. Gen. Stat. § 150B-45 imposing
a thirty-day time limit on appeals from agency decisions. Id. at 156-57, 723 S.E.2d
at 803. In affirming the court’s dismissal of her appeal, we stated as follows:
. . . Section 115C-45(c) does not contain a time limit,
so the superior court looked to the time limit set out in
Article 4 of the Administrative Procedure Act (APA).
Under the APA, a person seeking judicial review of a final
decision under Article 4 of the APA “must file a petition
within 30 days after the person is served with a written
copy of the decision.” N.C. Gen. Stat. § 150B-45(a) (2011).
Although local boards of education are generally excluded
from the requirements of the APA, see N.C. Gen. Stat.
§§ 115C-2, 150B-2(1a) (2011), our appellate courts have
consistently applied the standards for judicial review set
out in § 150A-51 to appeals from school boards to the
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courts, e.g., Overton v. Board of Education, 304 N.C. 312,
316-17, 283 S.E.2d 495, 498 (1981). As the Supreme Court
explained in Overton, because “no other statute provides
guidance for judicial review of school board decisions and
in the interest of uniformity in reviewing administrative
board decisions,” the courts “apply the standards of review
set forth in G.S. 150A-51[.]” Id.
Similarly, here, no other statute provides guidance
for the judicial review of school board decisions, so the
superior court, following Overton, properly looked to Article
4 of the APA to determine the correct time limit for
appealing from school boards to the courts. . . .
Id. at 157, 723 S.E.2d at 803-04 (internal citation omitted).
Indeed, we specifically noted the applicability of N.C. Gen. Stat. § 150B-46 to
an appeal under Chapter 115C in Tobe-Williams v. New Hanover County Board of
Education, 234 N.C. App. 453, 759 S.E.2d 680 (2014). That case involved a local
school board’s decision not to renew the contract of an assistant principal. She
appealed to superior court, and the court reversed the board’s decision and reinstated
her. On appeal to this Court, the school board argued that the trial court had erred
by failing to dismiss the assistant principal’s petition for judicial review based on lack
of personal jurisdiction. Id. at 460, 759 S.E.2d at 687. Based on Overton, we
determined that “[t]he Board’s decision not to renew an assistant principal’s
employment contract is subject to judicial review in accordance with Article 4 of the
North Carolina Administrative Procedure Act . . . .” Id. at 459, 759 S.E.2d at 686
(citation omitted). We then stated the following:
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The Board first argues that the trial court erred in
failing to dismiss the petition for lack of personal
jurisdiction. The APA provides that “the person seeking
review must file a petition within 30 days after the person
is served with a written copy of the decision.” N.C. Gen.
Stat. § 150B-45(a) (2013). Additionally, “[w]ithin 10 days
after the petition is filed with the court, the party seeking
the review shall serve copies of the petition by personal
service or by certified mail upon all who were parties of
record to the administrative proceedings.” N.C. Gen. Stat.
§ 150B-46 (2013).
Here, Ms. Tobe-Williams filed her petition on 9
August 2012, but the Board was not served by personal
service or by certified mail until 5 September 2012, more
than 10 days later. Service was, therefore, defective.
Id. at 460-61, 759 S.E.2d at 687.1
In Ragland v. Nash-Rocky Mount Board of Education, __ N.C. App. __, 787
S.E.2d 422, appeal dismissed and disc. review denied, __ N.C. __, 793 S.E.2d 237
(2016), the petitioner was a part-time teacher who was terminated by the school
board. After filing a petition for judicial review of the school board’s decision
pursuant to N.C. Gen. Stat. § 115C-325.8, the petitioner filed three motions — a
motion for entry of default, a motion for default judgment, and a motion for summary
judgment — based on his contention that the school board had failed to file an
appropriate responsive pleading to his petition for judicial review. Id. at __, 787
S.E.2d at 429-30. The superior court denied the motions, and the petitioner appealed.
1
However, because the board had failed to raise the issue of personal jurisdiction in superior
court, we ultimately determined that the issue had been waived. Id. at 461, 759 S.E.2d at 687.
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Id. at __, 787 S.E.2d at 430. We held that because the petition was filed to initiate
an administrative appeal rather than a new civil action the school board’s response
was not required to set forth affirmative defenses or specifically deny allegations set
forth in the petition as would be required of an answer to a complaint under the North
Carolina Rules of Civil Procedure.
. . . Here, N.C. Gen. Stat. § 150B-46 provides that, in
response to a petition filed following administrative
proceedings, “parties to the proceeding may file a response
to the petition within 30 days of service. Parties, including
agencies, may state exceptions to the decision or procedure
and what relief is sought in the response.” Id. § 150B-
46 (2015).
Respondent-Board responded in a timely manner to
the Petition. Respondent-Board was served with a copy of
the Amended Petition by certified mail on 24 February
2015 and respondent-Board filed a copy with the trial court
on 25 March 2015, within thirty days after receipt of the
Petition (twenty-nine days later). Respondent-Board had
no duty to respond to petitioner’s improper motions. . . .
Id. at __, 787 S.E.2d at 430.
Thus, as the above-referenced cases make clear, this Court has previously
applied N.C. Gen. Stat. § 150B-46 — as well as other provisions of the APA — in
administrative appeals arising under Chapter 115C in the absence of contrary
statutory guidance contained therein. Accordingly, given the lack of any provision in
N.C. Gen. Stat. § 115C-325.8 governing the contents and service of petitions for
judicial review, we conclude it is likewise appropriate to apply N.C. Gen. Stat. § 150B-
46 in the present case.
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In a number of prior instances, we have affirmed the dismissal of petitions for
judicial review based on (1) their failure to adequately state exceptions to the
underlying agency decision, see, e.g., Gray v. Orange Cty. Health Dep’t, 119 N.C. App.
62, 72, 457 S.E.2d 892, 899 (mere listing of broad exceptions to agency decision could
not “operate to salvage a petition which utterly disregards the statutory specificity
requirements”), disc. review denied, 341 N.C. 649, 462 S.E.2d 511 (1995); Vann v.
N.C. State Bar, 79 N.C. App. 173, 174, 339 S.E.2d 97, 98 (1986) (petition for judicial
review “was not sufficiently explicit to allow effective judicial review of respondent’s
proceedings”); and (2) the petitioner’s failure to serve the petition in compliance with
N.C. Gen. Stat. § 150B-46, see, e.g., Follum v. N.C. State Univ., 198 N.C. App. 389,
395, 679 S.E.2d 420, 424 (2009) (petitioner’s service of petition for judicial review
upon university board’s attorney did not comply with mandate of N.C. Gen. Stat.
§ 150B-46 because attorney was “not a party of record to the administrative
proceedings”).
Butler’s appeal was deficient in these same respects. First, his petition failed
to state any specific exceptions to the Board’s decision or the relief he sought to obtain
as expressly required by N.C. Gen. Stat. § 150B-46. Second, he failed to comply with
N.C. Gen. Stat. § 150B-46’s service requirements in that instead of personally serving
the Board with his petition within the ten-day time limit he simply served a copy of
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his petition upon the attorney for the Board. Thus, his petition for judicial review
was properly dismissed by the trial court.2
Conclusion
For the reasons stated above, we affirm the trial court’s 23 January 2017 order.
AFFIRMED.
Judges ZACHARY and BERGER concur.
2 While not necessary to our decision, we observe that Butler expressly referenced several
provisions of the APA in his petition, thereby demonstrating his awareness that the APA
supplemented N.C. Gen. Stat. § 115C-325.8 in terms of imposing certain procedural requirements
applicable to his appeal of the Board’s decision. Moreover, in his appellate brief, he has not directed
our attention to any alternative statutes addressing what must be contained in a petition for judicial
review or the manner in which such a petition must be served.
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