                               NO. COA13-790

                     NORTH CAROLINA COURT OF APPEALS

                             Filed: 4 March 2014


MILLIE E. HERSHNER,

    Petitioner,

    v.                                      Wake County
                                            No. 12 CVS 8765
NC DEPARTMENT OF ADMINISTRATION
and THE NC HUMAN RELATIONS
COMMISSION,

    Respondent.

    Appeal by respondent from order entered 11 January 2013 by

Judge Paul C. Ridgeway in Wake County Superior Court.                Heard in

the Court of Appeals 11 December 2013.


    John Walter      Bryant    and    Amber    J.   Ivie    for   petitioner-
    appellee.

    Roy Cooper, Attorney General, by Ann Stone,                     Assistant
    Attorney General, for respondent-appellant.


    STEELMAN, Judge.


    Where unchallenged findings of fact support the decisions

of the administrative law judge and state personnel commission,

the trial court did not err in adopting their findings of fact

and conclusions of law.         Where respondent failed at trial to

present evidence to support the alleged bases for petitioner’s

termination,   the   trial    court   did     not   err    in   affirming   the
                                           -2-
decisions of the administrative law judge and state personnel

commission that petitioner’s termination was wrongful.                                 Where

the   state       personnel      commission     had   a   quorum      at    the    time      it

commenced business, it was authorized to issue a decision.

                        I. Factual and Procedural Background

       Millie       Hershner      (petitioner)     was     employed        by    the   North

Carolina         Department      of   Administration       (DOA),      Human      Relations

Committee (HRC) (collectively, respondent) as a staff attorney.

Citizens who believe their rights under the Fair Housing Act

have been violated can file complaints with the HRC.                            As part of

her    employment         duties,     petitioner      assisted        investigators          in

these cases and helped to determine whether HRC should hear

them.

       In        2005,     petitioner     was    hired     as    an    Attorney        I    for

respondent.             She was selected for this position over another

applicant, Richard Boulden.               In 2006, Boulden was selected for

an    Attorney      II    position,     making    him     petitioner’s          supervisor.

Prior       to    2006,    petitioner     had     only     one    disagreement             with

Boulden.           At    the    time,   Boulden,      a   case    investigator,             had

determined that a case had cause, while petitioner determined

that it did not.               Subsequent to his promotion, Boulden did not

train petitioner, or meet with her to establish any kind of work
                                          -3-
plan   or   standards,      as       required    by        respondent’s    “Performance

Management      System.”         However,       on    Boulden’s      first   review       of

petitioner’s work, he gave her a negative performance rating.

Petitioner subsequently advised Boulden that he could not rate

her performance negatively without stating the basis for the

rating; Boulden then amended the performance ratings, so that

they were positive, but in the lower range.

       Following    the        low     rating,        petitioner        contacted        the

complainants in cases on which she had previously worked.                                One

such complainant, Virginia Radcliffe (Radcliffe), had threatened

to sue HRC.        On 3 January 2008, Boulden contacted Radcliffe,

informed her that HRC was no longer working on her case, and

told her that he would be the sole point of contact between

Radcliffe and respondent.              Boulden claimed at the hearing that

he   had    overheard    petitioner        speaking          with   Radcliffe    on      the

telephone later that day, although he did not raise the issue

with petitioner at the time.

       On   9    June    2008,        Boulden        informed       petitioner      of     a

disciplinary meeting concerning her conversation with Radcliffe

on 3 January 2008.         On 11 June 2008, petitioner received a Final

Written Warning for unacceptable personal conduct, specifically

insubordination,        with     regard     to       her    continued     contact     with
                                               -4-
Radcliffe.          This       letter    outlined          five   numbered     rules    that

petitioner had been expected to follow.                           There was no evidence

presented that petitioner had violated any of these rules, or

that petitioner had any subsequent contact with Radcliffe.

       On     24     August       2009,        petitioner          was    dismissed     for

unacceptable personal conduct, including conduct unbecoming a

State employee that was detrimental to State service, violation

of a known work rule, and insubordination.                          Specifically, three

acts     were      alleged      as    the      basis       for    this    dismissal:    (1)

petitioner sent two letters to Radcliffe, containing allegedly

confidential        information;         (2)    petitioner         contacted      Stephanie

Williams (Williams), another complainant, and informed her that

she     believed      Williams’         case    had        “cause,”      before   a    final

determination had been made by HRC; and (3) petitioner had been

instructed to work on a single assignment, to the exclusion of

others, and yet continued to work on other assignments.                                 John

Campbell,       Executive       Director       of    HRC    (Campbell)     admitted     that

petitioner was not fired due to a failure to meet expectations,

a failure to do her job, or unsuccessful job performance due to

lack     of     skill     or     effort.             Further,      an    HRC   Supervising

Investigator, Maggie Faulcon, observed that she had “never heard

of     anyone      ever    even      being     disciplined         for    discussing    the
                                   -5-
likelihood of the determination with a party, and for certain,

never heard of anyone losing their job over such a thing.”

    On   4    December   2009,   petitioner   filed   a   petition   for   a

contested case hearing in the Office of Administrative Hearings

(OAH).   On 3 February 2012, Administrative Law Judge Donald W.

Overby (ALJ) issued his decision, and held that respondent’s

dismissal of petitioner was unwarranted and should be reversed.

Respondent appealed the ALJ’s decision to the State Personnel

Commission.     On 23 May 2012, the SPC issued its decision and

order, adopting the findings of fact and conclusions of law of

the ALJ, and affirming the decision in favor of petitioner.

Respondent appealed to the Superior Court of Wake County.            On 11

January 2013, the trial court affirmed the decision of the SPC,

and ordered that petitioner be reinstated with back pay and

benefits.

    Respondent appeals.

                         II. Standard of Review

    “In cases appealed from administrative tribunals, we review

questions of law de novo and questions of fact under the whole

record test.” Diaz v. Div. of Soc. Servs., 360 N.C. 384, 386,

628 S.E.2d 1, 2 (2006).
                                        -6-
    “[W]e     consider     de   novo    whether   the    Commission     erred     in

reaching    its     conclusion        that     ‘just    cause’       existed     for

petitioner's termination.”            Amanini v. N.C. Dep't of Human Res.,

114 N.C. App. 668, 678, 443 S.E.2d 114, 120 (1994).

    III. Adoption of Findings and Conclusions by Trial Court

    In its first argument, respondent contends that the trial

court erred in adopting the findings of fact and conclusions of

law of the ALJ and SPC.         We disagree.

    The ALJ made one hundred and twenty five findings of fact,

which were adopted by the SPC, and ultimately adopted by the

trial court.      Respondent challenges the evidentiary support for

only ten of these findings.              Those findings which respondent

does not challenge are binding upon this court.                        Koufman v.

Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).

    Even assuming arguendo that respondent is correct, and that

these ten findings were not supported by evidence in the record,

there were one hundred and fifteen unchallenged findings.                         We

hold that these remaining findings of fact support the ALJ’s

conclusions    of   law.        These    conclusions     of    law   support     the

decisions   of    the   SPC     and    trial   court    to    affirm   the     ALJ’s

decision.

    This argument is without merit.
                                         -7-
                        IV. Affirming the ALJ and SPC

      In its second argument, respondent contends that the trial

court erred in affirming the decisions of the ALJ and SPC.                                 We

disagree.

      Respondent contends that petitioner was dismissed due to

violations       of   guidelines,      particularly         those        in    the       Final

Written Warning dated 11 June 2008, relating to the disclosure

of    confidential      information         and    contacting        a        complainant.

Respondent       contends       that   petitioner’s          violation          of       these

guidelines constituted just cause for petitioner’s dismissal.

      At trial, respondent supported its claim that petitioner’s

conduct    was     unbecoming      a   State      employee     with       two       letters,

written by petitioner to Radcliffe, which respondent contends

contained confidential information about cases and derogatory

remarks     about     petitioner’s      supervisor       and        HRC.            However,

respondent failed to offer any evidence that the information in

these    letters      was    confidential.         Respondent       also        failed     to

present evidence that these letters were detrimental to State

service simply because they may have contained negative remarks

concerning    petitioner’s        supervisor.         The     ALJ     concluded           that

“[t]he Respondent failed to meet its burden to establish that

any     information         released   by    the     Petitioner          .      .    .     was
                                            -8-
confidential to anyone other than the Petitioner, who is free to

waive    that    confidentiality         as    she    chooses.”           The    ALJ       also

concluded that “[t]he Respondent failed to meet its burden to

establish that the release of information by Ms. Hershner was

detrimental to state service simply because it may have been

negative regarding one Supervisor[.]”                      These conclusions were

affirmed by the SPC and trial court.

       Respondent also contended that petitioner was dismissed, in

part,    for    the        willful     violation      of     a    known        work    rule,

specifically         for   her    alleged     disclosure         to   Williams        of   the

status of her case.              However, respondent presented no evidence

that this rule applied to HRC attorneys such as petitioner.

Evidence in the record instead supported a finding that this

rule    applied       to    the      non-attorney      investigators,            and       that

investigators        regularly       disregarded      this       rule.     Petitioner’s

supervisor testified that he had never told petitioner that this

policy was grounds for dismissal.                    One investigator testified

that such a policy did not apply to attorneys, and that she had

not    heard    of    investigators       being      disciplined         for    discussing

preliminary          determinations         with     complainants.               The        ALJ

concluded, based upon this evidence, that the State had not met

its burden of establishing that this policy existed, or that
                                  -9-
such a policy was enforced prior to being used as a basis to

discipline petitioner.

    Finally,      respondent   alleged   as    its   third   basis    for

petitioner’s   dismissal   that   petitioner   was   insubordinate,   in

that she willfully refused to carry out a reasonable order from

her supervisor.     Respondent contends that this directive was to

work on nothing but an appellate brief for one specific case.

However, the directive was for petitioner to make the brief her

“top priority,” not to cease all other work.         The ALJ found that

the case in question was ultimately dismissed as a result of her

supervisor’s conduct, not as a result of petitioner’s work.           The

ALJ further concluded that:

         The Respondent failed to establish its
         burden that the Petitioner was insubordinate
         in her handling of the writing of the
         Appellate Brief, when she had been commended
         by the Executive Director of the Agency for
         postponing her vacation to finish a brief,
         putting her work ahead of her personal life,
         she had never missed a filing deadline in
         her work at the HRC, the Petitioner still
         had fifteen days remaining within which to
         finish the brief before its due date when
         she was placed on administrative leave by
         the Agency Counsel, the HRC Agency Counsel
         eventually decided to abandon the appeal
         without ever filing the brief, and the very
         day    the   Petitioner    was   placed   on
         Administrative leave she was told by the
         Agency Counsel that the brief was only a
         "top priority" not her only priority.
                              -10-
    We   have   previously   held     that,   “according   to   the

Commission's regulations, ‘just cause’ for dismissal has been

divided into two basic categories—unsatisfactory job performance

and personal conduct (misconduct) detrimental to State service.”

Amanini, 114 N.C. App. at 679, 443 S.E.2d at 120.      In Amanini,

we held that there was a distinction between the two categories:

         The JOB PERFORMANCE category is intended to
         be used in addressing performance-related
         inadequacies for which a reasonable person
         would expect to be notified of and allowed
         an opportunity to improve. PERSONAL CONDUCT
         discipline is intended to be imposed for
         those actions for which no reasonable person
         could, or should, expect to receive prior
         warnings.

Id. at 679, 443 S.E.2d at 120-21.       In the instant case, the

conduct at issue involved job performance, the first category.

Alleged infractions under this category require prior notice and

opportunity to improve.   As the ALJ found, however, petitioner

had never received such warning.

    We   hold   that   petitioner’s    termination,   based     upon

disclosure of information which respondent failed to prove was

confidential, violation of a rule which respondent failed to

prove was in effect, and disobedience of an instruction which

was not, in fact, disobeyed, was not supported by just cause.

The trial court did not err in affirming the decisions of the
                                       -11-
ALJ   and   SPC   that    respondent    lacked    just     cause   to   terminate

petitioner’s employment.

      This argument is without merit.

                         C. Whether a Quorum Existed

      In its third argument, respondent contends that the SPC

lacked the authority to make its decision because a quorum of

its members was not present.       We disagree.

      Of the nine members of the SPC, seven were present when

petitioner’s case was heard.            Once the session of the SPC had

opened, those with conflicts were asked to recuse themselves;

two did so,       leaving five    remaining SPC members.                Respondent

contends that five members did not constitute a quorum, and that

the SPC lacked authority to rule on petitioner’s case.

      At the time of petitioner’s case, the SPC required a quorum

of six in order to hear cases.                  N.C. Gen. Stat. § 126-2(f)

(2011).1    The term “quorum” is not defined in Chapter 126 of the

North Carolina General Statutes.              Black’s Law Dictionary defines

a quorum as “[t]he minimum number of members . . . who must be

present     for   a   deliberative       assembly     to     legally     transact



1
  In August of 2013, N.C. Gen. Stat. § 126-2(f) was amended to
read “Five members of the Commission shall constitute a quorum.”
N.C. Gen. Stat. § 126-2(f) (2013).     However, at the time of
petitioner’s hearing before the SPC, the statute required six
members to constitute a quorum.
                                        -12-
business[,]”       but    does   not   state       at   what    time    during   the

proceedings        a    quorum   should      be    determined.         Black’s   Law

Dictionary, 1370 (9th ed. 2009).                  However, several other North

Carolina statutes note that once a person is deemed present for

quorum purposes, he is deemed present for the remainder of that

meeting.    See N.C. Gen. Stat. §§ 55-7-25(b), 55A-7-22(a) (2013).

We hold that a quorum of the SPC is to be determined at the

beginning of a meeting; once the meeting is opened, the SPC may

conduct    business       regardless    of    subsequent       recusals   that   may

reduce the number of members voting on a particular issue below

the number required for a quorum.

    In the instant case, when the SPC commenced business, seven

members were present, exceeding the six required for a quorum.

At that time, a quorum was established.                    Respondent cites no

authority     to       support   the   contention       that    this    quorum   was

subsequently nullified by the recusal of two of its members.                      We

hold that the SPC had a quorum, and therefore had the authority

to hear petitioner’s case.

    This argument is without merit.

    NO ERROR.

    Judges GEER and ERVIN concur.
