                            NO. COA13-679

                   NORTH CAROLINA COURT OF APPEALS

                         Filed: 17 June 2014


TIFFANY N. TOBE-WILLIAMS,
          Petitioner,

    v.                                New Hanover County
                                      No. 12 CVS 3128
NEW HANOVER COUNTY BOARD OF
EDUCATION; a/k/a NEW HANOVER
COUNTY SCHOOLS,
          Respondent.


    Appeal by respondent from order entered 4 January 2013 by

Judge W. Allen Cobb, Jr. in New Hanover County Superior Court.

Heard in the Court of Appeals 7 November 2013.


    The Leon Law Firm, P.C., by Mary-Ann Leon; and                      The
    McGuinness Law Firm, by J. Michael McGuinness,                      for
    petitioner-appellee.

    Tharrington Smith, L.L.P.,       by   Deborah      R.   Stagner,    for
    respondent-appellant.

    N.C. School Boards Association, by Allison B. Schafer and
    Christine T. Scheef, for Amicus Curiae North Carolina
    School Boards Association.

    N.C. Association of Educators, by Ann McColl and Carrie
    Bumgardner, for Amicus Curiae North Carolina Association of
    Educators.


    GEER, Judge.


    Respondent   New   Hanover   County   Board   of    Education      ("the

Board") appeals from an order reversing the Board's decision not
                                    -2-
to renew the contract of petitioner Tiffany N. Tobe-Williams.

We conclude that the process employed by the Board in reaching

its decision violated Ms. Tobe-Williams' procedural rights under

N.C. Gen. Stat. § 115C-287.1(d) (2013) and under N.C. Gen. Stat.

§ 115C-325(b) (2013) when it based its decision not to renew Ms.

Tobe-Williams'     contract   on    evidence   not    contained    in   her

personnel file and without giving her notice of that evidence

and an opportunity to respond to it.       Accordingly, we affirm the

trial court's conclusion that the Board's decision was made upon

unlawful procedure.

    However, the grounds for nonrenewal asserted by the Board

are not arbitrary, capricious, personal, or political, and the

record contains evidence that would support the Board's decision

even though some of the Board's specific findings of fact are

unsupported.     We, therefore, reverse the trial court's order of

reinstatement and remand to the Board for reconsideration of its

decision   after     giving   Ms.     Tobe-Williams     notice     of   the

information that the Board intends to consider in making its

decision and an opportunity to respond to that evidence.

                                   Facts

    Ms. Tobe-Williams was employed by the Board as an assistant

principal in the New Hanover County School District                under a

four-year contract from July 2008 to 30 June 2012.               During the
                                         -3-
2008-2009    academic     year,    Ms.    Tobe-Williams          worked   at   Myrtle

Grove Middle School.         During the course of that academic year,

Ms. Tobe-Williams' relationship with her immediate supervisor,

principal Robin Meiers, deteriorated due, in large part, to Ms.

Tobe-Williams'   concerns        about    the   financial        practices     of   the

school treasurer, which Ms. Tobe-Williams believed were not in

compliance   with    Board    policies.         Although         Ms.   Tobe-Williams

expressed her concerns to Ms. Meiers on several occasions, she

did not feel that Ms. Meiers adequately addressed the problem.

The Human Resources Department encouraged Ms. Tobe-Williams to

work with Ms. Meiers to resolve the issues.

    On 19 June 2009,          Ms. Tobe-Williams attempted to file a

grievance by emailing Dr. John A. Welmers, Jr., the assistant

superintendent      for    Human         Resources,        and     expressing       her

dissatisfaction with the lack of response or guidance from Human

Resources    regarding     her     allegations        of    unethical     financial

practices.    In the email, Ms. Tobe-Williams stated that if the

matter was not resolved by the following Tuesday, she would

contact the Department of Public Instruction to request a full

investigation.      She indicated that "resolved MINIMALLY mean[t],"

among other things, that she be transferred to another school.

    Dr. Welmers responded that Ms. Tobe-Williams' allegations

concerning the treasurer were being investigated and that an
                                              -4-
internal    auditor         and     Ms.    Meiers   had     taken       "personnel      action

concerning the improvement of the treasurer's performance and

put in place steps to ensure that the treasurer meets all of the

school system's guidelines and regulations . . . ."                              Dr. Welmers

notified Ms. Tobe-Williams that her email did not constitute a

formal     grievance          and      explained      to     Ms.       Tobe-Williams        the

guidelines of the Board's formal grievance policy, concluding

that "[i]f you believe one of these conditions [for which a

grievance       may    be     filed]       exists   that     has       not   already      been

addressed by the school system, you certainly have every right

to begin the formal grievance procedure."

    On 10 July 2009, Ms. Tobe-Williams filed a formal grievance

against    Ms.     Meiers,          Dr.    Welmers,    and       Dr.    Susan     Hahn,     the

Director     of       Human       Resources.          On    19     August    2009,      then-

superintendent         Dr.     Alfred       H.   Lerch,      Jr.       granted    Ms.     Tobe-

Williams    a     transfer        to      Wrightsville      Beach       Elementary      School

("WBES"), and Ms. Tobe-Williams agreed to drop her grievance.

Superintendent Lerch requested that Ms. Meiers not complete an

evaluation      for     Ms.       Tobe-Williams       for    the       2008-2009    academic

year.

    During the 2009-2010 academic year, Ms. Tobe-Williams had a

successful year as an assistant principal at WBES, working under

Principal Pansy R. Rumley.                  During her second year at WBES, on
                                            -5-
21    and   25   January    2011,   Ms.      Tobe-Williams        suffered     allergic

reactions while participating in a school clean up.                           Ms. Tobe-

Williams came to believe that these allergic reactions and her

subsequent health issues were related to the uncleanliness of

the school and the possibility of black mold growing in the

building.        On 1 February 2011, Ms. Tobe-Williams' doctor wrote

her a note stating she "needs time off from school until dust

and black (mold?) [sic] cleaned up."

       In response to an incident report relating to Ms. Tobe-

Williams, the New Hanover County Schools Maintenance Operations

Department completed an indoor air quality ("IAQ") observation

report on 28 January 2011.             The N.C. Department of Environmental

and    Natural     Resources    Division          of    Environmental     Health     also

inspected the school on 16 February 2011, while the New Hanover

County Health Department conducted an inspection and tested for

mold, allergens, and other health issues on 22 February 2011.

None of the reports from these inspections indicated that mold

was present in the school.

       On   23    February     2011,     Ms.       Tobe-Williams        met   with   Dr.

Welmers;     Mr.     Bill    Hance,     the        assistant      superintendent      of

maintenance; and Dr. Jim Markley, the new superintendent of New

Hanover     County    Schools.         At    the       meeting,   Ms.    Tobe-Williams

expressed her concerns regarding the presence of mold, the lack
                                           -6-
of    cleanliness      of     WBES,      and     her     dissatisfaction     with   the

administration's response to her concerns.                         She believed the

administration had deceived her by failing to timely provide her

with information concerning the mold investigation, by failing

to return her emails, and by not sharing with her pictures of

the    school   that        Mr.    Hance       had     taken.     Ms.   Tobe-Williams

requested that an IAQ examination be done at the school.

      Mr. Hance explained to Ms. Tobe-Williams that no mold or

other significant health issues had been found at the school by

the Health Department.              Regarding the cleanliness of WBES, Dr.

Markley   acknowledged            that   WBES's      previous     inspection   reports

showed that WBES had received the lowest overall score in the

school system, but he explained that WBES nevertheless met the

school system's general guidelines for cleanliness.

      On 25 February 2011, Dr. Markley temporarily transferred

Ms.    Tobe-Williams         to     Alderman         Elementary     School     ("AES"),

effective 28 February 2011, to fill the position of an assistant

principal who was on maternity leave.                      His letter to Ms. Tobe-

Williams indicated the transfer was "as a precaution for your

health and safety due to the fact that you have alleged that you

have become sick at work and that you believe it is due to poor

indoor air quality . . . at [WBES] . . . ."                        He told Ms. Tobe-
                                         -7-
Williams that they were having the IAQ at WBES tested and that

he would reassess her assignment once he received the results.

      Ms. Tobe-Williams did not report to work at AES.                           Instead,

she filed a grievance against Dr. Markley and sent an email to

the   Board's     attorney     maintaining       that     the    transfer        was   "in

violation of federal OSHA regulations which prohibit employers

from transferring employees due to workplace hazard complaints."

She informed Dr. Markley that she would be out the first week of

her temporary transfer due to multiple doctor appointments.

      Additional IAQ testing of WBES was completed by Phoenix

EnviroCorp on 25 February 2011, 7 March 2011, and 11 March 2011.

Mr.   Hance     notified      Ms.    Tobe-Williams        when    he     received      the

testing reports from Phoenix EnviroCorp and made copies of the

reports available to Ms. Tobe-Williams.                       The results revealed

that there were elevated levels of mold in one classroom, mobile

classroom     seven   ("MC-7").         Phoenix       EnviroCorp       also   conducted

carbon dioxide monitoring in all the classrooms                          on 11 March

2011.       The    report     concluded        that     the     readings      indicated

"possible      ventilation          issues,"     but     noted     that       all      the

measurements      were   "well      below"     the    OSHA    Permissible        Exposure

Limit   and     the   NIOSH    Recommended           Exposure    limit     for    carbon

dioxide.      On Saturday, 12 March 2011, custodians throughout the
                                        -8-
New    Hanover     County     School    District      conducted     a     "thorough

cleaning" of WBES from 7:00 a.m. until 4:00 p.m.

       On 22 March 2011, Ms. Rumley sent a letter to the parents

of the students assigned to MC-7 explaining why the students had

been moved from MC-7 to the library.                 The letter explained that

the    school     was   replacing      the    HVAC    unit   and   that       "[o]nce

everything is operational and a final air quality inspection is

approved, the students will return to MC-7."                    Chris Peterson,

the    director    of   maintenance     operations,      reviewed       the    letter

prior to its being sent to the parents and concluded that the

information in the letter was accurate.

       On 24 March 2011, Dr. Markley informed Ms. Tobe-Williams

that    the     maintenance    department       had    completed    a     thorough

cleaning of the school, and the air quality in the building was

"good" with respect to levels of carbon dioxide and mold.                           He

noted that the most recent tests had indicated that elevated

mold spore levels were only found in one location, MC-7, and

were    "not      elevated     to   a    significant         degree."          As   a

"precautionary measure," Dr. Markley requested that Ms. Tobe-

Williams not work in that area until further testing had been

completed.       Dr. Markley requested that Ms. Tobe-Williams return

to WBES on 28 March 2011 unless her doctor advised her not to.

Additionally, he noted that "[i]f your doctor states that you
                                                 -9-
should not return to that specific building or upon your return

you experience any difficulties with breathing, anaphylaxis, or

other     health       conditions,       we      will   take   that    information      into

consideration for accommodating your condition which may involve

making other arrangements for your work site."

         Ms. Tobe-Williams returned to work, and continued to pursue

her grievances against WBES regarding cleanliness and IAQ.                                On

10 May 2011, Ms. Tobe-Williams testified and presented evidence

at   a    hearing       before    the       Board.       After    considering     all    the

evidence presented at the hearing, the Board adopted and sent

Ms. Tobe-Williams a written resolution, which concluded that Ms.

Tobe-Williams' concerns did not rise to the level of a valid

grievance.

         After    the    hearing,       Ms.      Tobe-Williams     continued     to   raise

complaints about the conditions at WBES, including a complaint

on 25 May 2011 that a window in the media center had been

screwed        shut     and    posed    a     fire      hazard.       Ms.   Tobe-Williams

believed        that     the   window       was     purposefully      screwed    shut     as

retaliation against her.                The screws were removed promptly upon

Ms. Tobe-Williams' request.

         The     following       day,       26    May     2011,    Ms.      Tobe-Williams,

appearing "visibly angry," confronted Ms. Rumley in her office

and told Ms. Rumley that "she was the angriest that she had ever
                                               -10-
been, and it was up to [Ms. Rumley] whether the next ten days

would    be     pleasant         and    amicable      or   not"    and    that    Ms.    Tobe-

Williams "could make life miserable by going to the news media

regarding the issues with Mobile Classroom 7."                                Specifically,

Ms. Tobe-Williams was upset about the window being screwed shut

and   about      the       letter      that    Ms.    Rumley      had    sent    to   parents

regarding MC-7.             Ms. Tobe-Williams called Ms. Rumley a "liar"

for stating in the letter that MC-7 had received "A" ratings on

health department inspections.

      Regarding the window, Ms. Rumley informed Ms. Tobe-Williams

that maintenance had screwed the window shut in an attempt to

follow the energy policy of not opening windows when the air-

conditioning was on.                   Ms. Rumley also produced for Ms. Tobe-

Williams the inspection reports that she believed showed the "A"

ratings for MC-7.                Ms. Tobe-Williams explained that the "A" did

not     refer      to      the     rating,     but     rather      the    "status       code."

Following the meeting, Ms. Rumley notified Dr. Markley that she

had misinterpreted the information on the inspection reports.

      Due     to      a    reduction      in    funding,       Ms.      Tobe-Williams      was

transferred to Ogden Elementary School ("OES") as an assistant

principal       for       the    2011-2012     school      year.        Ms.   Tobe-Williams

completed the year under Principal Tammy Bruestle and received

"Proficient" and "Accomplished" ratings on her final evaluation.
                                          -11-
The evaluation noted, however, that Ms. Tobe-Williams could "be

intimidating         to   staff    members     especially      if    they    are   under

performing [sic]."

       At a Board meeting on 5 June 2012, Dr. Markley submitted to

the    Board    a     list    of    principals      and    assistant        principals,

including      Ms.    Tobe-Williams,       with    a   recommendation           that   the

Board renew their contracts.               Prior to the Board's vote on the

contracts,      however,      the     Board    requested      additional        time    to

review   Ms.     Tobe-Williams'          personnel     file    and      other    records

concerning Ms. Tobe-Williams' performance over the course of her

four-year contract "because [the Board] was aware of serious

concerns       about"       Ms.     Tobe-Williams.            As    a    result,       the

superintendent            removed        Ms.     Tobe-Williams'           name         from

consideration, and the Board did not vote on her contract at the

5 June 2012 meeting.

       After the 5 June 2012 meeting, the Board reviewed Ms. Tobe-

Williams' personnel file, other information maintained by the

New Hanover County Schools' Human Resources Department, and a

memorandum submitted by Ms. Meiers regarding Ms. Tobe-Williams'

performance during the 2008-2009 school year.                       Ms. Tobe-Williams

was not contacted by the Board during this time.                        At the 10 July

2012   meeting,       the    superintendent       again    recommended          that    Ms.

Tobe-Williams'        contract      be   renewed.         Nonetheless,       the   Board
                                     -12-
unanimously voted not to renew Ms. Tobe-Williams' contract and

adopted a written resolution reflecting its decision.

      Ms. Tobe-Williams appealed the nonrenewal decision to New

Hanover County Superior Court on the grounds that the decision

was   arbitrary    and     capricious,     not   supported     by    substantial

evidence,   in    excess    of   statutory    authority,     and    affected   by

errors of law.      The matter was heard on 17 December 2012 by the

trial court.       On 4 January 2013, the court entered an order

reversing the Board's decision on the grounds that it was not

supported by substantial evidence in the record, was arbitrary

and   capricious,    and     was   based     upon   unlawful       procedure   in

violation of N.C. Gen. Stat. § 115C-287.1.                   The Board timely

appealed to this Court.

                                   Discussion

      "On 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 Cnty. Bd. of Educ., 178 N.C.

App. 646, 651, 632 S.E.2d 590, 594 (2006).             The 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 ("APA").                  N.C. Gen.

Stat. § 115C-287.1(d).
                                    -13-
    Under Article 4, N.C. Gen. Stat. § 150B-51(b) (2013), a

trial court may reverse or modify the agency decision if it is:

           (1)    In    violation          of      constitutional
                  provisions;

           (2)    In excess of the statutory authority or
                  jurisdiction    of   the   agency    or
                  administrative law judge;

           (3)    Made upon unlawful procedure;

           (4)    Affected by other error of law;

           (5)    Unsupported   by  substantial  evidence
                  admissible under G.S. 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.

    Errors       alleged   under   subsections      (1)   through     (4)     are

reviewed   de    novo.     N.C.    Gen.    Stat.    §   150B-51(c).         "When

conducting de novo review, the court considers the matter anew

and may freely substitute its own judgment for the board's."

Moore v. Charlotte-Mecklenburg Bd. of Educ., 185 N.C. App. 566,

572, 649 S.E.2d 410, 415 (2007).

    The whole record test applies to claims that the Board's

decision   was     unsupported     by     substantial     evidence    or      was

arbitrary, capricious, or an abuse of discretion.                Davis, 178

N.C. App. at 652, 632 S.E.2d at 594.               "Pursuant to the whole

record test, the reviewing court examines all competent evidence

to determine whether a school board's decision was based upon
                                       -14-
substantial     evidence."      Id.         "Substantial     evidence   is     such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion."        State ex rel. Comm'r of Ins. v. N.C.

Fire Ins. Rating Bureau, 292 N.C. 70, 80, 231 S.E.2d 882, 888

(1977).

      "A court applying the whole record test may not substitute

its judgment for the agency's as between two conflicting views,

even though it could reasonably have reached a different result

had it reviewed the matter de novo."             Watkins v. N.C. State Bd.

of   Dental    Exam'rs,   358   N.C.    190,    199,   593    S.E.2d    764,   769

(2004).     "Only when there is no substantial evidence supporting

administrative     action    should     the    court   reverse    an    agency's

ruling."      Mendenhall v. N.C. Dep't of Human Res., 119 N.C. App.

644, 650, 459 S.E.2d 820, 824 (1995).

      This Court reviews the trial court's order for error of

law. Moore, 185 N.C. App. at 572-73, 649 S.E.2d at 415.                        "Our

task is essentially twofold: '(1) determining whether the trial

court     exercised   the    appropriate       scope   of     review    and,    if

appropriate, (2) deciding whether the court did so properly.'"

Id. at 573, 649 S.E.2d at 415 (quoting Alexander v. Cumberland

Cnty. Bd. of Educ., 171 N.C. App. 649, 655, 615 S.E.2d 408, 413

(2005)).

                                        I
                                             -15-
      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.                      In the Board's response to

the petition, the Board asserted the defenses of insufficiency

of   process,     insufficiency            of    service,      and    lack       of   personal

jurisdiction pursuant to Rules 12(b)(4), (5), and (6) of the

Rules of Civil Procedure, and moved to dismiss the petition.

      However,      the    issue      of    service      and    personal         jurisdiction

over the Board was not raised by either party at the 17 December

2012 hearing, and both parties presented arguments concerning

the merits of the case.               The Board did not request a ruling on
                                 -16-
its motion to dismiss, and the trial court proceeded to enter a

decision on the merits.

    "Jurisdiction   over   the   person   of   a   defendant   can   be

acquired only in two ways: (1) By service of process upon him,

whereby he is brought into court against his will; and (2) by

his voluntary appearance and submission."          In re Blalock, 233

N.C. 493, 503, 64 S.E.2d 848, 855 (1951).

              An appearance merely for the purpose of
         objecting to the lack of any service of
         process or to a defect in the process or in
         the service of it, is a special appearance.
         In such case the defendant does not submit
         his person to the jurisdiction of the court.

              On the other hand, a general appearance
         is one whereby the defendant submits his
         person to the jurisdiction of the court by
         invoking the judgment of the court in any
         manner on any question other than that of
         the jurisdiction of the court over his
         person.

              A general appearance waives any defects
         in the jurisdiction of the court for want of
         valid summons or of proper service thereof.

Id. at 503-04, 64 S.E.2d at 855-56 (internal citations omitted).

    In this case, by failing to raise the issue of jurisdiction

at the hearing and by arguing the merits of the case, the Board

submitted to the jurisdiction of the trial court and waived its

personal jurisdiction defense.      Accordingly, we hold that the

trial court properly asserted jurisdiction over the Board, and

we review the merits of this appeal.
                                        -17-
                                         II

    The     Board     next   contends      that    the    trial   court      erred        in

concluding    that    the    Board's    decision     was     made   upon         unlawful

procedure.      Because      this    question      raises    issues     of       law,     we

review it de novo.

    The procedure for hiring school administrators, including

assistant principals, is set out in N.C. Gen. Stat. § 115C-

287.1.    A school administrator is employed by the local board of

education "upon the recommendation of the superintendent" for an

initial contract term of up to four years "ending on June 30 of

the final 12 months of the contract."                    N.C. Gen. Stat. § 115C-

287.1(b).       During       the    term      of   the      contract,        a        school

administrator may not be dismissed or demoted "except for the

grounds and by the procedure by which a career teacher may be

dismissed or demoted as set forth in G.S. 115C-325."                         N.C. Gen.

Stat. § 115C-287.1(c).             This procedure includes the "right to

receive      notice     of     an      adverse      recommendation               by      the

superintendent, to be heard before a case manager and/or the

board of education, to present evidence, and generally to defend

against whatever the charges or allegations might be."                                Moore,

185 N.C. App. at 570, 649 S.E.2d at 413-14 (citing N.C. Gen.

Stat. § 115C-325(h)-(j3) (2005)).
                                           -18-
    However,         the    General       Assembly     has    provided        a    different

procedure      for     the     decision         whether       to    renew          a   school

administrator's        contract.           If   the    superintendent             intends    to

recommend that the school administrator's contract be renewed,

the superintendent must "submit the recommendation to the local

board    for     action,"           and     the       Board    "may       approve           the

superintendent's           recommendation       or    decide       not   to       offer     the

school   administrator          a     new,      renewed,       or    extended          school

administrator's contract."            N.C. Gen. Stat. § 115C-287.1(d).

    On the other hand,

                  [i]f a superintendent decides not to
            recommend that the local board of education
            offer a new, renewed, or extended school
            administrator's    contract    to    the   school
            administrator, the superintendent shall give
            the school administrator written notice of
            his or her decision and the reasons for his
            or her decision no later than May 1 of the
            final    year   of    the    contract.        The
            superintendent's     reasons     may     not   be
            arbitrary,     capricious,       discriminatory,
            personal, or political.       No action by the
            local board or further notice to the school
            administrator shall be necessary unless the
            school    administrator     files     with    the
            superintendent a written request, within 10
            days of receipt of the superintendent's
            decision, for a hearing before the local
            board. Failure to file a timely request for
            a hearing shall result in a waiver of the
            right    to   appeal    the     superintendent's
            decision. If a school administrator files a
            timely request for a hearing, the local
            board shall conduct a hearing pursuant to
            the provisions of G.S. 115C-45(c) and make a
            final decision on whether to offer the
                                    -19-
           school administrator a new, renewed,                  or
           extended school administrator's contract.

                If the local board decides not to offer
           the school administrator a new, renewed, or
           extended school administrator's contract,
           the local board shall notify the school
           administrator of its decision by June 1 of
           the final year of the contract.    A decision
           not to offer the school administrator a new,
           renewed, or extended contract may be for any
           cause that is not arbitrary, capricious,
           discriminatory, personal, or political.

Id. (emphasis added).

    Thus, when the superintendent recommends nonrenewal, the

school administrator is entitled to notice of the grounds for

the nonrenewal recommendation and, upon timely request, to a

hearing   before    the   Board.    However,    when    the    superintendent

recommends renewal, the statute is silent as to the procedure by

which the Board may accept or reject the recommendation and,

more specifically, as to the school administrator's right to

notice and a hearing.

    We are not required to decide, in this case, whether a

Board     must     conduct    a    full-blown        hearing     whenever    a

superintendent      recommends     renewal     but     the     Board   decides

otherwise.       It is apparent that the procedure that the Board

used in this case is not one authorized by the statute and is

not consistent with Chapter 115C when read as a whole.
                                          -20-
    In construing other provisions of Chapter 115C of the North

Carolina General Statutes, our Supreme Court has emphasized:

               "In   the  exposition   of   a  statute   the
               intention of the lawmaker will prevail over
               the literal sense of the terms, and its
               reason and intention will prevail over the
               strict letter.     When the words are not
               explicit, the intention is to be collected
               from the context, from the occasion and
               necessity of the law, from the mischief felt
               and the remedy in view, and the intention is
               to be taken or presumed according to what is
               consonant with reason and good discretion."

Taborn    v.    Hammonds,   324    N.C.    546,        553,   380   S.E.2d   513,   517

(1989) (quoting Faulkner v. New Bern–Craven Cnty. Bd. of Educ.,

311 N.C. 42, 58, 316 S.E.2d 281, 290–91 (1984)).

    The Supreme Court further emphasized that when construing

provisions       in   Chapter     115C,     the    following        well-established

principle of statutory construction applies: "'[A]ll statutes

relating to the same subject matter shall be construed in pari

materia    and    harmonized      if    this     end    can   be    attained   by   any

reasonable interpretation.'"             Id. (quoting Faulkner, 311 N.C. at

58, 316 S.E.2d at 291)).               Accordingly, in deriving the meaning

of a particular provision of Chapter 115C, "we must examine it

in the general context of North Carolina's public school laws .

. . ."    Id., 380 S.E.2d at 517-18.

    In Taylor v. Crisp, 286 N.C. 488, 496, 212 S.E.2d 381, 386

(1975), the Supreme Court held that "[t]he manifest purpose" of
                                         -21-
the    statute     then    governing     employment      of       teachers    "was    to

provide teachers of proven ability for the children of this

State by protecting such teachers from dismissal for political,

personal, arbitrary or discriminatory reasons."                        It follows that

the    manifest     purpose    of   N.C.   Gen.    Stat.      §    115C-287.1(d)      in

prohibiting        the     nonrenewal      of     administrators'            employment

contracts for "arbitrary, capricious, discriminatory, personal,

or political" reasons is to ensure that North Carolina's schools

are staffed with administrators of proven ability.

       The procedural protections explicitly provided in N.C. Gen.

Stat. § 115C-287.1(d) further this purpose.                        Specifically, the

notice of an adverse recommendation by the superintendent alerts

the school administrator that her future employment status is at

risk     and,     more    importantly,     of    the    potential         grounds    for

nonrenewal.        The school administrator may then request a hearing

before    the     school    board   in   order    to   have       an   opportunity    to

contest the validity of the asserted grounds for nonrenewal and

to specifically address the concerns of the superintendent and

the school board.

       In this case, however, the superintendent recommended the

renewal    of     Ms.     Tobe-Williams'    contract       and,        therefore,    the

statute     did     not    expressly     require       that   she       be   given    an

opportunity to request a hearing.                The Board urges that it was,
                                          -22-
under the plain language of N.C. Gen. Stat. § 115C-287.1, free,

without conducting a hearing,                   to "decide[] not to offer the

school    administrator        a     new,       renewed,    or     extended        school

administrator's contract."            However, in this case, the Board did

not simply reject the superintendent's recommendation.

       Instead,    the       Board    determined          that     it     needed     more

information.      As its resolution regarding the nonrenewal of Ms.

Tobe-Williams' contract stated, the Board, upon receipt of the

superintendent's 5 June 2012 recommendation, "chose not to renew

Ms. Tobe-Williams' contract at that time because it was aware of

serious concerns about Ms. Tobe-Williams.                       The Board asked for

an   opportunity   to    review      documentation         of    Ms.    Tobe-Williams'

performance and conduct."                 The resolution indicated that the

Board members "then reviewed extensive documentation concerning

Ms. Tobe-Williams which was maintained by the Human Resources

Department, including rebuttals and explanations provided by Ms.

Tobe-Williams."         At    the    12    July    2012    Board    meeting,       "Board

Members   discussed      Ms.    Tobe-Williams'         performance         and   conduct

with     the   Superintendent             and     others     and        discussed     the

documentation they had reviewed."                 (Emphasis added.)

       Nothing in the Board's resolution indicates that it limited

its review to materials in Ms. Tobe-Williams' personnel file --

materials of which Ms. Tobe-Williams would have had notice.                           See
                                               -23-
N.C. Gen. Stat. § 115C-325(b) (2013) (providing "[t]he personnel

file       shall    be     open       for     the   teacher's     inspection          at    all

reasonable times" and requiring five days' notice to teachers

before material is              placed in personnel file).                    Indeed, even

though, after a dispute arose between principal Robin Meiers and

Ms.        Tobe-Williams,         a     prior       superintendent       had      expressly

determined that Ms. Meiers should not prepare an evaluation for

academic year 2008-2009, Ms. Meiers was asked to provide the

Board with a memo describing, three years after the fact, what

Ms.    Tobe-Williams'           ratings        would   have    been     had     Ms.    Meiers

evaluated          her    formally.1            Moreover,       our     review        of     the

administrative           record       suggests      that   additional         documentation

reviewed       by   the    Board       was    likely   not    included     in    Ms.       Tobe-

Williams' personnel file prior to the superintendent's having

recommended her renewal.

       Review       of    the   Board's       resolution      also     reveals    that       the

Board in fact relied on documentation, including Ms. Meiers'

memo, in makings its nonrenewal decision.                        The Board even found

that "[f]urther investigation by the Board has revealed that at

least       two     teachers      at        Ogden   Elementary        School     asked       the

Principal not to let Ms. Tobe-Williams evaluate them because Ms.
       1
      Significantly, as the formal evaluations in Ms. Tobe-
Williams' personnel file indicate, if Ms. Meiers had prepared a
formal evaluation, Ms. Tobe-Williams would have seen the
evaluation and had an opportunity to comment in writing.
                                         -24-
Tobe-Williams had intimidated them and they did not believe they

could    be    evaluated   fairly    by    Ms.   Tobe-Williams."       (Emphasis

added.)       In short, the Board conducted, unbeknownst to Ms. Tobe-

Williams, its own investigation and then, at a Board meeting,

interviewed      unspecified     witnesses       about    her   performance     and

discussed documentation related to that performance.                      In other

words, the Board effectively conducted a hearing without notice

to or participation by Ms. Tobe-Williams.

      The procedure followed by the Board in this case -- in

which the Board conducted its own investigation, solicited the

creation of documentation, reviewed documentation not contained

in   the   personnel    file,    and     interviewed     witnesses   --    is   not

specifically authorized by the statute and is not consistent

with Chapter 115C when read as a whole.                  Moreover, our research

has failed to uncover any decision by our courts suggesting that

such a procedure is permissible.

      N.C. Gen. Stat. § 115C-325 "governs the hiring, firing,

tenure     and    resignations      of    public   schoolteachers;        and   its

definition of 'teacher' includes those who directly supervise

teaching," such as principals and assistant principals.                     Warren

v. Buncombe Cnty. Bd. of Educ., 80 N.C. App. 656, 658, 343

S.E.2d 225, 226 (1986).          Before setting out the procedures for
                                     -25-
the hiring and firing of employees, the statute provides the

following regarding personnel files:

            The superintendent shall maintain in his
            office a personnel file for each teacher
            that contains any complaint, commendation,
            or suggestion for correction or improvement
            about the teacher's professional conduct,
            except that the superintendent may elect not
            to place in a teacher's file (i) a letter of
            complaint that contains invalid, irrelevant,
            outdated, or false information or (ii) a
            letter of complaint when there is no
            documentation of an attempt to resolve the
            issue.     The complaint, commendation, or
            suggestion shall be signed by the person who
            makes it and shall be placed in the
            teacher's file only after five days' notice
            to the teacher.    Any denial or explanation
            relating to such complaint, commendation, or
            suggestion that the teacher desires to make
            shall be placed in the file.      Any teacher
            may petition the local board of education to
            remove any information from his personnel
            file that he deems invalid, irrelevant, or
            outdated.      The   board   may   order   the
            superintendent to remove said information if
            it   finds   the   information   is   invalid,
            irrelevant, or outdated.

N.C. Gen. Stat. § 115C-325(b) (emphasis added).

    Thus,     employees,     including    administrators,       are   expressly

provided    notice   of    the   inclusion    of   any   materials    in   their

personnel    files   and   receive   an     opportunity    to   address    those

materials.    It is evident by the inclusion of this provision at

the beginning of N.C. Gen. Stat. § 115C-325 -- the section of

Chapter 115C governing employment contracts -- that the General

Assembly intended to protect employees from the inclusion of
                                         -26-
unfair,    untrue,     incomplete,       or   outdated         information        in    their

personnel     files    that    might     adversely         affect      their   employment

status.     This provision is also inconsistent with a construction

of N.C. Gen. Stat. § 115C-287.1(d) that would allow a school

board unfettered discretion regarding what it may consider when

making an employment decision without a hearing.

      While we recognize that school boards have wide discretion

to consider evidence introduced at a hearing, Baxter v. Poe, 42

N.C. App. 404, 409, 257 S.E.2d 71, 74-75 (1979) ("While a Board

of   Education      conducting       a   hearing      .    .    .   must    provide      all

essential elements of due process, it is permitted to operate

under a more relaxed set of rules than is a court of law[]"),

there   was    no   hearing     in   this     case.         Therefore,      the     Board's

decision      was   based,    at     least    in   part,        upon    information        --

including documentation and interviews -- to which Ms. Tobe-

Williams had never been given any opportunity to respond.                                 We

cannot conclude that the General Assembly intended such a result

given the careful protections that the legislature has granted

regarding the contents of an employee's personnel file.

      Further, "[i]t is fully established that the language of a

statute     will      be   interpreted        so      as       to   avoid      an      absurd

consequence. . . .            Where a literal reading of a statute will

lead to absurd results, or contravene the manifest purpose of
                                           -27-
the Legislature, as otherwise expressed, the reason and purpose

of the law shall control and the strict letter thereof shall be

disregarded."         Taylor,   286     N.C.      at    496,    212       S.E.2d     at   386

(internal quotation marks omitted).

       In N.C. Gen. Stat. § 115C-287.1(d), the General Assembly

has specifically provided for a hearing before the Board only if

the    superintendent     has   recommended            nonrenewal,        as   the      Board

argues.        Nevertheless,          to     allow       the        Board,     when       the

superintendent has in fact recommended renewal, to conduct its

own    investigation,     to    consider       documentation          outside       of    the

administrator's       personnel       file,       and    to     question       witnesses

without notice to the administrator, would lead to an absurd

consequence that is inconsistent with "[t]he manifest purpose"

of the statute to provide administrators "of proven ability for

the children of this State by protecting such [administrators]

from      dismissal     for     political,             personal,          arbitrary        or

discriminatory reasons."         Taylor, 286 N.C. at 496, 212 S.E.2d at

386.

       The construction urged by the Board in this case would

provide    extensive     procedural        protections         to    an    administrator

whose     performance    was     poor       enough      to     merit       a   nonrenewal

recommendation        from      the        superintendent,            but      deny        an

administrator     actually        recommended            for        renewal        by     the
                                              -28-
superintendent         of      any     opportunity          to    ensure       simply      that

information          considered        by      the     Board      was       not     "invalid,

irrelevant, [or] outdated," N.C. Gen. Stat. § 115C-325(b), or

"arbitrary, capricious, discriminatory, personal, or political,"

N.C. Gen. Stat. § 115C-287.1(d).

       Furthermore,         the      Board's        construction       would      grant    more

procedural      protection         when       the    concerns     originated        with       the

superintendent, whose recommendation is only advisory, than when

the     concerns      originated         with       those   who    have      the    ultimate

decision making authority -- the Board itself.                                 See Abell v.

Nash Cnty. Bd. of Educ., 71 N.C. App. 48, 52, 321 S.E.2d 502,

506    (1984)       (holding      that      superintendent's           recommendation          for

renewal of probationary teacher is only advisory and "ultimate

responsibility rests with the board").

       We    recognize      that       in     the    context      of    a   renewal       of    a

probationary         teacher's         contract,        this      Court      rejected          the

teacher's argument that she had a statutory right to a hearing

where       "N.C.    Gen.      Stat.      §    115C-325(m)(2)           [(2005)]     --        the

provision specifically setting forth the rights of probationary

teachers -- fails to expressly provide any right to a hearing

before the Board."             Moore, 185 N.C. App. at 573, 649 S.E.2d at

415.
                                        -29-
       This Court explained that, in contrast to the provision

providing    the   rights       of    probationary          teachers,       the   General

Assembly      expressly         requires           prior         notice     to     school

administrators        and    career    teachers        from        the    superintendent

"regarding    a    recommendation           that     may        adversely     affect   the

employee's future status."             Id. at 574, 649 S.E.2d at 415.                   In

reference to the provisions of N.C. Gen. Stat. § 287.1(d), the

Court      reasoned         "[t]he    existence            of      language       granting

administrators        the     right    to     a     hearing        'pursuant      to   the

provisions of G.S. 115C–45(c)' confirms that when the General

Assembly intended to afford notice and hearing rights, it did so

in unambiguous terms."           185 N.C. App. at 577-78, 649 S.E.2d at

418.

       In Moore, however, the contract renewal procedures in N.C.

Gen. Stat. § 115C-325(m)(2) (2005) did not provide notice and

hearing rights to probationary teachers under any circumstances,

thus showing an intent on the part of the General Assembly to

treat      probationary          teachers          differently            from     school

administrators and career teachers and provide them with less

procedural protection.           Here, in contrast to Moore, the question

is not whether the General Assembly intended to afford school

administrators, as a class of employee, with notice and hearing

rights in the contract renewal process, but rather under what
                                          -30-
circumstances     are    such   procedural         protections    triggered.     To

hold that when a superintendent recommends renewal, a Board may

conduct its own investigation, and an administrator has no right

to notice or an opportunity to be heard in any form regarding

that investigation, would be an absurd result inconsistent with

other provisions in Chapter 115C.                  We decline to adopt such a

construction of N.C. Gen. Stat. § 115C-287.1(d).

       Reading N.C. Gen. Stat. § 115C-287.1(d) in pari materia

with    other   provisions      in       Chapter    115C    and   considering   the

overall purpose of N.C. Gen. Stat. § 115C-287.1(d), as directed

by Taylor and Taborn, we hold that in deciding whether "to offer

the    school   administrator        a    new,   renewed,    or   extended   school

administrator's contract," N.C. Gen. Stat. § 115C-287.1(d), if

the superintendent recommends that an administrator's contract

be     renewed,    the     Board          is     limited     to    reviewing    the

administrator's personnel file as it exists at that time and the

superintendent's recommendation.                 In the event the Board has

concerns regarding renewal that cannot be resolved by review of

the administrator's personnel file, we hold that the Board may

not consider documentation outside the administrator's personnel

file or question witnesses -- effectively holding a hearing --

without providing (1) notice of the Board's concerns and of the
                                      -31-
information that the Board is considering and (2) an opportunity

to the administrator to respond to that information.

      Here,     the    superintendent     recommended      that      Ms.    Tobe-

Williams' contract be renewed at the 5 June 2012 board meeting.

The Board asked the superintendent to remove Ms. Tobe-Williams

from the list of assistant principals he recommended for renewal

because   "it    was   aware   of    serious   concerns"   about     Ms.    Tobe-

Williams and needed more time to "review documentation of Ms.

Tobe-Williams' performance and conduct."            The Board's removal of

Ms.   Tobe-Williams     from   the    recommendation    list   had    the    same

effect as a recommendation for nonrenewal:             it placed Ms. Tobe-

Williams' future employment status at risk based upon certain

concerns about Ms. Tobe-Williams.              Therefore, to carry out the

intent of the General Assembly, the Board should have notified

Ms. Tobe-Williams of her removal from the recommendation list

and given her an opportunity to respond to any information that

the Board was considering that was not included in her personnel

file.2

      Accordingly, we hold that the procedure employed by the

Board in this case violated Ms. Tobe-Williams' procedural rights

      2
      We note that Ms. Tobe-Williams learned only on 12 July 2012
that material had been added to her personnel file -- two days
after the Board had already decided not to renew her contract.
She received a copy of her personnel file on 18 July 2012, more
than a week after the decision.
                                     -32-
under N.C. Gen. Stat. § 115C-287.1(d) and N.C. Gen. Stat. §

115C-325(b).       Those violations resulted in a record that does

not include any information that Ms. Tobe-Williams might have

submitted had she been given the opportunity to do so, and, to

that extent, is insufficient for a determination whether the

Board's     non-renewal       decision     was    "arbitrary,        capricious,

discriminatory, personal, or political." N.C. Gen. Stat. § 115C-

287.1(d).

    The      trial   court,     however,    concluded    that       the   Board's

decision was not supported by substantial evidence in the record

and was arbitrary and capricious.            Accordingly, it reversed the

Board's decision and ordered Ms. Tobe-Williams' reinstatement.

After carefully reviewing the record, we hold that, although

some of the Board's specific factual findings are not supported

by evidence       in the record, there is substantial evidence to

support     the    Board's      ultimate    findings.         Those       findings

articulate     grounds    for    nonrenewal      that   are   not     arbitrary,

capricious, discriminatory, personal, or political.                   Since the

record reveals that there may be a non-prohibited basis for

nonrenewal, we reverse the trial court's order of reinstatement.

    Nevertheless, because Ms. Tobe-Williams has not yet had an

opportunity to respond to the evidence gathered and considered

by the Board, we reverse the Board's decision and remand for the
                                        -33-
Board to reach a new decision after properly allowing Ms. Tobe-

Williams an opportunity to be heard regarding the information

that the Board intends to consider that was not included in her

personnel    file    at    the       time   the   superintendent    recommended

renewal of her contract.             See Taborn v. Hammonds, 83 N.C. App.

461, 469, 350 S.E.2d 880, 885 (1986) (vacating Board's decision

and   remanding     for   new    hearing     where   deficiencies   in   Board's

findings    and   failure       to    resolve     material   conflicts   in   the

evidence "prevent[ed] [the Court] from discerning a substantive

reason for the decision to terminate plaintiff").                   Because of

our resolution of this appeal, we need not address the remainder

of the Board's arguments.


      Affirmed in part; reversed in part; and remanded.

      Judges STEPHENS and ERVIN concur.
