Opinion
No. COA16-232
10-18-2016
PATRICK A. MERRILL, Plaintiff, v. WINSTON-SALEM FORSYTH COUNTY BOARD OF EDUCATION, Defendant.
Smith, James, Rowlett & Cohen, LLP, by Norman B. Smith, for plaintiff-appellant. Bennett & Guthrie, P.L.L.C., by Joshua H. Bennett and Roberta King Latham, for defendant-appellee.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Forsyth County, No. 15 CVS 5553 Appeal by plaintiff from order entered 5 January 2016 by Judge Stanley L. Allen in Forsyth County Superior Court. Heard in the Court of Appeals 7 September 2016. Smith, James, Rowlett & Cohen, LLP, by Norman B. Smith, for plaintiff-appellant. Bennett & Guthrie, P.L.L.C., by Joshua H. Bennett and Roberta King Latham, for defendant-appellee. ENOCHS, Judge.
The plaintiff, Patrick A. Merrill ("Merrill"), appeals from an order dismissing his complaint alleging retaliatory discharge from employment in violation of his right to free expression contained in Article I, Section 14, of the North Carolina Constitution. Because he did not follow the statutory procedure to appeal the administrative decision of the Winston-Salem Forsyth County Board of Education ("WSFC Board") discharging him from employment, Merrill did not confer subject matter jurisdiction upon the superior court so that the trial court could review his discharge as an appellate court. Therefore, the trial court's order dismissing Merrill's complaint must be affirmed.
Factual Background
Merrill was hired by Winston-Salem Forsyth County Schools ("WSFC Schools") in 2008 as its Gang Awareness Specialist, and he eventually became Director of Security. Part of his job was to interact with School Resource Officers ("SRO"), who were law enforcement officers hired by the school to provide security, enforce state and local criminal laws, investigate criminal activity, and to provide prevention and educational activities to the schools.
The SRO's contract with WSFC Schools included protocol with respect to surveillance cameras and videos. This protocol required that all disputes regarding the use of surveillance cameras and videos be brought to the attention of the attorneys representing either the applicable law enforcement agency or the WSFC Schools. Therefore, it is a violation of the SRO's contract for either party to address any disputes without first going through legal counsel.
In April 2015, an incident occurred on a school bus carrying students to a WSFC School. To investigate this matter, a Forsyth County sheriff's deputy requested that the school turn over the surveillance video from the school bus. The assistant principal to whom the request was directed checked with Amy Rich, a staff attorney with the WSFC Schools' General Counsel's office, about turning over the video. Rich advised the assistant principal that turning over the video to the SRO would require a subpoena, because the video might contain confidential student information protected by the federal Family Educational Rights and Privacy Act ("FERPA"). WSFC Schools took the position that they would turn over the video once the SRO had complied with federal law and obtained a subpoena.
After being informed that a subpoena was required, Forsyth County Sheriff's Office SRO Supervisor Sergeant Gregory Joyce contacted Merrill about WSFC Schools' General Counsel's decision not to release the video without a subpoena. Instead of directing Sergeant Joyce to contact either counsel for his own agency, or counsel for the schools, as is required by their SRO contract, Merrill intervened in the matter. He attempted to contact Rich, but she was unavailable, and so he emailed another WSFC Schools' staff attorney, Dionne Jenkins, about Rich's "mistakenly" legal advice to the school's assistant principal. In a later email exchange, Merrill indicated that "we allow law enforcement access to our cameras," in direct contradiction to WSFC School policy.
Rich confirmed the accuracy of her legal opinion and decision regarding surveillance video with WSFC Schools' General Counsel, Allison Tomberlin. Rich communicated with Merrill that her decision had not changed and that video would not be released without a subpoena. Merrill immediately went to Tomberlin's office to inform her that her legal opinion was incorrect. Tomberlin told Merrill that she disagreed with his interpretation of the law, and that the video would not be released without a subpoena. Merrill specifically refused to follow her instructions and instead threatened to contact the Forsyth County District Attorney to get his opinion on the release of the video. Seeing that the dispute was not going to be resolved, Tomberlin told Merrill that she would do some further research on the topic and would get back to him.
Before Tomberlin was able to readdress the issue with Merrill, he contacted Dr. Bernard James, a law professor at Pepperdine University, and asked for his opinion on the matter. This professor's response to Merrill stated that "[y]our attorney has not kept current with FERPA law[,]" and provided a memorandum and other resources supporting his interpretation of FERPA. Merrill unilaterally forwarded this information to WSFC Schools' Superintendent Dr. Beverly Emory, Sergeant Joyce, other school employees, an attorney with the N.C. Justice Academy, an attorney for the Chapel Hill Police Department, and others, without consulting his own supervisor or the General Counsel of the school system.
On 20 April 2015, Merrill was notified that he was being recommended for an immediate, investigative suspension with pay. After a month of investigation, on 20 May 2015, Merrill received a detailed letter from Dr. Emory recommending his termination. In her letter, Dr. Emory advised Merrill of the outcome of her investigation and of her finding that Merrill's actions had been done "in an attempt to undermine the legal advice of our district's Chief Legal Counsel." She also noted that local law enforcement agencies had expressed concern about Merrill's ability to collaborate with, and his representation of, the WSFC Schools in a law enforcement capacity; that Merrill had released surveillance video to law enforcement in the past without requiring a subpoena and without approval of the School Attorney's Office; that Merrill's actions have shed a negative light on the WSFC Schools and its relationship with outside law enforcement agencies; and that Merrill had violated the SRO contracts, state and/or federal confidentiality regulations, as well as local school board policies.
Merrill sent a letter to the school attorney, filed on 1 June 2015, requesting use of the Employee Grievance Procedure which provided him a right to a hearing before a three-member Grievance Panel. A hearing was held on 4 August 2015, at which Merrill was represented by counsel. After reviewing the written record, hearing testimony of witnesses, and considering arguments of counsel, the Grievance Panel affirmed the findings and conclusions of Dr. Emory's dismissal letter. The panel also found that there was substantial evidence for the reasons that Merrill was fired, that the reasons were not arbitrary or capricious, that it did not violate law or public policy, and that Merrill had received procedural and substantive due process. The Grievance Panel then stated that "[t]his decision constitutes a final administrative decision of the [WSFC Board], and may be appealable to Forsyth County Superior Court pursuant to N.C. Gen. Stat. [§] 115C-45(c)(3)."
Instead of filing an administrative appeal petition, Merrill filed a complaint in Forsyth County Superior Court on 14 September 2015. The WSFC Board filed a Motion to Dismiss and Answer on 16 November 2015 moving the superior court to dismiss Merrill's complaint pursuant to Rules 12(b)(1), and (4)-(7) of the North Carolina Rules of Civil Procedure. Plaintiff filed a Motion to Amend Complaint on 24 November 2015 and a Revised Motion to Amend Complaint on 15 December 2015. A hearing on the motions was held on 14 December 2015. An order granting the motion to amend and the revised motion to amend and the motion to dismiss was filed on 5 January 2016. It is from this order that Merrill has timely appealed.
Analysis
I. Freedom of Expression and Discharge from Employment
Merrill first argues that the trial court erred when it granted WSFC Board's motion to dismiss because his complaint contained a viable claim for unlawful discharge in retaliation for exercising protected free expression. His first assignment of error must fail because, as shown below, the speech referred to in his complaint was not speech protected by the North Carolina Constitution.
A motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure tests the legal sufficiency of the complaint. Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979). "In ruling on the motion the allegations of the complaint must be viewed as admitted, and on that basis the court must determine as a matter of law whether the allegations state a claim for which relief may be granted." Id. A motion to dismiss is properly granted when the complaint, on its face, fails to provide sufficient facts to support the claim or reveals that no law supports the claim. Doe v. Charlotte-Mecklenburg Bd. of Educ., 222 N.C. App. 359, 366, 731 S.E.2d 245, 250 (2012). To determine whether the dismissal was correct, this Court reviews the pleadings de novo to determine their legal sufficiency. Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff'd per curiam, 357 N.C. 567, 597 S.E.2d 673 (2003).
The North Carolina Constitution proclaims that "[f]reedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained . . . ." N.C. Const. art. I, § 14. Our Supreme Court has deemed the foregoing section "a direct personal guarantee of each citizen's right of freedom of speech." Corum v. Univ. of N.C., 330 N.C. 761, 781, 413 S.E.2d 276, 289 (1992). For such a claim to be properly advanced, the speech at issue first must involve a matter of public concern. Connick v. Myers, 461 U.S. 138, 146, 75 L. Ed. 2d 708, 719 (1983). Second, " 'such protected speech or activity [must have been] the "motivating" or "but for" cause for [the plaintiff's] discharge or demotion.' " Warren v. New Hanover Cnty. Bd. of Educ., 104 N.C. App. 522, 525, 410 S.E.2d 232, 234 (1991) (quoting Jurgensen v. Fairfax Cnty., 745 F.2d 868, 877-78 (4th Cir. 1984)). Resolution of these issues is a matter of law for the court. Id. at 526, 410 S.E.2d at 234.
As to the question of public concern, the court must look to the content, form and context of the speech involved. Connick, 461 U.S. at 147-48, 75 L. Ed. 2d at 720; see also Corum, 330 N.C. at 775, 413 S.E.2d at 285. The test is whether the employee was speaking as a citizen about matters of public concern, or as an employee on matters of personal interest. Connick, 461 U.S. at 147, 75 L. Ed. 2d at 720. Moreover, complaints about conditions of employment or internal office affairs generally concern an employee's self-interest rather than public concern, even though a governmental office may be involved:
To presume that all matters which transpire within a government office are public concern would mean that virtually every remark — and certainly every criticism directed at a public official — would plant the seed of a constitutional case. . . . [T]he First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs.Id. at 149, 75 L. Ed. 2d at 721; see also Daniels v. Quinn, 801 F.2d 687, 690 (4th Cir. 1986) ("matters of public concern [for First Amendment] purposes must relate to wrongdoing or a breach of trust, not ordinary matters of internal . . . policy"); see also Leiphart v. N.C. School of the Arts, 80 N.C. App. 339, 355, 342 S.E.2d 914, 925 (1986) (no violation of First Amendment rights where "[p]etitioner's speech, his criticism of [department head], was not based on public-spirited concern[,] [i]nstead, it focused on his own personal displeasure with . . . internal policies"); and Pressman v. UNC-Charlotte, 78 N.C. App. 296, 301-02, 337 S.E.2d 644, 648 (1985) (no violation of First Amendment rights where plaintiff's "criticism not based on public-spirited concern but more narrowly focused on his own personal work and his personal displeasure with internal policies").
No assertions in the complaint indicate Merrill ever "voiced [his] concerns publicly outside the employment setting, which would tend to indicate a public concern." Evans v. Cowan, 132 N.C. App. 1, 10, 510 S.E.2d 170, 176 (1999). Mere employee grievances and other communications involving the internal actions of a government entity are not protected activities as they do not concern the public at large. Manickavasagar v. N.C. Dep't of Pub. Safety, 238 N.C. App. 418, 425, 767 S.E.2d 652, 656 (2014).
Merrill's complaint lists several communications which could be considered speech. All of these communications remained internal to the WSFC Schools' organization, except for Merrill's consultation with Dr. James. However, Merrill's complaint does not allege that he was fired because of this consultation/inquiry into the subpoena issue; he argues that he was fired, in part, because of his "furnishing information to defendant's general counsel." All of the communications listed in his complaint were about conditions of employment or internal office affairs and these generally concern Merrill's self-interest as an employee, rather than any public concern. Because the speech was not a matter of public concern, we need not resolve whether it was the "motivating" or "but for" cause for Merrill's discharge. Therefore, his speech was not protected by the North Carolina Constitution and this assignment of error is overruled.
II. Appeal from Administrative Hearing and Waiver of Judicial Review
Merrill next argues that the trial court erred in dismissing his complaint because his amended complaint had properly requested judicial review of the administrative decision of the WSFC Board. However, Merrill did not follow the statutorily prescribed procedure for petitioning the superior court to review this decision, and therefore did not confer upon that court the subject matter jurisdiction required. The superior court lacked the power to address a case of this nature, could not grant the relief sought, and, necessarily, was required to dismiss the complaint.
A defendant may raise in a motion to dismiss the affirmative defense of lack of subject matter jurisdiction. N.C.R. Civ. P. 12(b)(1). " 'An appellate court's review of an order of the trial court denying or allowing a Rule 12(b)(1) motion is de novo, except to the extent the trial court resolves issues of fact and those findings are binding on the appellate court if supported by competent evidence in the record.' " A.H. Beck Found. Co. v. Jones Bros., Inc., 166 N.C. App. 672, 678, 603 S.E.2d 819, 823 (2004) (quoting Smith v. Privette, 128 N.C. App. 490, 493, 495 S.E.2d 395, 397 (1998)). The case sub judice involves the determination of a question of law as to whether the trial court had subject matter jurisdiction over plaintiff's appeal to superior court from the administrative decision of the WSFC Board. Thus, we review the trial court's decision de novo.
First, Merrill's amended complaint attempts to seek review of the WSFC Board's decision pursuant to N.C. Gen. Stat. § 115C-45(c) (2013) which, before being amended by Chapter 115, section 65 of the 2014 North Carolina Session Laws, provided that "[a]n appeal shall lie to the local board of education from any final administrative decision in the following matters: . . . (3) The terms or conditions of employment or employment status of a school employee[.]" This previous version of the statute, which was applicable to employees employed before 1 July 2014, further provided that "[a]n appeal of right brought before a local board of education under subdivision . . . (3) . . . of this subsection may be further appealed to the superior court of the State on the grounds that the local board's decision is in violation of constitutional provisions, . . . is made upon unlawful procedure, is affected by other error of law, is unsupported by substantial evidence . . . , or is arbitrary or capricious." Id. However, the version of the statute which applies in this case does not provide for an appeal of right to superior court for decisions regarding "[t]he terms or conditions of employment or employment status of a school employee[.]" N.C. Gen. Stat. § 115C-45(c)(3) (2015).
However, Merrill did not file a petition for judicial review pursuant to N.C. Gen. Stat. § 115C-45. He filed a civil complaint. Furthermore, his original complaint did not request judicial review of the administrative decision terminating his employment. It was not until he filed an amended complaint on 24 November 2015, over three months after being served with the administrative decision, that he requested judicial review. By then, it was too late to confer jurisdiction upon the superior court to act as his appellate court of review.
In Coomer v. Lee Cnty. Bd. of Educ., 220 N.C. App. 155, 156-57, 723 S.E.2d 802, 803 (2012), the superior court dismissed a petition as untimely after first determining that petitions for judicial review brought under N.C. Gen. Stat. § 115C-45(c) are subject to the 30-day time limit set out in N.C. Gen. Stat. § 150B-45(a) (2015). The court in Coomer looked to the time limit set out in Article 4 of the Administrative Procedure Act (APA) because § 115C-45(c) does not contain a time limit for seeking judicial review. "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.' " Id. at 157, 723 S.E.2d at 803 (quoting N.C. Gen. Stat. § 150B-45(a) (2011)). In appeals from school boards to the courts, our appellate courts have consistently applied the standards for judicial review set out in N.C. Gen. Stat. § 150A-51 (2015). See Overton v. Goldsboro City Bd. of Educ., 304 N.C. 312, 316-17, 283 S.E.2d 495, 498 (1981) (holding "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").
When the General Assembly has provided an effective administrative remedy by statute, then that remedy is exclusive. Wake Cnty. Hosp. Sys. Inc. v. N.C. Indus. Comm'n, 8 N.C. App. 259, 262, 174 S.E.2d 292, 294 (1970). Furthermore, " 'when a statute under which an administrative board has acted provides an orderly procedure for an appeal to the superior court for review of the board's action, this procedure is the exclusive means for obtaining such judicial review.' " Ragland v. Nash-Rocky Mount Bd. of Educ., ___ N.C. App. ___, ___, 787 S.E.2d 422, 430 (2016) (quoting Presnell v. Pell, 298 N.C. 715, 722, 260 S.E.2d 611, 615 (1979)).
"Whether one has standing to obtain judicial review of administrative decisions is a question of subject matter jurisdiction." In re Rulemaking Petition of Wheeler, 85 N.C. App. 150, 152, 354 S.E.2d 374, 376 (1987). Subject matter jurisdiction refers to the authority, conferred by statute or the state constitution, of a tribunal to resolve a particular type of controversy. Harris v. Pembaur, 84 N.C. App. 666, 667, 353 S.E.2d 673, 675 (1987).
The issue "whether a trial court has subject matter jurisdiction is a question of law, which is reviewable on appeal de novo." Ales v. T.A. Loving Co., 163 N.C. App. 350, 352, 593 S.E.2d 453, 455 (2004). The right to appeal an administrative agency ruling is statutory, and compliance with the statutory provisions is necessary to avail oneself of this right. House of Raeford Farms, Inc. v. State ex rel. Envir. Mgmt. Comm'n, 338 N.C. 262, 267, 449 S.E.2d 453, 457 (1994). Where a petitioner bears the responsibility of filing his petition with the court on or before the requisite date but fails to do so, the petition must be dismissed. Gummels v. N.C. Dep't of Human Res., 98 N.C. App. 675, 678, 392 S.E.2d 113, 115 (1990) (contested case petition dismissed where the petition was mailed four days prior to the statutory deadline but filed one day after the deadline); see also Gaskill v. State ex rel. Cobey, 109 N.C. App. 656, 660, 428 S.E.2d 474, 476 (1993) (if a petition is not filed within the time period set forth by statute, the court does not have subject matter jurisdiction).
In this case, Merrill did not follow the procedure prescribed in the statute for an appeal from an administrative agency. He was required to file a petition for judicial review within 30 days, or show good cause why his petition was untimely and ask the trial court to allow his untimely petition. He did not do this. This procedure is what confers subject matter jurisdiction upon the superior court so that they may act as an appellate court and review the WSFC Board's decision. Because the trial court did not have jurisdiction to hear the case, it correctly dismissed Merrill's complaint. This assignment of error is overruled.
Conclusion
Because Merrill's speech for which he claims his employment was terminated was not "of public concern," and because Merrill did not follow the proscribed statutory procedure for an appeal from an administrative decision, his complaint was properly dismissed. The order of the trial court doing so is affirmed.
AFFIRMED.
Judges ELMORE and TYSON concur.
Report per Rule 30(e).