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Souther v. New River Area Mental Health Development Disabilities and Substance Abuse Program2/6/2001
etitioner alleges that the agency decision was either unsupported by the evidence, or arbitrary and capricious, the superior court applies the "whole record test" to determine whether the agency decision was supported by substantial evidence contained in the entire record. Where the petitioner alleges that the agency decision was based on error of law, the reviewing court must examine the record de novo, as though the issue had not yet been considered by the agency. Avant v. Sandhills Center for Mental Health, 132 N.C. App. 542, 546, 513 S.E.2d 79, 82 (1999) (internal citations omitted).
Both parties contend the superior court, in reviewing the Administrative Law Judge's decision, appropriately employed the "whole record" standard. However, this Court has held that a superior court's determination of whether a termination was for "just cause" based upon personal misconduct is a question of law, and that questions of law are to be reviewed de novo. See Amanini, 114 N.C. App. at 677, 678, 443 S.E.2d at 119, 120. A de novo review "requires a court to consider a question anew, as if not considered or decided by the agency." Id. at 674, 443 S.E.2d at 118.
We note that the Amanini court observed that " eparate panels of this Court appear to have reached differing conclusions concerning the proper standard of appellate review" of orders of the superior court affirming or reversing a decision of an administrative agency. Id. at 675, 443 S.E.2d at 118. After an extended review and discussion of the issue, the Amanini court held that the proper standard of review is whether the superior court applied the proper scope of review and did so properly. Id. at 675-76, 443 S.E.2d at 118-19. Despite some continuing inconsistencies within the court, see Mendenhall v. N.C. Dep't of Hum. Res., 119 N.C. App. 644, 650, 459 S.E.2d 820, 824 (1995) (citation omitted) ("When an appellate court reviews the decision of a lower court (as opposed to reviewing an administrative agency's decision on direct appeal), the scope of review is the same as for other civil cases. However, this review also requires an examination of the entire record."), we believe that the analysis in Amanini is persuasive. We will employ the proper standard of review regardless of that employed by the reviewing trial court. See Amanini, 114 N.C. App. at 675, 677, 443 S.E.2d at 118, 119 (" he manner of our review is governed merely by the label an appellant places upon an assignment of error; rather, we first determine the actual nature of the contended error, then proceed with an application of the proper scope of review. here the initial reviewing court should have conducted de novo review, this Court will directly review the State Personnel Commission's decision under a de novo review standard.")
A state employee may be dismissed only for "just cause." N.C. Gen. Stat. § 126-35 (1995). An employee challenging his or her termination for just cause has the burden of proving that the agency's decision was improper. As our Supreme Court has said:
n employee terminated pursuant to the "just cause" provision of N.C.G.S. § 126-35 should bear the burden of proof in an action contesting the validity of that termination. Petitioner, the terminated employee, is the party attempting to alter the status quo. The burden should appropriately rest upon the employee who brings the action, even if the proof of that position requires the demonstration of the absence of certain events or causes. Neither party in a "just cause" termination dispute has peculiar knowledge not available to the opposing party. A terminated employee may readily utilize the procedures outlined in chapter 126 and section 1A-1 of the North Carolina General Statute
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