Betty Thorne NANTZ, Petitioner,
v.
EMPLOYMENT SECURITY COMMISSION of North Carolina and the North Carolina State Board of Personnel, Respondents.
No. 7510SC726.
Court of Appeals of North Carolina.
March 3, 1976.*476 Atty. Gen. Rufus L. Edmisten by Associate Atty. William H. Guy, Raleigh, for the State.
Bailey, Brackett & Brackett, P.A. by Ellis M. Bragg, Charlotte, for petitioner-appellant.
Garland D. Crenshaw, H. D. Harrison, Jr., Howard G. Doyle and Thomas S. Whitaker, Raleigh, for respondent-appellee, Employment Security Commission of North Carolina.
CLARK, Judge.
Plaintiff had no express contract of employment with the State Employment Security Commission; nor was there any applicable statutory provision affecting her job tenure or contractual rights. Under G.S. 96-4 the Director of the Commission had the power to "appoint" her to the job, to fix her compensation, and to prescribe her duties.
Plaintiff contends that her dismissal by the Commission violated her due process rights under the Fourteenth Amendment. The Supreme Court of the United States has established that due process requirements apply only to deprivations of liberty and property. To acknowledge that constitutional restraints exist upon a state government in dealing with its employees is not to say that all such employees have a right to notice and hearing before they can be removed from their employment. See Anno., 40 A.L.R. 3d 728 (1971). In Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972), it was held that an assistant professor at a State University was not entitled to a statement of reasons or a hearing on the University's decision not to rehire him. The court observed that "to have a property interest in a benefit a person must . . . have a legitimate claim of entitlement to it." But the court did state that "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." See Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S. Ct. 507, 510, 27 L. Ed. 2d 515 (1971). Since there is no evidence to support a claim of entitlement to employment, petitioner had no "property" right or interest in her employment for due process rights to attach. See George v. Opportunities, Inc., 26 N.C.App. 732, 217 S.E.2d 128 (1975); McDowell v. State of Texas, 465 F.2d 1342 (5th Cir. 1972); Wilson v. Pleasant Hill School Dist., 465 F.2d 1366 (8th Cir. 1972).
Nor is there evidence to support petitioner's claim that her dismissal for the reasons given by the Commission entitled her to due process rights because it constituted an attack upon her good name, reputation, honor or integrity. The Commission did not dismiss her for the reason that she wrote and distributed false and defamatory anonymous letters; rather, the stated reasons were that her conduct was unbecoming and seriously disturbed the normal operations of the agency in that she refused to answer any questions or to otherwise aid the agency in its investigation of the source of the anonymous letters. Her opportunity for employment was not impaired because the Commission offered her other employment within the agency but outside the Charlotte office. In Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S. Ct. 1743, 6 *477 L.Ed.2d 1230 (1961), it was held that a cook at a military installation was not entitled to a hearing prior to the withdrawal of her access to the facility since her employer was prepared to employ her at another of its restaurants.
And in the case before us, if, arguendo, the petitioner had any property right in her job, by implied tenure or otherwise, she was given adequate notice and an opportunity to be heard before dismissal by the Commission and after dismissal at her request by the State Personnel Board. Generally, due process of law stands for protection against the arbitrary exercise of the powers of government, and in its procedural aspects, assures adherence to fundamental principles of justice and fair play. Shaughnessy v. U. S., 345 U.S. 206, 73 S. Ct. 625, 97 L. Ed. 956 (1953). The demands of due process are met if there is an opportunity to be heard, upon such notice and proceedings as are adequate to safeguard the right for which the constitutional protection is invoked. Anderson Nat. Bank v. Luckett, 321 U.S. 233, 64 S. Ct. 599, 88 L. Ed. 692 (1944).
Petitioner's contention that her Fifth Amendment protection against self-incrimination was violated because she had the right to remain silent and not answer questions relating to the anonymous letters is without merit. Misconduct on the part of an employee, though not constituting a crime, may justify dismissal. In this case, it appears that the claim of Fifth Amendment privilege arose for the first time in the Superior Court. A litigant may not remain mute in an administrative hearing, await the outcome of the agency decision, and, if it is unfavorable, then attack it on the ground of asserted procedural defects not called to the agency's attention when, if in fact they were defects, they would have been "correctible. First-Citizens Bank and Trust Company v. Camp, 409 F.2d 1086 (4th Cir. 1969).
The trial court correctly dismissed the action against the State Personnel Board. The Board is authorized to render only advisory recommendations which are not binding on administrative agencies or the courts and was without power in this case to grant petitioner any relief. G.S. Chap. 126, Art. 1. In Grissom v. Dept. of Revenue, 28 N.C.App. 277, 220 S.E.2d 872 (1976), it was held that an employee was not compelled to appeal to the Personnel Board to exhaust all administrative remedies since the Board had no power but to recommend.
We note that effective 1 February 1976, pursuant to G.S. 126-2 et seq., a State Personnel Commission system is established which provides for due process rights of State employees and also provides that the Administrative Procedure Act, Chapter 150A of the General Statutes of North Carolina, shall apply to hearings before the Personnel Commission. But these statutes do not apply to this case.
We have carefully examined all other assignments of error and find them to be without merit. The judgment of the trial court is
Affirmed.
MARTIN, J., concurs.
VAUGHN, J., dissents.
VAUGHN, Judge (dissenting):
In my opinion the Superior Court did not have jurisdiction to act on the "Petition" in this case. The appeal should be dismissed.