In the Matter of Robert Francis FORD.
No. 8010SC1040.Court of Appeals of North Carolina.
June 16, 1981.*123 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Norma S. Harrell, Raleigh, for the State.
Frank B. Jackson, Hendersonville, for petitioner-appellant.
*124 HILL, Judge.
Petitioner argues in his first assignment of error that the superior court erred by overruling his objection to the respondent-State's proposed record on appeal before that court. Petitioner contends the record should have contained a narration or summary of his oral presentation before the Board of Trustees of the Retirement System. We disagree.
The procedures in this case are governed by the Administrative Procedure Act, Chapter 150A of the General Statutes. Petitioner requested the first analysis of his situation by asking that the director of the Retirement and Health Benefits Division give him a declaratory ruling. G.S. 150A-17 provides that:
On request of a person aggrieved, an agency shall issue a declaratory ruling as to the validity of a rule or as to the applicability to a given state of facts of a statute administered by the agency or of a rule or order of the agency, .... (Emphasis added.)
G.S. 150A-17 clearly does not contemplate an evidentiary proceeding. If evidence were required to establish the facts, then the proper procedure would have been to hold a contested case hearing. See G.S. 150A-2(2) and Article 3 of Chapter 150A.
Petitioner, pursuant to section .0303 of the North Carolina Administrative Code, appealed the declaratory ruling to the Board of Trustees of the Retirement System. No evidence was presented at this stage. The Board based its decision affirming the declaratory ruling upon petitioner's oral presentation, the declaratory ruling itself, and the relevant statutory provisions. So, by the very nature of the administrative procedure followed by petitioner, his arguments before the Board could not properly be included in the record before the superior court. Petitioner's statements did not constitute evidence. Instead, petitioner's oral presentation is more closely analogous to arguments made by a party or his counsel at trial. Petitioner's first assignment of error is without merit and overruled.
In his second assignment of error, petitioner argues that the superior court erred in affirming the decision of the Board of Trustees of the Retirement System. In making his argument, petitioner asserts that the Board was wrong in its conclusion that the Retirement System does not have discretionary power to extend or waive statutory deadlines.
G.S. 135-6(f) empowers the Board of Trustees of the Retirement System to "adopt rules and regulations to prevent injustices and inequalities which might otherwise arise in the administration of this Chapter." Rules and regulations are general policies which, when adopted, are applicable across the board. Petitioner is contending that the Board should waive the deadline in his case, despite the fact that no misrepresentation by the State, however innocent, caused him to miss the deadline. Such action would not be a rule or regulation to prevent injustice and inequality across the board, but simply a waiver in a specific instance. This the statute does not contemplate.
If petitioner wants a rule or regulation promulgated which would have the effect of waiving the statutory deadline in his case, he must follow the procedure set forth in G.S. 150A-16. Petitioner's second assignment of error is without merit and overruled.
For the reasons set forth above, the decision of the trial court is
Affirmed.
MORRIS, C. J., and HARRY C. MARTIN, J., concur.