Tobe-Williams v. New Hanover County Board of Education

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.