Young v. Bailey

IN THE SUPREME COURT OF NORTH CAROLINA

No. 355PA14-2

Filed 29 January 2016

TERRI YOUNG

v.
DANIEL BAILEY, 1 in his Official Capacity as Sheriff of Mecklenburg County, and
OHIO CASUALTY INSURANCE COMPANY

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 771 S.E.2d 628 (2015), affirming an order

granting summary judgment entered on 25 April 2014 by Judge W. Robert Bell in

Superior Court, Mecklenburg County. Heard in the Supreme Court on 7 December

2015.

Kennedy, Kennedy, Kennedy and Kennedy, LLP, by Harold L. Kennedy, III and
Harvey L. Kennedy, for plaintiff-appellant.

Womble, Carlyle, Sandridge and Rice, LLP, by Sean F. Perrin, for defendant-
appellees.

EDMUNDS, Justice.

Following the reelection of defendant Daniel Bailey to the office of Sheriff of

Mecklenburg County, plaintiff’s employment as a deputy sheriff was terminated. In

1Pursuant to N.C. R. App. P. 38(c), we note that Irwin Carmichael took office as
Sheriff of Mecklenburg County on 1 December 2014, replacing defendant Daniel Bailey.
Even though defendant Bailey was sued in his official capacity and thus is no longer a
party, for purposes of clarity we will continue to refer to him as “defendant Bailey” or
“defendant sheriff” in this opinion.
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Opinion of the Court

response, plaintiff brought this action, alleging wrongful termination in violation of

the North Carolina public policy enunciated in N.C.G.S. § 153A-99, and of Article I,

Sections 14 and 36 of the North Carolina Constitution. We hold that plaintiff was

not a county employee as defined in N.C.G.S. § 153A-99. As a result, she is not

entitled to the protections provided in that statute and was not terminated in

violation of public policy. In addition, defendant sheriff’s actions did not violate

plaintiff’s freedom of speech rights. Accordingly we affirm the decision of the Court

of Appeals.

Plaintiff Terri Young was hired as a deputy in the Mecklenburg County

Sheriff’s Office in 1990 and in 2010 had reached the rank of Captain. Plaintiff’s duties

included oversight of a detention facility, staff operations, and inmate and staff

security, along with other responsibilities the sheriff assigned to her. During her

tenure as a deputy, plaintiff received three disciplinary suspensions. In addition, she

was reprimanded for violations of rules of conduct in June and July 2010.

On 23 June 2009, while preparing for his 2010 run for reelection, defendant

Bailey sent letters to each of his deputies, seeking contributions in support of his

upcoming campaign. Plaintiff did not make a contribution. Over a year later, in

November 2010, defendant Bailey was reelected Sheriff of Mecklenburg County. On

6 December 2010, defendant Bailey chose not to reappoint plaintiff to her position as

a deputy sheriff, pursuant to his authority under N.C.G.S. § 153A-103(1).

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Opinion of the Court

On 23 May 2013, plaintiff filed suit in Superior Court, Mecklenburg County

against Bailey, in his official capacity as Sheriff of Mecklenburg County, and Ohio

Casualty Insurance Company, the surety bond holder for defendant Bailey. In her

complaint, plaintiff alleged that she was wrongfully terminated in violation of the

public policy embodied in N.C.G.S. § 153A-99, specifically contending that she was

fired because she had not contributed to defendant Bailey’s reelection campaign. In

addition, plaintiff alleged that her termination violated her rights guaranteed to her

by Article I, Sections 14 and 36 of the North Carolina Constitution. On 26 June 2013,

defendant Bailey filed an answer denying all of plaintiff’s material allegations,

asserting an affirmative defense of sovereign immunity, and arguing that plaintiff’s

constitutional claims are barred because defendant Bailey would have declined to

reappoint plaintiff “even in the absence of the Plaintiff’s First Amendment conduct.”

On 21 August 2013, defendant Ohio Casualty Insurance Company filed its answer,

raising similar defenses.

On 3 March 2014, defendants made a joint motion for summary judgment

asserting that no genuine issues of material fact existed concerning plaintiff’s claims

of wrongful discharge in violation of section 153A-99 or her claims under the North

Carolina Constitution. After conducting a hearing, the trial court on 25 April 2014

entered a written order allowing defendants’ motion. On 22 May 2014, plaintiff filed

a notice of appeal from the order.

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Opinion of the Court

On 21 April 2015, the Court of Appeals issued an opinion affirming the trial

court’s ruling. Young v. Bailey, ___ N.C. App. ___, 771 S.E.2d 628 (2015). The court

in Young cited McLaughlin v. Bailey, ___ N.C. App. ___, 771 S.E.2d 570 (2015), in

which a different plaintiff had raised the same issues after being terminated by

defendant Bailey. Young, ___ N.C. App. at ___, 771 S.E.2d at 630 (citing McLaughlin,

___ N.C. App. at ___, 771 S.E.2d at 572). In McLaughlin, the court stated that

employees of a county sheriff, including deputies . . . , are
directly employed by the sheriff and not by the county or
by a county department. Sheriff’s employees are not
“county employees” as defined in N.C. Gen. Stat. § 153A-99
and are not entitled to the protections of that statute.

McLaughlin, ___ N.C. App. at ___, 771 S.E.2d at 572. As a result, the court in

McLaughlin held that the plaintiff could not establish a claim for wrongful

termination in violation of section 153A-99. Id. at ___, 771 S.E.2d at 579. The panel

here concluded that it was bound by this holding. Young, ___ N.C. App. at ___, 771

S.E.2d at 630-31. The panel in Young further concluded that plaintiff’s state

constitutional arguments lacked merit, id. at ___, 771 S.E.2d at 632, again relying on

McLaughlin’s holding that deputy sheriffs can “lawfully be fired based on political

considerations” without violating the state constitution’s free speech guarantees,

McLaughlin, ___ N.C. App. at ___, 771 S.E.2d at 581. We allowed discretionary

review.

We review a trial court’s grant of summary judgment de novo, Robins v. Town

of Hillsborough, 361 N.C. 193, 196, 639 S.E.2d 421, 423 (2007), to determine whether

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Opinion of the Court

any genuine issues of material fact exist and “whether the moving party is entitled

to judgment as a matter of law,” Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d

247, 249 (2003).

North Carolina is an employment-at-will state. Garner v. Rentenbach

Constructors, Inc., 350 N.C. 567, 569, 515 S.E.2d 438, 439-40 (1999) (citations

omitted). Parties to a contract of employment may end their relationship at any time

for any reason when that agreement does not establish a defined term of employment.

See Kurtzman v. Applied Analytical Indus., Inc., 347 N.C. 329, 331, 493 S.E.2d 420,

422 (1997) (citations omitted). Although exceptions are few, see id., this Court has

recognized one when the employer’s acts violate the public policy of North Carolina,

see Coman v. Thomas Mfg. Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989)

(citations omitted). Section 153A-99 embodies the public policy of protecting county

employees from specific forms of political coercion. N.C.G.S. § 153A-99 (2013). The

statute, entitled “County employee political activity,” provides in part that “[n]o

employee may be required as a duty or condition of employment, promotion, or tenure

of office to contribute funds for political or partisan purposes.” Id. § 153A-99(d).

Subdivision (b)(1) defines “ ‘County employee’ or ‘employee’ ” as “any person employed

by a county or any department or program thereof that is supported, in whole or in

part, by county funds.” Id. § 153A-99(b)(1).

Thus, to state a cause of action based on a violation of this statute, plaintiff

must first show that, although she was hired by the sheriff and worked as the sheriff’s

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Opinion of the Court

deputy, she was a “county employee.” The parties agree that plaintiff was not a direct

employee of the county. Instead, they wrangle over whether plaintiff falls under the

second part of the definition. Plaintiff contends that the statute’s protections apply

to her because the sheriff’s office is financed through the county, is integral to and a

part of the county, and thus is a program or department of the county. Defendants

acknowledge that the sheriff’s office receives funding and other support from the

county in the form of salaries, insurance, and so forth, but argue that funding is not

the determining factor and that the mere fact of funding does not establish that a

sheriff’s office is a department or program of a county. Contending instead that a

sheriff’s office is independent of county government, defendants argue the statute

does not apply to plaintiff. Accordingly, we first address the nature of plaintiff’s

employer.

The office of the sheriff, one of great antiquity, is established in North Carolina

by our constitution. N.C. Const. art. VII, § 2; Borders v. Cline, 212 N.C. 472, 476, 193

S.E. 826, 828 (1937) (“The office of sheriff is constitutional.”). The General Assembly

explicitly has recognized the unique nature of the sheriff’s position. N.C.G.S. § 17E-

1 (2013). The sheriff is elected by the people, N.C. Const. art. VII, § 2, and alone is

responsible for carrying out his or her official duties, N.C.G.S. § 162-24 (2013) (“The

sheriff may not delegate to another person the final responsibility for discharging his

official duties . . . .”). In addition, the sheriff has singular authority over his or her

deputies and employees and is responsible for their actions. Under North Carolina

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law, each sheriff “has the exclusive right to hire, discharge, and supervise the

employees in his office.” Id. § 153A-103(1) (2013). While certain county officials have

the power to hire and fire county employees, see id. §§ 153A-12 (setting out powers of

county boards of commissioners), -82(1) (2013) (listing powers of county manager), a

county government lacks hiring, supervisory, and firing authority over deputy

sheriffs.

In light of the distinct demarcation between county government and the office

of the sheriff, we conclude that a sheriff’s office is not a program or department of a

county and agree with the consistent holdings of the Court of Appeals that a deputy

sheriff or employee of a sheriff’s office is not a county employee. See, e.g., Peele v.

Provident Mut. Life Ins. Co., 90 N.C. App. 447, 449, 368 S.E.2d 892, 894 (“It is clear

to this Court that plaintiff was an employee of the sheriff and not Watauga County

. . . .”), appeal dismissed and disc. rev. denied, 323 N.C. 366, 373 S.E.2d 547 (1988);

see also Sims–Campbell v. Welch, ___ N.C. App. ___, 769 S.E.2d 643, 648 (2015)

(holding that an assistant register of deeds, like a deputy sheriff, does not enjoy the

protections of section 153A-99 because the county “lacks any authority to supervise

or control the details of the work performed by employees in that office”). Because a

sheriff’s office is not a program or department of a county, the fact that the sheriff’s

office receives funds therefrom is of no moment. As a result, plaintiff is not covered

by N.C.G.S. § 153A-99 and her suit brought under that statute fails.

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Opinion of the Court

Plaintiff also claims her termination was in violation of the free speech rights

guaranteed by North Carolina Constitution, Article I, Section 14.2 Here we assume

without deciding that plaintiff was terminated for reasons attributable to her failure

to support defendant sheriff’s reelection. In analyzing alleged violations of the state

constitution’s guarantee of free speech, “this Court has given great weight to the First

Amendment jurisprudence of the United States Supreme Court.” State v.

Packingham, ___ N.C. ___, ___, 777 S.E.2d 738, 743 (2015) (citing State v. Petersilie,

334 N.C. 169, 184, 432 S.E.2d 832, 841 (1993)).

The United States Supreme Court has held that “[a] State may not condition

public employment on an employee’s exercise of his or her First Amendment rights.”

O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 717, 116 S. Ct. 2353, 2356,

135 L. Ed. 2d 874, 880 (1996) (citations omitted). However, this general rule is subject

to exceptions when the employee’s loyalty to the employer is paramount. In Elrod v.

Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976), in which deputy sheriffs

were fired or threatened with firing on the basis of their party registration, the

Supreme Court recognized that “the prohibition on encroachment of First

Amendment protections is not an absolute.” Id. at 360, 96 S. Ct at 2683, 49 L. Ed. 2d

at 558. To ensure the execution of policies on which the winning candidate

2We note that plaintiff’s complaint additionally cites North Carolina Article I,
Section 36 but makes no argument relating to this Section. Accordingly, the claim is
waived and we do not address it further. See N.C. R. App. P. 28(a).

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Opinion of the Court

campaigned, the Court held that employees in policymaking positions legally can be

dismissed on grounds relating to political loyalty “to the end that representative

government not be undercut by tactics obstructing the implementation of policies of

[a] new administration, policies presumably sanctioned by the electorate.” Id. at 367,

96 S. Ct. at 2687, 49 L. Ed. 2d at 562. The Supreme Court later refined its holdings

regarding political patronage dismissals when it added that “the ultimate inquiry is

not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather,

the question is whether the hiring authority can demonstrate that party affiliation is

an appropriate requirement for the effective performance of the public office

involved.” Branti v. Finkel, 445 U.S. 507, 518, 100 S. Ct. 1287, 1295, 63 L. Ed. 2d

574, 584 (1980). The North Carolina Court of Appeals adopted Elrod’s reasoning in

Carter v. Marion, 183 N.C. App. 449, 453-55, 645 S.E.2d 129, 131-32 (2007), appeal

dismissed and disc. rev. denied, 362 N.C. 175, 658 S.E.2d 271 (2008).

Accordingly, the question before us is whether defendant sheriff has satisfied

the tests set out in Elrod and Branti. The state constitution mandates popular

election of sheriffs, officials who establish procedures, guidelines, priorities, and

policies for his or her office. N.C. Const. art. VII, § 2; see also N.C.G.S. § 162-1 (2013).

The election of a particular candidate signifies public support for that candidate’s

platform, policies, and ideology. The General Assembly has concluded that the

politics of the elected sheriff are sufficiently important that in many counties,

including the populous counties of Buncombe, Forsyth, Guilford, Mecklenburg, and

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Opinion of the Court

Wake, if a vacancy in the office occurs and the departed sheriff had been nominated

by a political party, the county board of commissioners filling the vacancy is required

to consult with the political party of the previous sheriff and must elect the person

recommended by that party’s executive committee. N.C.G.S. § 162-5.1 (2013).

Deputies are a reflection of their sheriff. They serve as the alter egos of the

sheriff and, if liability results from the acts of a deputy, the sheriff is held responsible.

Styers v. Forsyth Cty., 212 N.C. 558, 565, 194 S.E. 305, 309 (1937) (“If there be a

nonfeasance of neglect of duty by the under-sheriff, the sheriff alone is responsible to

the party injured . . . .”) (quoting Lyle v. Wilson, 26 N.C. (4 Ired.) 226, 228 (1844)); see

also N.C.G.S. § 162-24 (stating that, although a sheriff may not delegate the final

responsibility for discharging his or her responsibilities, “he may appoint a deputy or

employ others to assist him in performing his official duties”). After considering these

statutory and decisional factors, we conclude that, by standing in the elected sheriff’s

shoes, a deputy sheriff fills a role in which loyalty to the elected sheriff is necessary

to ensure that the sheriff’s policies are carried out.

The Fourth Circuit undertook a similar analysis in Jenkins v. Medford, 119

F.3d 1156 (4th Cir. 1997), cert. denied, 522 U.S. 1090, 118 S. Ct. 881, 139 L. Ed. 2d

869 (1998). After conducting an exhaustive examination of the role of deputy sheriffs

in North Carolina and other jurisdictions, and after acknowledging the unique status

of deputies in this state as recognized in such statutes as N.C.G.S. §§ 17E-1, 153A-

103(2), and 162-24, that court concluded that “in North Carolina, the office of deputy

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Opinion of the Court

sheriff is that of a policymaker, and that deputy sheriffs are the alter ego of the sheriff

generally.” Id. at 1164. As a result, “North Carolina deputy sheriffs may be lawfully

terminated for political reasons under the Elrod–Branti exception to prohibited

political terminations.” Id. While Jenkins is not binding on us, we find the Fourth

Circuit’s analysis persuasive. When, as here, mutual confidence and loyalty between

a sheriff and a deputy are crucial in accomplishing the sheriff’s policies and duties,

the dismissal of plaintiff here based on political considerations falls squarely within

the rule established in Elrod and Branti. Accordingly, we hold that plaintiff’s rights

under the Constitution of North Carolina were not violated.

Plaintiff also presented to this Court an argument based upon an alleged

violation of her rights under the Constitution of the United States. This issue was

neither raised below nor in plaintiff’s petition for discretionary review. As a result,

we do not address this contention. See State v. Anthony, 354 N.C. 372, 389, 555 S.E.2d

557, 571 (2001) (citing State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001)),

cert. denied, 536 U.S. 930, 122 S. Ct. 2605, 153 L. Ed. 2d 791 (2002).

Because plaintiff has failed to raise any meritorious claims, the trial court

correctly concluded defendants were entitled to judgment as a matter of law.

Accordingly, we conclude the Court of Appeals correctly held the trial court’s grant of

summary judgment in favor of defendants was proper.

AFFIRMED.

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