dissenting.
I dissent from my learned brethren of the majority upon three grounds. I explore them in detail below.
First, I dissent from the majority’s attempt to do a thing which they had no authority to do: namely, to enter a factual conclusion and a conclusion of law based thereon which is precisely contrary to the findings of the administrative tribunal below. The majority’s opinion, at page 629, ante, states that “[i]n this case the Commission has found, based on competent evidence, that Royce Byrd [respondent in this matter] refused to cooperate in a Departmental investigation. The Commission did not make any finding of *631justification for this and we can find no evidence of justification in the record.” The majority then concludes that this conduct was wrongful and was just cause for demotion as a matter of law. With this conclusion I cannot agree.
The Commission has not, in any part of the record before me, made any finding that respondent failed to cooperate with a departmental investigation. What the Commission did find was:
(1) respondent, having turned over to the investigatory authorities certain copies of telephone and motel records, did not divulge the source of the copies; and
(2) when asked by Ralph Edwards about the source of the records, respondent told him that he received them anonymously in the mail.
From these two events, the Department made a conclusion that respondent was not cooperating with their investigation, and cited this as one of the two grounds for repondent’s demotion. The record, however, is devoid of any evidence which shows how, if at all, the information sought from respondent was at all pertinent to the Department’s investigation. The copies of telephone and motel records submitted by respondent were easily verifiable by petitioner without regard to their source and we fail to see how that information was relevant to the proper scope of the Department of Correction’s inquiry. In view of respondent’s apparently justifiable concern that he, rather than his wrongdoing superior, was being made the target of an investigation, I find no fault in his refusal to answer the two specific questions which concern us in this case. The burden should be upon the agency seeking to demote an employee to establish that an employee’s conduct was such as would actually constitute “just cause” for demotion. The State Personnel Commission, in declining to find that respondent’s actions were a “failure to cooperate in a Departmental investigation” and in not seeking to justify the actions of respondent in its conclusions, obviously was of the opinion that the Department of Corrections simply had not carried its burden with respect to its allegations (since no evidence was adduced that the investigation was in any way hampered by respondent’s failure to divulge the name of his sources of records) and therefore properly declined to make the findings and conclusions the Department of Corrections was contending for. The Depart*632ment did not except to any of the Commission’s factual findings; the conclusions reached by the Commission are supported by those findings and the evidence from which they are derived, and, in the absence of manifest abuse of discretion on the part of the Personnel Commission, we should accord the deference to those findings and conclusions that has historically been accorded to such findings and has been considered appropriate in appellate review. See, e.g., Arnold v. Ray Charles Enterprises, Inc., 264 N.C. 92, 141 S.E. 2d 14 (1965); Re Custody of Stancil, 10 N.C. App. 545, 179 S.E. 2d 844 (1971). No such abuse of discretion has been made to appear on the record before me, and I cannot find that any exists. The majority seeks to chart a dangerous course and to set questionable precedent when, upon the cold record in a closely contested matter, they reverse both the factual and legal conclusions reached by an administrative tribunal, basing that reversal upon evidence which the administrative tribunal clearly interpreted in a manner precisely contrary to that of the majority’s opinion.
Second, even if I were disposed to seek error in the area of respondent’s purported failure to cooperate with a departmental investigation, this Court has acquired no jurisdiction to do so upon the face of the record. The Department of Corrections, when it sought judicial review in Superior Court of the findings and conclusions of the Personnel Commission, took exception to the Commission’s failure to find that respondent failed to cooperate. The Superior Court, after reviewing the evidence and receiving argument from counsel, also declined to make any finding or conclusion on that point. No exception was taken by the Department of Corrections to the Superior Court’s action in this respect. Therefore, that purported error upon which the majority reverses the Personnel Commission and the Superior Court is not even before us for review, as it must be deemed to have been waived by the petitioner in the absence of properly preserved exceptions, assignments of error and briefs on the point, none of which have come to my attention in this matter. See Jarman v. Jarman, 14 N.C. App. 531, 188 S.E. 2d 647, cert. denied 281 N.C. 622, 190 S.E. 2d 465 (1972); see also Manning v. Commerce Ins. Co., 227 N.C. 251, 41 S.E. 2d 767 (1947). The majority does not feel it necessary to reach the questions actually presented by this appeal pursuant to properly preserved exceptions and assignments of error. Ac*633cordingly, on these facts, the judgment of the Superior Court should be affirmed if no error appears requiring this Court’s attention. I find none, the majority does not indicate that it has found any, and I would, on this basis, vote to affirm the ruling of the Superior Court affirming the action of the State Personnel Commission.
Third, even if the error complained of had been properly preserved and brought forward for our review, the limit of our authority in these circumstances would be to remand for further findings. See Lawing v. Jaynes, 20 N.C. App. 528, 202 S.E. 2d 334, mod. on other grounds 285 N.C. 418, 206 S.E. 2d 162 (1974). N.C. Gen. Stats. § 126-35 provides: “No permanent employee . . . shall be . . . reduced in . . . position, except for just cause. . . .” N.G. Gen. Stats. § 126-37 provides: “The State Personnel Commission is . . . authorized to reinstate any employee to the position from which he has been removed. . . .” Petitioner has been an employee of the Department of Corrections for over thirteen years and was, therefore, a permanent employee within the meaning of the Act. N.C. Gen. Stats. § 126-35 creates a reasonable expectation of continued employment and a property interest within the meaning of the due process clause. See Faulkner v. North Carolina Department of Corrections, 428 F. Supp. 100 (W.D.N.C. 1977).
I find no words in the statutes that take away or diminish the criteria that no permanent employee shall be reduced in position except for “just cause.” The Superior Court, after reviewing the record of the Commission proceeding and hearing arguments, concluded as follows:
1. Petitioner, although a State agency, is a person as that term is used in General Statute 150A-43, and is entitled to judicial review of a final decision of the State Personnel Commission, another State agency.
2. The authority given the Personnel Commission by Article 8 Chapter 126, North Carolina General Statutes, is to determine whether acts or omissions upon which disciplinary action was predicated constitute just cause for that action. Neither the statutes nor regulations promulgated by the Commission provide that any particular acts or omissions shall constitute such cause. The Commission has authority to reinstate an employee to the position *634from which he was removed, and to order transfer or salary adjustment resulting from improperly discriminatory action of the appointing agency.
3. The numerous findings of fact by the Commission are supported by evidence, and some of the facts found are similar to those listed in Commission regulations as representative of acts for which disciplinary action may be taken.
4. The conclusions reached by the Commission are not logically impelled by its findings of fact, they do not state that the findings are not sufficient to constitute just cause for the disciplinary action taken by petitioner, nor do they state that such action was improperly discriminatory against respondent. Instead, the conclusions reflect the Commission’s feeling that the acts of the respondent are excusable.
5. The Commission’s authority to determine whether there is just cause for disciplinary action includes authority to determine whether particular acts, even acts representative under Commission regulations of those constituting just cause for discipline, are excusable.
6. The Commission’s determination that respondent’s acts are excusable is neither arbitrary nor capricious, unsupported by substantial evidence, violative of constitutional or statutory law or procedure, nor in excess of statutory jurisdiction or authority.
Both the State Personnel Commission and the Superior Court interpreted the expression “just cause” as meaning a cause which when viewed in the light of all pertinent evidence, would be sufficient to warrant disciplinary action against a State employee. Logically, there may exist actions which, in the absence of any justifying circumstances, would constitute grounds for disciplinary action but yet, when viewed in the light of all evidence brought forward, might be seen as justifiable under the circumstances and therefore not deserving of any sanction or reprimand. The law has long recognized this principle in many areas. The State Personnel Commission, which heard all of the evidence and had the fullest opportunity to weigh the credibility *635and demeanor of all of the witnesses, concluded that the respondent had exercised questionable judgment, but that his actions were not “just cause” for demotion and transfer because they were, under the circumstances, excusable. The Superior Court, upon review of the record of the administrative proceeding and hearing arguments, concluded that the State Personnel Commission had properly applied the law and exercised its discretion in dealing with this matter. If this Court wishes to disagree with these conclusions (and I do not), the proper remedy is to remand the cause to the Superior Court for remand to the State Personnel Commission for the making of further findings and conclusions. The Commission found that respondent had refused to answer questions on one occasion, but did not determine that such action constituted “just cause” for the demotion of respondent as contended by petitioner and, I think, refuted by respondent. If the majority is concerned that the State Personnel Commission did not make a finding that was required, remand for further findings is the appropriate means by which to alleviate the problem. For these reasons, I would, therefore, vote to remand to the Superior Court with instructions to remand to the State Personnel Commission with instructions to make further findings as to whether respondent’s failure to answer questions concerning the source of his telephone and motel records constituted “just cause” for his demotion, and whether there was any justification for his actions which would excuse them should they be found to constitute just cause for demotion.
In summary, I am of the opinion that this Court has no jurisdiction over the aspect of the case which the majority purports to deal with, that the majority exceeds this Court’s authority in making evidentiary findings and conclusions precisely contrary to those of the fact-finding tribunal of original jurisdiction, and that the remedy ordered is not the proper or appropriate one. Accordingly, I dissent from their opinion.