Luck v. Employment Security Commission

MARTIN (Harry C.), Judge. The only question presented by this appeal is whether Luck’s appeal was timely. It appears that this is a case of first impression in North Carolina. The pertinent provisions of N.C.G.S. 126-35 and 126-38 are: § 126-35.....Any employee appealing any decision or State Personnel Act shall be discharged, suspended, or reduced in pay or position, except for just cause. In cases of such disciplinary action, the employee shall, before the action is taken, be furnished with a statement in writing setting forth . . . the employee’s appeal rights. The employee shall be permitted 15 days from the date the statement is delivered to appeal to the head of the department. ... The employee, if he is not satisfied with the final decision of the head of the department,... may appeal to the State Personnel Commission. Such appeal shall be filed not later than 30 days after receipt of notice of the department head’s decision. § 126.38.....Any employee appealing any decision or action to the Commission shall file a written statement of appeal with the Commission or its designate no later than *194 30 days after receipt of notice of the decision or action which triggers the right of appeal. Luck was a permanent employee within the meaning of N.C.G.S. 126-1, et seq. The Commission admits that it violated N.C.G.S. 126-35 by failing to advise Luck of his right to appeal. Nevertheless, the Commission contends the 30-day period for filing notice of appeal continued to run. We do not agree. N.C.G.S. 126-35 establishes a condition precedent that the employer must fulfill before disciplinary action against an employee may be taken. See Jones v. Department of Human Resources, 300 N.C. 687, 268 S.E.2d 500 (1980). The employer must furnish the employee with a written statement containing the specific acts or reasons for the disciplinary action and the employee’s appeal rights. In Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548 (1972), the Supreme Court of the United States established that a statute such as N.C.G.S. 126-35 creates an interest in continued employment that is safeguarded by due process under the Fourteenth Amendment of the United States Constitution. This interest arises from the act of the legislature and not from the contract of employment. See also Faulkner v. North Carolina Dept. of Corrections, 428 F. Supp. 100 (1977). The purpose of the statute is to notify the employee of the reasons for the disciplinary action and to advise him of his rights to appeal the disciplinary action. We hold that due process under the United States and North Carolina constitutions requires that an employee be provided with a statement in writing setting forth his rights of appeal before the 15-day and 30-day time limits contained in N.C.G.S. 126-35 and 126-38 commence to run. This the respondent commission has failed to do. The appeal by Luck was timely. The judgment of the superior court is affirmed. Chief Judge Morris and Judge Webb concur.