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Labor & Employment – Public Employees – Termination – Credentials – Civil Practice – Service of Process

NC Department of Public Safety v. Owens (Lawyers Weekly No. 011-215-16, 15 pp.) (Chris Dillon, J.) Appealed from Lenoir County Superior Court (Paul Jones, J.) N.C. App.

Holding: The Highway Patrol acted arbitrarily when it (1) refused to allow the respondent-employee to maintain the certifications required for his job and then (2) fired him for failing to have those same certifications.

We affirm the superior court’s decision to uphold the administrative law judge’s ruling that respondent was entitled to back pay and benefits. We also affirm the superior court’s decision to allow the petitioner-employer more time to properly serve respondent.

Service of Process

As a preliminary matter, we note that G.S. § 150B-46 of the Administrative Procedure Act allows only 10 days for service of process, which may be effected only by personal service or by certified mail. In the unpublished opinion of Schermerhorn v. N.C. State Highway Patrol, 223 N.C. App. 102, 732 S.E.2d 394 (Lawyers Weekly No. 12-16-1005) (2012), a panel of this court held that the superior court lacked the authority to provide an extension beyond the 10-day limit to serve the petition and therefore must grant the respondent’s motion to dismiss when proper service is not effected within the 10-day timeframe.

Under the reasoning of Schermerhorn, a respondent could avoid the judicial review of a favorable ALJ decision simply by avoiding service of the losing party’s petition for judicial review for 10 days, e.g., by leaving town or by refusing to sign for certified mail, whereupon the losing party’s right to judicial review might be lost forever.

We do not believe the General Assembly intended such a harsh result. Rather, we hold that the superior court has the authority to grant an extension of time to serve a petition beyond the 10 days provided for by § 150B-46.

In the present case, respondent received the petition, though it was impermissibly sent by regular mail. The superior court did not abuse its discretion when it allowed the petitioner-Highway Patrol to serve respondent properly, though outside the 10-day window.


Respondent was suspected of drug crimes. While he was under investigation, he was placed on administrative duty that did not require the same credentials that his normal position – district sergeant – required. The Highway Patrol did not allow him to complete the training needed to maintain his credentials. While respondent was still on administrative duty, the Highway Patrol fired him for failing to maintain the credentials required of a district sergeant.

The drug charges against respondent were dismissed. He was invited to reapply for his old job and was reinstated.

Respondent filed a contested case, seeking back pay and retroactive benefits. The ALJ directed that respondent’s reinstatement be retroactive to his termination so that he would not have any break in service.

The Highway Patrol has not challenged the ALJ’s findings that (1) respondent lost his credentials through no fault of his own but because the Highway Patrol prevented him from doing so; (2) the Highway Patrol relied on an order entered by a federal magistrate in respondent’s criminal case which prohibited respondent from possessing a firearm as its justification, ignoring a subsequent order from a federal judge modifying the magistrate’s order to allow respondent to possess a firearm to complete his certification; and (3) when he was terminated, respondent was still on administrative duty performing functions which did not require that he be credentialed.

The North Carolina Administrative Code may allow for an employee to be terminated without prior warning for the failure to maintain required credentials; however, an employee so terminated is entitled to relief where the employer acts arbitrarily and capriciously in terminating him on this basis. It was arbitrary and capricious for the Highway Patrol to prevent respondent from taking his annual firearms training (necessary to retain his credentials), though the Highway Patrol was under no disability to allow the training to take place, and then to terminate respondent for his failure to complete said training.


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