Administrative — Surveyor’s License – Constitutional – Due Process – Revocation – Board Hearings

Herron v. North Carolina Board of Examiners for Engineers & Surveyors (Lawyers Weekly No. 011-223-16, 23 pp.) (Valerie Zachary, J.) Appealed from Buncombe County Superior Court (Marvin Pope Jr., J.) N.C. App.

Holding: Prior to the formal hearing on petitioner’s case, the respondent-board gave blanket approval to an entire “consent” agenda, which included a committee’s recommendation that petitioner’s surveying license be revoked. However, since the board’s approval of the consent agenda did not include any review of the evidence in petitioner’s case or any analysis of whether revocation of petitioner’s license would be appropriate, it was not a violation of petitioner’s due process rights for the board to subsequently conduct the formal hearing on the question of whether petitioner’s surveying license should be revoked.

We reverse the superior court’s order, which reversed the board’s revocation of petitioner’s license and remanded for a hearing by an administrative law judge.

A professional license, such as a surveyor’s license, is a property interest and is thus protected by due process.

Petitioner alleges that the board prejudged the adjudicative facts of his case, and the superior court agreed. The superior court’s ruling is based solely on an analysis of the administrative structure under which the board decided petitioner’s case.

The superior court found, “1. During respondent’s March 2013 Board meeting, respondent passed a motion approving an extensive “consent agenda” that included the recommendation of the Settlement Conference Committee on petitioner’s case. None of the Board members reviewed the Committee’s written report, which had redacted all identifying information.

“2. In September 2013, respondent conducted a hearing on the allegations against petitioner, at which the Board members heard sworn testimony, received documentary evidence, and rendered a decision. All but one of the Board members at the hearing were also present at the earlier meeting.”

These circumstances, which were not accompanied by evidence that any member of the board was personally biased against petitioner, do not support the superior court’s holding on the issue of due process.

Although the board passed a motion for a blanket approval of the entire consent agenda that included written materials prepared by the committee in petitioner’s case, it did so without reading these documents or discussing petitioner’s case. The wisdom of this procedure, whereby significant decisions are made without discussion or review, may be subject to question.

However, the record shows that the board’s approval of the consent agenda did not include any review or assessment by the board of the evidence in petitioner’s case, or any analysis of whether revocation of petitioner’s license would be appropriate. As a result, the superior court’s findings of fact to the contrary lack evidentiary support.

Although the board technically “approved” the committee’s recommendation, it did so without learning that the committee recommended revocation of petitioner’s license and without any exposure to the evidence or investigation that had led to this recommendation.

Moreover, mere familiarity with the facts of a case gained by an agency in the performance of its statutory duties does not disqualify it as a decision-maker. This case is controlled by Farber v. N.C. Carolina Psychology Bd., 153 N.C. App. 1, 569 S.E.2d 287 (2002), cert. denied, 356 N.C. 612, 574 S.E.2d 679 (2003), in which no due process violation was found where an administrative board first made a finding of probable cause based upon an assessment of the evidence against the petitioner (name redacted) and then conducted the hearing on the formal complaint against the petitioner.

Reversed and remanded.