DOT seeks to revisit firing that prompted recent NC deference ruling

The North Carolina Department of Transportation is asking the state’s second-highest court to allow the department to revisit its 2019 dismissal of employee Thurman Savage. A court filing Tuesday indicates that Savage opposes DOT’s plan.

Savage’s case prompted a recent state Supreme Court ruling gutting agency deference in North Carolina courts.

The high court determined on Aug. 22 that state law did not require DOT to fire Savage from his post certifying school bus drivers. He had admitted to recertifying five drivers without conducting mandatory “ride-along observations.” DOT cited NC Gen. Stat. § 20-34.1 as mandating Savage’s dismissal. The Supreme Court ruled that the law did not apply to Savage’s conduct.

The Supreme Court decision did not guarantee that Savage would win his job back. Justices returned the case to the state Court of Appeals to address other reasons the DOT offered for the dismissal.

Now DOT is asking the Appeals Court to order the case sent back to the department “for further proceedings,” according to the filing Tuesday. DOT is considered the respondent in the case. Savage is the petitioner.

Changes in state law since 2019 “have resulted in the analysis that Respondent initially performed with respect to Petitioner’s termination becoming incomplete,” DOT’s lawyers wrote. The Appeals Court now requires more documentation from an agency to show just cause for disciplinary action against an employee, DOT lawyers explained.

Returning, or remanding, the case to DOT “is especially needed here, … given the conclusions that the Administrative Law Judge made below,” department lawyers wrote. The ALJ “stated his belief that, ‘[d]ue to reliance on the mandatory dismissal of § 20-34.1(c), it appears that the Respondent did not assess factors such as severity of the violation, the subject matter involved, the resulting harm, and the employee’s work history in determining that Petitioner should be discharged.’”

“Given the review now necessary on appeal to decide the sufficiency of the agency’s just cause analysis, such a finding portends a need for a fully developed determination by the agency,” according to DOT’s court filing.

With the case returned to DOT, “the agency may complete the disciplinary process it has commenced and fully consider whether just cause exists for any appropriate level of disciplinary action under this Court’s precedent,” department lawyers wrote.

In a 5-2 decision last month, the state Supreme Court used Savage’s case to instruct North Carolina courts not to bow to a government agency’s interpretation of state law when deciding a case.

“At its heart, this case presents a rather straightforward question of statutory interpretation,” Justice Richard Dietz wrote for the court’s majority. “Before we get there, however, we first must address who decides that question.”

“Several decades ago, parroting federal law, the Court of Appeals held it ‘a tenet of statutory construction that a reviewing court should defer to the agency’s interpretation of a statute it administers so long as the agency’s interpretation is reasonable and based on a permissible construction of the statute,’” Dietz added. He cited a 1998 state Appeals Court decision.

“We never approved this interpretive rule and it directly conflicts with our own precedent requiring courts to review questions of law de novo,” Dietz wrote.

In a “de novo” review, a court “considers the matter anew” and does not accept the judgment of a lower court or agency.

“Accordingly, we expressly disavow any rule requiring courts to defer to an agency’s interpretation of a statute, overrule any previous Court of Appeals case law to the contrary, and instruct all lower courts to apply traditional de novo review to the interpretation of state statutes,” Dietz wrote.

“This ‘de novo’ standard of review makes particular sense when reviewing an executive-branch agency’s interpretations of a statute,” Dietz wrote. “This Court has long held that a core part of state judicial power is the authority to say what the law is. Thus, it ‘is the exclusive right of the judiciary’ to interpret laws enacted by the General Assembly and ‘neither the executive nor the legislative department has any such power.’”

Justice Tamara Barringer wrote a separate concurring opinion “to underscore the indispensable function the judiciary serves in our constitutional framework — one that is incompatible with the doctrine of agency deference.”

The court’s five Republican justices all endorsed the majority opinion. The two Democrats agreed with the portion of the decision determining that § 20-34.1 did not apply to Savage.

Yet Justice Anita Earls used a partial dissent to respond to the majority’s stance on deference. “This potentially is a glass half-full, glass half-empty debate, but I think it important for the judicial branch to have appropriate respect for the work of administrative agencies, while still exercising its ‘role “to say what the law is,”’” Earls wrote.

“While ‘[d]e novo review does not blind us to context or demand unquestioned deference to an agency’s views,’ we also should not completely disregard agency expertise,” Earls explained. “The appropriate balance is struck when we weigh the ‘thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.’”