Should a department head review an administrative appeal in a personnel matter in which he or she is personally accused of discrimination in the case? The answer, according to the N.C. Court of Appeals may be “yes,” depending upon the circumstances.

State law provides an appeal process for state and local government employees in personnel matters. In disputes, an administrative law judge makes finds of fact and conclusions of law. These are reviewed by State Personnel Commission, which makes a recommendation to the state or local agency in question. The agency can accept or reject the SPC’s recommendation. Further appeals are through the state court system.

Valerie Enoch, a black female, works for the Alamance County Department of Social Services. She applied in 2001 for a promotion to the position of “social work program manager.” Enoch was qualified for the position, and scored better on certain measures than the other two applicants. Ultimately, Susan Osborne, the head of DSS, selected Phillip Laughlin, a white male, for the position.

Enoch challenged the appointment, contending that she was the victim of racial and gender discrimination. An administrative law judge sided with the agency, finding that Osborne’s decision was not discriminatory. The case then went to the Alamance DSS for a final determination, with Osborne ruling on her own hiring decision. She found that she did not discriminate in hiring Laughlin over Enoch.

Enoch appealed the agency’s decision to first the superior court and then the N.C. Court of Appeals, contending that having Osborne review her own decision violated her due process rights.

North Carolina courts have struggled with the issue before. In Hearne v. Sherman, the Court of Appeals, in an unpublished opinion, concluded that it was not a due process violation for the head of a department to overturn the administrative law judge’s and SPC’s finding on his own credibility. The N.C. Supreme Court deadlocked 3- 3 in the case, with one justice not participating, which sustained the appeals court ruling. However, neither Court of Appeals’ unpublished opinions nor deadlocked Supreme Court cases have precedential value, meaning North Carolina law in this area is completely unsettled.

A majority of the three-judge Court of Appeals’ panel did not find a due process violation in Enoch.

“We conclude that the facts presenting this issue before us do not implicate due process concerns, and we refrain from making any determination as to the overall constitutionality of the administrative appeals scheme,” wrote Judge Douglas McCullough for the court. Key in McCullough ‘s analysis was that the administrative law judge and SPC had sided against Enoch. As a result, Osborne would not be in a position of by finding herself creditable rejecting a finding of discrimination.

Judge James Wynn disagreed with the majority opinion.

“A fair trial before an unbiased, impartial decision-maker is a basic requirement of due process,” he wrote.

“Here, the ultimate decision-maker adopted findings of fact and conclusions of law regarding her own credibility and her own decision not to promote Petitioner. Such a process violates our established standards of fairness, impartiality and integrity. I would find Petitioner’s due process rights to have been violated, and on that ground I would reverse the decision of the trial court.”

The dissent virtually assures that the case will be heard by the N.C. Supreme Court.

The case is Enoch, v. Alamance County Dep’t of Social Services, COA03-385.

Michael Lowrey is associate editor of Carolina Journal.