IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
15 OSP 07944

JOSEPH VINCOLI,
Petitioner,
v.
N. C. DEPARTMENT OF PUBLIC SAFETY,
Respondent.

RESPONDENT’S PREHEARING STATEMENT AND DOCUMENTS CONSTITUTING AGENCY ACTION

NOW COMES Respondent, North Carolina Department of Public Safety (“NCDPS”), by and through its counsel Josh Stein, Attorney General of the State of North Carolina, and Tamika L. Henderson, Assistant Attorney General, and files the following:

PRE-HEARING STATEMENT

Respondent files its Pre-Hearing Statement in the numerical order set forth in the Order for Pre-Hearing Statements.

1. Issues to be resolved:

Whether the Office of Administrative Hearings has subject matter jurisdiction over
Petitioner’s claims?

Whether Petitioner’s claims, in whole or in part, are barred by the doctrine of sovereign immunity?

Whether Petitioner’s claims are timely?

Whether Petitioner’s claim is barred by the doctrine of res judicata?

Whether Petitioner’s contested case petition is procedurally defective?

Whether Petitioner is exempt from the provisions of N.C.G.S. 126?

2. Statement of Facts and Reasons Supporting Respondent's Position on Matters in
Dispute:

Petitioner’s position was designated as managerial exempted on October 1, 2013 in accordance with N.C.G.S. § 126-5(d)(1). Petitioner’s appointment as Special Assistant to the Secretary was ended on December 9, 2013. Petitioner filed a contested case on January 14, 2014 which was dismissed. Petitioner failed to appeal that order and thus is barred from attempting to collaterally attack the same. Petitioner’s position on this matter will be fully set forth in a dispositive motion.

Any attempt by the Petitioner to assert any claim for discrimination, retaliation or a violation of the whistleblower act are time barred as will be fully set in Respondent’s dispositive motion.

Finally, Petitioner’s petition is procedurally defected in so much as the Court of Appeals did not remand to OAH and in fact reversed the trial court order which directed Respondent to provide Petitioner a hearing.

4. List of Respondent’s Proposed Witnesses:

At this time, Respondent is able to identify the following proposed witnesses:

a. Petitioner, Joseph Vincoli;
b. Frank Perry;
c. Mary Stephenson, Personnel Analyst;
d. Terry Catlett, Deputy Director, NCDPS Health Services;
e. Jeannie Lancaster;
f. Drew Harbison;
g. Karina Fuentes;
h. Rhonda Miller, Director of Financial Services, NCBH;
i. McLain Wallace, NCBH Chief Counsel;
j. Gina Ramsey, NCBH CFO;
k. Liz Riley;
l. Ralph Hise
m. James R. O’Neill;
n. Angel Gray;
o. Sarah R. Cobb;
p. Paula Smith;
q. Any witness listed by Petitioner;
r. Any witness necessary for impeachment or rebuttal;
s. Any witness identified in discovery;

Respondent reserves the right to list other witnesses as they may be identified at
which time Respondent will notify Petitioner in writing.

This the 18th day of January, 2017.

I agree with the majority that the plain language of N.C. Gen. Stat. § 126–5 permits Vincoli to contest whether his position properly could be designated exempt under the State Personnel Act. Indeed, the statutory language hardly could be clearer. The title of Section 126–5 is “Employees subject to Chapter; exemptions.”

The statute then states precisely which positions can, and cannot, be designated as exempt positions that are not subject to the provisions of the chapter. Then, in subsection (h), the statute provides that “[i]n case of dispute as to whether an employee is subject to the provisions of this Chapter, the dispute shall be resolved as provided in Article 3 of Chapter 150B,” which is the portion of the General Statutes governing contested cases filed in OAH.

The rub, of course, is that the General Assembly recently repealed N.C. Gen. Stat. § 126–34.1(c), a more specific statutory provision authorizing employees to challenge their exempt designation in OAH. If the general language of Section 126– 5(h) already permits employees to challenge their exempt designation in OAH, then the repeal of the more specific language in Section 126–34.1(c) was meaningless.

Ordinarily, we do not interpret the law in a way that renders actions of the General Assembly meaningless. See Town of Pine Knoll Shores v. Evans, 331 N.C. 361, 366, 416 S.E.2d 4, 7 (1992). But this is not an ordinary case.

Vincoli argues that, if we interpret the repeal of Section 126–34.1(c) as depriving him of any opportunity to contest his exempt designation in OAH, it would violate his constitutional rights.

Whether meritorious or not, his argument certainly is not frivolous.

And it is a long-standing principle of statutory construction that courts should “avoid an interpretation of a . . . statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question.” Gomez v. United States, 490 U.S. 858, 864 (1989).

Interpreting N.C. Gen. Stat. § 126–5(h) according to its plain meaning, notwithstanding the repeal of N.C. Gen. Stat. § 126–34.1(c), is a “reasonable alternative interpretation” of the statute.

I therefore join the majority in reversing the trial court’s judgment.