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NC Court of Appeals: Whistleblower’s firing not constitutional issue; he has right to hearing

smgavJoseph Vincoli fought the law and thought he had won, but the North Carolina Court of Appeals determined this week that the law won.

The opinion, published Tuesday, states that a Wake County Superior judge erred when he ruled a law giving Gov. Pat McCrory more power to hire and fire state employees at will unconstitutional. It reverses the lower court’s decision in Joseph Vincoli v. State of North Carolina.

The outcome only affects Vincoli but is also significant to the roughly 1,500 employees who serve at the pleasure of McCrory, because it affirms a law that essentially renders them powerless against no-cause termination but gives them an avenue to contest their work status.

Vincoli was hired in 2010 by the North Carolina Department of Public Safety in a position subject to the North Carolina Human Resources Act. He eventually became a “career state employee,” which afforded him certain protections under that Act, including the right not to be disciplined without just cause.

The Act, however, also gives governors the authority to designate certain positions exempt from those protections, and it was revised in 2013 to prevent anyone from appealing when their job status was changed.

Vincoli’s position was reclassified as exempt near the end of 2013, and he was fired about two months later on the grounds that “a change in agency staff is appropriate at this time,” according to the appeal. He has contended that he was fired because he was a whistleblower and had tried to get the state to investigate a misuse of funds involving a different agency.

Vincoli filed an internal grievance after his termination and attempted to contest his case before the Office of Administrative Hearings (OAH), which dismissed it almost immediately because the revised Act repealed his right to appeal his exempt designation.

He challenged the constitutionality of the Act in Wake County Superior Court, and he and the state filed cross-motions for summary judgement. Vincoli was granted the motion and the court ordered he be provided with a contested case hearing before OAH regarding whether his exempt designation was proper.

The Court of Appeals opinion, which was rendered by a concurring three-panel judge, states that Vincoli and employees like him can challenge their exempt designations in a contested case at OAH, according to the Act statute.

“As a result, Vincoli’s constitutional challenge, premised on his inability to contest his exempt designation, is meritless,” writes Judge Richard Dietz in a concurring opinion.

The other two judges were Chris Dillon and Ann Marie Calabria. Nothing in the opinion, it states, is to be construed to prejudice any right Vincoli may have to seek a proper contested case hearing under N.C. Gen. Stat. § 126-5(h).

Vincoli’s attorney, Michael Byrne, and Special Deputy Attorney General Joseph Finarelli did not return requests for comment.

One Comment


  1. Joe Vincoli

    November 3, 2016 at 9:30 pm

    State employees reclassified as political appointees of McCrory in 2013 now have a right to contest that in the Office of Administrative Hearings.

    In a recent case concerning whether a law passed by the General Assembly violated the due process rights of state employees Judge Dietz wrote:

    “The rub, of course, is that the General Assembly recently repealed… 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…

    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.”

    So the question now is: Will NC AG Cooper appeal to the NC Supreme Court in the hopes of stripping state employees of their due process rights?

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