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opinions are subject to modification and technical correction prior to official
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authoritative.
NO. COA07-865
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2008
ROBERT
BAXTER,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C. File No. 687008
DANNY
NICHOLSON, INC.,
Employer,
SELF-INSURED
(KEY
RISK MANAGEMENT SERVICES,
Servicing
Agent),
Defendant.
Appeal by
defendant from Opinion and Award entered 5 February 2007 and Order denying
defendant’s Motion to Vacate and for Reconsideration entered 13 March 2007 by
the North Carolina Industrial Commission.
Heard in the Court of Appeals 16 January 2008.
William D.
Acton, Jr. for plaintiff-appellee.
Hedrick,
Eatman, Gardner & Kincheloe, L.L.P., by Shelly W. Coleman, for
defendant-appellant.
BRYANT, Judge.
Defendant Danny
Nicholson, Inc. (employer) appeals from an Opinion and Award entered 5 February
2007, which found Plaintiff Robert Baxter (employee) totally disabled, reinstated
the employee’s temporary total disability benefits, and awarded employee
attorney’s fees. Additionally, employer
appeals from an order denying it’s motion to vacate and reconsider the 5
February 2007 Opinion and Award. We
vacate the Opinion and Award and remand the matter to the Industrial
Commission.
This case
arises from a dispute between employee and employer as to employer’s obligation
to continue total disability benefit payments to employee after employee
engaged in a trial return to work. A
hearing on the matter was conducted before Deputy Commissioner Ronnie Rowell of
the North Carolina Industrial Commission.
Subsequently, the deputy commissioner entered an Opinion and Award which
awarded employee compensation benefits, ordered employer to pay all medical
expenses incurred or to be incurred by employee for so long as such treatment
may reasonably be required, pay employee ten percent on the amounts owed him
for unpaid past disability benefits and underpaid past disability benefits, and
pay a reasonable attorney’s fee of twenty-five percent (25%) of the
compensation and penalties due employee.
Employer sought review before the Full Commission.
On 14 November
2006, a Full Commission panel (hereafter “the Commission”), consisting of
Commissioners Bernadine Ballance, Thomas Bolch, and Chairman Buck Lattimore,
reviewed the competent evidence of record, and on 2 February 2007, Commissioner
Ballance, with Commissioner Bolch concurring, signed an Opinion and Award which
modified and affirmed the Opinion and Award of the deputy commissioner. Commissioner Lattimore dissented, resulting
in a two-to-one split. That same day,
the North Carolina Office of the Governor issued a letter informing
Commissioner Bolch his term as Commissioner had expired and his successor had
been appointed. On 5 February 2007, the
Commission filed its Opinion and Award.
A few days later, on 9 February 2007, Commissioner Bolch’s successor
took the oath of office.
Employer moved
to vacate the Full Commission’s Opinion and Award on the grounds that at the
time it was filed Commissioner Bolch was not a qualified commissioner; thus,
considering the split opinion, the Commission had no majority vote. The Commission denied the motion. Employer timely filed a notice of appeal to this
Court from both the Opinion and Award and the denial of the motion to vacate
the Opinion and Award.
_____________________________________________
On appeal,
employer raises four issues: (I) whether the Commission erred by finding and
concluding employee met his burden of proving ongoing disability; (II) whether
the Commission erred by finding and concluding employer improperly terminated
employee’s benefits; (III) whether the Commission unjustifiably sanctioned
employer; and (IV) whether the Opinion and Award of the Full Commission is
void. We address only the last issue.
Employer argues
Commissioner Bolch, who voted in the majority of the two-to-one split, was not
a qualified commissioner at the time the Opinion and Award was filed because
his term as commissioner had ended and his successor had been appointed. Employer argues that as a result, the
Commission lacked the majority needed to act.
We agree.
The Full
Commission shall review an award, heard and determined by a deputy commissioner
of the North Carolina Industrial Commission, as a three-member panel. N.C. Gen. Stat. §97-85 (2007). “The North Carolina Industrial Commission .
. . acts by a majority of its qualified members at the time decision is
made.” Gant v. Crouch, 243 N.C.
604, 607, 91 S.E.2d 705, 707 (1956). “Thus, a vote of two members constitutes a
majority of the Commission empowered to act for the three-member
Commission.” Estes v. North Carolina
State Univ., 117 N.C. App. 126, 128, 449 S.E.2d 762, 764 (1994).
Our Court has
previously held, by analogy to the North Carolina Rules of Civil Procedure,
Rule 58 (stating “a judgment is entered when it is reduced to writing, signed
by the judge, and filed with the clerk of court”), that where a commissioner
who concurred in the majority of a split decision left office prior to the
filing of the Opinion and Award no majority existed at the time of the filing
as a matter of law. See Coppley v.
PPG Indus., Inc., 142 N.C. App. 196, 198-99, 541 S.E.2d 743, 744
(2001). Thus, the dispositive issue is
whether Commissioner Bolch was, at the time of filing, qualified to act on
behalf of the office of Commissioner of the North Carolina Industrial
Commission.
Our North
Carolina State Constitution provides that “[i]n the absence of any contrary
provision, all officers in this State, whether appointed or elected, shall hold
their positions until other appointments are made or, if the offices are
elective, until their successors are chosen and qualified.” N.C. Const. art. VI §10; see also,
N.C. Gen. Stat. §128-6 (2007) (“Any person who shall, by the proper authority,
be admitted and sworn into any office, shall be held, deemed, and taken, by
force of such admission, to be rightfully in such office until, by judicial
sentence, upon a proper proceeding, he shall be ousted therefrom, or his
admission thereto be, in due course of law, declared void.”). Under North Carolina General Statute section
128-7, “[a]ll officers shall continue in their respective offices until their
successors are elected or appointed, and duly qualified.” N.C. Gen. Stat. §128-7 (2007). Our North Carolina Supreme Court has held
“[t]he appointment holds till the proper appointing powers concur in selecting
his successor, and then expires.” Salisbury v. Board of Directors, 167 N.C.
223, 228, 83 S.E. 354, 355 (1914) (citation omitted).
These hold-over
provisions are in accord with “a sound public policy which is against vacancies
in public offices and requir[es] that there should always be some one in
position to rightfully perform these important official duties for the benefit
of the public and of persons having especial interest therein.” Markham v. Simpson, 175 N.C. 135,
137, 95 S.E. 106, 107 (1918).
Consistent with that policy, our appellate courts have long acknowledged
distinctions between the authority of de jure and de facto officers, as opposed
to usurpers, with regard to third parties and the public.
“A de jure
officer is one who is regularly and lawfully elected or appointed and inducted
into office and exercises the duties as his right.” People ex rel. Norfleet v. Staton, 73 N.C. 546, 550
(1875). In contrast, a de facto officer
is “one who goes in under color of authority . . . .” Id.
An officer de
facto is one whose acts, though not those of a lawful officer, the law, upon
principles of policy and justice, will hold valid, so far as they involve the
interests of the public and third persons, where the duties of the office were
exercised (1) without a known appointment or election, but under such
circumstances of reputation or acquiescence as were calculated to induce
people, without inquiry, to submit to or invoke his action, supposing him to be
the officer he assumed to be; (2) under color of a known and valid appointment
or election, but where the officer failed to conform to some precedent
requirement or condition, as to take an oath, give a bond, or the like; (3)
under color of a known election or appointment, void because there was a want
of power in the electing or appointing body, or by reason of some defect or irregularity
in its exercise, such ineligibility, want of power or defect being unknown to
the public; (4) under color of an election or appointment by or pursuant to a
public unconstitutional law before the same is adjudged to be such.
State v. Lewis, 107 N.C. 967,
971, 12 S.E. 457, 458 (1890). “[A]n
officer de facto . . . although irregular, . . . is not a mere usurper . . .
.” Commissioners of Trenton v.
McDaniel, 52 N.C. 107, 113 (1859) (per curiam). “[T]here is no difference between the
acts of de facto and de jure officers so far as the public and third persons
are concerned.” Staton, 73 N.C.
at 551. “A usurper is one who takes
possession without authority. His acts
are utterly void, unless he continues to act so long a time or under such
circumstances as to afford presumption of his right to act.” Van Amringe v. Taylor, 108 N.C. 201, 12
S.E. 1007 (1891); see also Whitehead v. Pittman, 165 N.C. 89, 90, 80
S.E. 976, ___ (1914) (after vacating his office, the commissioner’s act of
voting for the commission was not that of “one holding an office under color of
title, and therefore a de facto officer . . . [h]e was a mere usurper, whose
acts were utterly void.”).
Here,
Commissioner Bolch served as a commissioner in a hold-over capacity since 30
June 2004, when his commission expired.
Pursuant to article IV, section 10 of our State Constitution and
N.C.G.S. §§128-6 & 7, a hold-over provision allowed Commissioner Bolch to
properly serve until he was reappointed or another person was appointed. See N.C. Const. art. IV §10; N.C.G.S.
§128-6 & 7 (2007). Commissioner
Bolch signed the Opinion and Award 2 February 2007, concurring in the majority,
thereby creating a split decision. The
same day, the Governor of the State of North Carolina issued a letter informing
Commissioner Bolch his term as commissioner had ended and his successor had
been appointed, effective immediately.
The Opinion and Award was filed 5 February 2007.
On 5 February
2007, when the Opinion and Award was filed, Commissioner Bolch was not an
officer de jure: his term as commissioner had ended and his successor had been
appointed. Additionally, employee
presents no argument, and upon our review of the record we see no indication,
Commissioner Bolch had colorable title to the office of Commissioner of the
North Carolina Industrial Commission on 5 February 2007. As a result, we cannot hold the concurrence
of Bolch in the Opinion and Award filed 5 February 2007 to be the concurrence
of an officer de facto. Therefore,
because Commissioner Bolch’s appointment was void effective 2 February 2007,
and because his concurrence in the opinion filed 5 February 2007 was not the
act of a qualified officer - neither de jure nor de facto - we hold the
concurrence a nullity.
As a result,
the panel of the Industrial Commission was evenly split and no majority
existed. See Coppley, 142
N.C. App. 196, 541 S.E.2d 743. For the
reasons stated, we vacate the Opinion and Award and remand the case to the
Industrial Commission.
Vacated and
remanded.
Judges HUNTER
and JACKSON concur.