Volume 2 — North Carolina Court of Appeals Reports

1. Administrative Law 4; Municipal Corporations 11 — hearing by municipal administrative agency — notice of charges Where no statute, rule or regulation establishes the kind and contents of a notice of charges against a municipal employee to be heard by a municipal administrative agency, the notice is governed by established rules of procedure applicable generally to administrative tribunals. 2. Administrative Law 4 — due process — fair hearing The constitutional requirement of due process is met by a fair hearing before a regularly established administrative tribunal.<page_number>Page 35</page_number> 3. Administrative Law 4 — fair hearing — notice of charges The right to a hearing embraces the right to a reasonable opportunity to know the claims of the opposing party and to meet them. 4. Administrative Law 4; Municipal Corporations 11 — hearing before municipal civil service board — notice of charges In a proceeding before a municipal civil service board to determine whether a fire department employee should be discharged, the employee was sufficiently apprised of the derelictions with which he was charged, thereby giving him the opportunity to meet them, by (1) written notices of his temporary suspension from the fire department and of the hearing before the civil service board upon charges of "gross insubordination or willful disobedience of any order lawfully issued by a superior in the department," and by (2) the hearing itself, wherein the employee fully participated with counsel, in which evidence was presented that the employee disobeyed an order to help set up tents for a "Festival in the Park." 5. Administrative Law 4; Municipal Corporations 11 — wilfully disobeying lawful order — burden of proof A municipal fireman charged with wilfully disobeying an order lawfully issued has the burden of showing that the order was unlawful. 6. Public Officers 8; Municipal Corporations 9 — acts of public officers presumed proper It is presumed that acts of a public officer within the sphere of his official duties and purportedly exercised in an official capacity and by public authority are within the scope of his authority and in compliance with controlling statutory provisions; this presumption, however, is one of law and not of fact and may be rebutted by competent evidence. 7. Appeal and Error 40 — record on appeal — brief A brief is not a part of the record on appeal. Rule of Practice in Court of Appeals No. 19. 8. Appeal and Error 42 — assertions in brief not supported by record on appeal The Court of Appeals will not consider as facts assertions set forth in the brief which are not supported by evidence or any other portion of the record on appeal. 9. Municipal Corporations 9 — municipal firemen — performing various public duties A municipality can require firemen employees to perform public duties other than those relating to the fighting or prevention of fires. 10. Administrative Law 5; Municipal Corporations 11 — discharged Charlotte fireman — appeal An employee of the Charlotte Fire Department who is discharged after a hearing by the civil service board may appeal to the Mecklenburg County Superior Court, and such appeal is governed by the provisions of Article 33, Chapter <cross_reference>143</cross_reference> of the General Statutes. Section 4.61 (6), Chapter 713, Session Laws of 1965.<page_number>Page 36</page_number> 11. Administrative Law 4; Municipal Corporations 11 — civil service board — quasi-judicial function A civil service board acts in a quasi-judicial capacity when passing on the dismissal of an employee. 12. Administrative Law 5; Municipal Corporations 11 — civil service board — findings conclusive when supported by evidence The findings of fact of the Charlotte Civil Service Board are conclusive on appeal when supported by competent, material and substantial evidence in view of the entire record as submitted. G.S. 143-315. 13. Administrative Law 5; Municipal Corporations 11 — findings of fact supported by the evidence Findings of fact by a municipal civil service board in an order dismissing a fire department employee for violating the fire department rules and regulations by wilfully disobeying an order of a superior officer to help erect tents for a "Festival in the Park" are held supported by competent, material and substantial evidence in view of the record as submitted, and are therefore conclusive on appeal. 14. Administrative Law 4; Municipal Corporations 11 — civil service board — requisites of fair hearing In a proceeding before a municipal civil service board to determine whether a fire department employee should be discharged, the employee was accorded a fair hearing where he was given timely notice of the charges against him, a reasonable opportunity to confront and examine witnesses against him, the right to inspect documents, and where he was present with counsel at the hearing, was permitted to offer evidence, and was given a hearing by a duly constituted agency within a reasonable time after the charges were filed against him.