State Departments, Institutions, and Agencies; Personnel; Licenses and Licensing; Architects

Subject:

State Departments, Institutions, and Agencies; Personnel; Licenses and Licensing; Architects

Requested By:

Mr. Harold H. Webb, Director Office of State Personnel

Questions:

1. Must a person performing work in the Personnel classification of Consulting Architect I, II or III be a registered architect pursuant to Chapter 83 of the North Carolina General Statutes?

2. Can only a registered architect be appointed to such positions in State government?

3. Should the class specifications for architects include registration as a legal requirement to qualify for appointment to an architect position?

Conclusions:

1. Yes; the duties of Consulting Architects I, II and III fall within the definition of the practice of architecture in G.S. 83-1(3), and no exemption is provided for State employees.

2. Yes; only a registered architect can perform the duties of these positions, and the State should not provide for or authorize the employment of persons to perform jobs which they may not perform without violating provisions of the North Carolina General Statutes.

3. Yes.

The North Carolina State Personnel Commission has authority to establish certain policies and rules including "(f)or each class of positions, reasonable qualifications as to age, character, physical condition, and other attributes pertinent to the work to be performed." G.S. 126-4(3). The Commission is also charged with establishing policies and rules governing position classification and reclassification according to the duties and responsibilities of each position.

G.S.

126-4(1). Pursuant to these grants of authority, the Commission has adopted specifications for the positions of Consulting Architects I, II, and III. The Consulting Architect I performs such duties as preparing plans and specifications for new buildings and for renovation of existing buildings at state institutions and agencies and reviewing plans and specifications submitted by architects and engineers to determine compliance with various legal requirements and to detect errors, discrepancies and omissions. These duties, and the similar duties of the Consulting Architects II and III, appear to fall within the definition of the practice of architecture as set out in

G.S.

83-1(3).

The question has arisen whether a person employed as a Consulting Architect under State Personnel specifications must be a registered architect pursuant to Chapter 83 of the General Statutes? The general rule is that a statute of general applicability does not bind the state unless the state is expressly mentioned or included therein. Yancey v. State Highway Commission, 222

N.C. 106; 12 Strong’s North Carolina Index 3d, Statutes § 5 (1978). However, this rule has been applied only in situations in which the applicability of a statute to the State or one of its political subdivisions, as an entity, was in question, such as where the court was considering whether interest ran against the state or whether a county was a "distributor" within the meaning of particular tax laws. There is no indication that this principle should be extended to exempt state or local government employees from licensing requirements if they are otherwise performing duties which would bring them within those requirements. This conclusion is buttressed by the numerous instances in which licensing acts exempt state and/or local government employees in whole or in part. See e.g., G.S. 89C-19, – 25(7) Engineering and Land Surveying); G.S. 90-187.10(3) (Veterinarians); G.S. 90-270.4(a), (c) Psychologists); G.S. 90-294(h) (Speech and Language Pathologists and Audiologists). These exemptions would be superfluous if a person were excluded from the licensing requirements merely because he or she is an employee of the State or one of its subdivisions.

As noted above, the duties of persons in positions designated by the State Personnel Commission as Consulting Architects I, II, and III appear to fall within the definition of the practice of architecture for which registration is normally required. No provision in either Chapter 83, governing registration of architects, or Chapter 126, the State Personnel Act, exempts persons employed by the State or its political subdivisions or persons subject to the Personnel Act from the requirement that persons engaging in the practice of architecture be admitted to practice pursuant to Chapter 83 of the General Statutes. Moreover, G.S. 133-1.1 specifically requires that the plans and specifications for the construction or repair of public buildings or state-owned and operated utilities, involving the expenditure of public funds in excess of $45,000.00, must be prepared by a registered architect, in accordance with the provisions of Chapter 83 of the General Statutes, or by a registered engineer, in accordance with the provisions of Chapter 89 (now 89c) of the General Statutes. If a Consulting Architect, within the meaning of the State Personnel specifications, is preparing plans for the construction or renovation of a public building involving the expenditure of more than $45,000 of public funds or is approving or passing upon plans and specifications submitted by outside architects and engineers to determine compliance with various legal requirements and to detect errors, discrepancies and admissions, he or she is engaged in the practice of architecture as defined in G.S. 83-1(3) and is presenting himself to the public as an architect by passing upon the plans and specifications of outside architects and engineers to determine compliance with various legal requirements and to detect errors, discrepancies and admissions, he or she is engaged in the practice of architecture as defined in G.S. 83-1(3) and is presenting himself to the public as an architect by passing upon the plans and specifications of outside architects or engineers or by undertaking the responsibility of preparing plans and specifications for buildings for public use.

Since persons who are employed by the State and its subdivisions and who are subject to the State Personnel Act must be registered to practice architecture, the State should not employ persons who are not registered in positions in which they must engage in practices or perform services which require registration as an architect. The State should not by its specifications for the job classifications of Consulting Architects I, II and III promote violation of the law by failing to require registration as an architect for persons qualifying for appointment to positions where they will be preparing plans and specifications for public buildings and also approving and passing on plans and specifications submitted by engineers and architects from outside state or local government.

Rufus L. Edmisten Attorney General

Norma S. Harrell Associate Attorney