N.C. Technological Development Authority; Due Process

Subject:

Requested By: Mr. Brent Lane Executive Director

N.C. Technological Development Authority

Question: Does the power of the North Carolina Technological Development Authority under G.S. 143A-471.3A(2) to "employ . . . staff as it deems necessary" exempt the agency from having to accept state employees entitled to priority reemployment rights under the State Personnel System?

Conclusion: No. G.S. 143B-471.3A(2) does not exempt the North Carolina Technological Development Authority from having to accept a qualified individual with priority reemployment rights under the State Personnel System.

Chapter 126 of the North Carolina General Statutes creates rights and privileges for State employees. Legislation enacted by the General Assembly and properly adopted rules of the State Personnel Commission define the scope of those rights and the circumstances under which they arise, G.S. 126-4, G.S. 126-5(a)(1). A statutorily created right is the right of priority reemployment. "[W]e hold that in N.C.G.S. 126-5(e) (1981) the phrase ‘such employee shall have priority to any position that becomes available for which the employee is qualified’ means that if the employee is qualified for a job in state government which is available, he must be offered this job before it can be filled by anyone else, by promotion or otherwise," Dept. of Corrections v. Hill, 313 N.C. 481, 486, 329 S.E.2d 377, 380 (1985). Therefore, when it has been determined either judicially or by the State Personnel Commission that a person is entitled to reemployment rights and a position becomes open within State government for which that person is qualified, the person must be offered that position. G.S. 126-4(9).

Reducing the number of possible employment opportunities obviously has a negative impact on the priority reemployment rights of the individuals. Priority reemployment is a property right, and therefore constitutional considerations mandate that any such reduction be accomplished properly. Bean v. Taylor, 408 F.Supp. 614 (M.D.N.C.), aff’d., 534 F.2d 328 (4th Cir. 1976). Because priority reemployment is a right based on statutory law, only the General Assembly can properly authorize a limitation of that right. The comprehensive nature of the statutes and rules addressing State employees support the conclusion that, in the absence of an express statutory exemption, priority remployment rights may be exercised in regard to vacancies in all State agencies. In other words, once an individual is entitled to priority employment rights within the State Personnel System, only specific statutory language will be sufficient to eliminate an agency from making a vacancy available to the individual.

As noted in the preceeding companion opinion, the language of G.S. 143B-471.3A(2) granting power to the N.C. Technological Development Authority (NCTDA) to "employ such other professional staff and clerical and secretarial staff as it deems necessary within the funds available to it" does not expressly remove NCTDA from the State Personnel System nor does it expressly exempt the NCTDA from making any of its vacant positions available to State employees with priority reemployment rights. Exempting NCTDA in the absence of explicit statutory language would constitute a significant reduction of a property right by limiting the employee’s employment opportunities without proper authority and in violation of the employee’s constitutionally protected rights.

LACY H. THORNBURG ATTORNEY GENERAL

Charles J. Murray Special Deputy Attorney General