State Personnel Act; Employee Grievances

Subject:

Requested By: Mr. Harold H. Webb Director Office of State Personnel

Question: Where a State employee was discharged, suspended, or reduced in pay or position prior to July 1, 1977, is such employee entitled to treatment of his grievance under Chapter 126 of the General Statutes as it existed prior to July 1, 1977.

Conclusion: Yes. The employee is entitled to treatment of his grievance under Chapter 126 of the General Statutes as it existed prior to July 1, 1977.

Chapter 126 of the General Statutes establishes and provides for the administration of the State Personnel System. Effective February 1, 1976, to July 1, 1977, this Act provided that "No permanent employee subject to the State Personnel Act shall be discharged, suspended, or reduced in pay or position, except for just cause." G.S. 126-35. The 1977 General Assembly amended Chapter 126 to provide that, except for certain sections not at issue, it should not apply to employees with less than five continuous years of service. The question is whether an employee who was discharged, suspended, or reduced in pay or position prior to July 1, 1977, but who had not yet filed an appeal with the State Personnel Commission or whose grievance had not yet been heard by the State Personnel Commission, is entitled to the benefit of the provisions of the State Personnel Act as they existed prior to July 1, 1977.

This opinion is not intended to delineate the exact circumstances under which a hearing may be available. If other legal principles and provisions are involved, as in the case of an employee dismissed because the General Assembly abolished a position and terminated all funding for that position, the legal principles relevant to such circumstances may dictate a result different from the one that would be required if only Chapter 126 of the General Statutes were taken into account. This opinion is only concerned with whether an employee dismissed, suspended, or reduced in pay or position prior to July 1, 1977, and who would be entitled to a hearing under the provisions of the Personnel Act as it existed prior to July 1, 1977, is still entitled to a hearing after July 1 even though he or she would not be entitled to a hearing under Chapter 126 as re-written by the 1977 General Assembly.

Without the benefit of the provisions of Chapter 126 not to be dismissed, suspended, or reduced in pay or position without just cause, there is no general statute or other law protecting the employee’s right to his job or position. Thus, an employee dismissed, suspended, reduced in pay or position after July 1, 1977, who does not have continuous years of service as a state employee subject to the State Personnel Act, will not ordinarily have any right to his job or position or to a hearing as to the appropriateness or validity of the discharge. See, e.g., Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.E. 2d 684 (1976).

The general rule in North Carolina and in most other jurisdictions is that statutes are not generally construed to be retrospective. Only if the General Assembly clearly indicates an intent for a statute to be applied retrospectively will it be interpreted to operate retrospectively. if there is any doubt, the doubt should be resolved against retrospective operation. In re Mitchell, 285

N.C.

77, 203 S.E. 2d 48 (1974); Smith v. Mercer, 276 N.C. 329, 172 S.E. 2d 489 (1970); Wilson

v.

Anderson, 232 N.C. 212, 59 S.E. 2d 836, 18 ALR 2d 951, Reh. Den. 232 N.C. 521, 168 S.E. 2d 672 (1969).

"It is especially true that the statute or amendment will be regarded as operating prospectively only where it is in derogation of a common-law right, or where the effect of giving it a retroactive operation would be to interfere with an existing contract, destroy a vested right, or create a new liability in connection with a past transaction, invalidate a defense which was good when the statute was passed, or, in general, render the statute or amendment unconstitutional." Smith v. Mercer, 276 N.C. 329, 172 S.E. 2d 489 (1970).

An employee who was discharged, suspended, or reduced in pay or position before July 1, 1977, had, at the time the action in question was taken, a right not to be so discharged, suspended, or reduced in pay or position except for just cause. He or she also had a right to have the question of just cause determined by the State Personnel Commission and to be restored to the prior position, pay, or employment with back pay and attorneys’ fees in appropriate cases. Clearly, the amendment denying this right to persons with less than five continuous years of State employment takes away a right or a defense from such employees and cannot operate retroactively unless that intent was clearly expressed by the General Assembly or unless it is required by necessary implication from the amendments enacted. No such clear intent or necessary implication appears. Therefore, an employee who was discharged, suspended, or reduced in pay or position prior to July 1, 1977, is entitled to the benefits of the provisions of Chapter 126 requiring just cause for such actions and a determination by the State Personnel Commission of the existence of just cause, with restoration to the prior job, position or pay, and back pay and attorneys’ fees in appropriate cases. Such grievances should be heard by the State Personnel Commission pursuant to the provisions of Chapter 126 as it existed prior to the 1977 amendments.

Rufus L. Edmisten Attorney General

Norma S. Harrell Associate Attorney