Exemption of Confidential Secretaries

Subject:

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

Question: Does G.S. 126-5(d) require that confidential secretaries be designated exempt pursuant to G.S. 126-5(d)(4) or may they automatically by exempted pursuant to G.S. 126-5(d)(3)?

Conclusion: Confidential secretaries named in G.S. 126-5(d)(3) are automatically exempt while confidential secretaries to other persons designated as exempt because they are in policy-making positions must also be designated exempt pursuant to G.S. 126-5(d)(4) in order to be exempt.

Chapter 126 of the General Statutes, the State Personnel Act, provided from February 1, 1976, to July 1, 1977, in G.S. 126-5(b)(2) that a "confidential assistant and two confidential secretaries for each elected or appointed department head and one confidential secretary for each chief deputy or chief administrative assistant" should be exempt from the State Personnel Act except as to salaries. That statute also provides in G.S. 126-5(b)(3) that other persons who serve in policy-making positions could be made exempt from the State Personnel Act except as to salaries by appropriate written designation.

Chapter 126 was amended effective July 1, 1977, to provide in G.S. 126-5(d)(3) that a "confidential assistant and two confidential secretaries for each elected or appointed department head and one confidential secretary for each chief deputy or chief administrative assistant" should be exempt from the State Personnel Act except as to certain designated provisions. The 1977 amendment also provided in G.S. 126-5(d)(4) that not only persons serving in policy-making positions, but also "any confidential secretary or confidential assistant to any such deputy, administrative assistant, division or agency head or employee" designated as policy-making could also be designated as exempt. The question is whether a confidential secretary to a designated policy-maker must be designated as exempt or is automatically exempt.

G.S. 126-5(d)(3) as the State Personnel Act was amended effective July 1, 1977, and G.S. 126-5(b)(2) as the State Personnel Act existed prior to the 1977 amendment, both provide that two confidential secretaries for each department head and one confidential secretary for each chief deputy or chief administrative assistant should be exempt from the State Personnel Act for most purposes. That provision provides that such secretaries are exempt and does not require or provide for any designation of such secretaries as exempt. Therefore, secretaries meeting the description of those provisions are automatically exempt and need not be designated as such in order to be exempt except to the extent that it is necessary to do so to identify such persons.

Prior to the 1977 amendments, Chapter 126 provided that "one confidential secretary to each position designated under the provisions of G.S. 126-5(b)(3)" would be exempt from the State Personnel Act except as to salaries. G.S. 126-5(b)(4). Therefore, under the pre-July 1, 1977, version of the State Personnel Act, a confidential secretary to each person designated as exempt because of being in a policy-making position was also exempt, and no designation of such confidential secretary was required except to the extent necessary to identify the secretary. The 1977 amendment provides for the designation of a confidential secretary or confidential assistant to any person designated as exempt because of being in a policy-making position. The new version of the State Personnel Act does not provide that a designated as being exempt because of being in a policy-making position will have to be designated as such pursuant to G.S. 126-5(b)(4) in order for the confidential secretary to be exempt. However, confidential secretaries who were automatically exempt under the pre-July 1, 1977, version of the State Personnel Act because they were confidential secretaries to persons designated as being in policy-making positions will continue to be exempt automatically. Such person automatically became exempt on or before May 1, 1977, when the persons for whom they acted as confidential secretaries were properly designated as exempt. The amendments in the statute will not take away their exempt status.

Rufus L. Edmisten Attorney General

Norma S. Harrell Associate Attorney