Application of Chapter 126 to Discharge of County Health Director

Subject:

Requested By: Michael S. Kennedy, Esq. Attorney for Cleveland County Board of Health

Robert W. Yelton, Esq. Attorney for Cleveland County

Question: Is a County Health Director covered by, and subject to the provisions of, the State Personnel Act, Chapter 126 of the General Statutes, so that his discharge must comply with the requirements of that Chapter?

Conclusion: Yes.

The question has arisen whether a County Health Director is subject to Chapter 126 of the General Statutes, the State Personnel Act, such that his discharge and any appeal rights would be governed by the provisions of Chapter 126 and the regulations of the State Personnel Commission adopted pursuant thereto. Chapter 126 is generally applicable to all state employees, except those specifically exempted in Chapter 126 or in other statutes, and to certain local employees, including the employees of local health departments. G.S. § 126-5(a). A number of exemptions are included in G.S. § 126-5, but nothing in that statute specifically exempts, or can be interpreted as exempting, local public health directors.

Local health departments are created and administered pursuant to Article 2 of Chapter 130A of the General Statutes. The local board of health, after consultation with the appropriate county board or boards of commissioners, appoints the local health director. G.S. § 130A-40. Qualifications for the position are determined by the State Personnel Commission after consultation with the Commission for Health Services, under guidelines suggested by the statute.

G.S. § 130A-40. Nothing in Chapter 130A specifically provides that the Health Director is or is not subject to the provisions of Chapter 126 of the General Statutes.

The Health Director is the administrative head of the local health department and performs such duties as the statute prescribes and as the Board assigns pursuant to those statutes under the supervision of the local board of health. G.S. § 130A-41(a). His specific powers and duties are set out in greater detail in G.S. § 130A-41(b).

Chapter 130A was enacted in 1983, superseding applicable provisions of Chapter 130 of the General Statutes. Previously, G.S. § 130-18 specified that the local board of health could terminate the services of the Health Director subject to the provisions of Chapter 126. Nothing in the current provisions under Chapter 130A requires that any dismissal of the Health Director be subject to Chapter 126. In fact, the current provisions do not speak at all to the termination of the Health Director.

Nothing else appearing, all employees of a local health department, whether county or district, are subject to the provisions of Chapter 126. As noted above, the explicit provisions of Chapter 126 so provide. Nothing in Chapter 126 places the Director in a different position from that of other employees. Chapter 130A, unlike the predecessor provisions of Chapter 130, does not specify that the Health Director can be terminated only subject to the provisions of the State Personnel Act. However, such a sentence is not necessary to make the Health Director subject to the State Personnel Act. Only if he were to be exempt from the Personnel Act would it be necessary either to specify that he is exempt from the Act or to provide explicitly the his dismissal would be at the discretion of the Board or that he served at the will of the Board. The fact that a prior version of the statute included an unnecessary sentence that his dismissal would be subject to the provisions of Chapter 126 does not require a conclusion that he is exempt from Chapter 126 in the absence of such language. The language was unnecessary, and no rule of statutory construction requires an interpretation that omission of an unnecessary sentence in a rewritten statute would change the normal interpretation and application of other statutory provisions. Similarly, the fact that G.S. § 130A-41(b)(12) specifies that the Director employs and dismisses employees subject to the provisions of Chapter 126 does not require a conclusion that the lack of such specificity as to the Director renders him exempt from the Personnel Act. Such language may be mere surplusage, or it may be intended to remove any doubt about the authority of the Director, rather than the Board, to hire and dismiss other employees and to avoid any suggestion that their employment or dismissal was intended to be at the will of the Director. Since there is no language whatsoever referring to termination of the Director, it is not necessary to specify that his termination is subject to the Personnel Act in order to avoid any inferences anyone might otherwise draw from language referring to the entity or individuals with authority to dismiss.

It is therefore our opinion that the employment and termination of a local health director are subject to the provisions of Chapter 126 of the General Statutes, the State Personnel Act, and that termination or discharge of a Health Director must comply with all statutory provisions and regulations duly adopted by the State Personnel Commission pursuant to Chapter 126. A discharged Health Director has all rights resulting from his status of being subject to the State Personnel Act, including appeal rights for local employees, as and when applicable.

LACY H. THORNBURG Attorney General

Norma S. Harrell Assistant Attorney General