May 3, 1994
Mr. Leo Tilley Assistant Secretary Department of Commerce Dobbs Building 430 North Salisbury Street Raleigh, North Carolina
Re: Advisory Opinion – Authority of Type II Agencies within the Department of Commerce to Hire and Dismiss Personnel; Article 10, Chapter 143B, North Carolina General Statutes.
Dear Mr. Tilley:
You have requested an opinion of this Office stating what Type II agencies within the Department of Commerce have the authority to hire and dismiss personnel employed by such agencies. In response to your request, we first sought to find all agencies that have been transferred to the Department by a Type II transfer, as that term is defined in G.S. § 143A-6. We believe that we have found them all, but if you know of any others, please let us know.
Article 10 of G.S. Chapter 143B (the Executive Organization Act of 1973) applies to the Department of Commerce. The provisions of G.S. § 143B-431(a)(3), which are applicable to Type II agencies within the Department, read, in pertinent part, as follows:
Any agency transferred to the Department of Commerce by a Type II transfer, as defined in G.S. 143A-6, shall have the authority to employ, direct and supervise professional and technical personnel, and such agencies shall not be accountable to the Secretary of Commerce in the exercise of their quasi-judicial powers authorized by statute, notwithstanding any other provisions of this Chapter, provided that the authority of the North Carolina State Ports Authority to employ, direct and supervise personnel shall be as provided in Part 10 of this Article.
The agencies listed below are specifically identified in G.S. § 143B-431(a)(2) and (3) as Type II agencies. If there is other statutory authority vesting the agency with authority to hire and dismiss its personnel, the statutory reference is set out following the name of the agency.
- (1)
- Board of Alcoholic Control – G.S. § 18B-200(d).
- (2)
- Utilities Commission – G.S. § 62-14(a).
- (3)
- Employment Security Commission – G.S. § 96-4(a), (d).
- (4)
- Industrial Commission – G.S. §§ 97-78 and 97-79.
- (5)
- State Banking Commission and Commissioner of Banks – G.S. §§ 53-101 and 53-117.
- (6)
- Savings Institutions Commission – G.S. § 54B-53(f).
- (7)
- Credit Union Division – G.S. § 143B-439(b).
- (8)
- Milk Commission – G.S. § 106-266.7.
- (9)
- Mutual Burial Association Commission – G.S. § 143B-472.
- (10)
- Rural Electrification Authority – G.S. § 117-2(2).
- (11)
- State Ports Authority – G.S. § 143B-454(a)(5).
We have found, in addition, the following, which are or appear to be Type II agencies:
- (12)
- Public Staff of Utilities Commission – G.S. § 62-15(b).
- (13)
- Cemetery Commission – G.S. § 65-53(1).
- (14)
- Ports Railway Commission – G.S. § 143B-469.1(5), (9).
Two councils, the Community Development Council and the Job Training Coordinating Council,
were transferred to the Department by Type II transfers pursuant to G.S. § 143B-432(c). During
our telephone conversation on April 28, 1994, you indicated that the Community Development
Council has no staff, which appears, for now, to render the issue of who may hire and fire
academic. The same is true of the Job Training Coordinating Council, since our conversation
disclosed that that Council has never been appointed or staffed. If it is ever anticipated that either
of these councils will be staffed, clarifying legislation would be appropriate, since the provisions
of G.S. § 143B-431(a)(3), when compared with those of G.S. § 143B-437.2(g) and G.S. § 143B438.4(d), create some ambiguity as to who has the authority to hire and fire staff.
We hope that this satisfactorily answers your request, but if you have comments or further
questions, please contact us.
Andrew A. Vanore, Jr.
Chief Deputy Attorney General
Henry T. Rosser
Special Deputy Attorney General