Industrial Commission Personnel; Authority to Hire and Fire

Subject:

Industrial Commission Personnel; Authority To Hire And Fire

Requested By:

J. Randolph Ward Commissioner North Carolina Industrial Commission 430 North Salisbury Street Raleigh, North Carolina 27611

Questions:

(1): Does the Chairman of the Industrial Commission have exclusive responsibility for personnel matters at the Commission, including the hiring, firing, and discipline of the Commission’s employees?
(2): If not, may the Full Commission delegate the authority and sole responsibility for such matters to the Chairman of the Commission?

Conclusions:

(1): No. The Chairman of the Industrial Commission does not have exclusive responsibility for personnel matters at the Industrial Commission.
(2): No. The Full Commission may not delegate its personnel responsibilities to the Chairman of the Commission.

AUTHORITY OF CHAIRMAN FOR PERSONNEL MATTERS

The North Carolina Industrial Commission was created in 1929 for the purpose of administering the Workers’ Compensation Act. G.S. § 97-77, et. seq. The Commission consists of three commissioners appointed by the Governor. G.S. § 97-77. The statute creating the Commission also provides that "[o]ne member, to be designated by the Governor shall act as chairman." G.S. 97-77. In 1949, the Commission was also given the responsibility of hearing and determining tort claims against state departments and agencies. Session Laws 1949, c. 1138.

The personnel powers of the Commission are set forth in three statutes: The first, G.S. § 9778(b), provides in pertinent part:

The Commission may appoint a secretary whose duties shall be prescribed by the Commission, and who shall be subject to the State Personnel System and who, upon entering upon his duties, shall give bond in such sum as may be fixed by the Commission. The Commission may also employ such clerical or other assistance as it may deem necessary, and fix the compensation of all persons so employed, such compensation to be in keeping with the compensation paid to the persons employed to do similar work in other State departments.

The Commission may appoint deputies who shall have the same power to issue subpoenas, administer oaths, conduct hearings, hold pesons, firms or corporations in contempt as provided in Chapter 5A of the General Statutes, take evidence, and enter orders, opinions, and awards based thereon as is possessed by the members of the Commission, and such deputy or deputies shall be subject to the State Personnel System.

The third, G.S. § 143-296, provides in pertinent part:

The Industrial Commission is authorized to appoint deputies and clerical assistants to carry out the purpose and intent of this Article, and such deputy or deputies are hereby vested with the same power and authority to hear and determine tort claims against State departments, institutions, and agencies as is by this Article vested in the members of the Industrial Commission.

Each of the three statutes vests the personnel authority of the Commission in the "commission." The term "commission" is defined in G.S. 97-2(8) as "the North Carolina Industrial Commission." Although the Workers’ Compensation Act and the Tort Claims Act provide little guidance as to the internal workings of the Commission, it has been judicially determined that as a commission the Industrial Commission acts by a majority of its qualified members; a vote of two members, therefore, would constitute a majority of the Commission empowered to act on behalf of the Commission. Gant v. Crouch, 243 N.C. 604, 91, S.E.2d 705 (1956). Although Gant dealt with the procedure for determination of a Workers’ Compensation case, the two member majority suggested therein is the only practical method for the three member panel to act. See also, G.S. § 12-3(2) to similar effect.

Even though G.S. 97-77 provides that one member of the Commission shall act as its chairman, it does not further define the authority, if any, of that position. The only specific authorities conferred on the Chairman of the Industrial Commission are to settle records on appeal, certify in forma pauperis appeals, set appeal bonds, and designate deputies to sit on the Full Commission when necessary. See, Rule 18, N.C. Rules of Appellate Procedure, G.S. §§ 97-85, 97-86, and 143-293. The statutes cited above do not specifically clothe the chairman with any power relating to personnel matters. Neither the Workers’ Compensation Act nor the Tort Claims Act defines the term "chairman." Thus, generally accepted definitions of the term must be considered. Black’s Law Dictionary defines chairman as "the presiding officer of an assembly, public meeting, convention, deliberative or legislative body, board of directors, committee, etc." p. 290, (4th Rev.Ed. 1968). Similarly, Robert’s Rules of Order defines a chairman as "the presiding officer of a deliberative assembly." H. Robert, Parliamentary Law, p. 303 (1923); Robert’s Rules of Order,

p. 375, (Rev. Ed. 1970). When construing a statute the words used therein will be given their ordinary meaning, unless it appears from the context that they should be taken in a different sense. Abernethy v. Board of Comm’rs, 169 N.C. 631, 86 S.E. 577 (1915). It is reasonable to conclude that the legislature meant for the chairman to preside over hearings, meetings, and so forth. However, the general meaning of the term "chairman" does not include personnel authority and none can be inferred. The Industrial Commission is not a principal department and its chairman does not have the powers of a head of such a department. G.S. §§ 143A-2, 143A-8, In conclusion, the Chairman of the Industrial Commission does not have exclusive responsibility for the enumerated personnel functions at the Commission.

COMMISSION’S AUTHORITY TO DELEGATE PERSONNEL DECISIONS TO CHAIRMAN

As set forth above, the personnel authority is vested in the Industrial Commission as a three member panel. To allow the chairman alone to exercise the personnel power would be to strike out or construe away the specific language chosen by the legislature. Such is not permitted. See Nance v. Southern Railway, 149 N.C. 366, 63 S.E.2d 116 (1908). A statute must be construed, if possible, so as to give effect to every part of it, it being presumed that the legislature did not intend any of its provisions to be surplusage. State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975).

The Commission was given certain rule making authority to aid in its implementation of the Workers’ Compensation Act and the Tort Claims Act. G.S. § 97-80 and G.S. § 143-300. The former statute provides, "The Commission may make rules, not inconsistent with this Article, for carrying out the provisions of this Article." (emphasis added). The latter provides, "The Industrial Commission is hereby authorized and empowered to adopt such rules and regulations as may, in the discretion of the Commission, be necessary to carry out the purpose and intent of this Article."

Reading these statutes in context it appears that they were intended by the legislature to enable the Commission to establish procedures for the presentation of claims. Such statutes must be read in context. See, State v. White, 58 N.C. App. 558, 294 S.E.2d 1 (1982) and Nance v. Southern Railway, 149 N.C. 366, 63 S.E. 116 (1908). Even if the two statutes were read to allow rule making concerning personnel matters, a rule delegating the Commission’s personnel authority to the Chairman would not be permissible since it would be inconsistent with other sections within Article I of Chapter 97, namely, § 97-78 and § 97-79.

Thus, the Full Commission cannot delegate sole responsibility for personnel matters to its Chairman. Even so, an informal procedure may be implemented whereby the Chairman initiates personnel actions which are then ratified by the other Commissioners. In this manner the Commission is still the decision making authority in compliance with the statutes.

In addition, all personnel actions taken by the Commission must comply with applicable statutes, rules, and regulations governing the State Personnel System. See, G.S. §§ 97-78, 97-79, 143-296, and 124-4, et. seq.

Finally, it should be noted that when the Department of Economic and Community Development was created in 1989 the Industrial Commission was made a subpart thereof by a Type II transfer.

G.S. §§ 143B-427 to 431. The applicable statute provides in pertinent part,

(a): The functions of the Department of Economic and Community Development, except as otherwise expressly provided by Article 1 of this Chapter or by the Constitution of North
(2): All functions, powers, duties and obligations heretofore vested in an agency enumerated in Article 15 of Chapter 143A, to wit: . . .
(3): All other functions, powers, duties and obligations as are conferred by this Chapter, delegated or assigned by the Governor and conferred by the Constitution and laws of this State. Any agency transferred to the Department of Economic and Community Development by a Type II transfer, as defined by 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 Economic and Community Development in their exercise of quasi-judicial powers authorized by statute, notwithstanding any other provisions of this Chapter, . . . .

G.S. 143B-431(a)(1989).

The meaning of a Type II transfer is

the transferring intact of an existing agency, or part thereof, to a principal department established by this Chapter. When any agency, or part thereof, is transferred to a principal department under a Type II transfer, that agency, or part thereof, shall be administered under the direction and supervision of that principal department but shall exercise all its prescribed statutory powers independently of the head of the principal department, except that under a Type II transfer the management functions of any transferred agency, or part thereof, shall be performed under the direction and supervision of the head of the principal department.

G.S. § 143A-6(b). The term "management functions" includes "planning, organizing, staffing, directing, coordinating reporting and budgeting." G.S. § 143 A-6. Hiring and firing of employees falls within the scope of G.S. § 143A-6(c). See, Smith v. State, 298 N.C. 115, 257 S.E.2d 299 (1979).

It is well established that all statutes relating to the same subject matter should be considered together as one law. See, Allen v. Town of Reidsville, 178 N.C. 513, 101 S.E. 267 (1919). When

G.S.: §§ 97-77, 97-78, 97-79, 143-296, 143A-6, and 143B-431 are read together it becomes clear that the members of the Industrial Commission have the authority to employ, direct and supervise professional and technical personnel; the remainder of the authority for staffing, directing and supervising is vested in the principal department, the Department of Economic and Community Development. G.S. §§ 143A-6, 143A-9, and 143A-11. Professional and technical personnel would include the executive secretary, deputy commissioners, chief claims examiner and those occupying similar positions. See, Hedgecock v. Frye, 1 N.C. App. 369, 161 S.E.2d 647 (1968).
D.: Sigsbee Miller Assistant Attorney General