Relationship between Dept. of Administration & Office of State Personnel

Subject:

Requested By: Harold W. Webb State Personnel Director

Questions: Given the provisions of General Statutes § 143B-370, 126-3, and 143A-34 (repealed by Session Laws 1975, c. 879, s. 46), what is the relationship between the Department of Administration and the Office of State Personnel?

 

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2. Which official, the Secretary of Administration or the State Personnel Director, controls management functions such as planning, organizing, staffing, directing, coordinating, reporting, and budgeting for the Office of State Personnel?

    

Conclusions: The Office of State Personnel is a largely independent agency placed under the umbrella of the Department of Administration for organizational purposes only.

 

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2. The State Personnel Director controls the management functions for the Office of State Personnel.

    

The Office of State Personnel was established as the State Personnel Department in Chapter 640 of the 1965 Session Laws.

"§ 126-3. State Personnel Department established; administration and supervision; appointment, compensation and tenure of Director. — There is hereby established the State Personnel Department (hereinafter referred to as "the Department"). The Department shall be separate and distinct from the Department of Administration and shall be under the administration and supervision of a State Personnel Director, (hereinafter referred to as "the Director") appointed by the Board and subject to its supervision. The salary of the Director shall be fixed by the Governor subject to the approval of the Advisory Budget Commission. The Director shall serve at the pleasure of the State Personnel Board."

In 1975 that provision was amended to read a follows:

"§ 126-3. Office of State Personnel established; administration and supervision; appointment, compensation and tenure of Director. — There is hereby established the Office of State Personnel (hereinafter referred to as "the Office") which shall be placed for organizational purposes within the Department of Administration. Notwithstanding the provisions of North Carolina State government reorganization as of January 1, 1975, and specifically notwithstanding the provisions of Chapter 864 of the 1971 North Carolina Session Laws (Chapter 143A), the Office of State Personnel shall exercise all of its statutory powers in this Chapter independent of control by the Secretary of Administration and shall be under the administration and supervision of a State Personnel Director (hereinafter referred to as "the Director") appointed by the Governor and subject to the supervision of the Commission for purposes of this Chapter. The salary of the Director shall be fixed by the Governor subject to the approval of the Advisory Budget Commission. The Director shall serve at the pleasure of the Governor. (1965, c. 640, s. 2; 1975,

c. 667, s. 5.)."

The amending statute, Chapter 667 of the 1975 Session Laws, was ratified June 18, 1975, and became effective February 1, 1976. In the interim, however, the State Personnel Department and the State Personnel Board, as they were known at that time, had been transferred to the Department of Administration by a type II transfer in 1971. G.S. § 143A-84. Under a type II transfer, the agency was entitled to exercise all its statutory powers independently of the head of the principal department, except that the agency would be administered under the direction and supervision of the principal department with the mangaement functions performed under the direction of the head of the principal department. G.S. § 143A-6(b). Management functions were defined to mean planning, organizing, staffing, directing, coordinating, reporting and budgeting.

G.S. § 143A-6(c).

On June 26, 1975, after the ratification of the new Personnel Act, the General Assembly ratified a reorganization act by which the Department of Administration was placed under the Executive Organization Act of 1973. Session Laws 1975, Chapter 879. That Act, codified as Article 9 of Chapter 143B of the General Statutes, provides that all functions, powers, duties and obligations of certain agencies are transferred to and vested in the Department of Administration, but does not list the Office of State Personnel or Department of State Personnel as being one of the agencies whose functions are transferred to the Department of Administration. G.S. § 143B-368. The State Personnel Board is naturally listed as being included in the Department of Administration. G.S. § 143B-370. There is no specific provision dealing expressly with the Office of State Personnel and the State Personnel Board, now the State Personnel Commission, and its relationship to the Department of Administration or its powers and responsibilities within Article 9 of Chapter 143B. G.S. § 143B-368 provided that the Department of Administration should have functions established by Article 10 of Chapter 143A, the provisions which were being repealed by Article 9 of Chapter 143B. Article 10 of Chapter 143A, as previously noted, had included the State Personnel Department and the State Personnel Board by a type II transfer to the Department of Administration. However, G.S. § 143A-84, transferring the State Personnel Department and State Personnel Board to the Department of Administration by type II transfer, had subsquently been effectively modified by the amendment to G.S. § 126-3.

As amended in 1975, G.S. § 126-3 provides that the Office of State Personnel shall exercise all of its statutory powers independent of control by the Secretary of Administration. However, as already noted, under Chapter 143A, the Office of State Personnel was already entitled to exercise its statutory powers independent of control by the Secretary of Administration by virtue of having been transferred to the Department of Administration by a type II transfer. Yet G.S. § 126-3 includes the phrases "notwithstanding the provisions of the North Carolina state government reorganization provisions as of January 1, 1975, and specifically notwithstanding the provisions of Chapter 864 of the 1971 Session Laws (Chapter 143A)." The word "notwithstanding" must indicate that the Office of State Personnel exercises its powers or authority in a way different from the normal type II transfer. The statute then specifically provides that the Office of State Personnel is under the "administration and supervision of a State Personnel Director" and that it is "subject to the supervision of the Commission for purposes of this Chapter." G.S. § 126-3. The clear import of this provision is that the State Personnel Director and Office of State Personnel exercise their responsibilities with more independence from the Department of Administration than would be true without that language. Under a type II transfer, the agency was under the administration and supervision of the head of the principal department, who exercised only management functions over the agency in question. Here, the administration and supervision of the Office of State Personnel is expressly granted to the State Personnel Director, who is then subject to the supervision of the Commission, not to the supervision of the Secretary of Administration. The clear import of G.S. § 12-3, when looked at in conjunction with the statutes relating to the Department of Administration and state government organization generally, is that the Office of State Personnel shall be under the administration and supervision of the State Personnel Director, which means that the State Personnel Director controls the management functions of the Office of State Personnel. Management functions, as already noted, include such matters as planning, organizing, staffing, directing, coordinating, reporting, and budgeting.

The conclusion that the management functions of the Office of State Personnel are entrusted to the State Personnel Director, under the supervision of the State Personnel Commission, is buttressed by the nature of the duties performed by the Office of State Personnel. The Office of State Personnel determines such matters as classification, pay, qualifications of applicants and employees, and grievances of state employees covered by the State Personnel Act. The integrity of that process depends on its independence from influence by any department. The Office of State Personnel is deciding matters as to classification, level of pay for which a person is eligible, whether a person has been unjustly dismissed or demoted or denied a promotion, and other sensitive matters for Department of Administration employees, and applicants for employment with the Department of Administration, just as it does for other departments. It is essential to the integrity of the administration of the State Personnel Act that the Office of State Personnel be "separate and distinct from the Department of Administration," as provided in the 1965 legislation in originally establishing the State Personnel Department as we know it, just as it is separate and distinct from other departments of state government.

Rufus L. Edmisten Attorney General

Norma S. Harrell Assistant Attorney General