December 11, 1995
Rep. Cherie Killian Berry North Carolina General Assembly House of Representatives Room 1006, State Legislative Bldg. Raleigh, NC 27601-1096
RE: Advisory Opinion; State Contract-Center for Employment Training (CET); Job Skills Training Program (JOBS); 10 NCAC 39D.0303
Dear Representative Berry:
You have asked whether the Division of Social Services ["DSS"] had the legal authority, prior to November 1, 1995, to enter into a contract with the Center for Employment Training ["CET"] to provide training services for JOBS participants under the following conditions:
- CET accepted enrollees that did not have a high school diploma or equivalent, and
- the tuition and fees charged by CET exceeded those charged at the local or regional statesupported institution.
The answer is yes. The question has apparently arisen because of 10 N.C.A.C. 39D.0303 which, prior to November 1, 1995 read:
POST-SECONDARY EDUCATION
(a) The criteria for determining when post-secondary education, as defined in 45 CFR 250.1 and 45 CFR 250.46, is appropriate for JOBS participants shall be:
- (1)
- A participant has earned a high school diploma or its equivalent;
- (2)
- The program of study offered at the post-secondary institution is directly related to the participant’s employment goal as defined in the JOBS employability plan; and
- (3)
- the determination of appropriateness is made by an educational assessment.
(b) Payment for tuition and fees shall be no more than the tuition and fee rates for the local or regional state-supported institution.
By its terms, the rule applies only to post-secondary education. Post-secondary education is defined in the DSS JOBS Program Policy Manual ("JOBS Manual") as participation in one of the following educational activities:
- Enrollment in a bachelor’s degree program in a four year institution, or
- Enrollment in a college transfer program with the intent of completing a bachelor’s degree, or
- Enrollment in a graduate degree program.
The definition also contains the following note:
Note: The purpose of the activity and the ultimate credential received upon education program completion will distinguish Post-secondary Education from Job Skills Training.
Jobs Manual, Section VII.B.
The CET program does not offer a bachelor’s degree or graduate degree and is, therefore, a Job Skills Training program and not a post-secondary education program. The administrative rule cited above does not apply to Job Skills Training programs. There is no equivalent administrative rule governing qualifications for Job Skills Training programs.
The JOBS Manual sets out the agency policies on qualifications for Job Skills Training. Job Skills Training is defined as "substantive, vocational training in technical job skills and equivalent knowledge and abilities in a specific occupational area." Jobs Manual Section IX.B. The JOBS Manual states that participants in Job Skills Training programs are not required to have a high school diploma or equivalent if the high school diploma is not required for the participant’s employment goal. JOBS Manual, Section IX.D.1.a.
The JOBS Manual states that payment of tuition and fees for Jobs Skills Training is limited to the tuition and fee rate of the local or regional state supported institution. JOBS Manual Section
IX.E.2. The JOBS Manual is a statement of agency policy and has not been adopted as a rule. Thus, it does not have the force of law. If the contract at issue provides for payment of fees and tuition in violation of the manual, the agency, at worst, violated its own internal policy. Furthermore, it is our understanding that DSS believes that the tuition and fees paid under the contract, when broken out into the various components, comply with the DSS policy.
Since it is our opinion that 10 N.C.A.C. 39D.0303 does not apply to this contract, the answers to your remaining questions about the rule are self-evident. Let us know if we can be of additional help to you.
Ann Reed Senior Deputy Attorney General
Gayl M. Manthei
Special Deputy Attorney General