State Departments, Institutions, and Agencies; Personnel; Work Planning and Performance Review

Subject:

State Departments, Institutions, and Agencies; Personnel; Work Planning and Performance Review.

Requested By:

Harold W. Webb State Personnel Director

Questions:

(1)

Does the State Personnel Commission’s Work Planning and Performance Review Policy violate Article 1, Section 6 of the North Carolina Constitution providing for separation of powers?

(2)

Does the State Personnel Commission’s Work Planning and Performance Review Policy infringe on the constitutional authority of the North Carolina Commissioner of Labor?

(3)

Does the State Personnel Commission’s Work Planning and Performance Review Policy violate the North Carolina Constitution in any respect?

Conclusions:

(1)

No.

(2)

No.

(3)

No.

The question has been asked whether the State Personnel Commission’s newly-adopted Work Planning and Performance Review Policy violates any provision of the North Carolina Constitution. It has particularly been suggested that the Work Planning and Performance Review Policy, hereinafter called WPPR, violates the requirement for separation of powers and infringes on the constitutional authority of elected officials, such as the North Carolina Commissioner of labor.

The North Carolina State Personnel Commission is established by § 126-2 of the North Carolina General Statutes and exercises its powers under Chapter 126 of the General Statutes. Among the specific powers given to the State Personnel Commission is the duty to establish policies and rules governing "evaluation of employee performance." G.S. § 126-4(8). On February 8, 1983, the State Personnel Commission adopted a policy on Work Planning and Performance Review, commonly known as WPPR. This policy requires each state agency, department or institution to establish a WPPR Program aimed to identify performance expectations, establish the coaching duties of the supervisor in directing an employee’s performance, and establishing a method for appraisal of employee performance. The policy requires each agency or department to maintain an official Performance Appraisal Summary for every employee on a form approved by the Office of State Personnel. The policy contemplates that, at the beginning of a work period, a summary of the employee’s performance expectations will be recorded. At the end of the work period, the supervisor will indicate whether the employee exceeded, met or did not meet the expectations, and include an evaluation of the employee’s overall performance. This Performance Appraisal Summary is to be signed by the employee, the supervisor, and the supervisor’s manager and kept on file. A current Performance Appraisal Summary must be kept on file for an employee before an agency can make a decision such as promotion, demotion, performance salary increase, or reduction in force concerning a particular employee. The State Personnel Commission does have authority, and in fact is required, to establish policies and rules governing promotion and demotion under G.S. § 126-4(6), separation of employees under G.S. § 126-4(7a), and salary increases under G.S. § 126-4(8) and G.S. § 126-7. The WPPR policy provides that the Office of State Personnel, the administrative agency through which the policies of the State Personnel Commission are implemented, will approve Performance Appraisal Summary forms and conduct biennial assessments to determine compliance with and effectiveness of the WPPR program.

The State Personnel Commission’s WPPR policy in no way violates the provision of the Constitution of North Carolina requiring separation of powers. Article I, Section 6 provides only that the "legislative, executive and supreme judicial powers of the State government shall be forever separate and distinct from each other." The separation of powers clause does not speak in any way to the separation of powers between or among different entities in the executive branch.

Nor does the WPPR policy in any way infringe on the constitutional power of the Commissioner of Labor or any other elected officer of the State. Article III, Section 7(1) lists those elected officers. Subsection (2) states only that those officers’ respective duties shall be prescribed by law." The Constitution of North Carolina does not enumerate the powers of the elective officers other than the Governor and Lieutenant Governor. Instead, it leaves those powers to be determined by legislative action. In establishing the powers of the Commissioner of Labor or any other elected official enumerated in Article III, Section 7, the General Assembly may provide for limitations on their authority by virtue of powers given to the State Personnel Commission and Office of State Personnel as well as budgetary restrictions and obligations imposed on those officers and their departments as employers in connection with income tax, employee insurance, social security, and other employee benefits. In no way does the State Personnel Commissions’ WPPR policy infringe on the constitutional powers of any of the officers enumerated in Section 7 of Article III of the Constitution of North Carolina.

More generally, the Constitution of North Carolina imposes on the General Assembly the obligation to "prescribe the functions, powers, and duties of the administrative departments and agencies of the State and may alter them from time to time. . . ." Article III, Sec. 5(10). It is axiomatic that the State Personnel Commission has only such powers as have been prescribed for it by the General Assembly. The WPPR policy falls within the powers specifically allocated to the State Personnel Commission by the General Assembly in Chapter 126 of the General Statutes, as discussed above. Therefore, the State Personnel Commission has not exceeded its statutory and thus constitutional authority in adoption of the WPPR policy. Thus, the State Personnel Commission’s adoption of its policy on Work Planning and Performance Review does not violate any provision of the Constitution of North Carolina.

Rufus L. Edmisten Attorney General Norma S. Harrell Assistant Attorney General