December 10, 1990
Subject:
State Departments, Institutions, and Agencies; Retirement; Occupational Licensing Boards
Requested By:
Vicky Goudie Executive Secretary State Board of Cosmetology
Question:
Is Chapter 412 of the 1983 Session Laws, removing certain entities from participation in the Teachers’ and State Employees’ Retirement System, applicable to occupational licensing boards which are subject to the State Personnel Act and the State Budget Act?
Conclusion:
Yes.
The Teachers’ and State Employees’ Retirement System, hereinafter "the Retirement System," generally includes as employers "the State of North Carolina," local educational authorities, the universities, "or any other agency of and within the State by which a teacher or other employee is paid." G.S. § 135-1(11). Individuals generally must be members of the Retirement System if they are full-time employees, agents or officers of the State "or any of its departments, bureaus and institutions other than educational, whether such employees are elected, appointed or employed. . . ." G.S. § 135-1(10).
Although these general provisions might otherwise be considered to include occupational licensing boards and their employees, there has for many years been a specific provision pertaining to participation of the employees of occupational licensing boards in the Retirement System. Chapter 1012 of the 1959 Session Laws enacted G.S. § 135-1.1, which applies to "[a]ny State board or agency charged with the duty of administering any law relating to the examination and licensing of persons to practice a profession, trade or occupation. . . ." That statute authorized the governing board to adopt a resolution to provide for coverage of its employees in the Retirement System, conditioned on payment of employer contributions from board funds and on collection and forwarding of employee contributions. Id. Thus, for many years independent occupational licensing boards could elect to cover their employees by adopting the kind of resolution required in G.S. § 135-1.1, in contrast to the mandatory coverage for other State agencies’ employees.
In 1983, the General Assembly amended G.S. § 135-1.1 to insert the words "on or before July 1, 1983" after the word "elect" so that a licensing board was required to make such an election no later than July 1, 1983, and to insert the words "so employed prior to July 1, 1983" after the word "employees" so that the licensing board could only cause persons employed before that date to be covered. Sess. L. 1983, c. 412, s. 3 (Reg. Sess. 1983).
The same act made other changes in the Retirement System laws. It deleted the Symphony Society and the Art Society as employers within the meaning of G.S. § 135-1(11) and employees of those two entities as employees within the meaning of G.S. § 135-1(10). Sess. L. 1983, c. 412, ss. 1, 2 (Reg. Sess. 1983). It made changes in G.S. § 135-27 concerning participation in the Retirement System of employees of certain private associations related to state government, such as the State Employees’ Association and the North Carolina Education Association, among others, and included the Art Society with this group of employers, which already included the Symphony Society. Like occupational licensing boards, these entities could only elect coverage for their employees before July 1, 1983, and can only cover persons employed before that date. Sess. L. 1983, c. 412, §§ 4-6 (Reg. Sess. 1983).
The question has been raised whether Chapter 412 of the 1983 Session Laws is applicable to occupational licensing boards, such as the Cosmetic Art Board and a few others, which are subject to the Personnel Act and/or the State Budget Act. The suggestion was made that Chapter 412 was intended only to apply to certain private nonprofit associations, the Symphony Society, the Art Society, and occupational licensing boards which are not subject to the Personnel Act and the Budget Act. Unfortunately, review of the legislation itself and of relevant statutory provisions does not support that proposition.
Nothing in Chapter 412 of the 1983 Session Laws refers in any way to coverage of the entities, and their employees, by the State Budget Act or the State Personnel Act. Nothing in Article 1 of Chapter 135, governing the Retirement System, or specifically in G.S. § 135-1.1, before or after the 1983 amendment, refers to coverage of occupational licensing boards, or any other agencies whatsoever, or their employees, by the State Personnel and State Budget Acts. Retirement System coverage and participation is not directly linked anywhere, in any respect, to coverage by the State Personnel Act or the State Budget Act. Nothing in the State Personnel Act, G.S. Chapter 126, or in the State Budget Act, G.S. Chapter 143, Article 1, suggests that coverage by either or both of those acts entitles an agency to cause its employees to participate in the Retirement System. The plain language of G.S. § 135-1.1, both before and after the 1983 amendment, applies to "[a]ny State board or agency charged with the duty of administering any law relating to the examination and licensing of persons to practice a profession, trade or occupation. . . ." (emphasis added). There is no expression of any intent to exclude occupational licensing boards covered by the State Personnel Act and the State Budget Act from the terms of
G.S. § 135-1.1.
When the words of a statute or constitutional provision are plain, there is no room for interpretation to discover a legislative intention which is not expressed in the plain meaning of the words. See, e.g., State ex rel. Martin v. Preston, 325 N.C. 438, 449, 385 S.E.2d 473 (1989). There is no basis for looking beyond Chapter 412 of the 1983 Session Laws, and the provisions it amends, to interpret the meaning of that enactment and of G.S. § 135-1.1, as amended by it. Since there is no provision elsewhere in the statutes governing the Retirement System, or in the Personnel Act or Budget Act, requiring a different result, those occupational licensing boards subject to the Personnel Act and the Budget Act are also subject to G.S. § 135-1.1, just as are the occupational licensing boards not subject to the Personnel and Budget Acts. An occupational licensing board, even one such as the Cosmetic Arts Board and several others subject to the Personnel and Budget Acts, is not entitled to have any of its employees, who were employed on or after July 1, 1983, covered by and participating in the Retirement System.
LACY H. THORNBURG ATTORNEY GENERAL
Norma S. Harrell Special Deputy Attorney General