November 10, 1997
Mr. Ronald G. Penny
State Personnel Director
Office of State Personnel
116 West Jones Street
Raleigh, N. C. 27603-8004
RE: Advisory Opinion: State Personnel Act; Session Law 1997-520 (S.B. 886); G.S. § 126-5, G.S. § 126-124.2, G.S. § 126-34.1(b)
Dear Ron:
This letter is in response to your recent memorandum requesting our opinion on three issues related to the implementation of Session Law 1997-520 (hereinafter "S.B. 886"), which was signed into law and became effective September 17, 1997.
First, you asked how priority considerations existing prior to the enactment of SB 886 mesh with G.S. §126-14.2(b)(3). G.S. § 126-14.2(b) provides a definition for the phrase: "most qualified person." This definition specifically recognizes that in determining who is most qualified the hiring authority applies and utilizes the priorities found in Chapter 126 and the State Personnel Commission’s policies. For example, under Commission rules a reduction-in-force candidate who is minimally qualified for a vacant position would receive priority consideration over nonstate employee applicants for a job who are arguably better qualified. G.S. 126-14.2(b)(3) contemplates that the determination of who is substantially more qualified applies the statute plus State Personnel Commission rules and policies. Merely placing a reduction-in-force candidate in the most qualified pool does not satisfy the priority, since under Commission policies a reduction-in-force candidate receives the job over a non-state employee if the reduction-in-force candidate is minimally qualified to perform the job.
Your second issue involves the appropriate classification of personnel professionals who were classified as policymaking exempt prior to the enactment of SB 886. When agencies last submitted their list of exempt positions, most included their personnel director. SB 886 expanded the definition of policymaking exempt to require loyalty to the Governor or elected department head as a reasonably necessary component of placement in a policymaking exempt position. Personnel professionals, which include Personnel Directors, were specifically excluded in SB 886 from policymaking exempt positions. You ask what is the present status of these personnel professionals in light of the fact they can no longer occupy policymaking exempt positions. Positions currently listed as policymaking exempt, including personnel professional positions, were approved by the Legislature under G.S. 126-5, prior to September 17, 1997, the effective date of SB 886. Currently established policymaking exempt positions were approved as policymaking exempt positions under the law existing when they were designated. It is our opinion that all currently approved policymaking exempt positions, including personnel professionals, remain policymaking exempt until a new designation list is required on May 1, 2001. Personnel professionals, however, may not occupy a policymaking exempt slot after May 1, 2001. This date, however is the outside limit for retaining a personnel professional in a policymaking exempt position. A newly created personnel professional position, or one involved in a departmental reorganization, must be listed as subject to the State Personnel Act or placed in a managerial exempt position. A department in submitting a new or reorganized exempt position after SB 886’s effective date, September 17, 1997, would look to the new two-prong definition of "exempt position[s]". G.S. 126-5(b)(1), (2), (3) and (4) Both the numerical and definitional limitations imposed by SB 886 under G.S. 126-5(a)(1) and (2) would apply to newly created positions or positions affected by a reorganization.
Your next question involves reducing the number of exempt policymaking positions from thirty to twenty under G.S. 126-5(d). As previously stated those policymaking exempt positions designated by law prior to the effective date of SB 886 remain in effect until May 1, 2001. When a new exemption list is submitted the new numerical and definitional restrictions of SB 886 apply. A reorganization or the creation of a new position after SB 886’s effective date of September 17, 1997, also, implicates the new restrictions. Nonetheless, even without a reorganization or a new senior position the department can always reverse the status of an exempt position making it fully subject to the act. The timing restriction is on designating an exemption, not removing it.
Your final question was whether adding "political affiliation" to G.S. 126-34.1(b)(3) provides new grounds for bringing a contested case. It appears that the addition of political affiliation to G.S. 126-34.1(b)(3) enlarges the grounds for a contested case by applicants for initial State employment. G.S. 126-34.1(b) states that "[a]n applicant for initial State employment may file in the Office of Administrative Hearings a contested case under Article 3 of Chapter 150B of the General Statutes based upon: . . . [d]enial of equal opportunity and compensation on account of the employee’s . . . political affiliation. . .". Prior to SB 886 an applicant could grieve a denial of equal opportunity employment based on age, sex, race, color, national origin, religion, creed or handicap discrimination. Adding political affiliation discrimination to the list of prohibited acts is new and enlarges the potential grounds for an applicant’s claims.
I trust this fully answers your inquiry. Let us know if you need additional assistance.
Ann Reed
Senior Deputy Attorney General
Lars F. Nance
Special Deputy Attorney General