February 12, 1998
Mr. Ronald Penny State Personnel Director Office of State Personnel 116 West Jones Street Raleigh, NC 27603-8004
RE: Advisory Opinion: State Personnel Act; 126-4; 126-82; 25 N.C.A.C. 1H .0614-Application of the Veteran’s Preference
Dear Ron:
You ask whether the State Personnel Commission has the statutory authority to promulgate a rule regarding the application of a veteran’s preference in the form of an additional ten points to be awarded where a numerically scored examination is used as part of the selection process.
It is our opinion that the rule in question does not exceed the Commission’s statutory authority. The Commission has plenary authority to enact rules contained in Chapter 126, as well as the specific statutory authority to enact rules regarding the application of a veteran’s preference.
N.C. Gen. Stat. § 126-4, entitled "Powers and duties of State Personnel Commission," provides in pertinent part the following:
Subject to the approval of the Governor, the State Personnel Commission shall establish policies and rules governing each of the following: . . .
- (3)
- For each class of positions, reasonable qualifications as to education, experience, specialized training, licenses, certifications, and other job-related requirements pertinent to the work to be performed.
- (4)
- Recruitment programs designed to promote public employment, communicate current hiring activities within State government, and attract a sufficient flow of . internal and external applicants; and determine the relative fitness of applicants for the respective positions.
N.C. Gen. Stat. § 126-4 (1995). Thus, the Commission has plenary statutory authority to promulgate rules governing recruitment and selection of individuals for state employment.
As you know, N.C. Gen. Stat. § 126-82 explicitly delegates to the State Personnel Commission the power to provide certain preferences:
- (a)
- The State Personnel Commission shall provide that in evaluating the qualifications of an eligible veteran against the minimum requirements for obtaining a position, credit shall be given for all military service training or schooling and experience that bears a reasonable and functional relationship to the knowledge, skills, and abilities required for the position.
- (b)
- The State Personnel Commission shall provide that if an eligible veteran has met the minimum requirements for the position, after receiving experience credit under subsection (a) of this section, he shall receive experience credit as determined by the Commission for additional
related and unrelated military service.
(c ) The State Personnel Commission may provide that in reduction in force situations where seniority or years of service is one of the considerations for retention, an eligible veteran shall be accorded credit for military service. N.C. Gen. Stat. § 126-82 (1995).
Both subsections (a) and (b) allow the Commission to provide for general "experience credit." In fact, subsection (b) provides that such experience credit shall be "as determined by the Commission." Given the broad language of these three subsections, in addition to the broad grant of powers to the Commission generally in N.C. Gen. Stat. § 126-4, we conclude that the Commission has the authority to approve OSP-generated rules which contain a 10-point preference on numerically-scored examinations.
The Courts have held that administrative agencies have plenary authority generally to promulgate reasonable rules and regulations necessary to accomplish the Legislature’s intent and to accomplish the functions of the administrative agency given by the Legislature to the agency. In State ex rel Comm’r of Insurance v. N.C. Rate Bureau, 300 N.C. 381, 269 S.E.2d 547 (1980), the Supreme Court held that the Insurance Commissioner did not exceed his statutory authority in ordering that certain data be audited even though neither of the two pertinent statutes dealing with the data collection and availability mentioned a requirement that data be audited. In upholding the Commissioner’s ability to impose requirements outside the strict language of the statute, the Court noted that other statutes gave the Commissioner the "power and authority to make rules and regulations, not inconsistent with law . . . and to make such further rules and regulations not contrary to any provision of this Chapter which will prevent practices injurious to the public by insurance companies." Id. at 400, 269 S.E.2d at 562. The Court further noted that the Court’s "primary function" when "construing the laws creating and empowering administrative agencies . . . is to ensure that the purpose of the Legislature in enacting the law . . . is accomplished." Id. at 369, 269 S.E.2d at 561. The Court then held that in construing the applicable statutes in pari materia, they reached the conclusion that "without question . . . our Legislature intended for the Commissioner of Insurance to promulgate such reasonable rules and regulations as he deems necessary to discharge the functions of his office in seeing `that all laws of this State governing insurance companies . . . or bureaus relating to the business of insurance are faithfully executed’" such that the Commissioner’s desire that data submitted in a rate making case be audited was not an action in excess of his statutory powers. Id. at 400, 269 S.E.2d at 562.
In a more specific and related context, our Court of Appeals addressed the 10-point preference about which you asked and did not rule that the State Personnel Commission exceeded its authority in promulgating rules regarding the preference. In Davis v. Vance Co. Dep’t of Social Services, 91 N.C. App. 428, 372 S.E.2d 88 (1988), the Court of Appeals considered the question of whether the respondent agency’s failure to allow the petitioner to meet the minimum requirements of a posted position where he lacked a four year degree exceeded the agency’s statutory authority. The petitioner had been informed that although "equivalencies" were sometimes considered in recruitment, the agency was not considering any combinations of education, experience and training in lieu of the four year degree in its selection process for the position for which petitioner had applied. The Court of Appeals rejected Davis’ contention that the agency’s failure to allow education equivalencies to fulfill the position’s minimum education requirements was arbitrary and capricious because N.C. Gen. Stat. § 128-15 provided for an employment preference for veterans. In rejecting Davis’ position, the Court stated: "Although the statute awards a preference rating of ten points to veterans who apply for employment with the State or any of its departments, it states nowhere that the minimum requirements specified for a position may be ignored." Id. at 431, 372 S.E.2d at 90.
Thus, considering the Legislature’s clear intent under N.C. Gen. Stat. § 126-82 that a veteran’s preference be given, and the clear intent that the Commission define the specific parameters of the generically described related and unrelated experience, training, and schooling "credit" to be awarded to veterans and further considering the Commission’s general rulemaking authority under N.C. Gen. § 126-4, a rule providing a 10 point preference on numerically scored examinations should be upheld as within the Legislature’s intent that the Commission "promulgate such reasonable rules and regulations as [it] deems necessary to discharge the functions of [its] office in seeing ‘that the laws of this State governing . . . .’ [personnel matters and the hiring of veterans] are faithfully executed." Id.
Given the above, it appears that the veteran’s preference 10-point rule does not exceed the Commission’s statutory authority. We trust this response fully answers your question. If we can be of further assistance, please let us know.
signed by:
Ann Reed Senior Deputy Attorney General
Valerie L. Bateman
Assistant Attorney General