State Personnel Act; Posting and Announcements of Vacancies

May 1, 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; G.S. 126-7.1; 25 N.C.A.C. 1H .0601-Posting and Announcement of Vacancies

Dear Mr. Penny:

In your letter of March 30, 1998, you ask whether, under G.S. § 126-7.1, a university may restrict the applicant pool for a vacant position to employees currently employed within the individual department in which the vacancy occurs.

G.S. § 126-7.1 provides the following:

(a)

All vacancies for which any State agency, department, or institution openly recruit shall be posted within at least the following:

(1)

The personnel office of the agency, department, or institution having the vacancy; and

(2)

The particular work unit of the agency, department, or institution having the vacancy in a location readily accessible to employees. If the decision is made, initially or at any time while the vacancy remains open, to receive applicants from outside the recruiting agency, department, or institution, the vacancy shall be listed with the Office of State Personnel for the purpose of informing current State employees of such vacancy.

In summary, the law requires that all vacancies for which open recruitment occurs shall be posted in (1) the personnel office of the "agency, department, or institution" having the vacancy and (2) the particular work unit of the "agency, department or institution" having the vacancy. Thus, the language used in subsection (a)(1) of the statute contemplates a larger work unit called an "agency, department or institution," which is large enough to have a personnel office. The language used in subsection (a)(2) of the statute appears to contemplate a smaller "work unit" in which the particular vacancy occurs. Posting of the vacancy is required in both the smaller work unit and the personnel office of the larger agency. Therefore, since an agency must post a position at the personnel office of the larger agency, presumably the agency may not refuse to receive applications from individuals employed in the larger agency, even if those individuals are from outside the smaller work unit in which the particular vacancy occurs.

The agency nevertheless may be able to limit its applicants to individuals employed in the larger agency served by the personnel office referred to in the statute given the language in the statute. This limitation seems intended from the language in the statute which suggests that, at any time a vacancy remains open, a decision can be made "to receive applicants from outside the recruiting agency, department, or institution." "Received" in this context appears to mean not only physically received by the agency but also considered during the selection process. Therefore, the statute allows an agency to refuse to receive applicants from outside the agency during the selection process for a vacancy within the agency.

However, the statute is also clear that once any applications are "received" or considered from outside the "recruiting agency, department or institution," the vacancy must be opened to, at least, all current State employees of the agency and the vacancy must be listed with the Office of State Personnel for this purpose. If an agency"receives" or considers any applications from outside the agency, the agency is then obligated to give all State employees an opportunity to be considered for the position by posting the position with the Office of State Personnel. Thus, so long as an agency makes it clear that it is not "receiving" or considering any applications from outside the agency and does not, in fact, "receive" or consider any applications from outside the agency, the statute seems to allow the limitation of applicants to those individuals within a particular agency served by the central personnel office.

In a letter dated April 22, 1998, you also ask whether an agency may limit the number of vacant positions for which an individual may apply within the agency or, alternatively, whether an agency may refuse to consider an individual’s application for certain positions if the number of positions for which the employee has applied is in excess of some number set by the agency.

There is no authority in the posting statute or elsewhere for such a limitation. Moreover, the explicit language of the administrative rules seems at odds with such a practice. The administrative rules which implement the posting statute provide:

(a) Vacant positions to be filled in state government shall be publicized by the agency having the vacancy to permit an open opportunity for all interested employees and applicants to apply. The term "agency" as used in this Subsection includes all state departments, institutions, commissions, and boards.