Editor’s Note.

Session Laws 2001-424, s. 21.14(b), as amended by 2001-487, s. 110, provides: “Under the direction of the Secretary of Health and Human Services, the Director of the Office of Policy and Planning shall have the authority to direct Divisions, offices, and programs within the Department to conduct periodic reviews of policies, plans, and rules and shall advise the Secretary when it is determined to be appropriate or necessary to modify, amend, and repeal departmental policies, plans, and rules. All professional and supervisory employees in policy and management positions within the Office of Policy and Planning are exempt from Chapter 126 of the General Statutes except for Articles 6, 7, and 14 of that Chapter. Exempt positions within the Office of Policy and Planning shall not count toward the exempt position totals authorized by G.S. 126-5(d)(1).”

Session Laws 2001-424, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2001’.”

Session Laws 2001-424, s. 36.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2001-2003 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2001-2003 fiscal biennium.”

Session Laws 2001-424, s. 36.5, is a severability clause.

Session Laws 2006-66, s. 22.15A(a), provides: “Except as provided in subsection (b) of this section and notwithstanding any other provision of law, the State Personnel Commission [now State Human Resources Commission], the Office of State Personnel [now Office of State Human Resources], and each State department, agency, and institution shall suspend further implementation of career banding pending subsequent action by the General Assembly after its review of the State Personnel Act [now North Carolina Human Resources Act], including the traditional graded classification system and career banding. It is the intent of the 2005 General Assembly to authorize a legislative study commission to review and evaluate the compensation and other personnel policies affecting employees and employing agencies of State government.”

Session Laws 2006-66, s. 22.15A(b), as amended by Session Laws 2006-221, s. 21A(a), provides: “Career-banded classifications approved by the State Personnel Commission [now State Human Resources Commission] on or before June 15, 2006, and for which the agency had begun implementation by that date, may continue to be implemented without suspension as otherwise provided for in this section if:

“(1) It is fully and completely implemented no later than February 1, 2007; and

“(2) It is implemented entirely using technical resources provided by the Office of State Personnel [now Office of State Human Resources] and the affected agency or constituent institution.”

Session Laws 2006-66, s. 22.15A(c) provides: “Career-banded classifications already approved by the State Personnel Commission [now State Human Resources Commission] on or before June 15, 2006, may be incorporated into the HR/Payroll (BEACON) program development and implementation provided that such inclusion will not delay completion and implementation of the program.”

Session Laws 2006-221, s. 21A(b) through (e), provides: “(b) There is created the Legislative Study Commission on the State Personnel Act [now North Carolina Human Resources Act] (‘Commission’). The Commission shall consist of 18 members appointed as follows:

“(1) Six members appointed by the Governor, to include:

“a. One person who is a current State employee subject to the State Personnel Act [now North Carolina Human Resources Act] and not currently working in human resources management.

“b. One person who is a current State employee and currently working in human resources management.

“c. One person having experience and expertise in human resources management in a large private sector organization with greater than 500 employees.

“d. One person having experience and expertise in human resources management in a large public sector organization with greater than 500 employees.

“e. Two persons representing the general public.

“(2) Six members appointed by the Speaker of the House of Representatives, to include:

“a. Four members of the House of Representatives.

“b. Two persons representing the general public.

“(3) Six members appointed by the President Pro Tempore of the Senate, to include:

“a. Four members of the Senate.

“b. Two persons representing the general public.

“(c) The Commission shall:

“(1) Review Chapter 126 of the General Statutes, the State Personnel Act [now North Carolina Human Resources Act], to determine whether the Act should be revised or repealed, in whole or in part.

“(2) Consider the efficacy of changes in policy related to the following: classification system, compensation philosophy, salary structure, merit-based pay, pay equity, pay delivery, and performance evaluation.

“(3) Evaluate career banding as an alternative to the traditional classification system, considering career progression salary adjustments as compared to current compensation increase philosophy, government/private industry best practices, and the real and perceived impact to State employees of moving to a career banding classification system.

“(4) Review any other matter that the Commission finds relevant to its charge.

“(d) The Commission may provide interim reports and shall provide its final report identifying its findings, recommendations, and legislative proposals by May 1, 2008. The Commission shall terminate upon filing its final report.

“(e) The Speaker of the House of Representatives and the President Pro Tempore of the Senate shall each appoint a cochair for the Commission. The Commission may contract for consultant services as provided by G.S. 120-32.02 . Upon approval of the Legislative Services Commission, the Legislative Services Officer shall assign professional and clerical staff to assist in the work of the Commission. Clerical staff shall be furnished to the Commission through the offices of the House of Representatives and the Senate Directors of Legislative Assistants. The Commission may meet in the Legislative Building or the Legislative Office Building upon the approval of the Legislative Services Commission. With the permission of the Speaker of the House of Representatives and the President Pro Tempore of the Senate, the Commission may meet during the regular legislative session. Members of the Commission shall receive per diem, subsistence, and travel allowances at the rate established in G.S. 120-3.1 . The appointing authority shall fill vacancies. The Commission, while in the discharge of its official duties, may exercise all the powers provided under the provisions of G.S. 120-19 through G.S. 120-19 .4, including the power to request all officers, agents, agencies, and departments of the State to provide any information, data, or documents within their possession, ascertainable from their records, or otherwise available to them and the power to subpoena witnesses.”

Session Laws, 2006-66, s. 1.2, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2006’.”

Session Laws 2006-66, s. 28.3 provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2006-2007 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2006-2007 fiscal year.”

Session Laws 2006-66, s. 28.6, is a severability clause.

Session Laws 2007-323, s. 28.18B, provides: “Notwithstanding any other provision of law, the State Personnel Commission [now State Human Resources Commission], the Office of State Personnel [now Office of State Human Resources], State agencies as to their defined critical occupational groups limited to nursing, engineering, library, fiscal, and pharmacy positions, and The University of North Carolina as to its employees subject to the State Personnel Act [now North Carolina Human Resources Act] shall begin or continue the development and implementation of career banding, effective July 1, 2007.

“The Office of State Personnel [now Office of State Human Resources] shall provide quarterly updates on career banding to the Joint Legislative Commission on Governmental Operations.

“The Office of State Personnel [now Office of State Human Resources] shall consult with the Joint Legislative Commission on Governmental Operations prior to the State Personnel Commission’s [now State Human Resources Commission’s] review and approval of career banding for major occupational groups with significant labor market changes.”

Session Laws 2007-323, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2007’.”

Session Laws 2007-323, s. 32.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2007-2009 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2007-2009 fiscal biennium.”

Session Laws 2007-323, s. 32.5, is a severability clause.

Session Laws 2011-145, s. 29.18(a)-(e), provides: “(a) The following definitions apply in this section:

“(1) Furlough. — A temporary, involuntary period of leave from employment without pay but shall not include any period of involuntary leave resulting from disciplinary action.

“(2) Public agency. — A State agency, department, or institution in the executive branch of State government; The University of North Carolina; the North Carolina Community College System; and a local school administrative unit.

“(3) Public employee. — An employee employed by the legislative or judicial branches or by a public agency.

“(b) Any furlough of a public employee paid with State funds is prohibited unless the furlough is ordered by the Governor while acting to balance the budget pursuant to Section 5 of Article III of the North Carolina Constitution or by the Chief Justice or the Legislative Services Officer, respectively, to balance the judicial branch or legislative branch budget.

“The Board of Governors of The University of North Carolina, the State Board of Community Colleges, and each local public school board of education must petition the Governor to furlough its respective employees in order to balance the respective budgets.

“(c) If, in accordance with subsection (b) of this section, necessary economies in expenditures must be effected by a furlough of public employees, the employing public agency, the judicial branch, or the legislative branch, respectively, shall report to the State Treasurer, the Director of the Retirement Systems Division, and the Executive Administrator of the State Health Plan the following:

“(1) The specifics of the authorized furlough.

“(2) The positions affected, including all full-time, part-time, temporary, and contractual positions, all nonessential personnel, and all nonteaching positions.

“(3) The individual employees affected, including the applicable reduction in salary and whether the employee is subject to or exempt from the Fair Labor Standards Act.

“(d) If, in accordance with subsection (b) of this section, necessary economies in expenditures must be effected by a furlough of public employees, then a public employee on a furlough who is:

“(1) A member of any of the State-supported retirement plans administered by the Retirement Systems Division of the Department of State Treasurer or of an Optional Retirement Program (ORP) administered under G.S. 135-5.1 or G.S. 135-5.4 shall be considered in active service during any period of furlough and shall be entitled to all of the same benefits to which the employee was entitled on the workday immediately preceding the furlough. The member shall suffer no diminution of retirement average final compensation based on being on furlough, and the retirement average final compensation shall be calculated based on the undiminished compensation. During a furlough period, the employer shall pay both employee and employer contributions to the Retirement Systems Division or ORP on behalf of the furloughed employee as though the employee were in active service.

“(2) A member of the State Health Plan for Teachers and State Employees shall be considered eligible for coverage under the Plan on the same basis as on the workday immediately preceding the furlough. The public employer shall pay contributions on behalf of the furloughed public employee as though the employee were in active service.

“(e) The benefits protections provided by this section shall also apply to public employees in the judicial and legislative branches.”

For prior similar provisions, see Session Laws 2009-26, ss. 1-8.

Session Laws 2011-145, s. 29.21(a) and (b), provides: “(a) There are established in the Office of State Budget and Management General Fund and Highway Fund reserve budget codes for the purpose of funding severance-related obligations to State employees subject to the State Personnel Act [now North Carolina Human Resources Act], and employees exempt from the State Personnel Act [now North Carolina Human Resources Act], who are separated from service due to a reduction-in-force action. Severance-related expenditures from these reserves shall include obligations to fund:

“(1) A State employee’s severance salary continuation with an age adjustment factor as authorized by G.S. 126-8.5 , including employer-related contributions for social security, and

“(2) Noncontributory health premiums for up to 12 months as authorized by G.S. 135-45.2(a)(8) for employees of employing units as defined by G.S. 135-45.1(12).

“(b) The Director of the Budget shall allocate funds appropriated in Sections 2.1 and 3.1 of this act to the Severance Expenditure Reserve to public agencies to fund severance-related obligations incurred by the agencies as a result of reduction-in-force actions that cause State-supported public employees to be terminated from public employment. Funds appropriated to the Severance Expenditure Reserve shall be expended in their entirety before funds appropriated to a public agency for State-supported personal services expenditures may be used to fund any severance-related obligations.

“Funds appropriated to the Severance Expenditure Reserve may be allocated to public agencies for positions that are funded by the General Fund or Highway Fund. Funds appropriated to the Severance Expenditure Reserve may also be allocated to public agencies for positions that are funded partially from the General Fund or Highway Fund and partially from sources other than the General Fund or Highway Fund but only to the extent of the proportionate part of the salaries paid from the General Fund or Highway Fund.

“For the purposes of this subsection, the term ‘public employee’ means an employee of a State agency, department, or institution; The University of North Carolina; the North Carolina Community College System; or a local school administrative unit.”

Session Laws 2011-145, s. 1.1, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2011.’ ”

Session Laws 2011-145, s. 32.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium.”

Session Laws 2011-145, s. 32.5, is a severability clause.

Session Laws 2012-142, s. 6.13(b), provides: “The Office of State Personnel [now Office of State Human Resources] shall adopt a policy implementing the relevant portions of G.S. 143C-6-8 , as amended by this section, for State employees.”

Session Laws 2012-142, s. 1.2, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2012.’ ”

Session Laws 2012-142, s. 27.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2012-2013 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2012-2013 fiscal year.”

Session Laws 2012-142, s. 27.7, is a severability clause.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Session Laws 2014-115, s. 55.4(c), effective August 11, 2014, substituted “State Human Resources System” for “State Personnel System” in the Article heading.

Session Laws 2014-115, s. 55.3(h), provides: “The Codifier of Rules shall make all necessary changes in nomenclature in Title 25 of the North Carolina Administrative Rules as follows:

“(1) To change the name of the Office of State Personnel to the Office of State Human Resources.

“(2) To change the name of the State Personnel Commission to the State Human Resources Commission.

“(3) To change the name of the Director of the Office of State Personnel to the Director of the Office of State Human Resources.

“(4) To change the name of the Office of State Personnel Director to the Office of State Human Resources Director.

“(5) Any other change consistent with this section.”

State Government Reorganization.

The State personnel system was transferred to the Department of Administration by G.S. 143A-84 (now repealed), enacted by Session Laws 1971, c. 864.

Effect of Amendments.

Session Laws 2011-145, s. 29.21A(a), effective July 1, 2011, and applicable to employees subject to reductions in force on or after July 1, 2011, in the section catchline, deleted “State employees receive priority consideration” following “Posting requirement” and substituted “reduction in force” for “reduction-in-force rights”; in the introductory language of subsection (a), inserted “in a place readily accessible to employees that is located”; in the first sentence of subdivision (a)(2), deleted “in a location readily accessible to employees” from the end; deleted subsection (a2), which pertained to duty of the State Personnel Commission [now State Human Resources Commission] to adopt rules providing priority consideration for separated State employees; deleted subsections (c1) and (c2), which pertained to State employees separated due to reduction in force, and applicants for reemployment with more than 10 years of service receiving priority, respectively; and deleted subsection (d), which was the definition for “Qualifications.”

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, twice substituted “State Human Resources Commission” for “State Personnel Commission” and “Office of State Human Resources” for “Office of State Personnel.”

Session Laws 2014-115, s. 55.4(c), effective August 11, 2014, substituted “State Human Resources system” for “State Personnel System” in the fourth sentence.

Legal Periodicals.

For article, “Tully v. City of Wilmington: A Fundamental Right To Be Treated Reasonably at Work,” see 98 N.C. L. Rev. Addendum 1575 (2020).

For comment, “Authorizing Gross-Up Compensation: Making Recovering Plaintiffs Whole by Accounting for the Additional Tax Consequences that Accompany Lump-Sum Back Pay Awards,” see 56 Wake Forest L. Rev. 417 (2021).

CASE NOTES

Constitutional Implications. —

For case discussing the propriety under U.S. Const., Amends. I and XIV, of adverse personnel actions affecting State employees in exempt positions following the change from the Hunt administration to the Martin administration, see Stott v. Martin, 725 F. Supp. 1365, 1989 U.S. Dist. LEXIS 13544 (E.D.N.C. 1989), rev'd, 916 F.2d 134, 1990 U.S. App. LEXIS 17593 (4th Cir. 1990).

This Chapter establishes and provides for the administration of the state personnel system. Yow v. Alexander County Dep't of Social Servs., 70 N.C. App. 174, 319 S.E.2d 626, 1984 N.C. App. LEXIS 3655 (1984).

The legislative intent to forbid all hiring except under this Chapter is clear. Bean v. Taylor, 408 F. Supp. 614, 1976 U.S. Dist. LEXIS 16753 (M.D.N.C.), aff'd, 534 F.2d 328, 1976 U.S. App. LEXIS 11358 (4th Cir. 1976).

Chapter 126 clearly gives State Personnel Commission [now State Human Resources Commission] power to establish rules and policies governing personnel matters. North Carolina Dep't of Justice v. Eaker, 90 N.C. App. 30, 367 S.E.2d 392, 1988 N.C. App. LEXIS 366 (1988), disapproved, Batten v. N.C. Dep't of Correction, 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

There was just cause to demote the highway patrol employee as the employee drank three beers within a short period; proceeded to drive after drinking; exceeded the speed limit; and two alco-sensor tests registered 0.09 and 0.08 alcohol concentration readings. Davis v. N.C. Dep't of Crime Control & Pub. Safety, 151 N.C. App. 513, 565 S.E.2d 716, 2002 N.C. App. LEXIS 777 (2002).

The superior court properly determined that it had subject matter jurisdiction where plaintiff sought injunctive relief ordering his reinstatement to the “same or similar position,” a matter on which G.S. 126-34.1 (now repealed) does not specifically authorize appeal; the State Personnel Act [now North Carolina Human Resources Act] does not place jurisdiction over this matter with the State Personnel Commission [now State Human Resources Commission]. Hodge v. North Carolina DOT, 137 N.C. App. 247, 528 S.E.2d 22, 2000 N.C. App. LEXIS 334 , rev'd, 352 N.C. 664 , 535 S.E.2d 32, 2000 N.C. LEXIS 745 (2000).

Enforcement of Contracts Made in Violation of Rules. —

The purpose of this Chapter and thus public policy would be frustrated by enforcement of contracts made in violation of the valid rules established pursuant to G.S. 126-4(3). Bean v. Taylor, 408 F. Supp. 614, 1976 U.S. Dist. LEXIS 16753 (M.D.N.C.), aff'd, 534 F.2d 328, 1976 U.S. App. LEXIS 11358 (4th Cir. 1976).

Discharge of Exempt Employees by Successor Governor. —

Although the North Carolina State Personnel Act [now North Carolina Human Resources Act] provides that no permanent employee subject thereto shall be discharged, suspended or reduced in pay or position except for just cause, the act exempts certain employees by its terms and allows the Governor to designate as exempt from the provisions of the act certain other policy-making or decision-making employees. Where plaintiffs having a position designated as policy-making or confidential by the previous Governor brought suit alleging that each was discharged from an exempt government position for the sole reason of political affiliation, there was a presumption that successor Governor’s actions were proper if done for political patronage reasons that require, as a qualification for the performance of a job, a political affiliation. Stott v. Haworth, 916 F.2d 134, 1990 U.S. App. LEXIS 17593 (4th Cir. 1990), dismissed, 783 F. Supp. 970, 1992 U.S. Dist. LEXIS 2035 (D.N.C. 1992).

Propriety of Reducing Number of Exempt Positions. —

An exempt position, so designated by the Governor, creates a presumption at law that discharge or demotion was proper, and this section, by its terms, authorizes the Governor to reduce the number of exempt positions in order that the structure of the State government comply with the terms of the section and that the appropriate government employees enjoy the protection of the civil service position, a position that clearly falls without the political patronage system. Stott v. Haworth, 916 F.2d 134, 1990 U.S. App. LEXIS 17593 (4th Cir. 1990), dismissed, 783 F. Supp. 970, 1992 U.S. Dist. LEXIS 2035 (D.N.C. 1992).

Property Interest in Employment. —

An employee who is subject to the State Personnel Act [now North Carolina Human Resources Act] and who holds a “trainee” appointment as defined by the North Carolina Administrative Code does not have a property interest in her continued employment which is protected by the due process clause of U.S. Const., Amend. XIV. Yow v. Alexander County Dep't of Social Servs., 70 N.C. App. 174, 319 S.E.2d 626, 1984 N.C. App. LEXIS 3655 (1984).

Attorney Fee Awards. —

G.S. 6-19.1 authorizes a superior court to award fees to the employee of a county Department of Social Services who has prevailed under the State Personnel Act [now North Carolina Human Resources Act], G.S. 126-1 et seq.; therefore, a trial court was authorized to award fees for representation of a plaintiff during the administrative proceedings contesting her termination while on medical leave, which was adjudged without cause and wrongful. Early v. County of Durham Dep't of Soc. Servs., 172 N.C. App. 344, 616 S.E.2d 553, 2005 N.C. App. LEXIS 1788 (2005).

OPINIONS OF ATTORNEY GENERAL

Employment and termination of local health director are subject to the provisions of this chapter, and termination or discharge of a health director must comply with all statutory provisions and regulations duly adopted by the State Personnel Commission [now State Human Resources Commission] pursuant to this chapter. See opinion of Attorney General to Mr. Michael S. Kennedy, Esquire, Attorney for Cleveland County Board of Health, and Mr. Robert W. Yelton, Esquire, Attorney for Cleveland County, 55 N.C. Op. Att'y Gen. 113 (1986).

Those occupational licensing boards subject to the Personnel Act, this Chapter, and the Budget Act, G.S. 143-1 et seq., are also subject to G.S. 135-1.1 , just as are the occupational licensing boards not subject to the Personnel and Budget Acts. See opinion of Attorney General to Vicky Goudie, Executive Secretary, State Board of Cosmetology, 60 N.C. Op. Att'y Gen. 54 (1990).

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. See opinion of Attorney General to Vicky Goudie, Executive Secretary, State Board of Cosmetology, 60 N.C. Op. Att'y Gen. 54 (1990).

The State Personnel Commission [now State Human Resources Commission] may approve the Career Banding Program, “a system in which jobs are combined into broader classes with wider pay ranges in order to more accurately describe the jobs actually performed by State employees”, developed by the Office of State Personnel [now Office of State Human Resources] and which results in a banded system would group similar job duties into fewer classes. See opinion of Attorney General to Thomas H. Wright, State Personnel Director, 2006 N.C. Op. Att'y Gen. 3 (11/07/06).

Editor’s Note.

Session Laws 1999-237, s. 1.1 provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 1999’.”

Session Laws 1999-237, s. 30.2 provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 1999-2001 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 1999-2001 biennium.”

Session Laws 1999-237, s. 30.4, is a severability clause.

Session Laws 2002-159, s. 87, provides: “Any employee subject to a reduction in force action pursuant to Executive Order Number 22 whose position was ultimately funded in S.L. 2002-126 shall maintain the employee’s career State employee status as provided in G.S. 126-1.1 . Employees may also purchase vacation leave up to the amount that they had accrued, not to exceed 240 hours, prior to the date of their separation. Employees who had accrued in excess of 240 hours of annual leave shall have that balance reinstated. These employees shall also receive the ‘Special Annual Leave Bonus’ as specified in Section 28.3A of S.L. 2002-126.”

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2007-372, s. 1, effective August 19, 2007, added “or an employee of a local entity who is covered by this Chapter pursuant to G.S. 126-5(a)(2)” near the end of the introductory paragraph; and inserted “a local entity as provided in G.S. 126-5(a)(2)” following “State of North Carolina” in subdivision (2).

Session Laws 2013-382, s. 3.1, effective August 21, 2013, inserted the subsection (a) designation; deleted “appointment” following “position” in subdivision (a)(1); and added subsection (b).

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “North Carolina Human Resources Act” for “State Personnel Act” in subdivision (a)(2) and in subsection (b).

Session Laws 2016-87, s. 7, effective July 11, 2016, in subsection (c), inserted “or forensic scientist position” and “or forensic scientist.”

Legal Periodicals.

For article, “The Meaning of Just Cause in North Carolina Public Employment Law: Carroll and its Progeny Provide for a Heightened Multifactor Standard for State Employee Disciplinary Cases,” see 33 Campbell L. Rev. 341 (2011).

For article, “Far From a ‘Dead Letter’: The Contract Clause and North Carolina Association of Educators v. State,” see 96 N.C.L. Rev. 168 (2018).

CASE NOTES

Equal Protection. —

Non-career State employee did not establish an equal protection claim based on the fact that career State employees, as defined in G.S. 126-1.1 , had more extensive procedural and substantive rights because the employee did not articulate how career employees were similarly situated. Yan-Min Wang v. UNC-CH Sch. of Med., 216 N.C. App. 185, 716 S.E.2d 646, 2011 N.C. App. LEXIS 2150 (2011).

State employee seeking review of her termination was not a state employee, as defined in G.S. 126-1 .1, because she was not in a permanent position appointment or had not held a position subject to the State Personnel Act [now North Carolina Human Resources Act], G.S. 126-1 et seq., for the immediate 24 preceding months. Woodburn v. N.C. State Univ., 156 N.C. App. 549, 577 S.E.2d 154, 2003 N.C. App. LEXIS 305 (2003).

County official was entitled to judgment as a matter of law on a former employee’s claim of tortious interference based upon a contract right because there was no genuine dispute of material fact regarding the employee’s lack of status as a Career State Employee as she did not meet the 24-month statutory requirement to warrant protection under the North Carolina State Personnel Act, and to the extent the employee alleged that she had some agreement with her employer that was not premised on her status as a Career State Employee, she failed to provide evidence of an agreement that supported her allegations that she could only be terminated for just cause. Robinson v. Bowser, 2013 U.S. Dist. LEXIS 148529 (M.D.N.C. Oct. 16, 2013).

Former Department of Social Services Employee. —

Administrative law judge (ALJ) properly concluded that a technician who worked for a county department of social services was a career State employee under the State Human Resources Act (SHRA) and was subject to the SHRA because the county board of commissioners passed resolutions leaving the employees of the consolidated human services agency subject to the SHRA; therefore, just cause was required to support the technician’s termination. Watlington v. Dep't of Soc. Servs. Rockingham Cnty., 252 N.C. App. 512, 799 S.E.2d 396, 2017 N.C. App. LEXIS 220 (2017), overruled in part, Rouse v. Forsyth Cty. Dep't of Soc. Servs., 373 N.C. 400 , 838 S.E.2d 390, 2020 N.C. LEXIS 93 (2020).

Editor’s Note.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2007-287, s. 1, effective July 27, 2007, and applicable upon the next vacancy arising under G.S. 126-2(b)(3) on or after July 27, 2007, added “including one of whom is a veteran of the armed forces appointed upon the nomination of the Veterans’ Affairs Commission” at the end of the first sentence in subdivision (b)(3).

Session Laws 2011-183, s. 90, effective June 20, 2011, substituted “Armed Forces of the United States” for “armed forces” in the first sentence of subdivision (b)(3).

Session Laws 2013-382, s. 2.1, effective August 21, 2013, deleted subsection (b); added subsection (b1); added the first sentence in subsection (c); substituted “this Chapter” for “the State Personnel Act” in subsection (e); and substituted “Five” for “Six” in subsection (f).

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “State Human Resources Commission” for “State Personnel Commission” in the section heading and in subsection (a).

Session Laws 2015-241, s. 24.1(u), substituted “Veterans’ Affairs Commission” for “Veterans Affairs Commission” in subdivision (b1)(5). For effective date, see editor’s note.

CASE NOTES

Quorum Established for Meeting. —

Quorum of the North Carolina State Personnel Commission (SPC) was to be determined at the beginning of a meeting; once the meeting was opened, the SPC was to conduct business regardless of subsequent recusals that may have reduced the number of members voting on a particular issue below the number required for a quorum. Hershner v. N.C. Dep't of Admin., 232 N.C. App. 552, 754 S.E.2d 847, 2014 N.C. App. LEXIS 235 (2014).

Editor’s Note.

Session Laws 2012-142, s. 25.1(f), made the amendments to this section by Session Laws 2012-142, s. 25.1(c), applicable to persons appointed to the positions of Commissioner of Motor Vehicles, State Personnel Director [now Director of the Office of State Human Resources], Director of the North Carolina Museum of Art, and State Chief Information Officer on or after January 1, 2013.

Session Laws 2012-142, s. 1.2, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2012.’ ”

Session Laws 2012-142, s. 27.7, is a severability clause.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2011-224, s. 5, effective July 1, 2011, and applicable to employee suggestions made on or after that date, added subdivision (b)(10).

Session Laws 2012-142, s. 25.1(c), effective July 1, 2012, substituted “Governor” for “General Assembly in the Current Operations Appropriations Act” in the next to the last sentence of subsection (a). For applicability, see editor’s note.

Session Laws 2012-194, s. 25, effective July 17, 2012, substituted periods for semicolons at the end of subdivisions (b)(1) through (b)(9); and deleted “and” at the end of subdivision (b)(8).

Session Laws 2013-382, ss. 1.1 and 1.2, effective August 21, 2013, in subsection (a), substituted “Office of the Governor” for “Department of Administration” and “Chapter, which” for “Chapter independent of control by the Secretary of Administration and,” and inserted “Chapter 143A of the General Statutes”; and inserted “performance management, development, evaluation” in subdivision (b)(8).

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “Office of State Human Resources” for “Office of State Personnel” twice and “Director of the Office of State Human Resources” for “State Personnel Director” in subsection (a).

Session Laws 2021-180, s. 20.13(b), effective July 1, 2021, deleted subdivision (b)(10), which read: “Administering the State employee suggestion program (NC-Thinks).”

OPINIONS OF ATTORNEY GENERAL

The Act, 2010 N.C. Sess. Laws c. 169, did not amend G.S. 126-3(7) and Office of State Personnel [now Office of State Human Resources] is under no obligation to add the personnel information that the General Assembly has mandated each state employer maintain in its records. The Office of State Personnel [now Office of State Human Resources] may elect to add that information to its database if it determines that the information is “relevant and necessary” to its mission. See opinion of Attorney General to Honorable Linda Coleman, State Personnel Director, 2010 N.C.G.A. 3 (11/08/10).

Editor’s Note.

Session Laws 2008-82, ss. 1 and 2, provide: “Section 1. Pursuant to G.S. 150B-21.3(b1), 25 NCAC 01C.0216 (Temporary Employment Services), 25 NCAC 01C.0217 (Office of State Personnel Temporary Employment Service), 25 NCAC 01C.0405 (Temporary Appointment), and 25 NCAC 01C.0407 (Temporary Part-Time Appointment) as adopted by the State Personnel Commission [now State Human Resources Commission] on February 16, 2007, and approved by the Rules Review Commission on May 17, 2007, are disapproved.

“Section 2. The Office of State Personnel [now Office of State Human Resources] shall conduct a thorough analysis of the use of nonpermanent employees by State agencies, including:

“(1) The number of nonpermanent employees currently working in State agencies.

“(2) The position classifications of nonpermanent employees.

“(3) The average duration of nonpermanent appointments.

“(4) The length of time during which nonpermanent employees have been used to meet agency personnel needs in each category of position for which they have been used.

“(5) The various categories of nonpermanent employees currently being utilized by agencies, including temporary, seasonal, intermittent, time-limited, and contract.

“(6) The number of current nonpermanent employees who are actually seeking full-time permanent employment with full benefits, including retirement and health insurance, versus those who either do not need or are not seeking employment with benefits.

“The Office of State Personnel [now Office of State Human Resources] shall use the results of the analysis to develop recommendations for definitions to distinguish various categories of nonpermanent employment and policies regarding the selection, appointment, and duration of various categories of nonpermanent employment. In developing its recommendations, the Office of State Personnel [now Office of State Human Resources] shall seek input from any interested parties outside of State government. The recommendations shall also include a prohibition against the establishment of any new temporary employment services by individual State agencies, other than those in existence on the effective date of this act. The Office of State Personnel [now Office of State Human Resources] shall submit its findings to the General Assembly, including any recommendations for proposed legislation, on or before December 31, 2008.

“To the extent it accepts the recommendations of the Office of State Personnel [now Office of State Human Resources], the State Personnel Commission [now State Human Resources Commission] shall adopt rules in accordance with Chapter 150B of the General Statutes to implement a plan for nonpermanent employment in State government.”

Session Laws 2008-107, s. 30.5, is a severability clause.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of State Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Session Laws 2018-5, s. 26A.3(a), (b), provides: “(a) No later than December 1, 2018, the Office of State Human Resources shall recommend to the State Human Resources Commission a revision to the salary range established by the Commission under Article 3 of Chapter 126 of the General Statutes for area directors, as defined in G.S. 122C-3 . In forming its recommendation, the Office of State Human Resources shall use funds available to hire an outside consultant to conduct a market compensation study of organizations nationwide with similar functions as the local management entities/managed care organizations (LME/MCOs) and of similar size, including number of covered lives, annual service expenditures, and geographic service areas. The market compensation study shall include both public and not-for-profit managed care organizations. In forming its recommendation, the Office of State Human Resources shall seek input from the Secretary of the Department of Health and Human Services and the LME/MCO area boards.

“(b) The State Human Resources Commission shall use the results of the market compensation study conducted pursuant to subsection (a) of this section to fulfill its responsibility for approving area director salary ranges under G.S. 126-9 .”

Session Laws 2018-5, s. 34.19(a)-(h), provides: “(a) Subject to the approval of the Secretary of the Department of Transportation, employees of the Department of Transportation (Department) who voluntarily relinquish (i) annual longevity payments or any claim to longevity pay and (ii) any claim to career status or eligibility for career status are exempt from:

“(1) The classification and compensation rules established by the State Human Resources Commission pursuant to G.S. 126-4(1) through (4).

“(2) G.S. 126-4(5) only as it applies to hours and days of work, vacation, and sick leave.

“(3) G.S. 126-4(6) only as it applies to promotion and transfer.

“(4) G.S. 126-4(10) only as it applies to the prohibition of the establishment of incentive pay programs.

“(5) Article 2 of Chapter 126 of the General Statutes, except for G.S. 126-7.1 .

“(b) Nothing in subsection (a) of this section shall be construed to abrogate career status under G.S. 126-1.1 .

“(c) For the 2018-2019 fiscal year and the 2019-2020 fiscal year, the sum equal to two percent (2%) of the total Highway Fund and Highway Trust Fund appropriation for the applicable fiscal year for the payroll expenses of the Department may be used for the purposes of:

“(1) Salary adjustments within the Department to provide competitive salary rates and to address changes in labor market salary rates as documented through the Department’s data collection and analysis according to accepted human resource professional practices and standards.

“(2) Reallocation of positions within the Department to higher-level job classifications to compensate employees for more difficult duties at competitive salary rates as documented through data collection and analysis according to accepted human resource professional practices and standards.

“(3) Recruitment and retention programs instituted at the Secretary’s discretion.

“(d) Priority funding shall be given to recruitment, retention, salary range revisions, and reallocations affecting the job classifications and bands deemed by the Secretary to be most in need of immediate attention. The Department, as determined by the Department to be needed, may utilize market surveys and other relevant employment sector information available to the Office of State Human Resources.

“(e) The Department shall report to the Joint Legislative Transportation Oversight Committee and Fiscal Research Division of the General Assembly, beginning January 1, 2019, and the semiannually thereafter, regarding the actions taken pursuant to this section.

“(f) Notwithstanding G.S. 126-7.1 or any law to the contrary, the Secretary of the Department of Transportation may designate vacant positions as not being subject to the open recruitment requirements of G.S. 126-7.1 (a) for the purpose of carrying out the recruitment flexibility granted to the Secretary under subdivision (3) of subsection (c) of this section. The Secretary shall notify the State Human Resources Commission within 30 days of invoking recruitment flexibility.

“(g) Compensation decisions made under this section are exempt from the classification and compensation rules and policies established by the State Human Resources Commission.

“(h) This section becomes effective July 1, 2018, and expires June 30, 2020.”

Session Laws 2018-5, s. 35.19A(a)-(c), as added by Session Laws 2018-97, s. 8.3, provides: “(a) During the 2018-2019 fiscal year, notwithstanding G.S. 126-4(1), G.S. 126-4(2), or any other provision of law to the contrary, the Council of State agencies, the Office of State Controller, the Community College System Office, and The University of North Carolina are granted sole authority and discretion to take the following actions concerning classification and salary administration of their respective personnel:

“(1) Classify new positions or reclassify vacant positions within the classification system adopted by the State Human Resources Commission or as otherwise prescribed by law.

“(2) Make hiring decisions based on the flexibility provided under this section.

“(3) Determine the appropriate salary for their respective employees, provided that funding is available within the budgeted salary appropriated to the agency and the salary remains within the minimum and maximum of the salary range associated with the position classification or as otherwise provided by law.

“The Human Resources Director for each State agency shall ensure that each new hire employed pursuant to the classification and salary administration flexibility granted by this section meets the minimum qualifications for the position. The Office of State Human Resources shall provide assistance to agencies upon request.

“(b) The deadline is extended, through June 30, 2019, for the State agencies identified in subsection (a) of this section to submit all post-implementation studies, including all supporting documentation, to the Office of State Human Resources.

“(c) By March 1, 2019, the State entities granted classification and salary administration flexibility under this section shall report to the Joint Legislative Commission on Governmental Operations and the Fiscal Research Division on the following:

“(1) The number of classification actions taken under this section.

“(2) The number of salary adjustments made under this section and total additional salary funds awarded.

“(3) A comparison of the number of agency employees recruited from and the number of agency employees hired by cabinet agencies.

“(4) Impact of the classification and salary administration flexibility on agency operations, including, but not limited to:

“a. Hiring time line.

“b. Recruitment of candidates.

“c. Retention of key personnel.

“(5) Any remaining position classification disagreements with the Office of State Human Resources.

“(6) Whether the program should be extended and any recommended adjustments to the program.”

Session Laws 2018-5, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2018.’ ”

Session Laws 2018-5, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018-2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018-2019 fiscal year.”

Session Laws 2018-5, s. 39.7, is a severability clause.

Effect of Amendments.

Session Laws 2013-360, s. 9.1, effective July 1, 2013, added subdivision (5b).

Session Laws 2013-382, s. 1.3, effective August 21, 2013, substituted “12 paid holidays per year, with three paid holidays being given for Christmas” for “11 paid holidays per year except that in those years in which Christmas Day falls on a Tuesday, Wednesday, or Thursday, the Commission shall not provide for more than 12 paid holidays” in the last sentence of subdivision (5).

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “State Human Resources Commission” for “State Personnel Commission” in the section heading and introductory paragraph, and substituted “Director of the Office of State Human Resources” for “State Personnel Director” in subdivisions (18)a. and b.

Session Laws 2015-241, s. 26.2(f), effective July 1, 2015, added subdivision (19).

Session Laws 2015-260, s. 2, effective September 30, 2015, deleted the former last sentence of subdivision (10), which read: “This subdivision may not be construed to authorize the establishment of an incentive pay program.”

Legal Periodicals.

For survey of 1976 case law dealing with administrative law, see 56 N.C.L. Rev. 898 (1977).

For survey of 1977 law on employment regulation, see 56 N.C.L. Rev. 854 (1978).

CASE NOTES

Powers. —

The legislature has delegated, to the extent of the commission’s statutory powers, its own legislative powers over the State’s personnel system. Therefore, rules and policies made pursuant to the commission’s statutory authority have the effect of law. North Carolina Dep't of Justice v. Eaker, 90 N.C. App. 30, 367 S.E.2d 392, 1988 N.C. App. LEXIS 366 (1988), disapproved, Batten v. N.C. Dep't of Correction, 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

Legislative Intent. —

The particularized exclusion of certain Department of Correction employees from the provisions of this Chapter plainly indicates the General Assembly’s intent that the act’s provisions for appeals of employment grievances apply to those not so excluded. Batten v. North Carolina Dep't of Cor., 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

The General Assembly only intended to give the Commission the jurisdiction to resolve, through the appeal and contested case hearing process, those issues which are specifically defined as contested case issues in Chapter 126. Dunn v. North Carolina Dep't of Human Resources, 124 N.C. App. 158, 476 S.E.2d 383, 1996 N.C. App. LEXIS 1005 (1996).

Department of Correction Employee Held Not Barred from Appeal Procedures of Chapter 150B. —

A permanent employee in a non-policymaking, non-academic position in the Department of Correction was not barred from the appeal procedures of the Administrative Procedure Act, Chapter 150B, by that Act’s general exclusion of his department from its provisions. Batten v. North Carolina Dep't of Cor., 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

Most Qualified Applicant. —

This section did not confer petitioner with specific grounds for appeal on the issue of whether the most qualified applicant was chosen. Dunn v. North Carolina Dep't of Human Resources, 124 N.C. App. 158, 476 S.E.2d 383, 1996 N.C. App. LEXIS 1005 (1996).

G.S. 126-37(a) allows Commission to order reinstatement of employee and direct other suitable relief, whenever it deems it necessary to correct the failure of a department or agency to follow policies or rules promulgated pursuant to G.S. 126-4 . North Carolina Dep't of Justice v. Eaker, 90 N.C. App. 30, 367 S.E.2d 392, 1988 N.C. App. LEXIS 366 (1988), disapproved, Batten v. N.C. Dep't of Correction, 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

To serve purpose of Chapter 126, rules and policies made pursuant to this section must be enforced. North Carolina Dep't of Justice v. Eaker, 90 N.C. App. 30, 367 S.E.2d 392, 1988 N.C. App. LEXIS 366 (1988), disapproved, Batten v. N.C. Dep't of Correction, 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

Enforcement of Contracts Made in Violation of Valid Rules. —

The purpose of this Chapter and thus public policy would be frustrated by enforcement of contracts made in violation of the valid rules established pursuant to subdivision (3). Bean v. Taylor, 408 F. Supp. 614, 1976 U.S. Dist. LEXIS 16753 (M.D.N.C.), aff'd, 534 F.2d 328, 1976 U.S. App. LEXIS 11358 (4th Cir. 1976).

If the State Personnel Commission [now State Human Resources Commission] or its officers had the power to enter into an enforceable contract with one not qualified under the rules contemplated by this section, this Chapter would be meaningless. Bean v. Taylor, 408 F. Supp. 614, 1976 U.S. Dist. LEXIS 16753 (M.D.N.C.), aff'd, 534 F.2d 328, 1976 U.S. App. LEXIS 11358 (4th Cir. 1976).

Alteration of Approved Policies. —

Since the Governor must approve policies established by the Commission under this statute, the Commission does not have the power to alter such policies by ad hoc decision in each case; the Commission must follow the policy which has been set and as it was approved by the Governor. Reed v. Byrd, 41 N.C. App. 625, 255 S.E.2d 606, 1979 N.C. App. LEXIS 2744 (1979).

Property Interest in Employment. —

An employee who is subject to the State Personnel Act [now North Carolina Human Resources Act] and who holds a “trainee” appointment as defined by the North Carolina Administrative Code does not have a property interest in her continued employment which is protected by the due process clause of U.S. Const., Amend. XIV. Yow v. Alexander County Dep't of Social Servs., 70 N.C. App. 174, 319 S.E.2d 626, 1984 N.C. App. LEXIS 3655 (1984).

Discretion of State Human Resources Commission to Award Back Pay and Benefits. —

Where a permanent State employee is dismissed for performance of duty reasons, without sufficient warnings as required by G.S. 126-35 , upon reinstating the employee the decision whether or not to award back pay and benefits is within the sound discretion of the Personnel Commission [now the State Human Resources Commission]. Jones v. Department of Human Resources, 300 N.C. 687 , 268 S.E.2d 500, 1980 N.C. LEXIS 1129 (1980).

The State Personnel Commission [now State Human Resources Commission] is granted the authority to promulgate regulations regarding the award of attorneys’ fees under subdivision (11). Fearrington v. University of N.C. 126 N.C. App. 774, 487 S.E.2d 169, 1997 N.C. App. LEXIS 637 (1997).

Court Could Not Order Back Pay. —

Where the record of petitioner’s grievance proceedings did not include any back pay findings by the State Personnel Commission [now State Human Resources Commission], given the authority of the Commission over back pay, the absence of record findings, and the superior court’s lack of fact-finding authority in appeals from employee grievances, the superior court could not enter an order awarding back pay in a specific amount. Harding v. North Carolina Dep't of Cor., 334 N.C. 414 , 432 S.E.2d 298, 1993 N.C. LEXIS 341 (1993).

State Human Resources Commission abused its discretion and lacked careful and impartial decisionmaking when it passed over personnel office employee and filled a vacant position with an applicant who did not meet state qualifications for the position and who had filed her application and had been effectively offered the job a month before it was posted. Joyce v. Winston-Salem State Univ., 91 N.C. App. 153, 370 S.E.2d 866, 1988 N.C. App. LEXIS 743 , cert. denied, 323 N.C. 476 , 373 S.E.2d 862, 1988 N.C. LEXIS 653 (1988).

Retention of Employees in Abolished Positions. —

Because retention of employees in abolished positions is clearly a personnel matter affecting the separation of employees, under subdivision (7a), the State Personnel Commission [now State Human Resources Commission] has authority to issue a policy thereon and to require the Department of Justice to follow it. North Carolina Dep't of Justice v. Eaker, 90 N.C. App. 30, 367 S.E.2d 392, 1988 N.C. App. LEXIS 366 (1988), disapproved, Batten v. N.C. Dep't of Correction, 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

Plaintiff whose position was abolished and employment terminated did not have to show prejudice once he carried his burden of showing that the Department of Justice failed to follow the State Personnel Commission’s [now State Human Resources Commission’s] policies. North Carolina Dep't of Justice v. Eaker, 90 N.C. App. 30, 367 S.E.2d 392, 1988 N.C. App. LEXIS 366 (1988), disapproved, Batten v. N.C. Dep't of Correction, 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

Retention of Temporary Employees Beyond 12 Months. —

When temporary state employees sued the State for employing the employees more than 12 months, contrary to N.C. Admin. Code 1C.0405(a), the employees’ breach of contract claim was properly dismissed because: (1) nothing showed the State induced the employees to work more than 12 months, beyond paying normal wages, or said the employees would become permanent after 12 months, and (2) no authority required the State to convert the employees’ status to permanent. Sanders v. State Pers. Comm'n, 236 N.C. App. 94, 762 S.E.2d 850, 2014 N.C. App. LEXIS 967 (2014).

Burden to Show Department or Agency Followed State Human Resources Commission’s Procedures. —

Neither Chapter 126 nor the Administrative Procedure Act indicates that the burden is shifted to the department or agency to show that it followed the Personnel Commission’s rules, policies, or procedures. North Carolina Dep't of Justice v. Eaker, 90 N.C. App. 30, 367 S.E.2d 392, 1988 N.C. App. LEXIS 366 (1988), disapproved, Batten v. N.C. Dep't of Correction, 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

Dismissals. —

Just cause for dismissal has been divided into two basic categories—unsatisfactory job performance and personal conduct (misconduct) detrimental to State service. Amanini v. N.C. Dep't of Human Resources, 114 N.C. App. 668, 443 S.E.2d 114, 1994 N.C. App. LEXIS 484 (1994).

The distinction between the categories of “just cause” as set forth in the State Personnel Manual provides an applicable test for determining whether a dismissal is for a “good or adequate reason having basis in fact” under particular circumstances. Amanini v. N.C. Dep't of Human Resources, 114 N.C. App. 668, 443 S.E.2d 114, 1994 N.C. App. LEXIS 484 (1994).

Attorney Fees. —

Upon appeal of the Commission’s decision not to award attorney’s fees under subdivision (11) of this section, G.S. 126-41 (now repealed) constrained the Superior Court to reverse or modify the Commission’s order only if it was deemed unreasonable or inadequate. Morgan v. North Carolina DOT, 124 N.C. App. 180, 476 S.E.2d 431, 1996 N.C. App. LEXIS 996 (1996).

Since the Commission had statutory authority to award attorney’s fees only in cases involving discrimination, reinstatement or back pay, the Commission properly denied an award of attorney’s fees to petitioners. Morgan v. North Carolina DOT, 124 N.C. App. 180, 476 S.E.2d 431, 1996 N.C. App. LEXIS 996 (1996).

North Carolina State Personnel Commission [now State Human Resources Commission] correctly found on remand that it had jurisdiction to assess attorney fees for the administrative portion of a case against a county department of social services pursuant to G.S. 126-4(11) and award such fees pursuant to 25 N.C. Admin. Code 1B.0414. Early v. County of Durham, Dep't of Soc. Servs., 193 N.C. App. 334, 667 S.E.2d 512, 2008 N.C. App. LEXIS 1818 (2008).

OPINIONS OF ATTORNEY GENERAL

The purpose of Chapter 126 and thus public policy would be frustrated by enforcement of contracts made in violation of the valid rules established pursuant to subdivision (3) of this section. This frustration of public policy would require nonenforcement of any such contract. See opinion of Attorney General to Mr. Richard V. Lee, State Personnel Director, 57 N.C. Op. Att'y Gen. 66 (1987).

A written or verbal offer of employment by a state agency or university, with a specific salary amount and without the final approval of the State Personnel Director [now Director of the Office of State Human Resources], does not create a legally enforceable contract. See opinion of Attorney General to Mr. Richard V. Lee, State Personnel Director, 57 N.C. Op. Att'y Gen. 66 (1987).

A written or verbal offer of employment by a state agency or university, with a specific salary amount which violates applicable personnel policies and administrative rules and without the final approval of the State Personnel Director [now Director of the Office of State Human Resources], does not create a legally enforceable contract. See opinion of Attorney General to Mr. Richard V. Lee, State Personnel Director, 57 N.C. Op. Att'y Gen. 66 (1987).

The position, authority or apparent authority of the person making the offer of employment has no impact on whether the offer constitutes a legally enforceable contract. See opinion of Attorney General to Mr. Richard V. Lee, State Personnel Director, 57 N.C. Op. Att'y Gen. 66 (1987).

There is no liability of the agency if an offer of employment is made by a state agency or university, with a specific salary amount which violated applicable personnel policies and administrative rules, and later rescinded as being in violation of applicable personnel policies and rules. See opinion of Attorney General to Mr. Richard V. Lee, State Personnel Director, 57 N.C. Op. Att'y Gen. 66 (1987).

There is no liability of the Office of State Human Resources if it refuses to process a hiring decision which violated State Human Resources Commission policy. See opinion of Attorney General to Mr. Richard V. Lee, State Personnel Director, 57 N.C. Op. Att'y Gen. 66 (1987).

The State Human Resources Commission has the statutory authority, under this section and G.S. 126-82 , 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. See opinion of Attorney General to Mr. Ronald Penny, State Personnel Director, Office of State Personnel, 1998 N.C. Op. Att'y Gen. 10 (2/12/98).

It is unlikely that any liability would attach to the person who made an employment offer that is in violation of applicable personnel policies and rules, but it might depend on the nature of the person’s position and the circumstances surrounding the offer. See opinion of Attorney General to Mr. Richard V. Lee, State Personnel Director, 57 N.C. Op. Att'y Gen. 66 (1987).

In determining whether attorneys’ fees are allowable in a proceeding brought by an employee, a former employee or an applicant for employment, the State Personnel Commission [now State Human Resources Commission] should apply statutory changes in circumstances in which attorneys’ fees may be awarded according to the date the cause of action arose. See opinion of Attorney General to Mr. Harold H. Webb, Director, Office of State Personnel, 47 N.C. Op. Att'y Gen. 39 (1977).

Once an individual is entitled to priority employment rights within the State Personnel System, only specific statutory language will be sufficient to eliminate any agency from making a vacancy available to the individual. See opinion of Attorney General to Mr. Brent Lane, Executive Director, N.C. Technological Development Authority, 59 N.C. Op. Att'y Gen. 31 (1989).

When it has been determined either judicially or by the State Personnel Commission [now State Human Resources Commission] that a person is entitled to reemployment rights and a position becomes open within State government for which that person is qualified, the person must be offered that position. See opinion of Attorney General to Mr. Brent Lane, Executive Director, N.C. Technological Development Authority, 59 N.C. Op. Att'y Gen. 31 (1989).

State employee subject to North Carolina Human Resources Act may be denied performance pay increase solely on grounds that he is already at maximum rate of salary range for his pay grade. See opinion of Attorney General to Mr. Joseph E. Johnson, Senator, 14th Senatorial District, 60 N.C. Op. Att'y Gen. 19 (4/24/90).

The State Personnel Commission [now State Human Resources Commission] has the requisite authority to approve the career banding project begun in 2002 by the Office of State Personnel [now Office of State Human Resources]. See opinion of Attorney General to Thomas H. Wright, State Personnel Director, Office of State Personnel, 2006 N.C. AG LEXIS 3 (11/07/06).

The State Personnel Commission [now State Human Resources Commission] has clear authority to conclude that fewer and broader classes with wider pay ranges are examples of the “best methods” of personnel administration and to implement changes in the job classification system which would result in broader and fewer classes of jobs which more accurately describe the work being done by the occupants of the jobs. See opinion of Attorney General to Thomas H. Wright, State Personnel Director, 2006 N.C. Op. Att'y Gen. 3 (11/07/06).

Editor’s Note.

Former G.S. 126-4.1 pertained to final agency decision recommendations by commission panels.

Editor’s Note.

Subdivision (c1)(20) was enacted as subdivision (c1)(18) by Session Laws 2000-148, s. 3, and redesignated as subdivision (c1)(20) at the direction of the Revisor of Statutes.

Subdivision (c1)(21), as added by Session Laws 2002-133, s. 4, was renumbered as subdivision (c1)(22) at the direction of the Revisor of Statutes.

Subdivision (c1)(24), as added by Session Laws 2005-344, s. 9, was redesignated as subdivision (c1)(25) at the direction of the Revisor of Statutes.

Subsection (c6), as added by Session Laws 1997-520, s. 3, was redesignated as subsection (c7) at the direction of the Revisor of Statutes.

Session Laws 2000-147, s. 8(a)-(c), provides: “(a) Interpretation of Act. — The foregoing sections of this act provide an additional and alternative method for the doing of the things authorized by the act, are supplemental and additional to powers conferred by other laws, and do not derogate any powers now existing.

“(b) References in this act to specific sections or Chapters of the General Statutes are intended to be references to those sections or Chapters as amended and as they may be amended from time to time by the General Assembly.

“(c) This act, being necessary for the health and welfare of the people of the State, shall be liberally construed to effect its purposes.”

Session Laws 2000-147, s. 8(d), is a severability clause.

Session Laws 2001-424, s. 21.14(b), as amended by 2001-487, s. 110, provides: “Under the direction of the Secretary of Health and Human Services, the Director of the Office of Policy and Planning shall have the authority to direct Divisions, offices, and programs within the Department to conduct periodic reviews of policies, plans, and rules and shall advise the Secretary when it is determined to be appropriate or necessary to modify, amend, and repeal departmental policies, plans, and rules. All professional and supervisory employees in policy and management positions within the Office of Policy and Planning are exempt from Chapter 126 of the General Statutes except for Articles 6, 7, and 14 of that Chapter. Exempt positions within the Office of Policy and Planning shall not count toward the exempt position totals authorized by G.S. 126-5(d)(1).”

Session Laws 2001-424, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2001’.”

Session Laws 2001-424, s. 36.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2001-2003 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2001-2003 fiscal biennium.”

Session Laws 2001-424, s. 36.5, is a severability clause.

Session Laws 2005-276, s. 29.34(c), effective July 1, 2005, provides: “Notwithstanding G.S. 143-34.1, the Executive Administrator may establish and fill up to three additional managerial, professional, or policy-making positions as necessary to implement the Plan and may designate these positions as exempt from the State Personnel Act [now State Human Resources Act].”

Session Laws 2005-276, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2005’.”

Session Laws 2005-276, s. 46.5, is a severability clause.

Session Laws 2005-344, which enacted the North Carolina State Lottery, in s. 14, provides: “Nothing in this act shall be construed to obligate the General Assembly to appropriate funds to implement this act.”

Session Laws 2006-66, s. 18.2(e), which added subdivision (c1)(26), was added by Session Laws 2006-221, s. 20, and amended by Session Laws 2006-259, s. 49, which recodified (c1)(26) as (c1)(27). The subdivision was then redesignated as (c1)(28) at the direction of the Revisor of Statutes.

Session Laws 2006-249, s. 3, provides: “Personnel. — For the purpose of improving efficiency and cost-effectiveness of Plan operations, the Executive Administrator and Board of Trustees of the North Carolina State Health Plan may create eight new full-time positions, five of which shall be subject to the State Personnel Act [now State Human Resources Act] under G.S. 126-5 , and three of which shall be exempt from the State Personnel Act under G.S. 126-5(c) . The Executive Administrator and Board of Trustees may use up to five hundred sixty-three thousand one hundred six dollars ($563,106) of available funds to support these positions.”

Subdivision (d)(1) was amended by Session Laws 2012-83, s. 7, and by Session Laws s. 25.2E(a), in the coded bill drafting format provided by G.S. 120-20.1 . Subdivision (d)(1) has been set out in the form above at the direction of the Revisor of Statutes.

Section 126-34.1, referred to in subsection (c7), was repealed by Session Laws 2013-382, s. 6.1, effective August 21, 2013.

Session Laws 2014-18, s. 6.1, provides: “Nothing in this act shall be construed to obligate the General Assembly to appropriate funds to implement this act.”

Session Laws 2018-5, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2018.’ ”

Session Laws 2018-5, s. 39.7, is a severability clause.

Session Laws 2019-32, s. 7, provides: “This act becomes effective July 1, 2019. All rules, regulations, and decisions made by the predecessor boards and authorities reconstituted in this act shall remain in full force and effect until and unless duly modified by the successor entities.”

Session Laws 2020-78, s. 22.1, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2019-2021 fiscal biennium, the textual provisions of this act apply only to the 2019-2021 fiscal biennium.”

Session Laws 2020-78, s. 22.3, is a severability clause.

Subdivision (c1)(38) was originally enacted by Session Laws 2021-180, s. 19A.7(e) as subdivision (c1)(37) and was renumbered as subdivision (c1)(38) at the direction of the Revisor of Statutes.

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2004-124, s. 31.27(b), effective July 1, 2004, added subdivision (c1)(23).

Session Laws 2004-129, s. 37, effective July 1, 2004, repealed subdivision (c1)(17).

Session Laws 2005-276, s. 29.34(b), effective July 1, 2005, added subdivision (c1)(24).

Session Laws 2005-344, s. 9, effective July 1, 2005, added subdivision (a1)(25).

Session Laws 2006-66, s. 9.11(y) and (z), effective July 1, 2007, substituted “North Carolina, including the faculty of the North Carolina School of Science and Mathematics” for “North Carolina” at the end of subdivision (c1)(8); and repealed subdivision (c1)(11), relating to employees of the North Carolina School of Science and Mathematics.

Session Laws 2006-66, s. 9.17(e), effective January 1, 2007, except that the General Assembly and the Governor may make appointments prior to that date for terms beginning January 1, 2007, added subdivision (c1)(26).

Session Laws 2006-66, s. 18.2(e), as added by 2006-221, s. 20, effective July 1, 2006, added subdivision (c1)(27).

Session Laws 2006-204, s. 2, effective August 8, 2006, added subdivision (c1)(26) (now (c1)(28)).

Session Laws 2006-264, s. 11, effective August 27, 2006, substituted “G.S. 126-1.1” for “subsection (c)(1) above” in subdivision (e)(1).

Session Laws 2007-117, s. 3(b), effective July 1, 2007, added subsections (c9) and (c10).

Session Laws 2007-195, s. 1, effective July 8, 2007, added subdivision (c1)(9a).

Session Laws 2007-323, s. 28.22A(o), as amended by Session Laws 2007-345, s. 12, effective July 1, 2008, substituted “State Health Plan for Teachers and State Employees” for “Teachers’ and State Employees’ Comprehensive Major Medical Plan” in subdivisions (c1)(23) and (c1)(24).

Session Laws 2007-484, s. 9(c), effective August 30, 2007, added subsection (c11).

Session Laws 2008-134, s. 73(d), effective July 28, 2008, repealed subdivision (c1)(20), which read: “Employees of the North Carolina Rural Redevelopment Authority created in Part 2D of Article 10 of Chapter 143B of the General Statutes.”

Session Laws 2009-451, s. 9.13(f), effective July 1, 2009, added subdivision (c1)(29).

Session Laws 2011-145, s. 7.31(c), as added by Session Laws 2011-391, s. 17, effective July 1, 2011, repealed subdivision (c1)(26), which read: “The Executive Director, associate and assistant directors, and instructional staff of the North Carolina Teacher Academy.”

Session Laws 2011-145, s. 19.1(g), (h), and ( l ), effective January 1, 2012, in subsection (c)(3) and subdivision (d)(1)c., substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction”; in subdivision (d)(1)d., substituted “Public Safety” for “Crime Control and Public Safety”; and in subdivision (d)(1)j., substituted “Division of Juvenile Justice of the Department of Public Safety” for “Department of Juvenile Justice and Delinquency Prevention.”

Session Laws 2011-241, s. 5, effective June 23, 2011, added subdivision (c1)(8a).

Session Laws 2011-266, s. 1.37(c), effective July 1, 2011, repealed subdivision (c1)(26), which read: “The Executive Director, associate and assistant directors, and instructional staff of the North Carolina Teacher Academy.”

Session Laws 2012-83, s. 7, effective June 26, 2012, deleted subdivision (d)(1)c., which read: “Division of Adult Correction of the Department of Public Safety;”; deleted subdivision (d)(1)j., which read: “Division of Juvenile Justice of the Department of Public Safety.”; in the undesignated paragraph of subdivision (d)(1), added the second and fourth sentences and made minor punctuation changes.

Session Laws 2012-142, s. 8.9A(c), effective July 1, 2012, added subdivision (c2)(4).

Session Laws 2012-142, s. 25.2E(a), effective January 1, 2013, in subdivision (d)(4), twice substituted “180 days” for “120 days”, deleted subdivision (d)(1)c. and subdivision (d)(1)j. and deleted the paragraph following subdivision (d)(1)j.; in subdivision (d)(5), substituted “July 1” for “May 1” and substituted “180 days” for “120 days.”

Session Laws 2012-151, s. 11(a), effective July 12, 2012, added “except as otherwise provided in Chapter 122C of the General Statutes” to the end of subdivision (a)(2)a, and made a minor punctuation change.

Session Laws 2013-360, s. 15.10(d), effective July 1, 2013, added subdivision (c1)(30).

Session Laws 2013-382, ss. 4.1, 4.3, 4.4, and 4.5, as amended by Session Laws 2013-410, s. 47.2(b), effective August 21, 2013, in subdivision (d)(1), substituted “1,500” for “1,000,” added “and offices,” and deleted the last paragraph; and added subdivisions (d)(1)k-m; substituted “October 1” for “July 1” in subdivision (d)(5); and repealed subsections (e) and (f). For effective date and applicability of repeal of subsections (e) and (f), see Editor’s note.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “Director of the Office of State Human Resources” for “State Personnel Director,” “State Human Resources Commission” for “State Personnel Commission,” “North Carolina Human Resources Act” for “State Personnel Act,” and “Office of State Human Resources” for “Office of State Personnel” throughout the section.

Session Laws 2014-18, s. 1.4, effective July 1, 2014, added subdivisions (c2)(5) and (d)(2b).

Session Laws 2014-100, ss. 7.17(a) and 15.16(b), effective August 7, 2014, added subdivisions (c1)(2a), (c11)(3) and inserted “for deputy commissioners appointed pursuant to G.S. 97-79 and” in the first sentence of subdivision (d)(7).

Session Laws 2014-100, s. 33.2(b), effective July 1, 2014, added subsection (c12).

Session Laws 2014-100, s. 35.11(a), effective August 7, 2014, and applicable to State employees hired before June 30, 2013, deleted “and within a 35 mile radius of the exempt position” following “another agency” in subdivision (e)(2). See Editor’s notes for effective date and applicability.

Session Laws 2014-115, s. 55.3(a), effective August 11, 2014, in subsection (e), added “as follows” to the introductory paragraph; made a minor stylistic change in subdivision (e)(1); inserted “or her” in subdivision (e)(2); and added subdivisions (e)(3) and (e)(4).

Session Laws 2015-164, s. 9(b), effective October 1, 2015, added subsection (c13).

Session Laws 2015-241, s. 7A.4(k), effective September 18, 2015, in subdivision (c11)(3), substituted “Department of Information Technology (DIT)” for “Office of the State Chief Information Officer, the Office of Information Technology Services (ITS),” and “DIT employees” for “ITS employees”; substituted “Department of Information Technology” for “Office of Information Technology Services” in subdivision (d)(1)(k).

Session Laws 2015-241, s. 12A.3(b), effective July 1, 2015 added subdivision (c1)(31).

Session Laws 2015-241, s. 12A.5(e), effective October 1, 2015, added subdivision (c1)(32).

Session Laws 2015-241, s. 14.30(s), (u), effective July 1, 2015, substituted “Department of Natural and Cultural Resources” for “Department of Cultural Resources” in subdivisions (c11)(2) and (d)(1)e; and in subsection (d), substituted “Department of Environmental Quality” for “Department of Environment and Natural Resources” in subdivision (1)g, and substituted “Departments of Commerce, Environmental Quality, and Transportation” for “Departments of Commerce, Environment and Natural Resources, and Transportation” in subdivision (2b).

Session Laws 2015-241, s. 24.1(v), added subdivision (d)(1)n. For effective date, see editor’s note.

Session Laws 2015-245, s. 20, effective September 23, 2015, added subdivisions (c1)(34) and (c1)(35).

Session Laws 2016-94, s. 15.10(b), effective July 1, 2016, added subdivision (c1)(30a).

Session Laws 2016-126, 4th Ex. Sess., s. 7, effective December 19, 2016, in subdivision (d)(1), substituted “425 exempt positions” for “1,500 exempt positions” in the introductory language, and deleted former sub-subdivisions l. and m., which read: “Office of State Budget and Management” and “Office of State Human Resources,” respectively; in subdivision (d)(2), rewrote the third and fourth sentences, and added the last two sentences; and added subdivision (d)(2c).

Session Laws 2016-126, Ex. 4th Sess., s. 8, effective January 1, 2017, in subdivision (d)(2), inserted “the Superintendent of Public Instruction” in the first sentence, deleted the former second, which read: “The State Board of Education may designate exempt positions in the Department of Public Instruction,” deleted “other than the Department of Public Instruction” preceding “shall be limited,” and substituted “Superintendent of Public Instruction” for “State Board of Education” in the last two sentences; rewrote the first sentence in subdivision (d)(2a); deleted the former last sentence in subsection (d)(4); substituted “Governor or elected department head” for “Governor, elected department head, or State Board of Education” in the first sentence of subdivision (d)(5); substituted “Governor or by an elected department head” for “Governor, by an elected department head, or by the State Board of Education” in the first sentence of subdivision (d)(5).

Session Laws 2017-6, s. 1, effective May 1, 2017, deleted former subdivision (d)(2c), which concerned changes in cabinet department exempt position designation.

Session Laws 2017-57, ss. 7.23I(b), 35.18C, effective July 1, 2017, added subdivision (c1)(35); and inserted “information technology professionals,” in subdivision (c1)(8).

Session Laws 2017-186, s. 2(sssss), effective December 1, 2017, inserted “and Juvenile Justice” in subsection (c3).

Session Laws 2018-5, s. 15.5(e), effective July 1, 2018, repealed subdivision (c1)(30a), which read: “Employees of the Department of Commerce employed in the International Recruiting Coordination Office created in G.S. 143B-432.2.”

Session Laws 2018-5, s. 35.19, effective July 1, 2018, added subsection (c14).

Session Laws 2018-84, s. 8(b), effective June 25, 2018, deleted “and the Deputy Executive Administrator” preceding “of the State” in subdivision (c1)(23).

Session Laws 2019-32, s. 1(b), effective July 1, 2019, deleted subdivision (c1)(21). For effective date and applicability, see editor’s note.

Session Laws 2019-200, s. 13, effective August 21, 2019, added subsection (c15).

Session Laws 2020-56, s. 7, effective June 30, 2020, added subsection (c16).

Session Laws 2020-78, s. 9.1, effective July 1, 2020, added subdivision (c1)(36).

Session Laws 2021-80, s. 1, effective July 8, 2021, inserted “finance professionals, business office professionals, auditor professionals” in subdivision (c1)(8).

Session Laws 2021-180, s. 9B.4(c), effective July 1, 2021, deleted subdivision (c1)(31), which read: “Employees of the Office of Program Evaluation Reporting and Accountability of the Department of Health and Human Services.”

Session Laws 2021-180, s. 9F.19(a), effective December 18, 2021, in subsection (c1), deleted former subdivision (c1)(34), which read: “Employees of the Division of Medical Assistance of the Department of Health and Human Services hired on or after October 1, 2015.”, and added subdivision (c1)(37).

Session Laws 2021-180, s. 19A.7(e), effective January 1, 2022, added subdivision (c1)(38).

Session Laws 2021-180, s. 21.2(b), effective November 18, 2021, added “and five employees of the Office of Administrative Hearings as designated by the Chief Administrative Law Judge” in subdivision (c1)(27).

Legal Periodicals.

For survey of 1977 law on employment regulation, see 56 N.C.L. Rev. 854 (1978).

For article, “The Meaning of Just Cause in North Carolina Public Employment Law: Carroll and its Progeny Provide for a Heightened Multifactor Standard for State Employee Disciplinary Cases,” see 33 Campbell L. Rev. 341 (2011).

For article, “Far From a ‘Dead Letter’: The Contract Clause and North Carolina Association of Educators v. State,” see 96 N.C.L. Rev. 168 (2018).

CASE NOTES

Editor’s Note. —

Most of the cases below were decided prior to the amendments made by Session Laws 2011-401, which were effective November 1, 2011, and references therein to the Employment Security Commission should be construed as references to the Division of Employment Security (DES) of the Department of Commerce.

Constitutional Implications. —

For case discussing the propriety under U.S. Const., Amends. I and XIV, of adverse personnel actions affecting State employees in exempt positions following the change from the Hunt administration to the Martin administration, see Stott v. Martin, 725 F. Supp. 1365, 1989 U.S. Dist. LEXIS 13544 (E.D.N.C. 1989), rev'd, 916 F.2d 134, 1990 U.S. App. LEXIS 17593 (4th Cir. 1990).

Legislative Intent. —

The particularized exclusion of certain Department of Correction employees from the provisions of this chapter plainly indicates the General Assembly’s intent that the Act’s provisions for appeals of employment grievances apply to those not so excluded. Batten v. North Carolina Dep't of Cor., 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

The rationale for creating exempt positions, positions exempt from the protection afforded by the civil service statute, was to allow the Governor to employ top level State employees on an at-will basis, and to reposition these employees as he felt necessary in order to further the agenda of the administration. Stott v. Haworth, 916 F.2d 134, 1990 U.S. App. LEXIS 17593 (4th Cir. 1990), dismissed, 783 F. Supp. 970, 1992 U.S. Dist. LEXIS 2035 (D.N.C. 1992).

Discharge of Exempt Employees by Successor Governor. —

Although the North Carolina State Personnel Act [now North Carolina Human Resources Act] provides that no permanent employee subject thereto shall be discharged, suspended or reduced in pay or position except for just cause, the act exempts certain employees by its terms and allows the Governor to designate as exempt from the provisions of the act certain other policy-making or decision-making employees. Where plaintiffs having a position designated as policy-making or confidential by the previous Governor brought suit alleging that each was discharged from an exempt government position for the sole reason of political affiliation, there was a presumption that successor Governor’s actions were proper if done for political patronage reasons that require, as a qualification for the performance of a job, a political affiliation. Stott v. Haworth, 916 F.2d 134, 1990 U.S. App. LEXIS 17593 (4th Cir. 1990), dismissed, 783 F. Supp. 970, 1992 U.S. Dist. LEXIS 2035 (D.N.C. 1992).

This section controls which employees are subject to Chapter 126. Conran v. New Bern Police Dep't, 122 N.C. App. 116, 468 S.E.2d 258, 1996 N.C. App. LEXIS 205 (1996).

Under G.S. 126-5(c)(1) and (c1)(8), the provisions of Chapter 126, the State Personnel Act [now North Carolina Human Resources Act], did not apply to state employees who were not career state employees, as defined in Chapter 126, or who were instructional and research staff, physicians, and dentists of the University of North Carolina, except for Chapter 126, Articles 6 and 7. Woodburn v. N.C. State Univ., 156 N.C. App. 549, 577 S.E.2d 154, 2003 N.C. App. LEXIS 305 (2003).

G.S. 126-5 stated in particular terms which state employees were covered by Chapter 126, prohibiting employment discrimination, and G.S. 126-16 addressed the same subject matter in general terms, but G.S. 126-16 did not affirmatively grant a remedy to an employee who was not otherwise covered by Chapter 126; in short, G.S. 126-5 controlled which employees were subject to Chapter 126. Woodburn v. N.C. State Univ., 156 N.C. App. 549, 577 S.E.2d 154, 2003 N.C. App. LEXIS 305 (2003).

When a state employee sought review of the termination of her employment, G.S. 126-5 foreclosed her reliance on any of the provisions of the State Personnel Act [now North Carolina Human Resources Act], Chapter 126, because she was exempt from the Act, was not a career state employee, and her position was classified as “instructional and research staff of the University of North Carolina.” Woodburn v. N.C. State Univ., 156 N.C. App. 549, 577 S.E.2d 154, 2003 N.C. App. LEXIS 305 (2003).

Scope of Chapter 126’s authority was set out in G.S. 126-5 , which stated, in subdivision (a)(1), that the provisions of Chapter 126 applied to all state employees not therein exempt. Woodburn v. N.C. State Univ., 156 N.C. App. 549, 577 S.E.2d 154, 2003 N.C. App. LEXIS 305 (2003).

Director of Highway Beautification Program Policymaking Exempt Position. —

Evidence that the Director of the Highway Beautification Program had authority to impose the final decision as to a settled course of action to be followed within the Department of Transportation was sufficient to designate the position as policymaking exempt under this section. Powell v. North Carolina DOT, 347 N.C. 614 , 499 S.E.2d 180, 1998 N.C. LEXIS 116 (1998).

Chief of Internal Audit Section of Department of Transportation Not Policymaking Exempt Position. —

Even though the Chief of the Internal Audit Section of the Department of Transportation had final decision-making authority within that section, he had no authority to impose a final decision as a settled course of action within the Department or any division thereof and thus the position could not properly be designated as policymaking exempt under this section. North Carolina DOT v. Hodge, 347 N.C. 602 , 499 S.E.2d 187, 1998 N.C. LEXIS 117 (1998).

Assistant Commissioner of Motor Vehicles Policymaking Exempt Position. —

The decision and order of the State Personnel Commission [now State Human Resources Commission], determining that the position of Assistant Commissioner of Motor Vehicles was “exempt policymaking,” was not supported by substantial evidence in the record. Jordan v. North Carolina DOT, 140 N.C. App. 771, 538 S.E.2d 623, 2000 N.C. App. LEXIS 1272 (2000).

Not All Local Government Employees Covered. —

This Chapter does not establish a public policy that all local government employees have the protection of a grievance procedure. With certain exceptions, this Chapter applies to county employees only as the “boards of county commissioners may from time to time determine.” Walter v. Vance County, 90 N.C. App. 636, 369 S.E.2d 631, 1988 N.C. App. LEXIS 584 (1988).

The legislature did not intend for local city or county employees to be included in the class of persons protected by Chapter 126. Conran v. New Bern Police Dep't, 122 N.C. App. 116, 468 S.E.2d 258, 1996 N.C. App. LEXIS 205 (1996).

Former Department of Social Services Employee. —

Applicability of the just cause requirement set forth in G.S. 126-5(a)(2) is determined by the permanency of employment and not by months of service; therefore, a terminated employee who worked less than 24 months before being terminated while on medical leave was entitled to file a contested case based on a lack of just cause since she had been an employee of the Department of Social Services, which was a local social services department. Early v. County of Durham Dep't of Soc. Servs., 172 N.C. App. 344, 616 S.E.2d 553, 2005 N.C. App. LEXIS 1788 (2005).

Administrative law judge (ALJ) properly concluded that a technician who worked for a county department of social services was a career State employee under the State Human Resources Act (SHRA) and was subject to the SHRA because the county board of commissioners passed resolutions leaving the employees of the consolidated human services agency subject to the SHRA; therefore, just cause was required to support the technician’s termination. Watlington v. Dep't of Soc. Servs. Rockingham Cnty., 252 N.C. App. 512, 799 S.E.2d 396, 2017 N.C. App. LEXIS 220 (2017), overruled in part, Rouse v. Forsyth Cty. Dep't of Soc. Servs., 373 N.C. 400 , 838 S.E.2d 390, 2020 N.C. LEXIS 93 (2020).

The 1977 amendment clearly evinced an intent to change an employee’s rights from mere entitlement to assistance in relocation to entitlement to an offer of a job for which he is qualified once such an opening becomes available. North Carolina Dep't of Cor. v. Hill, 313 N.C. 481 , 329 S.E.2d 377, 1985 N.C. LEXIS 1547 (1985).

Department of Correction Employee Held Not Barred from Appeal Procedures of Chapter 150B. —

A permanent employee in a non-policymaking, non-academic position in the Department of Correction was not barred from the appeal procedures of the Administrative Procedure Act, Chapter 150B, by that Act’s general exclusion of his department from its provisions. Batten v. North Carolina Dep't of Cor., 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

Failure to Appeal Dismissal. —

Trial court properly dismissed a state employee’s petition for a contested case hearing because he failed to appeal the 2014 dismissal of his claim challenging his exemption and subsequent termination without just cause; thus, he was bound by the determination. Vincoli v. N.C. Dep't of Pub. Safety, 260 N.C. App. 447, 818 S.E.2d 301, 2018 N.C. App. LEXIS 715 (2018).

Meaning of “Department Head” in Subsection (e). —

The legislative intent, as to the meaning of the term “department head” in subsection (e), is the official who has executive and managerial authority over the department in which an exempt policymaking position is designated, including cabinet department heads, and while the term clearly refers to elected department heads, it does not refer to the Governor. Carrington v. Brown, 136 N.C. App. 554, 525 S.E.2d 230, 2000 N.C. App. LEXIS 104 (2000).

Authority As “Department Head” Under Subsection (e). —

Because the chairman of the Employment Security Commission (ESC) had the authority to staff and make personnel decisions in the ESC, she had the authority as a “department head”, pursuant to subsection (e) of this section, to dismiss plaintiff from his exempt policymaking position within the ESC. Carrington v. Brown, 136 N.C. App. 554, 525 S.E.2d 230, 2000 N.C. App. LEXIS 104 (2000).

The term “priority” in the language of subsection (e), providing that “such employee shall have priority to any position that becomes available for which the employee is qualified”, gives an affected employee the right to an automatic offer of a position which becomes available. North Carolina Dep't of Cor. v. Hill, 313 N.C. 481 , 329 S.E.2d 377, 1985 N.C. LEXIS 1547 (1985).

In subsection (e), the phrase “such employee shall have priority to any position that becomes available for which the employee is qualified” means that if the employee is qualified for a job in state government which is available, he must be offered this job before it can be filled by anyone else, by promotion or otherwise. North Carolina Dep't of Cor. v. Hill, 313 N.C. 481 , 329 S.E.2d 377, 1985 N.C. LEXIS 1547 (1985).

Property Interest in Employment. —

An employee who is subject to the State Personnel Act [now North Carolina Human Resources Act] and who holds a “trainee” appointment as defined by the North Carolina Administrative Code does not have a property interest in her continued employment which is protected by the due process clause of the Fourteenth Amendment. Yow v. Alexander County Dep't of Social Servs., 70 N.C. App. 174, 319 S.E.2d 626, 1984 N.C. App. LEXIS 3655 (1984).

Review of Recommended Decision. —

No statutory authority exists for the State Personnel Commission [now State Human Resources Commission] to review an administrative law judge’s recommended decision in a case involving an exempt employee. Johnson v. Natural Resources & Community Dev., 98 N.C. App. 334, 391 S.E.2d 48, 1990 N.C. App. LEXIS 386 (1990).

Application to District Attorneys. —

The protections of the Whistleblower Act apply to all state employees and authorize an action by a wrongfully discharged employee against employers who are constitutional officers, including district attorneys. Caudill v. Dellinger, 129 N.C. App. 649, 501 S.E.2d 99, 1998 N.C. App. LEXIS 755 (1998), aff'd in part, 350 N.C. 89 , 511 S.E.2d 304, 1999 N.C. LEXIS 50 (1999).

Since an investigatorial assistant’s public statements criticizing the district attorney’s discretionary decisions and the disruption of his office’s working relationship with law enforcement agencies were sufficient reasons, standing alone, to terminate the investigatorial assistant’s at will employment, the district attorney’s decision to terminate him rested within his lawful and discretionary scope of authority; because the investigatorial assistant’s termination was not injurious to the public or against the public good, there was no evidence to establish a genuine issue of material fact to support a claim for wrongful discharge against the district attorney. Hines v. Yates, 171 N.C. App. 150, 614 S.E.2d 385, 2005 N.C. App. LEXIS 1267 (2005).

Application to UNC Staff. —

Whistleblower Act, G.S. 126-84 through G.S. 126-88 , applied to a University of North Carolina research scientist because G.S. 126-5(c5) excluded the Whistleblower Act from the exemption in G.S. 126-5(c1)(8). Yan-Min Wang v. UNC-CH Sch. of Med., 216 N.C. App. 185, 716 S.E.2d 646, 2011 N.C. App. LEXIS 2150 (2011).

Application to UNC Instructional Staff. —

The Agricultural Extension Agent who was discharged could not establish a property right in his job under this act because he was part of the instructional staff of the UNC system and therefore exempt from its protections. McCallum v. North Carolina Coop. Extension Serv. of N.C. State Univ., 142 N.C. App. 48, 542 S.E.2d 227, 2001 N.C. App. LEXIS 51 (2001).

Assistant director of the North Carolina State University’s Office of Disability Services for Students could not seek review of the termination of her employment through the Office of Administrative Hearings because, under G.S. 126-5(c1)(8), instructional and research staff of the University of North Carolina were specifically exempted from all provisions of the State Personnel Act [now North Carolina Human Resources Act], G.S. 126-1 et seq., except Chapter 126, Articles 6 and 7. Woodburn v. N.C. State Univ., 156 N.C. App. 549, 577 S.E.2d 154, 2003 N.C. App. LEXIS 305 (2003).

Application of Veterans Preference. —

Pursuant to G.S. 126-83 , employees of the System designated in subdivision (a)(2) of this section are expressly excluded from the Preference afforded by G.S. 126-80 but, if qualified under G.S. 128-15 , are entitled to the veterans preference thereunder applicable to all employees of State departments, agencies and institutions. Wright v. Blue Ridge Area Auth., 134 N.C. App. 668, 518 S.E.2d 772, 1999 N.C. App. LEXIS 899 (1999).

Former employee of a health organization was considered a county health department employee under G.S. 126-5 , where the employee was paid through the county payroll department as a health department employee, the health department’s interim director asserted that her department was responsible for supervising the employee, the employee’s termination letter was issued by the county health department and signed by its interim director, and the employee was subject to the county personnel policies and classified as a probationary employee under that policy. Greene v. Swain County P'ship for Health, 342 F. Supp. 2d 442, 2004 U.S. Dist. LEXIS 20193 (W.D.N.C. 2004).

Employment of a trainee who was in a probationary period with the North Carolina Department of Revenue was not exempted by G.S. 126-5 from the appeals process through the North Carolina State Personnel Commission [now State Human Resources Commission]; although the trainee was not a “career” state employee, G.S. 126-36(a) (now repealed) allowed the Commission to review his claims derived from alleged discrimination on the basis of religion. Vanderburg v. N.C. Dep't of Revenue, 168 N.C. App. 598, 608 S.E.2d 831, 2005 N.C. App. LEXIS 451 (2005).

Department of Public Saftey Employee. —

Trial court erred in granting an aggrieved employee summary judgment on a claim that G.S. 126-34.02 was unconstitutional as applied to him where he was an employee of the North Carolina Department of Public Safety, that agency was expressly exempt from the administrative hearing provisions of the APA, but the plain language of G.S. 126-5(h) provided the employee with a statutory right to a hearing before the Office of Administrative Hearings as to whether he was subject to the APA, and that right allowed him to address whether his exempt designation was proper via a contested case. Vincoli v. State, 250 N.C. App. 269, 792 S.E.2d 813, 2016 N.C. App. LEXIS 1102 (2016).

OPINIONS OF ATTORNEY GENERAL

Employment and termination of local health director are subject to the provisions of Chapter 126, the State Personnel Act [now North Carolina Human Resources Act], and termination or discharge of a health director must comply with all statutory provisions and regulations duly adopted by the State Personnel Commission [now State Human Resources Commission] pursuant to Chapter 126. See opinion of Attorney General to Mr. Michael S. Kennedy, Esquire, Attorney for Cleveland County Board of Health, and Mr. Robert W. Yelton, Esquire, Attorney for Cleveland County, 55 N.C. Op. Att'y Gen. 113 (1986).

The Departments of Human Resources [now Department of Health and Human Services] and Department of Correction determine initially whether a particular position is a teaching or related education position within the meaning of subsection (c3). If an employee disputes that decision, he has a right to appeal to the State Personnel Commission [now State Human Resources Commission] and to have the commission resolve the dispute. See opinion of Attorney General to Mr. Phillip J. Kirk, Jr., Secretary, Department of Human Resources, 57 N.C. Op. Att'y Gen. 13 (1987).

The Secretary of the Department of Human Resources and the Secretary of the Department of Correction have authority to set the salary schedules for persons employed by their departments in teaching and related educational positions exempt from the State Personnel Act [now North Carolina Human Resources Act] by subsection (c3) of this section. See opinion of Attorney General to Mr. Phillip J. Kirk, Jr., Secretary, Department of Human Resources, 57 N.C. Op. Att'y Gen. 13 (1987).

The salary schedules established by the Department of Human Resources and the Department of Correction for educational personnel exempt from the State Personnel Act [now North Carolina Human Resources Act] must correspond to the salary schedules established by the State Board of Education for public school employees except in cases where the duties of employees do not correspond to the duties of public school employee positions. In such cases the salary schedule should conform as closely as possible to the public school salary schedules. See opinion of Attorney General to Mr. Phillip J. Kirk, Jr., Secretary, Department of Human Resources, 57 N.C. Op. Att'y Gen. 13 (1987).

Once an individual is entitled to priority employment rights within the State Personnel System, only specific statutory language will be sufficient to eliminate any agency from making a vacancy available to the individual. See opinion of Attorney General to Mr. Brent Lane, Executive Director, N.C. Technological Development Authority, 59 N.C. Op. Att'y Gen. 31 (1989).

When it has been determined either judicially or by the State Personnel Commission [now State Human Resources Commission] that a person is entitled to reemployment rights and a position becomes open within State government for which that person is qualified, the person must be offered that position. See opinion of Attorney General to Mr. Brent Lane, Executive Director, N.C. Technological Development Authority, 59 N.C. Op. Att'y Gen. 31 (1989).

The power of the North Carolina Technological Development Authority under G.S. 143B-471.3A(2) to “employ . . . staff as it deems necessary” does not exempt the agency from having to accept state employees entitled to priority reemployment rights under the State Personnel System. See opinion of Attorney General to Mr. Brent Lane, Executive Director, N.C. Technological Development Authority, 59 N.C. Op. Att'y Gen. 31 (1989).

Employees of a nonprofit corporation would not become state employees after the acquisition of the corporation by the University of North Carolina Health Care System. See opinion of Attorney General to Representative Daniel T. Blue, Jr., (3/8/2000).

Employees of a nonprofit corporation would not become state employees after the acquisition of the corporation by the University of North Carolina Health Care System. See opinion of Attorney General to Ms. Susan H. Ehringhaus, Senior University Counsel, (2/17/2000).

Editor’s Note.

Subdivision (c1)(20) was enacted as subdivision (c1)(18) by Session Laws 2000-148, s. 3, and redesignated as subdivision (c1)(20) at the direction of the Revisor of Statutes.

Subdivision (c1)(21), as added by Session Laws 2002-133, s. 4, was renumbered as subdivision (c1)(22) at the direction of the Revisor of Statutes.

Subdivision (c1)(24), as added by Session Laws 2005-344, s. 9, was redesignated as subdivision (c1)(25) at the direction of the Revisor of Statutes.

Subsection (c6), as added by Session Laws 1997-520, s. 3, was redesignated as subsection (c7) at the direction of the Revisor of Statutes.

Session Laws 2000-147, s. 8(a)-(c), provides: “(a) Interpretation of Act. — The foregoing sections of this act provide an additional and alternative method for the doing of the things authorized by the act, are supplemental and additional to powers conferred by other laws, and do not derogate any powers now existing.

“(b) References in this act to specific sections or Chapters of the General Statutes are intended to be references to those sections or Chapters as amended and as they may be amended from time to time by the General Assembly.

“(c) This act, being necessary for the health and welfare of the people of the State, shall be liberally construed to effect its purposes.”

Session Laws 2000-147, s. 8(d), is a severability clause.

Session Laws 2001-424, s. 21.14(b), as amended by 2001-487, s. 110, provides: “Under the direction of the Secretary of Health and Human Services, the Director of the Office of Policy and Planning shall have the authority to direct Divisions, offices, and programs within the Department to conduct periodic reviews of policies, plans, and rules and shall advise the Secretary when it is determined to be appropriate or necessary to modify, amend, and repeal departmental policies, plans, and rules. All professional and supervisory employees in policy and management positions within the Office of Policy and Planning are exempt from Chapter 126 of the General Statutes except for Articles 6, 7, and 14 of that Chapter. Exempt positions within the Office of Policy and Planning shall not count toward the exempt position totals authorized by G.S. 126-5(d)(1).”

Session Laws 2001-424, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2001’.”

Session Laws 2001-424, s. 36.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2001-2003 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2001-2003 fiscal biennium.”

Session Laws 2001-424, s. 36.5, is a severability clause.

Session Laws 2005-276, s. 29.34(c), effective July 1, 2005, provides: “Notwithstanding G.S. 143-34.1, the Executive Administrator may establish and fill up to three additional managerial, professional, or policy-making positions as necessary to implement the Plan and may designate these positions as exempt from the State Personnel Act [now State Human Resources Act].”

Session Laws 2005-276, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2005’.”

Session Laws 2005-276, s. 46.5, is a severability clause.

Session Laws 2005-344, which enacted the North Carolina State Lottery, in s. 14, provides: “Nothing in this act shall be construed to obligate the General Assembly to appropriate funds to implement this act.”

Session Laws 2006-66, s. 18.2(e), which added subdivision (c1)(26), was added by Session Laws 2006-221, s. 20, and amended by Session Laws 2006-259, s. 49, which recodified (c1)(26) as (c1)(27). The subdivision was then redesignated as (c1)(28) at the direction of the Revisor of Statutes.

Session Laws 2006-249, s. 3, provides: “Personnel. — For the purpose of improving efficiency and cost-effectiveness of Plan operations, the Executive Administrator and Board of Trustees of the North Carolina State Health Plan may create eight new full-time positions, five of which shall be subject to the State Personnel Act [now State Human Resources Act] under G.S. 126-5 , and three of which shall be exempt from the State Personnel Act under G.S. 126-5(c) . The Executive Administrator and Board of Trustees may use up to five hundred sixty-three thousand one hundred six dollars ($563,106) of available funds to support these positions.”

Subdivision (d)(1) was amended by Session Laws 2012-83, s. 7, and by Session Laws s. 25.2E(a), in the coded bill drafting format provided by G.S. 120-20.1 . Subdivision (d)(1) has been set out in the form above at the direction of the Revisor of Statutes.

Section 126-34.1, referred to in subsection (c7), was repealed by Session Laws 2013-382, s. 6.1, effective August 21, 2013.

Session Laws 2014-18, s. 6.1, provides: “Nothing in this act shall be construed to obligate the General Assembly to appropriate funds to implement this act.”

Session Laws 2018-5, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2018.’ ”

Session Laws 2018-5, s. 39.7, is a severability clause.

Session Laws 2019-32, s. 7, provides: “This act becomes effective July 1, 2019. All rules, regulations, and decisions made by the predecessor boards and authorities reconstituted in this act shall remain in full force and effect until and unless duly modified by the successor entities.”

Session Laws 2020-78, s. 22.1, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2019-2021 fiscal biennium, the textual provisions of this act apply only to the 2019-2021 fiscal biennium.”

Session Laws 2020-78, s. 22.3, is a severability clause.

Subdivision (c1)(38) was originally enacted by Session Laws 2021-180, s. 19A.7(e) as subdivision (c1)(37) and was renumbered as subdivision (c1)(38) at the direction of the Revisor of Statutes.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(y), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2004-124, s. 31.27(b), effective July 1, 2004, added subdivision (c1)(23).

Session Laws 2004-129, s. 37, effective July 1, 2004, repealed subdivision (c1)(17).

Session Laws 2005-276, s. 29.34(b), effective July 1, 2005, added subdivision (c1)(24).

Session Laws 2005-344, s. 9, effective July 1, 2005, added subdivision (a1)(25).

Session Laws 2006-66, s. 9.11(y) and (z), effective July 1, 2007, substituted “North Carolina, including the faculty of the North Carolina School of Science and Mathematics” for “North Carolina” at the end of subdivision (c1)(8); and repealed subdivision (c1)(11), relating to employees of the North Carolina School of Science and Mathematics.

Session Laws 2006-66, s. 9.17(e), effective January 1, 2007, except that the General Assembly and the Governor may make appointments prior to that date for terms beginning January 1, 2007, added subdivision (c1)(26).

Session Laws 2006-66, s. 18.2(e), as added by 2006-221, s. 20, effective July 1, 2006, added subdivision (c1)(27).

Session Laws 2006-204, s. 2, effective August 8, 2006, added subdivision (c1)(26) (now (c1)(28)).

Session Laws 2006-264, s. 11, effective August 27, 2006, substituted “G.S. 126-1.1” for “subsection (c)(1) above” in subdivision (e)(1).

Session Laws 2007-117, s. 3(b), effective July 1, 2007, added subsections (c9) and (c10).

Session Laws 2007-195, s. 1, effective July 8, 2007, added subdivision (c1)(9a).

Session Laws 2007-323, s. 28.22A(o), as amended by Session Laws 2007-345, s. 12, effective July 1, 2008, substituted “State Health Plan for Teachers and State Employees” for “Teachers’ and State Employees’ Comprehensive Major Medical Plan” in subdivisions (c1)(23) and (c1)(24).

Session Laws 2007-484, s. 9(c), effective August 30, 2007, added subsection (c11).

Session Laws 2008-134, s. 73(d), effective July 28, 2008, repealed subdivision (c1)(20), which read: “Employees of the North Carolina Rural Redevelopment Authority created in Part 2D of Article 10 of Chapter 143B of the General Statutes.”

Session Laws 2009-451, s. 9.13(f), effective July 1, 2009, added subdivision (c1)(29).

Session Laws 2011-145, s. 7.31(c), as added by Session Laws 2011-391, s. 17, effective July 1, 2011, repealed subdivision (c1)(26), which read: “The Executive Director, associate and assistant directors, and instructional staff of the North Carolina Teacher Academy.”

Session Laws 2011-145, s. 19.1(g), (h), and ( l ), effective January 1, 2012, in subsection (c)(3) and subdivision (d)(1)c., substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction”; in subdivision (d)(1)d., substituted “Public Safety” for “Crime Control and Public Safety”; and in subdivision (d)(1)j., substituted “Division of Juvenile Justice of the Department of Public Safety” for “Department of Juvenile Justice and Delinquency Prevention.”

Session Laws 2011-241, s. 5, effective June 23, 2011, added subdivision (c1)(8a).

Session Laws 2011-266, s. 1.37(c), effective July 1, 2011, repealed subdivision (c1)(26), which read: “The Executive Director, associate and assistant directors, and instructional staff of the North Carolina Teacher Academy.”

Session Laws 2012-83, s. 7, effective June 26, 2012, deleted subdivision (d)(1)c., which read: “Division of Adult Correction of the Department of Public Safety;”; deleted subdivision (d)(1)j., which read: “Division of Juvenile Justice of the Department of Public Safety.”; in the undesignated paragraph of subdivision (d)(1), added the second and fourth sentences and made minor punctuation changes.

Session Laws 2012-142, s. 8.9A(c), effective July 1, 2012, added subdivision (c2)(4).

Session Laws 2012-142, s. 25.2E(a), effective January 1, 2013, in subdivision (d)(4), twice substituted “180 days” for “120 days”, deleted subdivision (d)(1)c. and subdivision (d)(1)j. and deleted the paragraph following subdivision (d)(1)j.; in subdivision (d)(5), substituted “July 1” for “May 1” and substituted “180 days” for “120 days.”

Session Laws 2012-151, s. 11(a), effective July 12, 2012, added “except as otherwise provided in Chapter 122C of the General Statutes” to the end of subdivision (a)(2)a, and made a minor punctuation change.

Session Laws 2013-360, s. 15.10(d), effective July 1, 2013, added subdivision (c1)(30).

Session Laws 2013-382, ss. 4.1, 4.3, 4.4, and 4.5, as amended by Session Laws 2013-410, s. 47.2(b), effective August 21, 2013, in subdivision (d)(1), substituted “1,500” for “1,000,” added “and offices,” and deleted the last paragraph; and added subdivisions (d)(1)k-m; substituted “October 1” for “July 1” in subdivision (d)(5); and repealed subsections (e) and (f). For effective date and applicability of repeal of subsections (e) and (f), see Editor’s note.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “Director of the Office of State Human Resources” for “State Personnel Director,” “State Human Resources Commission” for “State Personnel Commission,” “North Carolina Human Resources Act” for “State Personnel Act,” and “Office of State Human Resources” for “Office of State Personnel” throughout the section.

Session Laws 2014-18, s. 1.4, effective July 1, 2014, added subdivisions (c2)(5) and (d)(2b).

Session Laws 2014-100, ss. 7.17(a) and 15.16(b), effective August 7, 2014, added subdivisions (c1)(2a), (c11)(3) and inserted “for deputy commissioners appointed pursuant to G.S. 97-79 and” in the first sentence of subdivision (d)(7).

Session Laws 2014-100, s. 33.2(b), effective July 1, 2014, added subsection (c12).

Session Laws 2014-100, s. 35.11(a), effective August 7, 2014, and applicable to State employees hired before June 30, 2013, deleted “and within a 35 mile radius of the exempt position” following “another agency” in subdivision (e)(2). See Editor’s notes for effective date and applicability.

Session Laws 2014-115, s. 55.3(a), effective August 11, 2014, in subsection (e), added “as follows” to the introductory paragraph; made a minor stylistic change in subdivision (e)(1); inserted “or her” in subdivision (e)(2); and added subdivisions (e)(3) and (e)(4).

Session Laws 2015-164, s. 9(b), effective October 1, 2015, added subsection (c13).

Session Laws 2015-241, s. 7A.4(k), effective September 18, 2015, in subdivision (c11)(3), substituted “Department of Information Technology (DIT)” for “Office of the State Chief Information Officer, the Office of Information Technology Services (ITS),” and “DIT employees” for “ITS employees”; substituted “Department of Information Technology” for “Office of Information Technology Services” in subdivision (d)(1)(k).

Session Laws 2015-241, s. 12A.3(b), effective July 1, 2015 added subdivision (c1)(31).

Session Laws 2015-241, s. 12A.5(e), effective October 1, 2015, added subdivision (c1)(32).

Session Laws 2015-241, s. 14.30(s), (u), effective July 1, 2015, substituted “Department of Natural and Cultural Resources” for “Department of Cultural Resources” in subdivisions (c11)(2) and (d)(1)e; and in subsection (d), substituted “Department of Environmental Quality” for “Department of Environment and Natural Resources” in subdivision (1)g, and substituted “Departments of Commerce, Environmental Quality, and Transportation” for “Departments of Commerce, Environment and Natural Resources, and Transportation” in subdivision (2b).

Session Laws 2015-241, s. 24.1(v), added subdivision (d)(1)n. For effective date, see editor’s note.

Session Laws 2015-245, s. 20, effective September 23, 2015, added subdivisions (c1)(34) and (c1)(35).

Session Laws 2016-94, s. 15.10(b), effective July 1, 2016, added subdivision (c1)(30a).

Session Laws 2016-126, 4th Ex. Sess., s. 7, effective December 19, 2016, in subdivision (d)(1), substituted “425 exempt positions” for “1,500 exempt positions” in the introductory language, and deleted former sub-subdivisions l. and m., which read: “Office of State Budget and Management” and “Office of State Human Resources,” respectively; in subdivision (d)(2), rewrote the third and fourth sentences, and added the last two sentences; and added subdivision (d)(2c).

Session Laws 2016-126, Ex. 4th Sess., s. 8, effective January 1, 2017, in subdivision (d)(2), inserted “the Superintendent of Public Instruction” in the first sentence, deleted the former second, which read: “The State Board of Education may designate exempt positions in the Department of Public Instruction,” deleted “other than the Department of Public Instruction” preceding “shall be limited,” and substituted “Superintendent of Public Instruction” for “State Board of Education” in the last two sentences; rewrote the first sentence in subdivision (d)(2a); deleted the former last sentence in subsection (d)(4); substituted “Governor or elected department head” for “Governor, elected department head, or State Board of Education” in the first sentence of subdivision (d)(5); substituted “Governor or by an elected department head” for “Governor, by an elected department head, or by the State Board of Education” in the first sentence of subdivision (d)(5).

Session Laws 2017-6, s. 1, effective May 1, 2017, deleted former subdivision (d)(2c), which concerned changes in cabinet department exempt position designation.

Session Laws 2017-57, ss. 7.23I(b), 35.18C, effective July 1, 2017, added subdivision (c1)(35); and inserted “information technology professionals,” in subdivision (c1)(8).

Session Laws 2017-186, s. 2(sssss), effective December 1, 2017, inserted “and Juvenile Justice” in subsection (c3).

Session Laws 2018-5, s. 15.5(e), effective July 1, 2018, repealed subdivision (c1)(30a), which read: “Employees of the Department of Commerce employed in the International Recruiting Coordination Office created in G.S. 143B-432.2.”

Session Laws 2018-5, s. 35.19, effective July 1, 2018, added subsection (c14).

Session Laws 2018-84, s. 8(b), effective June 25, 2018, deleted “and the Deputy Executive Administrator” preceding “of the State” in subdivision (c1)(23).

Session Laws 2019-32, s. 1(b), effective July 1, 2019, deleted subdivision (c1)(21). For effective date and applicability, see editor’s note.

Session Laws 2019-200, s. 13, effective August 21, 2019, added subsection (c15).

Session Laws 2020-56, s. 7, effective June 30, 2020, added subsection (c16).

Session Laws 2020-78, s. 9.1, effective July 1, 2020, added subdivision (c1)(36).

Session Laws 2021-80, s. 1, effective July 8, 2021, inserted “finance professionals, business office professionals, auditor professionals” in subdivision (c1)(8).

Session Laws 2021-180, s. 9B.4(c), effective July 1, 2021, deleted subdivision (c1)(31), which read: “Employees of the Office of Program Evaluation Reporting and Accountability of the Department of Health and Human Services.”

Session Laws 2021-180, s. 9F.19(a), effective December 18, 2021, in subsection (c1), deleted former subdivision (c1)(34), which read: “Employees of the Division of Medical Assistance of the Department of Health and Human Services hired on or after October 1, 2015.”, and added subdivision (c1)(37).

Session Laws 2021-180, s. 19A.7(e), effective January 1, 2022, added subdivision (c1)(38).

Session Laws 2021-180, s. 19C.9(f), effective January 1, 2023, added sub-subdivision (d)(1)o. For applicability, see editor's note.

Session Laws 2021-180, s. 19C.9(y), substituted “Division of Juvenile Justice” for “Division of Adult Correction and Juvenile Justice” in subdivision (c3). For effective date and applicability, see editor's note.

Session Laws 2021-180, s. 21.2(b), effective November 18, 2021, added “and five employees of the Office of Administrative Hearings as designated by the Chief Administrative Law Judge” in subdivision (c1)(27).

Legal Periodicals.

For survey of 1977 law on employment regulation, see 56 N.C.L. Rev. 854 (1978).

For article, “The Meaning of Just Cause in North Carolina Public Employment Law: Carroll and its Progeny Provide for a Heightened Multifactor Standard for State Employee Disciplinary Cases,” see 33 Campbell L. Rev. 341 (2011).

For article, “Far From a ‘Dead Letter’: The Contract Clause and North Carolina Association of Educators v. State,” see 96 N.C.L. Rev. 168 (2018).

CASE NOTES

Editor’s Note. —

Most of the cases below were decided prior to the amendments made by Session Laws 2011-401, which were effective November 1, 2011, and references therein to the Employment Security Commission should be construed as references to the Division of Employment Security (DES) of the Department of Commerce.

Constitutional Implications. —

For case discussing the propriety under U.S. Const., Amends. I and XIV, of adverse personnel actions affecting State employees in exempt positions following the change from the Hunt administration to the Martin administration, see Stott v. Martin, 725 F. Supp. 1365, 1989 U.S. Dist. LEXIS 13544 (E.D.N.C. 1989), rev'd, 916 F.2d 134, 1990 U.S. App. LEXIS 17593 (4th Cir. 1990).

Legislative Intent. —

The particularized exclusion of certain Department of Correction employees from the provisions of this chapter plainly indicates the General Assembly’s intent that the Act’s provisions for appeals of employment grievances apply to those not so excluded. Batten v. North Carolina Dep't of Cor., 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

The rationale for creating exempt positions, positions exempt from the protection afforded by the civil service statute, was to allow the Governor to employ top level State employees on an at-will basis, and to reposition these employees as he felt necessary in order to further the agenda of the administration. Stott v. Haworth, 916 F.2d 134, 1990 U.S. App. LEXIS 17593 (4th Cir. 1990), dismissed, 783 F. Supp. 970, 1992 U.S. Dist. LEXIS 2035 (D.N.C. 1992).

Discharge of Exempt Employees by Successor Governor. —

Although the North Carolina State Personnel Act [now North Carolina Human Resources Act] provides that no permanent employee subject thereto shall be discharged, suspended or reduced in pay or position except for just cause, the act exempts certain employees by its terms and allows the Governor to designate as exempt from the provisions of the act certain other policy-making or decision-making employees. Where plaintiffs having a position designated as policy-making or confidential by the previous Governor brought suit alleging that each was discharged from an exempt government position for the sole reason of political affiliation, there was a presumption that successor Governor’s actions were proper if done for political patronage reasons that require, as a qualification for the performance of a job, a political affiliation. Stott v. Haworth, 916 F.2d 134, 1990 U.S. App. LEXIS 17593 (4th Cir. 1990), dismissed, 783 F. Supp. 970, 1992 U.S. Dist. LEXIS 2035 (D.N.C. 1992).

This section controls which employees are subject to Chapter 126. Conran v. New Bern Police Dep't, 122 N.C. App. 116, 468 S.E.2d 258, 1996 N.C. App. LEXIS 205 (1996).

Under G.S. 126-5(c)(1) and (c1)(8), the provisions of Chapter 126, the State Personnel Act [now North Carolina Human Resources Act], did not apply to state employees who were not career state employees, as defined in Chapter 126, or who were instructional and research staff, physicians, and dentists of the University of North Carolina, except for Chapter 126, Articles 6 and 7. Woodburn v. N.C. State Univ., 156 N.C. App. 549, 577 S.E.2d 154, 2003 N.C. App. LEXIS 305 (2003).

G.S. 126-5 stated in particular terms which state employees were covered by Chapter 126, prohibiting employment discrimination, and G.S. 126-16 addressed the same subject matter in general terms, but G.S. 126-16 did not affirmatively grant a remedy to an employee who was not otherwise covered by Chapter 126; in short, G.S. 126-5 controlled which employees were subject to Chapter 126. Woodburn v. N.C. State Univ., 156 N.C. App. 549, 577 S.E.2d 154, 2003 N.C. App. LEXIS 305 (2003).

When a state employee sought review of the termination of her employment, G.S. 126-5 foreclosed her reliance on any of the provisions of the State Personnel Act [now North Carolina Human Resources Act], Chapter 126, because she was exempt from the Act, was not a career state employee, and her position was classified as “instructional and research staff of the University of North Carolina.” Woodburn v. N.C. State Univ., 156 N.C. App. 549, 577 S.E.2d 154, 2003 N.C. App. LEXIS 305 (2003).

Scope of Chapter 126’s authority was set out in G.S. 126-5 , which stated, in subdivision (a)(1), that the provisions of Chapter 126 applied to all state employees not therein exempt. Woodburn v. N.C. State Univ., 156 N.C. App. 549, 577 S.E.2d 154, 2003 N.C. App. LEXIS 305 (2003).

Director of Highway Beautification Program Policymaking Exempt Position. —

Evidence that the Director of the Highway Beautification Program had authority to impose the final decision as to a settled course of action to be followed within the Department of Transportation was sufficient to designate the position as policymaking exempt under this section. Powell v. North Carolina DOT, 347 N.C. 614 , 499 S.E.2d 180, 1998 N.C. LEXIS 116 (1998).

Chief of Internal Audit Section of Department of Transportation Not Policymaking Exempt Position. —

Even though the Chief of the Internal Audit Section of the Department of Transportation had final decision-making authority within that section, he had no authority to impose a final decision as a settled course of action within the Department or any division thereof and thus the position could not properly be designated as policymaking exempt under this section. North Carolina DOT v. Hodge, 347 N.C. 602 , 499 S.E.2d 187, 1998 N.C. LEXIS 117 (1998).

Assistant Commissioner of Motor Vehicles Policymaking Exempt Position. —

The decision and order of the State Personnel Commission [now State Human Resources Commission], determining that the position of Assistant Commissioner of Motor Vehicles was “exempt policymaking,” was not supported by substantial evidence in the record. Jordan v. North Carolina DOT, 140 N.C. App. 771, 538 S.E.2d 623, 2000 N.C. App. LEXIS 1272 (2000).

Not All Local Government Employees Covered. —

This Chapter does not establish a public policy that all local government employees have the protection of a grievance procedure. With certain exceptions, this Chapter applies to county employees only as the “boards of county commissioners may from time to time determine.” Walter v. Vance County, 90 N.C. App. 636, 369 S.E.2d 631, 1988 N.C. App. LEXIS 584 (1988).

The legislature did not intend for local city or county employees to be included in the class of persons protected by Chapter 126. Conran v. New Bern Police Dep't, 122 N.C. App. 116, 468 S.E.2d 258, 1996 N.C. App. LEXIS 205 (1996).

Former Department of Social Services Employee. —

Applicability of the just cause requirement set forth in G.S. 126-5(a)(2) is determined by the permanency of employment and not by months of service; therefore, a terminated employee who worked less than 24 months before being terminated while on medical leave was entitled to file a contested case based on a lack of just cause since she had been an employee of the Department of Social Services, which was a local social services department. Early v. County of Durham Dep't of Soc. Servs., 172 N.C. App. 344, 616 S.E.2d 553, 2005 N.C. App. LEXIS 1788 (2005).

Administrative law judge (ALJ) properly concluded that a technician who worked for a county department of social services was a career State employee under the State Human Resources Act (SHRA) and was subject to the SHRA because the county board of commissioners passed resolutions leaving the employees of the consolidated human services agency subject to the SHRA; therefore, just cause was required to support the technician’s termination. Watlington v. Dep't of Soc. Servs. Rockingham Cnty., 252 N.C. App. 512, 799 S.E.2d 396, 2017 N.C. App. LEXIS 220 (2017), overruled in part, Rouse v. Forsyth Cty. Dep't of Soc. Servs., 373 N.C. 400 , 838 S.E.2d 390, 2020 N.C. LEXIS 93 (2020).

The 1977 amendment clearly evinced an intent to change an employee’s rights from mere entitlement to assistance in relocation to entitlement to an offer of a job for which he is qualified once such an opening becomes available. North Carolina Dep't of Cor. v. Hill, 313 N.C. 481 , 329 S.E.2d 377, 1985 N.C. LEXIS 1547 (1985).

Department of Correction Employee Held Not Barred from Appeal Procedures of Chapter 150B. —

A permanent employee in a non-policymaking, non-academic position in the Department of Correction was not barred from the appeal procedures of the Administrative Procedure Act, Chapter 150B, by that Act’s general exclusion of his department from its provisions. Batten v. North Carolina Dep't of Cor., 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

Failure to Appeal Dismissal. —

Trial court properly dismissed a state employee’s petition for a contested case hearing because he failed to appeal the 2014 dismissal of his claim challenging his exemption and subsequent termination without just cause; thus, he was bound by the determination. Vincoli v. N.C. Dep't of Pub. Safety, 260 N.C. App. 447, 818 S.E.2d 301, 2018 N.C. App. LEXIS 715 (2018).

Meaning of “Department Head” in Subsection (e). —

The legislative intent, as to the meaning of the term “department head” in subsection (e), is the official who has executive and managerial authority over the department in which an exempt policymaking position is designated, including cabinet department heads, and while the term clearly refers to elected department heads, it does not refer to the Governor. Carrington v. Brown, 136 N.C. App. 554, 525 S.E.2d 230, 2000 N.C. App. LEXIS 104 (2000).

Authority As “Department Head” Under Subsection (e). —

Because the chairman of the Employment Security Commission (ESC) had the authority to staff and make personnel decisions in the ESC, she had the authority as a “department head”, pursuant to subsection (e) of this section, to dismiss plaintiff from his exempt policymaking position within the ESC. Carrington v. Brown, 136 N.C. App. 554, 525 S.E.2d 230, 2000 N.C. App. LEXIS 104 (2000).

The term “priority” in the language of subsection (e), providing that “such employee shall have priority to any position that becomes available for which the employee is qualified”, gives an affected employee the right to an automatic offer of a position which becomes available. North Carolina Dep't of Cor. v. Hill, 313 N.C. 481 , 329 S.E.2d 377, 1985 N.C. LEXIS 1547 (1985).

In subsection (e), the phrase “such employee shall have priority to any position that becomes available for which the employee is qualified” means that if the employee is qualified for a job in state government which is available, he must be offered this job before it can be filled by anyone else, by promotion or otherwise. North Carolina Dep't of Cor. v. Hill, 313 N.C. 481 , 329 S.E.2d 377, 1985 N.C. LEXIS 1547 (1985).

Property Interest in Employment. —

An employee who is subject to the State Personnel Act [now North Carolina Human Resources Act] and who holds a “trainee” appointment as defined by the North Carolina Administrative Code does not have a property interest in her continued employment which is protected by the due process clause of the Fourteenth Amendment. Yow v. Alexander County Dep't of Social Servs., 70 N.C. App. 174, 319 S.E.2d 626, 1984 N.C. App. LEXIS 3655 (1984).

Review of Recommended Decision. —

No statutory authority exists for the State Personnel Commission [now State Human Resources Commission] to review an administrative law judge’s recommended decision in a case involving an exempt employee. Johnson v. Natural Resources & Community Dev., 98 N.C. App. 334, 391 S.E.2d 48, 1990 N.C. App. LEXIS 386 (1990).

Application to District Attorneys. —

The protections of the Whistleblower Act apply to all state employees and authorize an action by a wrongfully discharged employee against employers who are constitutional officers, including district attorneys. Caudill v. Dellinger, 129 N.C. App. 649, 501 S.E.2d 99, 1998 N.C. App. LEXIS 755 (1998), aff'd in part, 350 N.C. 89 , 511 S.E.2d 304, 1999 N.C. LEXIS 50 (1999).

Since an investigatorial assistant’s public statements criticizing the district attorney’s discretionary decisions and the disruption of his office’s working relationship with law enforcement agencies were sufficient reasons, standing alone, to terminate the investigatorial assistant’s at will employment, the district attorney’s decision to terminate him rested within his lawful and discretionary scope of authority; because the investigatorial assistant’s termination was not injurious to the public or against the public good, there was no evidence to establish a genuine issue of material fact to support a claim for wrongful discharge against the district attorney. Hines v. Yates, 171 N.C. App. 150, 614 S.E.2d 385, 2005 N.C. App. LEXIS 1267 (2005).

Application to UNC Staff. —

Whistleblower Act, G.S. 126-84 through G.S. 126-88 , applied to a University of North Carolina research scientist because G.S. 126-5(c5) excluded the Whistleblower Act from the exemption in G.S. 126-5(c1)(8). Yan-Min Wang v. UNC-CH Sch. of Med., 216 N.C. App. 185, 716 S.E.2d 646, 2011 N.C. App. LEXIS 2150 (2011).

Application to UNC Instructional Staff. —

The Agricultural Extension Agent who was discharged could not establish a property right in his job under this act because he was part of the instructional staff of the UNC system and therefore exempt from its protections. McCallum v. North Carolina Coop. Extension Serv. of N.C. State Univ., 142 N.C. App. 48, 542 S.E.2d 227, 2001 N.C. App. LEXIS 51 (2001).

Assistant director of the North Carolina State University’s Office of Disability Services for Students could not seek review of the termination of her employment through the Office of Administrative Hearings because, under G.S. 126-5(c1)(8), instructional and research staff of the University of North Carolina were specifically exempted from all provisions of the State Personnel Act [now North Carolina Human Resources Act], G.S. 126-1 et seq., except Chapter 126, Articles 6 and 7. Woodburn v. N.C. State Univ., 156 N.C. App. 549, 577 S.E.2d 154, 2003 N.C. App. LEXIS 305 (2003).

Application of Veterans Preference. —

Pursuant to G.S. 126-83 , employees of the System designated in subdivision (a)(2) of this section are expressly excluded from the Preference afforded by G.S. 126-80 but, if qualified under G.S. 128-15 , are entitled to the veterans preference thereunder applicable to all employees of State departments, agencies and institutions. Wright v. Blue Ridge Area Auth., 134 N.C. App. 668, 518 S.E.2d 772, 1999 N.C. App. LEXIS 899 (1999).

Former employee of a health organization was considered a county health department employee under G.S. 126-5 , where the employee was paid through the county payroll department as a health department employee, the health department’s interim director asserted that her department was responsible for supervising the employee, the employee’s termination letter was issued by the county health department and signed by its interim director, and the employee was subject to the county personnel policies and classified as a probationary employee under that policy. Greene v. Swain County P'ship for Health, 342 F. Supp. 2d 442, 2004 U.S. Dist. LEXIS 20193 (W.D.N.C. 2004).

Employment of a trainee who was in a probationary period with the North Carolina Department of Revenue was not exempted by G.S. 126-5 from the appeals process through the North Carolina State Personnel Commission [now State Human Resources Commission]; although the trainee was not a “career” state employee, G.S. 126-36(a) (now repealed) allowed the Commission to review his claims derived from alleged discrimination on the basis of religion. Vanderburg v. N.C. Dep't of Revenue, 168 N.C. App. 598, 608 S.E.2d 831, 2005 N.C. App. LEXIS 451 (2005).

Department of Public Saftey Employee. —

Trial court erred in granting an aggrieved employee summary judgment on a claim that G.S. 126-34.02 was unconstitutional as applied to him where he was an employee of the North Carolina Department of Public Safety, that agency was expressly exempt from the administrative hearing provisions of the APA, but the plain language of G.S. 126-5(h) provided the employee with a statutory right to a hearing before the Office of Administrative Hearings as to whether he was subject to the APA, and that right allowed him to address whether his exempt designation was proper via a contested case. Vincoli v. State, 250 N.C. App. 269, 792 S.E.2d 813, 2016 N.C. App. LEXIS 1102 (2016).

OPINIONS OF ATTORNEY GENERAL

Employment and termination of local health director are subject to the provisions of Chapter 126, the State Personnel Act [now North Carolina Human Resources Act], and termination or discharge of a health director must comply with all statutory provisions and regulations duly adopted by the State Personnel Commission [now State Human Resources Commission] pursuant to Chapter 126. See opinion of Attorney General to Mr. Michael S. Kennedy, Esquire, Attorney for Cleveland County Board of Health, and Mr. Robert W. Yelton, Esquire, Attorney for Cleveland County, 55 N.C. Op. Att'y Gen. 113 (1986).

The Departments of Human Resources [now Department of Health and Human Services] and Department of Correction determine initially whether a particular position is a teaching or related education position within the meaning of subsection (c3). If an employee disputes that decision, he has a right to appeal to the State Personnel Commission [now State Human Resources Commission] and to have the commission resolve the dispute. See opinion of Attorney General to Mr. Phillip J. Kirk, Jr., Secretary, Department of Human Resources, 57 N.C. Op. Att'y Gen. 13 (1987).

The Secretary of the Department of Human Resources and the Secretary of the Department of Correction have authority to set the salary schedules for persons employed by their departments in teaching and related educational positions exempt from the State Personnel Act [now North Carolina Human Resources Act] by subsection (c3) of this section. See opinion of Attorney General to Mr. Phillip J. Kirk, Jr., Secretary, Department of Human Resources, 57 N.C. Op. Att'y Gen. 13 (1987).

The salary schedules established by the Department of Human Resources and the Department of Correction for educational personnel exempt from the State Personnel Act [now North Carolina Human Resources Act] must correspond to the salary schedules established by the State Board of Education for public school employees except in cases where the duties of employees do not correspond to the duties of public school employee positions. In such cases the salary schedule should conform as closely as possible to the public school salary schedules. See opinion of Attorney General to Mr. Phillip J. Kirk, Jr., Secretary, Department of Human Resources, 57 N.C. Op. Att'y Gen. 13 (1987).

Once an individual is entitled to priority employment rights within the State Personnel System, only specific statutory language will be sufficient to eliminate any agency from making a vacancy available to the individual. See opinion of Attorney General to Mr. Brent Lane, Executive Director, N.C. Technological Development Authority, 59 N.C. Op. Att'y Gen. 31 (1989).

When it has been determined either judicially or by the State Personnel Commission [now State Human Resources Commission] that a person is entitled to reemployment rights and a position becomes open within State government for which that person is qualified, the person must be offered that position. See opinion of Attorney General to Mr. Brent Lane, Executive Director, N.C. Technological Development Authority, 59 N.C. Op. Att'y Gen. 31 (1989).

The power of the North Carolina Technological Development Authority under G.S. 143B-471.3A(2) to “employ . . . staff as it deems necessary” does not exempt the agency from having to accept state employees entitled to priority reemployment rights under the State Personnel System. See opinion of Attorney General to Mr. Brent Lane, Executive Director, N.C. Technological Development Authority, 59 N.C. Op. Att'y Gen. 31 (1989).

Employees of a nonprofit corporation would not become state employees after the acquisition of the corporation by the University of North Carolina Health Care System. See opinion of Attorney General to Representative Daniel T. Blue, Jr., (3/8/2000).

Employees of a nonprofit corporation would not become state employees after the acquisition of the corporation by the University of North Carolina Health Care System. See opinion of Attorney General to Ms. Susan H. Ehringhaus, Senior University Counsel, (2/17/2000).

Editor’s Note.

Session Laws 1997-520, s. 8(a)-(c), was codified as this section at the direction of the Revisor of Statutes.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2013-382, s. 7.5, effective August 21, 2013, rewrote subdivision (a)(2); substituted “and upon request, on the results of any other reports regarding human resources action or functions pursuant to” for “and on the use of position qualification equivalencies, as compiled in accordance with” in subsection (b); and deleted subsection (c), which read “Beginning May 1, 1998, and then annually thereafter, the State Personnel Commission, through the Office of State Personnel, shall report to the Joint Legislative Commission on Governmental Operations on outcomes with respect to State employee hirings, promotions, disciplinary actions, and compensation, based upon demographics.”

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “North Carolina Human Resources Act” for “State Personnel Act” and “Office of State Human Resources” for “Office of State Personnel” in the introductory paragraph in subsection (a), and substituted “Director of the Office of State Human Resources” for “Director of the Office of State Personnel” in subdivision (a)(2); and “State Human Resources Commission” for “State Personnel Commission” in subsection (b).

Session Laws 2015-260, s. 4, effective September 30, 2015, substituted “annually” for “quarterly” in the introductory language of subsection (a).

Editor’s Note.

Session Laws 2013-382, s. 7.9(a), repealed subsection (b), effective August 21, 2013. Because subsection (b) was the only subsection remaining in this section, since the other subsections had been repealed by previous Session Laws, this section has been set out as repealed. Subsections (a), (a2), (b1), (c), and (e) were repealed by Session Laws 2012-142, s. 25.2C(b), effective July 1, 2012. Subsections (a1) and (d) were repealed by Session Laws 1993, c. 388, s. 1, effective July 18, 1993.

Former G.S. 126-7 pertained to Annual Compensation Survey.

Editor’s Note.

This section was rewritten by Session Laws 2011-391, s. 59(b), and subsections (a) through (f) were redesignated as subsections (a) through (i) at the direction of the Revisor of Statutes. Session Laws 2011-145, s. 29.21A(a) also rewrote this section, however Session Laws 2011-391, s. 59(a), repealed Session Laws 2011-145, s. 29.21A(a).

Session Laws 2011-391, s. 59(b), provides: “Nothing in this section affects the extended period of priority reconsideration afforded to State employees by Section 26.14D of S.L. 2009-451, as amended by Section 9.3 of S.L. 2009-575.”

Session Laws 2018-5, s. 34.19(a)-(h), provides: “(a) Subject to the approval of the Secretary of the Department of Transportation, employees of the Department of Transportation (Department) who voluntarily relinquish (i) annual longevity payments or any claim to longevity pay and (ii) any claim to career status or eligibility for career status are exempt from:

“(1) The classification and compensation rules established by the State Human Resources Commission pursuant to G.S. 126-4(1) through (4).

“(2) G.S. 126-4(5) only as it applies to hours and days of work, vacation, and sick leave.

“(3) G.S. 126-4(6) only as it applies to promotion and transfer.

“(4) G.S. 126-4(10) only as it applies to the prohibition of the establishment of incentive pay programs.

“(5) Article 2 of Chapter 126 of the General Statutes, except for G.S. 126-7.1 .

“(b) Nothing in subsection (a) of this section shall be construed to abrogate career status under G.S. 126-1.1 .

“(c) For the 2018-2019 fiscal year and the 2019-2020 fiscal year, the sum equal to two percent (2%) of the total Highway Fund and Highway Trust Fund appropriation for the applicable fiscal year for the payroll expenses of the Department may be used for the purposes of:

“(1) Salary adjustments within the Department to provide competitive salary rates and to address changes in labor market salary rates as documented through the Department’s data collection and analysis according to accepted human resource professional practices and standards.

“(2) Reallocation of positions within the Department to higher-level job classifications to compensate employees for more difficult duties at competitive salary rates as documented through data collection and analysis according to accepted human resource professional practices and standards.

“(3) Recruitment and retention programs instituted at the Secretary’s discretion.

“(d) Priority funding shall be given to recruitment, retention, salary range revisions, and reallocations affecting the job classifications and bands deemed by the Secretary to be most in need of immediate attention. The Department, as determined by the Department to be needed, may utilize market surveys and other relevant employment sector information available to the Office of State Human Resources.

“(e) The Department shall report to the Joint Legislative Transportation Oversight Committee and Fiscal Research Division of the General Assembly, beginning January 1, 2019, and the semiannually thereafter, regarding the actions taken pursuant to this section.

“(f) Notwithstanding G.S. 126-7.1 or any law to the contrary, the Secretary of the Department of Transportation may designate vacant positions as not being subject to the open recruitment requirements of G.S. 126-7.1 (a) for the purpose of carrying out the recruitment flexibility granted to the Secretary under subdivision (3) of subsection (c) of this section. The Secretary shall notify the State Human Resources Commission within 30 days of invoking recruitment flexibility.

“(g) Compensation decisions made under this section are exempt from the classification and compensation rules and policies established by the State Human Resources Commission.

“(h) This section becomes effective July 1, 2018, and expires June 30, 2020.”

Session Laws 2018-5, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2018.’ ”

Session Laws 2018-5, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018-2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018-2019 fiscal year.”

Session Laws 2018-5, s. 39.7, is a severability clause.

Effect of Amendments.

Session Laws 2006-259, s. 23.1(a), effective August 23, 2006, and applicable to persons under contract or subcontract and is applicable to employees hired on or after January 1, 2007, except that it applies to employees of local education agencies hired on or after March 1, 2007, added subsection (f).

Session Laws 2011-145, s. 29.21A(a), effective July 1, 2011, and applicable to employees subject to reductions in force on or after July 1, 2011, in the section catchline, deleted “State employees receive priority consideration” following “Posting requirement” and substituted “reduction in force” for “reduction-in-force rights”; in the introductory language of subsection (a), inserted “in a place readily accessible to employees that is located”; in the first sentence of subdivision (a)(2), deleted “in a location readily accessible to employees” from the end; deleted subsection (a2), which pertained to duty of the State Personnel Commission to adopt rules providing priority consideration for separated State employees; deleted subsections (c1) and (c2), which pertained to State employees separated due to reduction in force, and applicants for reemployment with more than 10 years of service receiving priority, respectively; and deleted subsection (d), which was the definition for “Qualifications.”

Session Laws 2011-391, s. 59(b), effective June 30, 2011, rewrote the section.

Session Laws 2013-382, s. 5.1, effective August 21, 2013, and applicable to reductions in force implemented on or after that date, added subsection (f1); and made a minor punctuation change in subdivision (e)(2).

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “Office of State Human Resources” for “Office of State Personnel” throughout the last paragraph of subsection (a), and substituted “State Human Resources Commission” for “State Personnel Commission” in subsection (c).

Session Laws 2015-260, s. 5.1, effective October 1, 2015, and applicable to employees separated on or after that date, added “reorganization through reduction” at the end of the section heading; in subsection (c), substituted “adopt rules governing the priority and salary rights of” for “adopt rules to provide that,” and inserted “to provide that the employee”; and added subsections (f2) and (j).

Session Laws 2018-5, s. 35.24, effective July 1, 2018, in subsection (b), added the first sentence; and in subsection (j), substituted “Any department” for “A department” at the beginning, and added “and The University of North Carolina and its constituent institutions” near the middle.

CASE NOTES

Priority Consideration. —

Where nurse was a state employee who applied for a supervisory nursing position of state employment, and there was substantial evidence to support the finding that petitioner’s qualifications were “substantially equal” to the non-state employee applicant, the State Personnel Commission [now State Human Resources Commission] did not err in applying the state employee priority consideration provision. Dockery v. North Carolina Dep't of Human Resources, 120 N.C. App. 827, 463 S.E.2d 580, 1995 N.C. App. LEXIS 945 (1995).

Judgment for a former state employee was reversed as the phrase “in the same or related position classification” in G.S. 126-7.1(c2) applied to both state employees with more and less than 10 years of service; as the employee did not have more than 10 years of service in the same or related position classification, she was not entitled to priority consideration for a vacant position. Wilkins v. N.C. State Univ., 178 N.C. App. 377, 631 S.E.2d 221, 2006 N.C. App. LEXIS 1399 , cert. denied, 360 N.C. 655 , 637 S.E.2d 219, 2006 N.C. LEXIS 1111 (2006).

Phrase “in the same or related position classification” in G.S. 126-7.1(c2) applies to both state employees with more and less than 10 years of service. Wilkins v. N.C. State Univ., 178 N.C. App. 377, 631 S.E.2d 221, 2006 N.C. App. LEXIS 1399 , cert. denied, 360 N.C. 655 , 637 S.E.2d 219, 2006 N.C. LEXIS 1111 (2006).

OPINIONS OF ATTORNEY GENERAL

This section does not prohibit the State or one of its agencies from utilizing the services of a personnel agency or search firm to find candidates for a difficult-to-recruit position after other efforts to fill the position have failed; however, the statutorily mandated promotional priority for state employees under this section restricts and limits the ability of state agencies to act in this situation. See opinion of Attorney General to Mr. Richard V. Lee, State Personnel Director, 58 N.C. Op. Att'y Gen. 91 (1988).

A university may restrict the applicant pool for a vacant position to employees currently employed within the individual department in which the vacancy occurs, as long as it makes it clear that it is not receiving or considering any applications from outside the department and does not, in fact, receive or consider any outside applications. See opinion of Attorney General to Mr. Ronald Penny, State Personnel Director, Office of State Personnel, 1998 N.C. Op. Att'y Gen. 21 (5/1/98).

Editor’s Note.

Former G.S. 126-7.2 pertained to time limit for appeals of applicants and noncareer State employees.

Editor’s Note.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “Office of State Human Resources” for “Office of State Personnel” in the first sentence.

Editor’s Note.

Session Laws 2002-126, s. 28.3B, provides: “A State employee is entitled to take up to 52 weeks of leave without pay during a five-year period in order to care for the employee’s child, spouse, or parent, where that child, spouse, or parent has a serious health condition. For State employees subject to the State Personnel Act [now North Carolina Human Resources Act], this leave shall be administered under the Family and Medical Leave procedures of the State Personnel Commission [now State Human Resources Commission]. Benefits under this section for employees not subject to the State Personnel Act [now North Carolina Human Resources Act] shall be administered under the Family and Medical Leave procedures applicable to those employees. Benefits under this section are supplemental to any benefit to which an employee may otherwise be entitled.”

Session Laws 2002-126, s. 1.2, provides: “This act shall be known as ‘The Current Operations, Capital Improvements, and Finance Act of 2002’.”

Session Laws 2002-126, s. 31.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2002-2003 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2002-2003 fiscal year. For example, uncodified provisions of this act relating to the Medicaid program apply only to the 2002-2003 fiscal year.”

Session Laws 2002-126, s. 31.6, is a severability clause.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Session Laws 2018-5, s. 35.26(d), provides: “Notwithstanding any provision of G.S. 126-8 to the contrary, any vacation leave remaining on December 31 of each year in excess of 30 days shall be reduced by the number of days awarded in this section that were actually used by the employee during the year such that the calculation of vacation leave days that would convert to sick leave shall reflect a deduction of those days of special annual leave awarded in this section that were used by the employee during the year.”

Session Laws 2018-5, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2018.’ ”

Session Laws 2018-5, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018-2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018-2019 fiscal year.”

Session Laws 2018-5, s. 39.7, is a severability clause.

Session Laws 2019-208, s. 5.1, provides: “Special Annual Leave. — Any person who is (i) employed in an adult correctional facility as a full-time permanent employee of the Department of Public Safety on July 1, 2019, and (ii) eligible to earn annual leave shall have a one-time additional five days of annual leave credited on July 1, 2019.

“The additional leave granted in this section shall be accounted for separately in the same manner as the leave provided by Section 35.26 of S.L. 2018-5 and shall remain available during the length of the employee’s employment, notwithstanding any other limitation on the total number of days of annual leave that may be carried forward. Part-time permanent employees shall receive a pro rata amount of the five days awarded by this section.

“The additional leave awarded under this section has no cash value and is not eligible for cash in. If not used prior to the time of separation or retirement, the bonus leave cannot be paid out and is lost.

“Notwithstanding any provision of G.S. 126-8 to the contrary, any vacation leave remaining on December 31 of each year in excess of 30 days shall be reduced by the number of days awarded in this section that were actually used by the employee during the year, such that the calculation of vacation leave days that would convert to sick leave shall reflect a deduction of those days of special annual leave awarded in this section that were used by the employee during the year.

“The number of days awarded by this section that carry forward to each following year shall equal the number of days awarded in this section remaining on December 31 of each year plus the number of days awarded in this section that were deducted from vacation leave in excess of 30 days for the calculation of sick leave.

“No employee may be required to take the additional leave awarded by this section.”

Session Laws 2019-209, s. 3.14(a)-(f), provides: “(a) A State employee shall have a one-time additional five days of annual leave credited on July 1, 2019, if the employee is:

“(1) A full-time permanent State employee eligible to earn annual leave;

“(2) Not an employee of The University of North Carolina; and

“(3) Not an employee to which any of the following bills of the 2019 Regular Session applies: House Bill 609, House Bill 126, or House Bill 777.

“(b) The additional leave granted in this section shall be accounted for separately in the same manner as the leave provided by Section 35.26 of S.L. 2018-5 and shall remain available during the length of the employee’s employment, notwithstanding any other limitation on the total number of days of annual leave that may be carried forward. Part-time permanent employees shall receive a pro rata amount of the five days awarded by this section.

“(c) The additional leave awarded under this section has no cash value and is not eligible for cash in. If not used prior to the time of separation or retirement, the bonus leave cannot be paid out and is lost.

“(d) Notwithstanding any provision of G.S. 126-8 to the contrary, any vacation leave remaining on December 31 of each year in excess of 30 days shall be reduced by the number of days awarded in this section that were actually used by the employee during the year, such that the calculation of vacation leave days that would convert to sick leave shall reflect a deduction of those days of special annual leave awarded in this section that were used by the employee during the year.

“(e) The number of days awarded by this section that carry forward to each following year shall equal the number of days awarded in this section remaining on December 31 of each year plus the number of days awarded in this section that were deducted from vacation leave in excess of 30 days for the calculation of sick leave.

“(f) No employee may be required to take the additional leave awarded by this section.”

Session Laws 2019-210, s. 5.1, provides: “Special Annual Leave. — Any person who is (i) a law enforcement officer employed by the State Highway Patrol on July 1, 2019, and (ii) eligible to earn annual leave shall have a one-time additional five days of annual leave credited on July 1, 2019.

“The additional leave granted in this section shall be accounted for separately in the same manner as the leave provided by Section 35.26 of S.L. 2018-5 and shall remain available during the length of the employee’s employment, notwithstanding any other limitation on the total number of days of annual leave that may be carried forward. Part-time permanent employees shall receive a pro rata amount of the five days awarded by this section.

“The additional leave awarded under this section has no cash value and is not eligible for cash in. If not used prior to the time of separation or retirement, the bonus leave cannot be paid out and is lost.

“Notwithstanding any provision of G.S. 126-8 to the contrary, any vacation leave remaining on December 31 of each year in excess of 30 days shall be reduced by the number of days awarded in this section that were actually used by the employee during the year, such that the calculation of vacation leave days that would convert to sick leave shall reflect a deduction of those days of special annual leave awarded in this section that were used by the employee during the year.

“The number of days awarded by this section that carry forward to each following year shall equal the number of days awarded in this section remaining on December 31 of each year plus the number of days awarded in this section that were deducted from vacation leave in excess of 30 days for the calculation of sick leave.

“No employee may be required to take the additional leave awarded by this section.”

Session Laws 2019-211, s. 6.1, provides: “Special Annual Leave. — Any person who is, on July 1, 2019, (i) employed as a law enforcement officer of the State Bureau of Investigation or Alcohol Law Enforcement and (ii) eligible to earn annual leave shall have a one-time additional five days of annual leave credited on July 1, 2019.

“The additional leave granted in this section shall be accounted for separately in the same manner as the leave provided by Section 35.26 of S.L. 2018-5 and shall remain available during the length of the employee’s employment, notwithstanding any other limitation on the total number of days of annual leave that may be carried forward. Part-time permanent employees shall receive a pro rata amount of the five days awarded by this section.

“The additional leave awarded under this section has no cash value and is not eligible for cash in. If not used prior to the time of separation or retirement, the bonus leave cannot be paid out and is lost.

“Notwithstanding any provision of G.S. 126-8 to the contrary, any vacation leave remaining on December 31 of each year in excess of 30 days shall be reduced by the number of days awarded in this section that were actually used by the employee during the year, such that the calculation of vacation leave days that would convert to sick leave shall reflect a deduction of those days of special annual leave awarded in this section that were used by the employee during the year.

“The number of days awarded by this section that carry forward to each following year shall equal the number of days awarded in this section remaining on December 31 of each year plus the number of days awarded in this section that were deducted from vacation leave in excess of 30 days for the calculation of sick leave.

“No employee may be required to take the additional leave awarded by this section.”

Effect of Amendments.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “State Human Resources Commission” for “State Personnel Commission” in the first sentence.

Editor’s Note.

Session Laws 2006-203, s. 69, which deleted the former last sentence of (c), which read: “Prior to taking any action under this section, the Governor may consult with the Advisory Budget Commission,” was effective July 1, 2007, and applicable to the budget for the 2007-2009 biennium and each subsequent biennium thereafter.

Session Laws 2006-203, s. 126, provides in part: “Prosecutions for offenses committed before the effective date of this act [July 1, 2007] are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2006-203, s. 69, effective July 1, 2007, and applicable to the budget for the 2007-2009 biennium and each subsequent biennium thereafter, deleted the former last sentence of (c), which read: “Prior to taking any action under this section, the Governor may consult with the Advisory Budget Commission.”

Editor’s Note.

Session Laws 2003-9, s. 4, provides: “Prior to the adoption of any rules pursuant to this Act:

“(a) The president of any community college shall allow any employee of that community college to share leave voluntarily with an immediate family member, as defined in Section 3 of this Act, who is an employee of a community college, public school, or State agency; and

“(b) Community colleges, public schools, and State agencies shall permit eligible employees to receive leave pursuant to this Act.”

Session Laws 2010-139, s. 3, effective January 1, 2011, was codified as subsection (c) at the direction of the Revisor of Statutes.

This section was amended by Session Laws 2013-382, s. 7.8, effective August 21, 2013, in the coded bill drafting format provided by G.S. 120-20.1 . However, in the first sentence in (c), the phrase “and all State agencies, departments, and institutions” was added, but “institutions” was not underscored. The first sentence in subsection (c) has been set out in the form above at the direction of the Revisor of Statutes.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2010-139, s. 1, effective January 1, 2011, added the subsection (a) designation; and added subsection (b).

Session Laws 2013-382, s. 7.8, effective August 21, 2013, in subsection (c), inserted “and all State agencies, departments, and” and “to the Office of State Personnel,” and deleted the former last sentence, which read “The State Personnel Commission, the State Board of Education, and the State Board of Community Colleges shall provide a report for each fiscal year as required by this section to the Joint Legislative Commission on Governmental Operations and to the Fiscal Research Division on or before October 15 each year.”

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “State Human Resources Commission” for “State Personnel Commission” and “Office of State Human Resources” for “Office of State Personnel” throughout the section.

Session Laws 2019-165, s. 3.7, effective July 26, 2019, in subsection (c), substituted “Department of Public Instruction” for “State Board of Education” and “Community Colleges System Office” for “State Board of Community Colleges” and inserted “institutions.”

Editor’s Note.

This section was formerly codified as G.S. 143-27.2. It was recodified as G.S. 126-8.5 by Session Laws 2006-203, s. 6, effective July 1, 2007.

Session Laws 2006-203, s. 126, provides: “This act becomes effective July 1, 2007, and applies to the budget for the 2007-2009 biennium and each subsequent biennium thereafter. Prosecutions for offenses committed before the effective date of this act [July 1, 2007] are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2011-145, s. 29.21(a) and (b), provides: “(a) There are established in the Office of State Budget and Management General Fund and Highway Fund reserve budget codes for the purpose of funding severance-related obligations to State employees subject to the State Personnel Act [now North Carolina Human Resources Act], and employees exempt from the State Personnel Act, who are separated from service due to a reduction-in-force action. Severance-related expenditures from these reserves shall include obligations to fund:

“(1) A State employee’s severance salary continuation with an age adjustment factor as authorized by G.S. 126-8.5 , including employer-related contributions for social security, and

“(2) Noncontributory health premiums for up to 12 months as authorized by G.S. 135-45.2(a)(8) for employees of employing units as defined by G.S. 135-45.1(12).

“(b) The Director of the Budget shall allocate funds appropriated in Sections 2.1 and 3.1 of this act to the Severance Expenditure Reserve to public agencies to fund severance-related obligations incurred by the agencies as a result of reduction-in-force actions that cause State-supported public employees to be terminated from public employment. Funds appropriated to the Severance Expenditure Reserve shall be expended in their entirety before funds appropriated to a public agency for State-supported personal services expenditures may be used to fund any severance-related obligations.

“Funds appropriated to the Severance Expenditure Reserve may be allocated to public agencies for positions that are funded by the General Fund or Highway Fund. Funds appropriated to the Severance Expenditure Reserve may also be allocated to public agencies for positions that are funded partially from the General Fund or Highway Fund and partially from sources other than the General Fund or Highway Fund but only to the extent of the proportionate part of the salaries paid from the General Fund or Highway Fund.

“For the purposes of this subsection, the term ‘public employee’ means an employee of a State agency, department, or institution; The University of North Carolina; the North Carolina Community College System; or a local school administrative unit.”

Session Laws 2011-145, s. 1.1, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2011.’ ”

Session Laws 2011-145, s. 32.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium.”

Session Laws 2011-145, s. 32.5, is a severability clause.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Session Laws 2020-29, s. 1(k), provides: “For all service purchases that are required to have been made by December 31, 2021, the Retirement Systems Division of the Department of State Treasurer shall accept and process all service purchase request forms that are received by the Retirement Systems Division on or before December 31, 2021.”

Session Laws 2020-29, s. 10, is a severability clause.

Effect of Amendments.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “Director of the Office of State Human Resources” for “State Personnel Director” and “State Human Resources Commission” for “State Personnel Commission” in the first paragraph of subsection (a).

Session Laws 2020-29, s. 1(h), effective June 19, 2020, in subsection (a), substituted “the Director of the Budget shall pay” for “he shall pay” in the first paragraph, in the second paragraph, substituted “the employee’s fifty-fifth” for “his fifty-fifth” in the second sentence, added “plus an amount to be deposited in the Retiree Health Benefit Fund” at the end of the third sentence, added the last sentence, and added the last sentence in the third paragraph, and made minor stylistic changes.

CASE NOTES

Voluntary Resignation. —

The Legislature has not authorized the expenditure of public funds in the nature of severance pay to public employees who voluntarily resign their position. Leete v. County of Warren, 341 N.C. 116 , 459 S.E.2d 232, 1995 N.C. LEXIS 396 , op. withdrawn, sub. op., 341 N.C. 116 , 462 S.E.2d 476, 1995 N.C. LEXIS 778 (1995)(decided under former G.S. 143-27.2).

OPINIONS OF ATTORNEY GENERAL

The State Budget Officer cannot approve discontinued service retirement allowance when the agency head of the employing agency does not recommend (and approve) such an allowance, even if state funds are available and a state employee meets the age and length of service requirements set forth in this section. See opinion of Attorney General to Mr. David T. McCoy, State Budget Officer, (11/7/01) (decided under former G.S. 143-27.2).

Editor’s Note.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Session Laws 2018-5, s. 26A.3(a), (b), provides: “(a) No later than December 1, 2018, the Office of State Human Resources shall recommend to the State Human Resources Commission a revision to the salary range established by the Commission under Article 3 of Chapter 126 of the General Statutes for area directors, as defined in G.S. 122C-3 . In forming its recommendation, the Office of State Human Resources shall use funds available to hire an outside consultant to conduct a market compensation study of organizations nationwide with similar functions as the local management entities/managed care organizations (LME/MCOs) and of similar size, including number of covered lives, annual service expenditures, and geographic service areas. The market compensation study shall include both public and not-for-profit managed care organizations. In forming its recommendation, the Office of State Human Resources shall seek input from the Secretary of the Department of Health and Human Services and the LME/MCO area boards.

“(b) The State Human Resources Commission shall use the results of the market compensation study conducted pursuant to subsection (a) of this section to fulfill its responsibility for approving area director salary ranges under G.S. 126-9 .”

Session Laws 2018-5, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2018.’ ”

Session Laws 2018-5, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018-2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018-2019 fiscal year.”

Session Laws 2018-5, s. 39.7, is a severability clause.

Effect of Amendments.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “Director of the Office of State Human Resources” for “State Personnel Director” and “State Human Resources Commission” for “State Personnel Commission” throughout the section.

Editor’s Note.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “State Human Resources Commission” for “State Personnel Commission” and “Office of State Human Resources” for “Office of State Personnel.”

Editor’s Note.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “State Human Resources Commission” for “State Personnel Commission” throughout the section; and substituted “Office of State Human Resources” for “Office of State Personnel” in subsection (c).

CASE NOTES

Substantially Equivalent Exemption. —

North Carolina Office of State Personnel [now Office of State Human Resources] issued in a letter to a county a substantially equivalent exemption from the North Carolina State Personnel Act [now North Carolina Human Resources Act], G.S. 126-1 et seq., finding substantial equivalency for all of the county’s human resource program areas as they applied to departments of social services, public health, and area mental health programs and their employees. Steward v. Green, 189 N.C. App. 131, 657 S.E.2d 719, 2008 N.C. App. LEXIS 423 (2008).

Editor’s Note.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “North Carolina Human Resources Act” for “Personnel Act” in subsection (a).

OPINIONS OF ATTORNEY GENERAL

Probation and parole officer may file notice of candidacy and campaign for election to the office of sheriff assuming that no federal funds are involved with respect to the probation and parole officer’s employment and, thus, that proscriptions contained in the federal Hatch Act do not apply. See opinion of Attorney General to Sheriff Ralph L. Thomas, Carteret County, 55 N.C. Op. Att'y Gen. 35 (1985).

Editor’s Note.

Session Laws 2010-169, s. 1(a), which amended subsection (a) and added subsection (a)(1), is applicable to offenses committed on or after December 1, 2010.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2010-169, s. 1(a), effective December 1, 2010, and applicable to offenses committed on or after that date, in the closing language of subsection (a), substituted “the individual’s” for “his” and “an individual” for “a person,” and added “of this subsection” at the end; and added subsection (a1).

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “North Carolina Human Resources Act” for “Personnel Act” throughout the section.

Editor’s Note.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2013-382, s. 6.3, effective August 21, 2013, and applicable to grievances filed on or after that date, substituted “G.S. 126-34.02” for “G.S. 126-35, 126-37, and 126-38” in subsection (c).

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “North Carolina Human Resources Act” for “Personnel Act” throughout the section.

Editor’s Note.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Human Resources Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “State Human Resources Commission” for “State Personnel Commission” in subdivision (b)(3).

Session Laws 2014-115, s. 55.3(b), effective August 11, 2014, deleted “giving rise to the remedies set forth in G.S. 126-14.4 ” following “section” in the introductory paragraph of subsection (c).

Session Laws 2017-57, s. 35.18., effective July 1, 2017, inserted “from the pool of” in subsection (a); in the first sentence of subsection (b), deleted “the most qualified person” following “institutions shall select”, and inserted “the most”; and inserted ‘the most‘ in subdivisions (c)(3) and (c)(4).

Editor’s Note.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “State Human Resources Commission” for “State Personnel Commission” in the introductory language and in subdivision (3).

OPINIONS OF ATTORNEY GENERAL

The State Personnel Commission [now State Human Resources Commission], in accordance with G.S. 126-14.3 , has adopted rules designed to encourage open and fair competition for positions in State government. However, as detailed in the Review of Reserve Funds in the 2004-2005 Revised Certified Budget, there was an appearance of impropriety that reflected a process that was neither open nor fair. See opinion of Attorney General to the Honorable Leslie Merritt, Auditor, 2005 N.C. Op. Att'y Gen. 3 (09/12/05).

Editor’s Note.

Former G.S. 126-14.4 pertained to remedies.

Editor’s Note.

Former G.S. 126-15.1 pertained to the definition of probationary State employees.

CASE NOTES

Construction with Federal Provision. —

Where a complainant steadfastly maintains that he has brought only a Title VII (of the Civil Rights Act of 1964) claim and the state referral agency unequivocally addresses only that claim, proceedings under state law have not commenced for purposes of 42 U.S.C.A. § 2000e-5(c). Davis v. North Carolina Dep't of Cors., 48 F.3d 134, 1995 U.S. App. LEXIS 4122 (4th Cir. 1995).

Applicability. —

State employee seeking review of her termination was entitled to enforce the rights implicated by G.S. 126-16 , providing for equal employment opportunity, but G.S. 126-16 did not address the procedural avenues available to particular categories of state employees, did not entitle the employee to choose a review scheme from which she was otherwise excluded, and did not affirmatively grant her a remedy. Woodburn v. N.C. State Univ., 156 N.C. App. 549, 577 S.E.2d 154, 2003 N.C. App. LEXIS 305 (2003).

Employer’s Use of Non-Objective Factors in Hiring. —

Beyond the use of experience and training to limit a field of applicants, an employer is relatively free to value experience among the applicants as it sees fit in light of the skills required by the position to be filled. This freedom is of intrinsic value to the hiring process and business judgment of decision makers. Enoch v. Alamance County Dep't of Soc. Servs., 164 N.C. App. 233, 595 S.E.2d 744, 2004 N.C. App. LEXIS 810 (2004).

Burden-Shifting Analysis Applies. —

North Carolina Supreme Court has adopted the United States Supreme Court’s “burden shifting” scheme set out in the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668 (1973); therefore, North Carolina courts look to federal decisions for guidance in establishing evidentiary standards and principles of law to be applied in discrimination cases. In properly applying the burden-shifting scheme the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Enoch v. Alamance County Dep't of Soc. Servs., 164 N.C. App. 233, 595 S.E.2d 744, 2004 N.C. App. LEXIS 810 (2004).

Employer’s Articulation of Nondiscriminatory Reasons for Hiring Decisions. —

Although a female African-American social services employee had 20 years’ experience and the white male who was promoted instead of her had only eight years, the employer articulated nondiscriminatory reasons for its hiring decision, including initiative, community outreach, and communications skills. Enoch v. Alamance County Dep't of Soc. Servs., 164 N.C. App. 233, 595 S.E.2d 744, 2004 N.C. App. LEXIS 810 (2004).

Employer’s Burden to Rebut Presumption of Discrimination. —

Employer’s burden is satisfied if he simply explains what he has done or produces evidence of legitimate nondiscriminatory reasons; the employer is not required to prove that its action was actually motivated by the proffered reasons for it is sufficient if the evidence raises a genuine issue of fact as to whether the claimant is a victim of intentional discrimination. Enoch v. Alamance County Dep't of Soc. Servs., 164 N.C. App. 233, 595 S.E.2d 744, 2004 N.C. App. LEXIS 810 (2004).

Evidence of Pretext for Discrimination. —

Some of the factors that courts have considered as relevant evidence of pretext are: (1) evidence that white employees involved in acts against the employer of comparable seriousness were retained or rehired; (2) evidence of the employer’s treatment of the employee during his term of employment; (3) evidence of the employer’s response to the employee’s legitimate civil rights activities; and (4) evidence of the employer’s general policy and practice with respect to minority employees. Enoch v. Alamance County Dep't of Soc. Servs., 164 N.C. App. 233, 595 S.E.2d 744, 2004 N.C. App. LEXIS 810 (2004).

Plaintiff’s Burden of Proving Discrimination. —

Burden to establish a prima facie case of racial discrimination giving rise to a presumption of discrimination is as follows: (1) plaintiff is a member of a minority group; (2) she was qualified for a promotion; (3) she was passed over for the promotion; and (4) the person receiving the promotion was not a member of a protected class. To rebut the presumption of discrimination, the employer must clearly explain by admissible evidence the nondiscriminatory reasons for the employee’s rejection or discharge; the plaintiff must then show by a preponderance of the evidence that the proffered explanation by the State is pretextual in nature, and that the employer intentionally discriminated. Enoch v. Alamance County Dep't of Soc. Servs., 164 N.C. App. 233, 595 S.E.2d 744, 2004 N.C. App. LEXIS 810 (2004).

Evidence. —

During an attempt to show that an employer’s proffered explanation of a nondiscriminatory reason for an employee’s rejection or discharge is pretextual, the plaintiff can reuse evidence from her prima facie showing to assist in carrying her burden as to pretext though the prima facie presumption has been dispelled. However, the court is not at liberty to review the soundness or reasonableness of an employer’s business judgment when it considers whether alleged disparate treatment is a pretext for discrimination: the sole question is what is the motivation behind the employer’s decision. Enoch v. Alamance County Dep't of Soc. Servs., 164 N.C. App. 233, 595 S.E.2d 744, 2004 N.C. App. LEXIS 810 (2004).

Editor’s Note.

Session Laws 1991, c. 416, which enacted this section, in ss. 2 through 4 provided:

“Sec. 2. The Office of State Personnel [now Office of State Human Resources], through its Division of Equal Opportunity Services, shall implement the provisions of this act.

“Sec. 3. Beginning January 1, 1992, the Office of State Personnel [now Office of State Human Resources] shall report semiannually to the Joint Legislative Commission on Governmental Operations concerning the implementation of this act.

“Sec. 4. This act shall not apply to the Judicial Branch or the Legislative Branch.”

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2013-382, s. 7.2, effective August 21, 2013, rewrote the section.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “Office of State Human Resources” for “Office of State Personnel.”

Editor’s Note.

Session Laws 1991 (Reg. Sess., 1992), c. 919, ss. 2-4, effective October 1, 1992, have been codified as this section at the direction of the Revisor of Statutes.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2013-382, s. 7.3, effective August 21, 2013, inserted “on an annual basis” in subsection (a); deleted subsection (b), pertaining to an annual report by the Commission on all Equal Employment Opportunity plans and programs; and rewrote subsection (c).

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “Director of the Office of State Human Resources” for “State Personnel Director” throughout the section.

Editor’s Note.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Session Laws 2016-108, s. 2(a) provides: “The February 5, 2008, Attorney General’s advisory opinion entitled ‘Advisory Opinion: Confidentiality of Retirement Benefit Information; Session Law 2007-508’ concluded that information about retirement benefits was intended to be included among those records required to be maintained for public inspection by each department, agency, institution, commission, and bureau of the State and that as a result the Retirement Systems Division of the Department of the State Treasurer makes that information available for public inspection and examination. The General Assembly finds that the interests of clarity require statutory language providing guidance to the Retirement Systems Division in determining and maintaining consistency as to what information should be made available about the retirement accounts of State and local employees.”

Session Laws 2016-108, s. 9, is a severability clause.

Effect of Amendments.

Session Laws 2007-508, s. 4.5, effective August 30, 2007, rewrote the section.

Session Laws 2008-194, s. 11(a), effective August 8, 2008, added subsection (d).

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “Office of State Human Resources” for “Office of State Personnel” in subdivision (b)(3).

Session Laws 2016-108, s. 2(d), effective July 22, 2016, deleted “, the Retirement Systems Division of the Department of State Treasurer,” following “employer” in subdivision (b)(3); in subsection (c), substituted “employee. Retirement files maintained by the Retirement Systems Division of the Department of State Treasurer shall be made public pursuant to G.S. 128-33.1 and G.S. 135-6.1 ” for “employee and personnel files maintained by the Retirement Systems Division of the Department of State Treasurer”; and deleted former subsection (d), which read: “Notwithstanding any provision of this section to the contrary, the Retirement Systems Division of the Department of State Treasurer may disclose the name and mailing address of former State employees to domiciled, nonprofit organizations representing 10,000 or more retired State government, local government, or public school employees.”

Legal Periodicals.

For survey of 1978 administrative law, see 57 N.C.L. Rev. 831 (1979).

For note on the public’s access to public records, see 60 N.C.L. Rev. 853 (1982).

For comment, “You Can’t Always Get What You Want: A Look at North Carolina’s Public Records Law,” see 72 N.C.L. Rev. 1527 (1994).

CASE NOTES

In order for personnel information to be protected by this section, it must meet two requirements: (1) it must have been gathered by an individual’s employer (including the Office of State Personnel [now Office of State Human Resources]) or considered in an individual’s application for employment; and (2) the information must relate to at least one of the enumerated activities by the employer with respect to the individual employee or applicant for employment. News & Observer Publishing Co. v. Poole, 330 N.C. 465 , 412 S.E.2d 7, 1992 N.C. LEXIS 8 (1992).

Only personnel information about those employees gathered by the employing state agency is exempt from public inspection under this section. News & Observer Publishing Co. v. Poole, 330 N.C. 465 , 412 S.E.2d 7, 1992 N.C. LEXIS 8 (1992).

Employee Information Not Gathered by Employer. —

Unless information regarding state employees gathered by the State Bureau of Investigation for a Commission formed to investigate improprieties in a university athletic program was first gathered by the employing state agency or the Office of State Personnel [now Office of State Human Resources], it would not be exempt under this section and would be subject to disclosure under the Public Records Act. News & Observer Publishing Co. v. Poole, 330 N.C. 465 , 412 S.E.2d 7, 1992 N.C. LEXIS 8 (1992).

Where Commission was not the employer of any state employees questioned or mentioned in the Commission’s meeting minutes, the minutes did not meet the definition of “personnel file” information set forth in this section because the information was not “gathered” by the employer state agency. Because the minutes did not fall within the statutory definition of “personnel file,” they were not protected by the statute. News & Observer Publishing Co. v. Poole, 330 N.C. 465 , 412 S.E.2d 7, 1992 N.C. LEXIS 8 (1992).

Breach of Confidentiality Shown. —

Disclosure to the media of former state employee’s social security number, medical diagnoses, family member names and addresses, and personal financial data for purposes of defending the propriety of a grievance settlement with the employee, was not excepted under G.S. 126-24 from the non-disclosure provisions of G.S. 126-22 . Toomer v. Garrett, 155 N.C. App. 462, 574 S.E.2d 76, 2002 N.C. App. LEXIS 1613 (2002).

Breach of Confidentiality Not Shown. —

There was insufficient evidence to show that employee “breached confidentiality” or that he “failed to provide complete responses to questions” causing the “omission of important facts” at officer’s disciplinary hearing where the record showed that his comments were directed towards the handling of the pre-disciplinary conference for not being conducted behind closed doors and for being conducted rudely and loudly. These comments were not breaches of confidentiality, but rather criticisms of the manner and method of conducting pre-disciplinary hearings. North Carolina Dep't of Cors. v. Myers, 120 N.C. App. 437, 462 S.E.2d 824, 1995 N.C. App. LEXIS 881 (1995), cert. denied, 343 N.C. 307 , 469 S.E.2d 556, 1996 N.C. LEXIS 253 (1996), aff'd, 344 N.C. 626 , 476 S.E.2d 364, 1996 N.C. LEXIS 503 (1996).

OPINIONS OF ATTORNEY GENERAL

Statewide flexible benefits plan could properly provide, through its third-party administrator, for the direct deposit of payments to spending account participants and could legally allow for the release of a participant’s bank account information to the third-party administrator without violating any confidentiality or privacy laws; the third-party administrator acted as the agent of the State and of flexible benefits plan in administering the spending accounts of participants of flexible benefits plan. See opinion of Attorney General to Mr. Ronald Penny, State Personnel Director, 1999 N.C. AG LEXIS 24 (11/30/99).

Editor’s Note.

Session Laws 2011-324, s. 1.1(a), provides: “The General Assembly finds that allowing inmates, probationers, parolees, and post-release supervisees to access public employees’ personnel files that are public records under State law exposes those public employees to the risk of harassment and even violence. The General Assembly further finds that such offenders, due to their status as inmates, probationers, parolees, and post-release supervisees, are not entitled to the same privileges and rights exercised by members of the general public and should be prohibited from accessing public employees’ personnel files in the interest of protecting those public employees from harm.”

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Session Laws 2016-108, s. 2(a) provides: “The February 5, 2008, Attorney General’s advisory opinion entitled ‘Advisory Opinion: Confidentiality of Retirement Benefit Information; Session Law 2007-508’ concluded that information about retirement benefits was intended to be included among those records required to be maintained for public inspection by each department, agency, institution, commission, and bureau of the State and that as a result the Retirement Systems Division of the Department of the State Treasurer makes that information available for public inspection and examination. The General Assembly finds that the interests of clarity require statutory language providing guidance to the Retirement Systems Division in determining and maintaining consistency as to what information should be made available about the retirement accounts of State and local employees.”

Session Laws 2016-108, s. 9, is a severability clause.

Effect of Amendments.

Session Laws 2007-508, s. 4, effective August 30, 2007, inserted “the terms of any contract by which the employee is employed whether written or oral, past and current, to the extent that the board has the written contract or a record of the oral contract in its possession” in the middle of the first sentence, and added the second sentence.

Session Laws 2010-169, s. 18(a), effective October 1, 2010, designated the three formerly undesignated paragraphs as subsections (a), (b), and (c); and rewrote subsection (a).

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, in subsections (d) and (e), substituted “Division of Adult Correction” for “Department of Correction” and in subsection (e), substituted “Division” for “Department” twice.

Session Laws 2011-324, s. 1.1(b), effective June 27, 2011, added the exception at the beginning of the last sentence in subsection (c); and added subsections (d) and (e).

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “State Human Resources Commission” for “State Personnel Commission” in the first sentence of subsection (c).

Session Laws 2017-186, s. 2(ttttt), effective December 1, 2017, inserted “and Juvenile Justice” in subsections (d) and (e).

Legal Periodicals.

For comment, “You Can’t Always Get What You Want: A Look at North Carolina’s Public Records Law,” see 72 N.C.L. Rev. 1527 (1994).

For article, “Fired by Liars: Due Process Implications in the Recent Changes to North Carolina’s Public Disclosure Laws,” see 89 N.C.L. Rev. 2228 (2011).

CASE NOTES

Libel Claim. —

Even if a tenured public university professor’s libel claim was brought against a department head in his individual capacity, the libel claim, which was based on the department head’s annual review of the professor, failed because the department head was required to write and maintain a public record of the professor’s official status at the university, G.S. 126-23 , the dean of the college had the right to review the full contents of the record, G.S. 126-24(2), and when state employees had statutory rights and obligations regarding the maintenance of employee records, communication in conformity with those rights and obligations did not constitute publication for a libel suit. White v. Trew, 366 N.C. 360 , 736 S.E.2d 166, 2013 N.C. LEXIS 49 (2013).

OPINIONS OF ATTORNEY GENERAL

Contracts under which institutions employ coaches and contracts between the institutions and certain vendors or suppliers which involve or concern those coaches or other documents related to those contracts are public records. See opinion of Attorney General to Charles J. Waldrup, Associate Vice President for Legal Affairs, University of North Carolina, 2003 N.C. Op. Att'y Gen. 2 (2/6/03).

In enacting Session Law 2007-508 the General Assembly did not intend to exclude retirement benefit information from the records required to be maintained for public inspection by each department, agency, institution, commission and bureau of the state in accordance with G.S. 126-23 . See opinion of Attorney General to The Honorable Tony Rand, North Carolina Senate and The Honorable David W. Hoyle, North Carolina Senate, (11/7/06).

General Assembly, in enacting Session Law 2007-508, did not intend to exclude retirement benefit information from the records required to be maintained for public inspection by each department, agency, institution, commission and bureau of the state in accordance with G.S. 126-23 . Such information, upon request, should be made available for inspection and copying. See opinion of Attorney General to Honorable Tony Rand and Honorable David W. Hoyle, Senate, 2008 N.C. Op. Att'y Gen. 1 (02/05/08).

“Current benefits” includes the amount of accumulated leave time that a university employee has available for use at the time the inspection is requested. As such, G.S. 126-23 requires the university system to provide the accumulated leave time for employees. See opinion of Attorney General to Laura B. Luger, Vice President and General Counsel, The University of North Carolina, 2009 N.C. Op. Att'y Gen. 1 (06/15/09).

Leave time is a benefit required to be kept open for public inspection in accordance with G.S. 126-23 . Sick leave balances, vacation leave balances, bonus leave balances, and compensatory time accrued are therefore current benefits to university employees which should be made available for inspection and copying upon request. See opinion of Attorney General to Laura B. Luger, Vice President and General Counsel, The University of North Carolina, 2009 N.C. Op. Att'y Gen. 1 (06/15/09).

Public employers are now required to maintain a public record of the entire salary and position classification history of each employee to the extent the employer has possession of such information. See opinion of Attorney General to Honorable Linda Coleman, State Personnel Director, 2010 N.C.G.A. 3 (11/08/10).

The Act, 2010 N.C. Sess. Laws c. 169, requires public employers to maintain for public inspection a copy of the final decision of the public body setting forth the specific acts or omissions for termination of each employee dismissed for disciplinary reasons. See opinion of Attorney General to Honorable Linda Coleman, State Personnel Director, 2010 N.C.G.A. 3 (11/08/10).

The Act, 2010 N.C. Sess. Laws c. 169, does not require public employers to retroactively create information or documents that did not exist on October 1, 2010. Information reflecting a general description of the reasons for promotions that did exist as of October 1, 2010, however, is now required to be maintained in a record that is open for public inspection. See opinion of Attorney General to Honorable Linda Coleman, State Personnel Director, 2010 N.C.G.A. 3 (11/08/10).

The Act, 2010 N.C. Sess. Laws c. 169, does not require public employers to provide the public with copies of or access to any documents other than the written notices described in G.S. 126-23(a)(11) which relate to the disciplinary dismissals of employees. See opinion of Attorney General to Honorable Linda Coleman, State Personnel Director, 2010 N.C.G.A. 3 (11/08/10).

A “final decision” is a decision which is made by the highest authority in the employing agency or which due to the passage of time, or other procedural defaults is not subject to further review within the department, agency, institution, commission, bureau, or other employing body or authority. See opinion of Attorney General to Honorable Linda Coleman, State Personnel Director, 2010 N.C.G.A. 3 (11/08/10).

Editor’s Note.

Session Laws 2011-324, s. 1.1(a), provides: “The General Assembly finds that allowing inmates, probationers, parolees, and post-release supervisees to access public employees’ personnel files that are public records under State law exposes those public employees to the risk of harassment and even violence. The General Assembly further finds that such offenders, due to their status as inmates, probationers, parolees, and post-release supervisees, are not entitled to the same privileges and rights exercised by members of the general public and should be prohibited from accessing public employees’ personnel files in the interest of protecting those public employees from harm.”

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Session Laws 2016-108, s. 2(a) provides: “The February 5, 2008, Attorney General’s advisory opinion entitled ‘Advisory Opinion: Confidentiality of Retirement Benefit Information; Session Law 2007-508’ concluded that information about retirement benefits was intended to be included among those records required to be maintained for public inspection by each department, agency, institution, commission, and bureau of the State and that as a result the Retirement Systems Division of the Department of the State Treasurer makes that information available for public inspection and examination. The General Assembly finds that the interests of clarity require statutory language providing guidance to the Retirement Systems Division in determining and maintaining consistency as to what information should be made available about the retirement accounts of State and local employees.”

Session Laws 2016-108, s. 9, is a severability clause.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(q), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2007-508, s. 4, effective August 30, 2007, inserted “the terms of any contract by which the employee is employed whether written or oral, past and current, to the extent that the board has the written contract or a record of the oral contract in its possession” in the middle of the first sentence, and added the second sentence.

Session Laws 2010-169, s. 18(a), effective October 1, 2010, designated the three formerly undesignated paragraphs as subsections (a), (b), and (c); and rewrote subsection (a).

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, in subsections (d) and (e), substituted “Division of Adult Correction” for “Department of Correction” and in subsection (e), substituted “Division” for “Department” twice.

Session Laws 2011-324, s. 1.1(b), effective June 27, 2011, added the exception at the beginning of the last sentence in subsection (c); and added subsections (d) and (e).

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “State Human Resources Commission” for “State Personnel Commission” in the first sentence of subsection (c).

Session Laws 2017-186, s. 2(ttttt), effective December 1, 2017, inserted “and Juvenile Justice” in subsections (d) and (e).

Session Laws 2021-180, s. 19C.9(q), substituted “Division of Prisons” for “Division of Adult Correction and Juvenile Justice” in subsections (d) and (e). For effective date and applicability, see editor's note.

Legal Periodicals.

For comment, “You Can’t Always Get What You Want: A Look at North Carolina’s Public Records Law,” see 72 N.C.L. Rev. 1527 (1994).

For article, “Fired by Liars: Due Process Implications in the Recent Changes to North Carolina’s Public Disclosure Laws,” see 89 N.C.L. Rev. 2228 (2011).

CASE NOTES

Libel Claim. —

Even if a tenured public university professor’s libel claim was brought against a department head in his individual capacity, the libel claim, which was based on the department head’s annual review of the professor, failed because the department head was required to write and maintain a public record of the professor’s official status at the university, G.S. 126-23 , the dean of the college had the right to review the full contents of the record, G.S. 126-24(2), and when state employees had statutory rights and obligations regarding the maintenance of employee records, communication in conformity with those rights and obligations did not constitute publication for a libel suit. White v. Trew, 366 N.C. 360 , 736 S.E.2d 166, 2013 N.C. LEXIS 49 (2013).

OPINIONS OF ATTORNEY GENERAL

Contracts under which institutions employ coaches and contracts between the institutions and certain vendors or suppliers which involve or concern those coaches or other documents related to those contracts are public records. See opinion of Attorney General to Charles J. Waldrup, Associate Vice President for Legal Affairs, University of North Carolina, 2003 N.C. Op. Att'y Gen. 2 (2/6/03).

In enacting Session Law 2007-508 the General Assembly did not intend to exclude retirement benefit information from the records required to be maintained for public inspection by each department, agency, institution, commission and bureau of the state in accordance with G.S. 126-23 . See opinion of Attorney General to The Honorable Tony Rand, North Carolina Senate and The Honorable David W. Hoyle, North Carolina Senate, (11/7/06).

General Assembly, in enacting Session Law 2007-508, did not intend to exclude retirement benefit information from the records required to be maintained for public inspection by each department, agency, institution, commission and bureau of the state in accordance with G.S. 126-23 . Such information, upon request, should be made available for inspection and copying. See opinion of Attorney General to Honorable Tony Rand and Honorable David W. Hoyle, Senate, 2008 N.C. Op. Att'y Gen. 1 (02/05/08).

“Current benefits” includes the amount of accumulated leave time that a university employee has available for use at the time the inspection is requested. As such, G.S. 126-23 requires the university system to provide the accumulated leave time for employees. See opinion of Attorney General to Laura B. Luger, Vice President and General Counsel, The University of North Carolina, 2009 N.C. Op. Att'y Gen. 1 (06/15/09).

Leave time is a benefit required to be kept open for public inspection in accordance with G.S. 126-23 . Sick leave balances, vacation leave balances, bonus leave balances, and compensatory time accrued are therefore current benefits to university employees which should be made available for inspection and copying upon request. See opinion of Attorney General to Laura B. Luger, Vice President and General Counsel, The University of North Carolina, 2009 N.C. Op. Att'y Gen. 1 (06/15/09).

Public employers are now required to maintain a public record of the entire salary and position classification history of each employee to the extent the employer has possession of such information. See opinion of Attorney General to Honorable Linda Coleman, State Personnel Director, 2010 N.C.G.A. 3 (11/08/10).

The Act, 2010 N.C. Sess. Laws c. 169, requires public employers to maintain for public inspection a copy of the final decision of the public body setting forth the specific acts or omissions for termination of each employee dismissed for disciplinary reasons. See opinion of Attorney General to Honorable Linda Coleman, State Personnel Director, 2010 N.C.G.A. 3 (11/08/10).

The Act, 2010 N.C. Sess. Laws c. 169, does not require public employers to retroactively create information or documents that did not exist on October 1, 2010. Information reflecting a general description of the reasons for promotions that did exist as of October 1, 2010, however, is now required to be maintained in a record that is open for public inspection. See opinion of Attorney General to Honorable Linda Coleman, State Personnel Director, 2010 N.C.G.A. 3 (11/08/10).

The Act, 2010 N.C. Sess. Laws c. 169, does not require public employers to provide the public with copies of or access to any documents other than the written notices described in G.S. 126-23(a)(11) which relate to the disciplinary dismissals of employees. See opinion of Attorney General to Honorable Linda Coleman, State Personnel Director, 2010 N.C.G.A. 3 (11/08/10).

A “final decision” is a decision which is made by the highest authority in the employing agency or which due to the passage of time, or other procedural defaults is not subject to further review within the department, agency, institution, commission, bureau, or other employing body or authority. See opinion of Attorney General to Honorable Linda Coleman, State Personnel Director, 2010 N.C.G.A. 3 (11/08/10).

Editor’s Note.

Session Laws 2015-260, s. 6, made the addition of subdivision (2a) applicable to employees separated on or after October 1, 2015.

Legal Periodicals.

For survey of 1978 administrative law, see 57 N.C.L. Rev. 831 (1979).

CASE NOTES

Defending the Propriety of a Grievance Settlement Not a Valid Exception. —

Disclosure to the media of former state employee’s social security number, medical diagnoses, family member names and addresses, and personal financial data for purposes of defending the propriety of a grievance settlement with the employee, was not excepted under G.S. 126-24 from the non-disclosure provisions of G.S. 126-22 . Toomer v. Garrett, 155 N.C. App. 462, 574 S.E.2d 76, 2002 N.C. App. LEXIS 1613 (2002).

Libel Claim. —

Even if a tenured public university professor’s libel claim was brought against a department head in his individual capacity, the libel claim, which was based on the department head’s annual review of the professor, failed because the department head was required to write and maintain a public record of the professor’s official status at the university, G.S. 126-23 , the dean of the college had the right to review the full contents of the record, G.S. 126-24(2), and when state employees had statutory rights and obligations regarding the maintenance of employee records, communication in conformity with those rights and obligations did not constitute publication for a libel suit. White v. Trew, 366 N.C. 360 , 736 S.E.2d 166, 2013 N.C. LEXIS 49 (2013).

OPINIONS OF ATTORNEY GENERAL

Pursuant to G.S. 147-64.13 , the provisions of G.S. 147-64.7(a)(1) supersede the provisions of this section to the extent they conflict. Specifically, the Auditor’s power to examine documents in the course of an authorized audit includes the power to examine confidential employee personnel files relevant to that audit without the consent of the employee or his employer. See opinion of Attorney General to The Honorable Ralph Campbell, Jr., State Auditor, 1999 N.C. Op. Att'y Gen. 8 (3/5/99).

For a discussion of legal impediments which prohibit employers from disclosing personal information about their employees, see opinion of Attorney General to Bryan E. Beatty, Inspector General, North Carolina Department of Justice, 1998 N.C. Op. Att'y Gen. 49 (12/1/98).

CASE NOTES

Right to Appeal. —

Petitioner had the right to appeal the respondent’s action of not removing all the warnings from her file and the decision that no other warning could be put in place of one that was removed. Nailing v. UNC-CH, 117 N.C. App. 318, 451 S.E.2d 351, 1994 N.C. App. LEXIS 1275 (1994).

Exhaustion of Remedies. —

Although the governmental employee grievance process in G.S. 126-25 was not concluded before plaintiff commenced litigation, the administrative remedy provided by G.S. 126-25 did not bar plaintiff from pursuing his libel suit because plaintiff’s complaint sought monetary damages while G.S. 126-25 provided for the removal of objected-to information from a personnel file but did not provide a remedy for damages. White v. Trew, 217 N.C. App. 574, 720 S.E.2d 713, 2011 N.C. App. LEXIS 2596 (2011), rev'd, 366 N.C. 360 , 736 S.E.2d 166, 2013 N.C. LEXIS 49 (2013).

Editor’s Note.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “State Human Resources Commission” for “State Personnel Commission.”

CASE NOTES

Communication Not Within Statute. —

Challenge of the North Carolina Department of Transportation to the trial court’s order that it failed to produce sufficient evidence of a legitimate non-retaliatory reason for discipline was nothing more than a challenge to the factual determinations made by the State Personnel Commission [now the State Human Resources Commission], which were binding upon the court of appeals for purposes of appellate review because they had adequate record support; the trial court would have been entitled to conclude that the employee’s e-mail to his attorney did not fall within the ambit of G.S. 126-27 or that the proffered reasons were, even if facially valid, a mere pretext for retaliation and not a “legitimate non-retaliatory” reason for issuing a written warning to the employee. McAdams v. N.C. DOT, 215 N.C. App. 429, 716 S.E.2d 77, 2011 N.C. App. LEXIS 1886 (2011).

Editor’s Note.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “State Human Resources Commission” for “State Personnel Commission” and “North Carolina Human Resources Act” for “State Personnel Act” in subsection (c).

CASE NOTES

After Acquired Evidence Doctrine. —

Administrative law judge properly applied the after-acquired-evidence doctrine to a terminated career state employee and barred the employee from reinstatement and additional compensation because, although a state university wrongfully terminated the employee for theft, the university would have terminated the employee immediately upon subsequently learning of the employee’s failure to report criminal convictions on a job application. The employee’s remedy was limited to back pay from the time of the discharge to the discovery of the evidence. Brown v. Fayetteville State Univ., 269 N.C. App. 123, 837 S.E.2d 390, 2020 N.C. App. LEXIS 4 (2020).

Editor’s Note.

Former G.S. 126-34 related to the grievance appeal for career State employees.

Editor’s Note.

Session Laws 2013-382, s. 6.5, made this section effective August 21, 2013, and applicable to grievances filed on or after that date.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “State Human Resources Commission” for “State Personnel Commission” in the second sentence; and substituted “Office of State Human Resources” for “Office of State Personnel” in the last two sentences.

Legal Periodicals.

For comment, “Authorizing Gross-Up Compensation: Making Recovering Plaintiffs Whole by Accounting for the Additional Tax Consequences that Accompany Lump-Sum Back Pay Awards,” see 56 Wake Forest L. Rev. 417 (2021).

CASE NOTES

Editor’s Note. —

Most of the cases cited below were decided under former G.S. 126-34 .

Construction. —

There was no inconsistency between G.S. 126-34 (now repealed) and G.S. 126-5 because the legislature, having specifically excluded various classes of state employees from all of Chapter 126, except Articles 6 and 7, in G.S. 126-5 , had no need to repeat the same list of excluded employees in other parts of Chapter 126. Woodburn v. N.C. State Univ., 156 N.C. App. 549, 577 S.E.2d 154, 2003 N.C. App. LEXIS 305 (2003).

Authority to Hear Action Brought by DOC Employee. —

Among all the provisions of this Article, only G.S. 126-37 (now repealed) confers upon the State Personnel Commission [now State Human Resources Commission] or upon the Office of Administrative Hearings the jurisdiction or power to deal with an action brought by a correction employee who was reallocated pursuant to a managerial reallocation. Batten v. North Carolina Dep't of Cor., 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

To Whom Article Applicable. —

A permanent state employee who alleges he has been reduced in position without just cause is entitled to the review and appeal provisions outlined in this Article, whether the motive for his demotion was illegally discriminatory or retaliatory, or apparently or actually disciplinary. Batten v. North Carolina Dep't of Cor., 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

Petitioners, who alleged that they were arbitrarily selected for a pay freeze and prevented from transferring to reclassified positions, had to follow the grievance procedure of this section, since they did not allege one of the prohibited grounds of discrimination. Poret v. State Personnel Comm'n, 74 N.C. App. 536, 328 S.E.2d 880, 1985 N.C. App. LEXIS 3533 , writ denied, 314 N.C. 117 , 332 S.E.2d 492, 1985 N.C. LEXIS 1934 (1985).

Exhaustion of Administrative Remedies. —

Office of Administrative Hearings (OAH) erroneously dismissed the case for lack of subject matter jurisdiction due to the failure to exhaust administrative remedies; by refusing petitioner’s timely mailed form, the department prevented petitioner from obtaining a final agency decision reviewed and approved by OAH with jurisdiction to hear his contested case. Erickson v. N.C. Dep't of Pub. Safety, 264 N.C. App. 700, 826 S.E.2d 821, 2019 N.C. App. LEXIS 301 (2019).

Failure to Follow Established Grievance Procedure. —

Department of Human Resource’s dismissal of employee’s appeal on grounds it was filed one day after the deadline was neither arbitrary or capricious where employee was informed of the time limits for perfecting appeal, offered assistance for complying with appeal procedures since legal representation was not allowed at that time of the proceeding, and employee’s apparent justification for filing late was difficulty in retaining an attorney. Lewis v. North Carolina Dep't of Human Resources, 92 N.C. App. 737, 375 S.E.2d 712, 1989 N.C. App. LEXIS 43 (1989).

The State Personnel Act [now North Carolina Human Resources Act] provides for administrative-type grievance procedures for violations of its provisions. The statute further provides that judicial review of unfavorable decisions may be had in superior court. Where a statute provides for an orderly procedure for an appeal to the superior court for review, this procedure is the exclusive means for obtaining judicial review, and a civil action is only proper after all administrative remedies have been exhausted. Johnson v. North Carolina DOT, 107 N.C. App. 63, 418 S.E.2d 700, 1992 N.C. App. LEXIS 627 (1992).

Office of Administrative Hearings had subject matter jurisdiction to hear an employee’s termination appeal because (1) G.S. 126-38, setting a filing deadline the employee did not meet, had been repealed, and (2) G.S. 126-34.01 , requiring the employee to discuss the case with a supervisor and follow an approved grievance procedure, was satisfied. Renfrow v. N.C. Dep't of Revenue, 245 N.C. App. 443, 782 S.E.2d 379, 2016 N.C. App. LEXIS 180 (2016).

Contested Case Petition Before Office of Administrative Hearings. —

When a state employee successfully contested a dismissal in an informal grievance process but sought a contested case regarding implementation of the relief awarded, it was not error for the Office of Administrative Hearings (OAH) to dismiss the contested case because it was not statutorily contemplated that the OAH would resolve that issue. Carlton v. Univ. of N.C. 267 N.C. App. 530, 834 S.E.2d 636, 2019 N.C. App. LEXIS 798 (2019).

Sufficient Notice of Complaint. —

Employee’s memorandum, coupled with the prior history existing between the employee and the North Carolina Department of Transportation, sufficed to place the Department on notice that the employee was complaining of either harassment or retaliation, or both, based on his race because the employee’s communication asserted that the State Personnel Commission [now State Human Resources Commission] had ruled that the Department’s predecessor had retaliated against him, that the Department had to treat him with the same respect it showed to senior white officers, and that the employee did not believe that the deputy director circumvented the white senior officers when personnel matters were being handled. McAdams v. N.C. DOT, 215 N.C. App. 429, 716 S.E.2d 77, 2011 N.C. App. LEXIS 1886 (2011).

State Personnel Commission [now State Human Resources Commission] Had Jurisdiction Over Complaint. —

Trial court did not err by determining that an employee sufficiently complied with the requirements of G.S. 126-34 (now repealed) to vest the State Personnel Commission [now State Human Resources Commission] with jurisdiction over his complaint of racially-based harassment or retaliation against the North Carolina Department of Transportation because even though the employee adequately notified the Department that he claimed to have been subjected to harassment on the basis of his race, the Department failed to act on the complaint, a fact which authorized the employee to seek relief through the administrative review process. McAdams v. N.C. DOT, 215 N.C. App. 429, 716 S.E.2d 77, 2011 N.C. App. LEXIS 1886 (2011).

Editor’s Note.

Session Laws 2013-382, s. 6.5, made this section effective August 21, 2013, and applicable to grievances filed on or after that date.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “Office of State Human Resources” for “Office of State Personnel” in the introductory language of subsection (b) and in subsection (f).

Session Laws 2014-115, s. 55.3(d), effective August 11, 2014, rewrote subdivision (b)(5).

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former G.S. 126-34.1 , G.S. 126-36 , G.S. 126-37, G.S. 126-38, and G.S. 126-39.

Legislative Intent. —

By enacting this section, the General Assembly has indicated its intent to create grounds for appeal to the Commission through a contested case hearing only on issues for which appeal has been specifically authorized in this section. Dunn v. North Carolina Dep't of Human Resources, 124 N.C. App. 158, 476 S.E.2d 383, 1996 N.C. App. LEXIS 1005 (1996).

When a state employee sought review of the termination of her employment, G.S. 126-34.1(a)(2)(b) (now repealed) did not give her a right to a hearing before the Office of Administrative Hearings, because her job as “instructional and research staff of the University of North Carolina” was expressly exempt from the ambit of Chapter 126, the State Personnel Act [now North Carolina Human Resources Act], and the fact that the statute referred to state employees without adding “except those already exempted,” did not require a different result. Woodburn v. N.C. State Univ., 156 N.C. App. 549, 577 S.E.2d 154, 2003 N.C. App. LEXIS 305 (2003).

Construction. —

Language of G.S. 126-34.1 (now repealed) of the State Personnel Act [now North Carolina Human Resources Act] clearly and unambiguously stated that the statutory list of appeal grounds in former G.S. 126-34.1 was exclusive, and this list did not provide for appeals to the Office of Administrative Hearings (OAH) of reductions in force (RIF) based on a lack of just cause; the North Carolina General Assembly clearly intended to deny the OAH jurisdiction over challenges to RIF on procedural violation grounds and to grant state employees the right to bring only those RIF claims that were specifically set out in G.S. 126-34.1 before OAH. Univ. of N.C. at Chapel Hill v. Feinstein, 161 N.C. App. 700, 590 S.E.2d 401, 2003 N.C. App. LEXIS 2277 (2003).

By its own terms of exclusion, G.S. 126-34.1 (now repealed) of the State Personnel Act [now North Carolina Human Resources Act] superseded and controlled over any contrary earlier enactments, and given its clear and unambiguous language, the later enacted former G.S. 126-34.1 supplanted G.S. 126-35 . Univ. of N.C. at Chapel Hill v. Feinstein, 161 N.C. App. 700, 590 S.E.2d 401, 2003 N.C. App. LEXIS 2277 (2003).

Applicability of the just cause requirement set forth in G.S. 126-5(a)(2) is determined by the permanency of employment and not by months of service; therefore, a terminated employee who worked less than 24 months before being terminated while on medical leave was entitled to file a contested case based on a lack of just cause since she had been an employee of the Department of Social Services, which was a local social services department. Early v. County of Durham Dep't of Soc. Servs., 172 N.C. App. 344, 616 S.E.2d 553, 2005 N.C. App. LEXIS 1788 (2005).

It was error to dismiss, for a failure to exhaust administrative remedies, a claim by state foresters against the State for overtime compensation for time spent fighting forest fires because G.S. 143-300.35(a) authorized the maintenance of a separate action in the trial division of the general courts of justice for claims brought by state employees against state agencies under the Fair Labor Standards Act, 29 U.S.C.S. § 201 et seq., without exhausting administrative remedies pursuant to G.S. 126-34.1(a)(11)(a) (now repealed). Brown v. N.C. Dep't of Env't & Natural Res., 212 N.C. App. 337, 714 S.E.2d 154, 2011 N.C. App. LEXIS 1056 (2011).

180-day mandate in G.S. 126-34.02 does not conflict with a petitioner’s ability to voluntarily dismiss a case and refile it within one year as permitted by G.S. 1A-1 , N.C. R. Civ. P. 41(a)(1). Cole v. N.C. Dep't of Pub. Safety, 253 N.C. App. 270, 800 S.E.2d 708, 2017 N.C. App. LEXIS 319 (2017).

Time Limitations. —

Time deadline in this case began to run upon petitioner’s receipt of the final agency decision — that is, when the certified mailing of the decision was delivered to petitioner. Accordingly, the petition was timely, and the administrative law judge erred by dismissing the contested case on the ground that the petition was untimely. Krishnan v. N.C. HHS, 274 N.C. App. 170, 851 S.E.2d 431, 2020 N.C. App. LEXIS 755 (2020).

Contested Case Petition Before Office of Administrative Hearings. —

Employer’s motion to dismiss an employee’s second contested case petition was properly denied because the employee was allowed to recommence his case within one year after his voluntary dismissal; before any decision was reached, the employee dismissed his claim without prejudice, and the original contested case petition had been terminated, leaving nothing in dispute and nothing for the Office of Administrative Hearings to rule on within 180 days. Cole v. N.C. Dep't of Pub. Safety, 253 N.C. App. 270, 800 S.E.2d 708, 2017 N.C. App. LEXIS 319 (2017).

When the Office of Administrative Hearings (OAH) dismissed a state employee’s contested case seeking review of the relief the employee was awarded in an informal grievance process, the employee was not entitled to attorneys’ fees because: (1) the OAH did not order a remedy but dismissed the contested case; and (2) before the employee filed a contested case with the OAH, the employee had already been reinstated and awarded back pay. Carlton v. Univ. of N.C. 267 N.C. App. 530, 834 S.E.2d 636, 2019 N.C. App. LEXIS 798 (2019).

When a state employee successfully contested a dismissal in an informal grievance process but sought a contested case regarding implementation of the relief awarded, it was not error for the Office of Administrative Hearings (OAH) to dismiss the contested case because it was not statutorily contemplated that the OAH would resolve that issue. Carlton v. Univ. of N.C. 267 N.C. App. 530, 834 S.E.2d 636, 2019 N.C. App. LEXIS 798 (2019).

Prima Facie Case of Discrimination Shown. —

Because the Office of Administrative Hearings had jurisdiction to hear an African-American employee’s contested case of racial discrimination, the employee met his prima facie burden of discrimination, the trial court applied the appropriate standard of review, and the employee presented sufficient evidence of unequal treatment of an African-American employee compared to a Caucasian employee, and established that the Hatch Act was a pretext for discrimination, a finding of discrimination was upheld. Corbett v. N.C. DMV, 190 N.C. App. 113, 660 S.E.2d 233, 2008 N.C. App. LEXIS 897 (2008).

Reduction in Force Based on Lack of Just Cause or Procedural Violations Not Reviewable. —

Because under G.S. 126-34.1 (now repealed) of the State Personnel Act [now North Carolina Human Resources Act], the Office of Administrative Hearings (OAH) did not have jurisdiction to determine whether employees’ terminations under reductions in force were based on a lack of just cause or procedural violations, the trial court erred in holding otherwise and the employees’ petitions for OAH review were to be dismissed on remand. Univ. of N.C. at Chapel Hill v. Feinstein, 161 N.C. App. 700, 590 S.E.2d 401, 2003 N.C. App. LEXIS 2277 (2003).

Under Univ. of N.C. at Chapel Hill v. Feinstein, 161 N.C. App. 700, 590 S.E.2d 401 (2003), a trial court properly upheld the Office of Administrative Hearings administrative law judge’s decision to dismiss a career state employee’s claim that his reduction in force (RIF) discharge lacked just cause and was the result of procedural violations because the Feinstein case, which ruled that career state employees separated under an RIF could not bring either just cause or procedural appeals based on that separation, controlled the appeal; the court of appeals was not free to revisit the prior panel’s analysis, and the distinction between Feinstein and the employee’s case, university employees as opposed to North Carolina Department of Public Instruction employees, was immaterial to the analysis. Jailall v. N.C. Dep't of Pub. Instruction, 196 N.C. App. 90, 675 S.E.2d 79, 2009 N.C. App. LEXIS 455 , cert. denied, 363 N.C. 582 , 682 S.E.2d 211, 2009 N.C. LEXIS 757 (2009).

The superior court properly determined that it had subject matter jurisdiction where the plaintiff sought injunctive relief ordering his reinstatement to the “same or similar position,” a matter on which this section does not specifically authorize appeal; the State Personnel Act [now North Carolina Human Resources Act] does not place jurisdiction over this matter with the State Personnel Commission [now State Human Resources Commission]. Hodge v. North Carolina DOT, 137 N.C. App. 247, 528 S.E.2d 22, 2000 N.C. App. LEXIS 334 , rev'd, 352 N.C. 664 , 535 S.E.2d 32, 2000 N.C. LEXIS 745 (2000).

Superior court properly determined that it lacked subject matter jurisdiction over former state employee’s disabilities discrimination claim where there was no evidence presented that the employee had been continuously employed by the State of North Carolina for the immediate 24 preceding months and thus she was not a career State employee. Campbell v. N.C. DOT - DMV, 155 N.C. App. 652, 575 S.E.2d 54, 2003 N.C. App. LEXIS 24 (2003).

Demotion and transfer were not politically-motivated in violation of this section where the evidence in the record failed to support a causal connection between his political affiliation and the employer’s actions; petitioner admitted that the demotion and transfer were not the product of any disciplinary actions but was the result of the letters he wrote requesting a transfer, and that his testimony regarding people who “played politics” was nothing more than speculation. Curtis v. North Carolina DOT, 140 N.C. App. 475, 537 S.E.2d 498, 2000 N.C. App. LEXIS 1215 (2000).

Constructive Discharge. —

When an employee is “deemed to have voluntarily resigned” by the State agency for being unable or unwilling to work in conditions that may constitute discrimination, such resignation can constitute a constructive discharge entitling the employee to file a contested case alleging termination pursuant to G.S. 126-34.1(a)(2)b (now repealed). Campbell v. N.C. DOT - DMV, 155 N.C. App. 652, 575 S.E.2d 54, 2003 N.C. App. LEXIS 24 (2003).

Settlement of Administrative Action Did Not Bar Suit Under Whistleblower Act. —

Agreement settling a former employee’s administrative action against an agency did not estop the former employee from seeking damages under the Whistleblower Act, G.S. 126-84 et seq., because the former employee did not allege a Whistleblower Act claim in the administrative action and such remedies were not recoverable in the administrative action; the settlement agreement did not contain any release of a claim under the Whistleblower Act. The former employee’s acceptance of the settlement agreement and subsequent voluntary resignation did not negate the fact that the former employee’s employment was terminated. Newberne v. N.C. Dep't of Crime Control & Pub. Safety, 192 N.C. App. 703, 666 S.E.2d 195, 2008 N.C. App. LEXIS 1647 (2008).

Choice of Remedies. —

State employee may choose to pursue a whistleblower claim pursuant to G.S. 126-85 in either the superior court or the Office of Administrative Hearings, but not both. Swain v. Elfland, 145 N.C. App. 383, 550 S.E.2d 530, 2001 N.C. App. LEXIS 663 , cert. denied, 354 N.C. 228 , 554 S.E.2d 832, 2001 N.C. LEXIS 1002 (2001).

Trial court properly dismissed a judicial action brought by a former police officer under G.S. 126-86 , which was commenced prior to the exhaustion of an administrative action before the Office of Administrative Hearings, that the former officer brought pursuant to G.S. 126-34.1(a)(7) (now repealed), alleging retaliation and racial discrimination in violation of G.S. 126-85 . Newberne v. Crime Control & Pub. Safety, 168 N.C. App. 87, 606 S.E.2d 742, 2005 N.C. App. LEXIS 176 , rev'd, 359 N.C. 782 , 618 S.E.2d 201, 2005 N.C. LEXIS 835 (2005).

Doctrine of administrative exhaustion did not prevent a state trooper from filing a whistleblower claim in a superior court because the state trooper had the choice to pursue the whistleblower claim in either a judicial forum, pursuant to G.S. 126-86 , or an administrative forum, pursuant to G.S. 126-34.1 (now repealed), but not both. Newberne v. Dep't of Crime Control & Pub. Safety, 359 N.C. 782 , 618 S.E.2d 201, 2005 N.C. LEXIS 835 (2005).

Remedy Limited to Backpay by After Acquired Evidence Doctrine. —

Administrative law judge properly applied the after-acquired-evidence doctrine to a terminated career state employee and barred the employee from reinstatement and additional compensation because, although a state university wrongfully terminated the employee for theft, the university would have terminated the employee immediately upon subsequently learning of the employee’s failure to report criminal convictions on a job application. The employee’s remedy was limited to back pay from the time of the discharge to the discovery of the evidence. Brown v. Fayetteville State Univ., 269 N.C. App. 123, 837 S.E.2d 390, 2020 N.C. App. LEXIS 4 (2020).

North Carolina Supreme Court looks to federal decisions for guidance in establishing evidentiary standards and principles of law to be applied in discrimination cases. North Carolina Dep't of Cor. v. Gibson, 308 N.C. 131 , 301 S.E.2d 78, 1983 N.C. LEXIS 1125 (1983).

To Whom Article Applicable. —

A permanent state employee who alleges he has been reduced in position without just cause is entitled to the review and appeal provisions outlined in this article, whether the motive for his demotion was illegally discriminatory or retaliatory or apparently or actually disciplinary. Batten v. North Carolina Dep't of Cor., 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

Statute merely provided a plaintiff with “the right to appeal” a wrongful retaliation claim directly to the State Personnel Commission. G.S. 126-36(b) (now repealed), and such “right to appeal” did not otherwise bar an action which met the requirements of the Whistleblower Act, G.S. 126-84 et seq.; when G.S. 126-36(b) was read in para materia with the Whistleblower Act, the two statutes were not irreconcilable. Wells v. State DOC, 152 N.C. App. 307, 567 S.E.2d 803, 2002 N.C. App. LEXIS 929 (2002).

Employment of a trainee who was in a probationary period with the North Carolina Department of Revenue was not exempted by G.S. 126-5 from the appeals process through the North Carolina State Personnel Commission; although the trainee was not a “career” state employee, G.S. 126-36(a) (now repealed) allowed the Commission to review his claims derived from alleged discrimination on the basis of religion. Vanderburg v. N.C. Dep't of Revenue, 168 N.C. App. 598, 608 S.E.2d 831, 2005 N.C. App. LEXIS 451 (2005).

Notice of Appeal. —

There is no reason why notices of appeal from the Office of Administrative Hearings (OAH) should not be required to bear a filed and stamped verification confirming the date and time the notice of appeal was filed with OAH. Erickson v. N.C. Dep't of Pub. Safety, 264 N.C. App. 700, 826 S.E.2d 821, 2019 N.C. App. LEXIS 301 (2019).

Exhaustion of Administrative Remedies. —

Office of Administrative Hearings (OAH) erroneously dismissed the case for lack of subject matter jurisdiction due to the failure to exhaust administrative remedies; by refusing petitioner’s timely mailed form, the department prevented petitioner from obtaining a final agency decision reviewed and approved by OAH with jurisdiction to hear his contested case. Erickson v. N.C. Dep't of Pub. Safety, 264 N.C. App. 700, 826 S.E.2d 821, 2019 N.C. App. LEXIS 301 (2019).

Direct Appeal Permitted. —

Where in his petition for a contested case hearing, an employee had alleged termination without just cause due to discrimination and had checked the appropriate lines labeled “race” and “age,” he had therefore sufficiently asserted discrimination to petition directly to the State Personnel Commission. Bobbitt v. N.C. State Univ., 179 N.C. App. 743, 635 S.E.2d 463, 2006 N.C. App. LEXIS 2164 (2006).

Superior court properly dismissed a university employee’s petition for review of an administrative law judge’s affirmation of the termination of his employment for lack of subject matter jurisdiction because an adequate procedure for judicial review by direct appeal to the Court of Appeals was provided by two other statutes. Swauger v. Univ. of N.C. 259 N.C. App. 727, 817 S.E.2d 434, 2018 N.C. App. LEXIS 497 (2018).

Appeal Treated As Petition for Writ of Certiorari. —

Due to Petitioner’s lack of knowledge regarding the policy of the Office of Administrative Hearings (OAH) of not adding a file-stamp to emailed notices of appeal, and North Carolina Department of Public Safety’s failure to file a motion to dismiss or argue the notice of appeal was not timely filed, petitioner would suffer manifest injustice were his appeal dismissed; the court invoked the rule to treat the appeal as a petition for a writ of certiorari. Erickson v. N.C. Dep't of Pub. Safety, 264 N.C. App. 700, 826 S.E.2d 821, 2019 N.C. App. LEXIS 301 (2019).

Untimely Appeal. —

Office of Administrative Hearings (OAH) had no jurisdiction to hear an employee’s appeal of an alleged denial of a promotion for reporting other employees’ improper acts because: (1) as a career state employee, the employee was required by the statute in effect to file a Whistleblower Act claim in the OAH within 30 days after the promotion was denied, which the employee did not do, and (2) the date on which the employee’s claim allegedly accrued was irrelevant. Brown v. N.C. Dep't of Pub. Safety, 256 N.C. App. 425, 808 S.E.2d 322, 2017 N.C. App. LEXIS 977 (2017).

Two Tests Applicable to Employment Decisions Based on Inherently Subjective Criteria. —

When reviewing hiring and promotion decisions that were based on exercise of personal judgment or application of inherently subjective criteria, court may employ either “disparate treatment” test or “disparate impact” test, or both. North Carolina Dep't of Cor. v. Hodge, 99 N.C. App. 602, 394 S.E.2d 285, 1990 N.C. App. LEXIS 809 (1990).

Definition of Promotion. —

This section does not contain a definition of “promotion.” Unless a word in a statute has acquired a technical meaning or the language of the statute indicates that a special use is intended, it must be given its “common and ordinary meaning.” Edwards v. University of N.C. 107 N.C. App. 606, 421 S.E.2d 383, 1992 N.C. App. LEXIS 770 , writ denied, 333 N.C. 167 , 424 S.E.2d 909, 1992 N.C. LEXIS 700 (1992).

The word “promotion” is not peculiar to any particular profession, but is universally used. Nothing in the text of this section indicates that the legislature sought to attach any technical meaning to its use. Edwards v. University of N.C. 107 N.C. App. 606, 421 S.E.2d 383, 1992 N.C. App. LEXIS 770 , writ denied, 333 N.C. 167 , 424 S.E.2d 909, 1992 N.C. LEXIS 700 (1992).

The important criteria in both the dictionary and State Personnel Commission definitions of “promotion” are greater status and a higher standing in relation to others. Accordingly, to the extent any individual’s relative standing among his peers was raised when the university police department reclassified ranks, that individual was promoted. Edwards v. University of N.C. 107 N.C. App. 606, 421 S.E.2d 383, 1992 N.C. App. LEXIS 770 , writ denied, 333 N.C. 167 , 424 S.E.2d 909, 1992 N.C. LEXIS 700 (1992).

There is no mention in the definition of promotion of increased pay or change in job classification. This definition is consistent with other states’ interpretations of promotion, which recognize that salary increases and changes in job classification are not the sole criteria for determining the existence of a promotion. Edwards v. University of N.C. 107 N.C. App. 606, 421 S.E.2d 383, 1992 N.C. App. LEXIS 770 , writ denied, 333 N.C. 167 , 424 S.E.2d 909, 1992 N.C. LEXIS 700 (1992).

Reorganization Held Promotion Scheme. —

Although changes in rank made pursuant to a reorganization involved no increase in salary or change in state job classification, the reorganization within the university police department was a promotion scheme and therefore within the appellate jurisdiction of State Personnel Commission. Edwards v. University of N.C. 107 N.C. App. 606, 421 S.E.2d 383, 1992 N.C. App. LEXIS 770 , writ denied, 333 N.C. 167 , 424 S.E.2d 909, 1992 N.C. LEXIS 700 (1992).

Racial Discrimination. —

The State Personnel Commission has authority to determine whether a State employee has been discharged because of racial discrimination. Abron v. North Carolina Dep't of Cor., 90 N.C. App. 229, 368 S.E.2d 203, 1988 N.C. App. LEXIS 411 (1988).

Once employee establishes prima facie case of racial discrimination, burden shifts to the employer to produce evidence showing legitimate, nondiscriminatory reason for its action. If the employer carries its burden to produce that evidence, the employee must then satisfy the trier of fact that the employer’s stated reasons were merely a pretext for intentional discrimination. Abron v. North Carolina Dep't of Cor., 90 N.C. App. 229, 368 S.E.2d 203, 1988 N.C. App. LEXIS 411 (1988).

Disparate Treatment Claims. —

When employee alleges that employer treated him or her in particular less favorably than other employees, employee raises claim of “disparate treatment.” North Carolina Dep't of Cor. v. Hodge, 99 N.C. App. 602, 394 S.E.2d 285, 1990 N.C. App. LEXIS 809 (1990).

According to “disparate treatment” analysis, employee has initial burden of proving, by preponderance of evidence, prima facie case of discrimination. [1] He applied for and was qualified for an available position, [2] that he was rejected, and that [3] after he was rejected employer filled position with white employee. Once employee establishes prima facie case, inference of discrimination arises. To rebut this inference, the employer must present evidence that employee was rejected, or other applicant was chosen, for legitimate, nondiscriminatory reason. Employee retains final burden of persuading jury of intentional discrimination. North Carolina Dep't of Cor. v. Hodge, 99 N.C. App. 602, 394 S.E.2d 285, 1990 N.C. App. LEXIS 809 (1990).

Pretext. —

From whole record, substantial evidence supports commission’s conclusion that employer’s stated reasons were legitimate and not pretext for discrimination. Conversely, there is lacking substantial evidence that retaliation for past opposition to discrimination was “predominant reason.” Gadson v. North Carolina Mem. Hosp., 99 N.C. App. 169, 392 S.E.2d 618, 1990 N.C. App. LEXIS 476 (1990).

After employer rebuts employee’s prima facie showing, employee has opportunity to demonstrate that employer’s proffered reasons for its decision were not its true reasons. North Carolina Dep't of Cor. v. Hodge, 99 N.C. App. 602, 394 S.E.2d 285, 1990 N.C. App. LEXIS 809 (1990).

Employee may use various forms of evidence to demonstrate that state’s proffered reason was not its true reason. An employee might seek to demonstrate that employer’s claim to have promoted a better qualified applicant was pretextual by showing that he was in fact better qualified than person chosen for position. North Carolina Dep't of Cor. v. Hodge, 99 N.C. App. 602, 394 S.E.2d 285, 1990 N.C. App. LEXIS 809 (1990).

Evidence of Discrimination. —

In considering whether the employer’s stated nondiscriminatory reasons were merely a pretext for discrimination, courts may consider the evidence the employee used to establish his prima facie case as well as: (1) Evidence that white employees involved in acts of comparable seriousness were retained; (2) evidence of the employer’s treatment of the employee during his term of employment; (3) evidence of the employer’s response to any legitimate civil rights activities of the employee; and (4) evidence of the employer’s general policy and practice regarding minority employees. Abron v. North Carolina Dep't of Cor., 90 N.C. App. 229, 368 S.E.2d 203, 1988 N.C. App. LEXIS 411 (1988).

Record held to support the commission’s ultimate finding of fact that petitioner assistant manager of soap plant at corrections department facility, was not a victim of racial discrimination. Abron v. North Carolina Dep't of Cor., 90 N.C. App. 229, 368 S.E.2d 203, 1988 N.C. App. LEXIS 411 (1988).

Since, under North Carolina law, plaintiff instructor was not required to employ the grievance procedures of a university because he alleged race discrimination, but instead, he was entitled to appeal the decision directly to the State Personnel Commission, under G.S. 126-36(a) (now repealed), the court declined plaintiff’s request to extend the attorney-client privilege to a lay member of the faculty. Nemecek v. Bd. of Governors, 2000 U.S. Dist. LEXIS 22340 (E.D.N.C. Sept. 27, 2000).

Error in Reversing Decision on Use of Racial Epithet. —

Administrative Law Judge (ALJ) erred in reversing a final agency decision by the county department of social services to terminate an employee for her use of a racial epithet because the ALJ’s finding of fact regarding the employee’s alleged conduct was not supported by the evidence in the record; the employee’s testimony was clear and unequivocal that the phrase she used was “nigra rican” and not “Negra-Rican,” as found by the ALJ. Ayers v. Currituck Cty. Dep't of Soc. Servs., 267 N.C. App. 513, 833 S.E.2d 649, 2019 N.C. App. LEXIS 794 (2019).

Law Judge’s Ruling Subject to Review by Personnel Commission. —

The administrative law judge must render a decision on the motion which is presented, but the administrative law judge’s ruling is subject to review by the ultimate factfinder, the Personnel Commission. Eury v. North Carolina Emp. Sec. Comm'n, 115 N.C. App. 590, 446 S.E.2d 383, 1994 N.C. App. LEXIS 778 (1994), limited, Warren v. N.C. Dep't of Crime Control & Pub. Safety, 221 N.C. App. 376, 726 S.E.2d 920, 2012 N.C. App. LEXIS 770 (2012).

Subject Matter Jurisdiction of Superior Court. —

The superior court was without jurisdiction to entertain a former employee’s appeal of his dismissal, where the employee sought an order to affirm the recommended decision of the State Personnel Commission [now State Human Resources Commission] that he be reinstated with back pay prior to a final decision by the local appointing authority pursuant to subsection (b1). Howell v. Morton, 131 N.C. App. 626, 508 S.E.2d 804, 1998 N.C. App. LEXIS 1437 (1998).

Jurisdiction Where Appellant Not Employed Five Continuous Years. —

The State Personnel Commission [now State Human Resources Commission] had jurisdiction to hear Employment Security Commission employee’s appeal from a dismissal even though she had not been employed continuously for five years. Employment Sec. Comm'n v. Lachman, 305 N.C. 492 , 290 S.E.2d 616, 1982 N.C. LEXIS 1340 (1982).

Reinstatement Proper Though Not Identical. —

Where employee was returned to the same pay grade and step as before his demotion even though the job was at a different location, he was properly reinstated. North Carolina Dep't of Cors. v. Myers, 120 N.C. App. 437, 462 S.E.2d 824, 1995 N.C. App. LEXIS 881 (1995), cert. denied, 343 N.C. 307 , 469 S.E.2d 556, 1996 N.C. LEXIS 253 (1996), aff'd, 344 N.C. 626 , 476 S.E.2d 364, 1996 N.C. LEXIS 503 (1996).

Discretion of Personnel Commission. —

Although this section authorizes the State Personnel Commission [now State Human Resources Commission] to reinstate an employee to the position from which he is removed and to order the transfer of an employee to whom it has been wrongfully denied, that authority is discretionary. North Carolina Dep't of Cors. v. Myers, 120 N.C. App. 437, 462 S.E.2d 824, 1995 N.C. App. LEXIS 881 (1995), cert. denied, 343 N.C. 307 , 469 S.E.2d 556, 1996 N.C. LEXIS 253 (1996), aff'd, 344 N.C. 626 , 476 S.E.2d 364, 1996 N.C. LEXIS 503 (1996).

Agency Decision Upheld Although Director Reviewed Own Employment Action. —

Where substantial evidence existed to support an agency finding that petitioner voluntarily resigned and was not fired, the court upheld the decision as rendered properly pursuant to this section, and not in violation of petitioner’s due process rights, even though the agency director/final decision-maker who disregarded the State Personnel Commission’s [now State Human Resources Commission’s] recommendation that employee be reinstated was, in fact, evaluating factual issues involving his own testimony and credibility. Hearne v. Sherman, 350 N.C. 612 , 516 S.E.2d 864, 1999 N.C. LEXIS 720 (1999).

Filing Fee Did Not Have to Be Paid Simultaneously With Filing of Petition. —

Thirty-day time limit specified in G.S. 126-38 (now repealed) only applied to the filing of the petition and not to the payment of the required fee as former G.S. 126-38 indicates that the applicable temporal requirement was satisfied if the petition for a contested case hearing was filed within 30 days of the date upon which the employee received notice of the decision or action which triggered the right of appeal; although G.S. 150B-23(a) treats both the filing of the petition and the payment of the required fee as necessary to permit the commencement of a contested case and although G.S. 150B-23.2(B) requires the North Carolina Office of Administrative Hearings (OAH) to collect any required fees at the time of the commencement of the contested case, nothing in the relevant statutory language requires the payment of the required fee simultaneously with the filing of the petition as a precondition for the invocation of the OAH’s jurisdiction. Scott v. N.C. Dep't of Crime Control & Pub. Safety, 222 N.C. App. 125, 730 S.E.2d 806, 2012 N.C. App. LEXIS 953 (2012).

An intermittent state employee is not an “employee” for purposes of Chapter 126 because Article 8 of this chapter applies only to “career state employees.” Clay v. Employment Sec. Comm'n, 340 N.C. 83 , 457 S.E.2d 725, 1995 N.C. LEXIS 262 (1995).

Petitioner, an intermittent state employee was not an “employee” for purposes of this chapter governing state personnel system [now state human resources system] which applies only to “career State employees” and which establishes the time limit for appeals, for employees and not applicants for employment like petitioner. Clay v. Employment Sec. Comm'n, 340 N.C. 83 , 457 S.E.2d 725, 1995 N.C. LEXIS 262 (1995).

Department of Public Safety Employee. —

Trial court erred in granting an aggrieved employee summary judgment on a claim that G.S. 126-34.02 was unconstitutional as applied to him where he was an employee of the North Carolina Department of Public Safety, that agency was expressly exempt from the administrative hearing provisions of the APA, but the plain language of G.S. 126-5(h) provided the employee with a statutory right to a hearing before the Office of Administrative Hearings as to whether he was subject to the APA, and that right allowed him to address whether his exempt designation was proper via a contested case. Vincoli v. State, 250 N.C. App. 269, 792 S.E.2d 813, 2016 N.C. App. LEXIS 1102 (2016).

Just Cause for Dismissal Not Shown. —

Administrative law judge’s (ALJ) conclusion that an agency did not establish just cause for a state employee’s dismissal was upheld because (1) the ALJ did not have to defer to the agency in finding if just cause existed, as the agency had the burden to show just cause, and (2) substantial evidence supported the ALJ’s factual findings that the employee’s unacceptable personal conduct did not warrant the sanction of dismissal, making those findings binding on appeal, as the ALJ was the sole fact-finder. Harris v. N.C. Dep't of Pub. Safety, 252 N.C. App. 94, 798 S.E.2d 127, 2017 N.C. App. LEXIS 130 , aff'd, 370 N.C. 386 , 808 S.E.2d 142, 2017 N.C. LEXIS 1020 (2017).

Although a university police officer’s failure to file a non-criminal report, in violation of a university work rule, constituted unacceptable personal conduct, the violation did not provide just cause for his dismissal where surveillance video and other evidence showed that no one was being assaulted when he arrived on the scene, a fellow officer who was privy to the information regarding the assault was issued a written warning, and the officer had a discipline-free work history. Whitehurst v. East Carolina Univ., 257 N.C. App. 938, 811 S.E.2d 626, 2018 N.C. App. LEXIS 128 (2018).

Administrative law judge (ALJ) acted within her authority by determining the center failed to meet its burden to show just cause existed to warrant a state employee’s suspension for unacceptable personal conduct because the ALJ examined all the facts, circumstances, and equities present in the case, and the imposed written warning was within the authorized disciplinary alternatives. Peterson v. Caswell Developmental Ctr., 258 N.C. App. 628, 814 S.E.2d 590, 2018 N.C. App. LEXIS 306 (2018).

Demotion Rather Than Dismissal Appropriate. —

ALJ properly ordered that the officer be demoted instead of dismissed where he had allowed potential perpetrators to walk away, which constituted unacceptable personal conduct for which no reasonable person should have expected to receive a prior warning. Whitehurst v. East Carolina Univ., 257 N.C. App. 938, 811 S.E.2d 626, 2018 N.C. App. LEXIS 128 (2018).

Attorneys’ Fees. —

Office of Administrative Hearings (OAH) could award a state employee appellate attorneys’ fees in an employment case because (1) OAH’s authority was not statutorily limited to the administrative part of a contested case, (2) such a limit would not be read into the statute, and (3) the statute expanded OAH’s authority to award fees by authorizing remedies where an employee prevailed on appeal of a whistleblower grievance. Hunt v. N.C. Dep't of Pub. Safety, 266 N.C. App. 24, 830 S.E.2d 865, 2019 N.C. App. LEXIS 547 (2019).

When the Office of Administrative Hearings (OAH) awarded a state employee appellate attorneys’ fees in an employment case, it was not appropriate to apply the “Johnson factors” adopted by the United States Court of Appeals for the Fourth Circuit to determine the reasonableness of the fees because this framework had not been adopted in North Carolina. Hunt v. N.C. Dep't of Pub. Safety, 266 N.C. App. 24, 830 S.E.2d 865, 2019 N.C. App. LEXIS 547 (2019).

Court of appeals erred in invalidating an administrative law judge’s decision to award back pay and attorneys’ fees to a county department of social services employee because the judge had express statutory authority to award back pay and attorneys’ fees to the employee; the absence of any reference to an attorneys’ fee award in G.S. 150B-33(b)(11) had no bearing upon the proper resolution of the issue of whether the judge had the authority to award attorneys’ fees to the employee. Rouse v. Forsyth Cty. Dep't of Soc. Servs., 373 N.C. 409 , 838 S.E.2d 390, 2020 N.C. LEXIS 93 (2020).

Given that a county department of social services employee was a protected employee for purposes of the North Carolina Human Resources Act, the fact that an administrative law judge was explicitly authorized to award backpay to a wrongfully discharged state or local government employee conclusively resolved the issue of whether the administrative law judge had the authority to require that the employee receive backpay. Rouse v. Forsyth Cty. Dep't of Soc. Servs., 373 N.C. 409 , 838 S.E.2d 390, 2020 N.C. LEXIS 93 (2020).

Fact that G.S. 150B-33(b)(11) makes no reference to the making of an attorneys’ fee award to a wrongfully discharged local government employee has no bearing upon the issue of whether such an award is authorized for unlawfully discharged local government employees by the North Carolina Human Resources Act, G.S. 126-34.02(e) . Rouse v. Forsyth Cty. Dep't of Soc. Servs., 373 N.C. 409 , 838 S.E.2d 390, 2020 N.C. LEXIS 93 (2020).

Editor’s Note.

Former G.S. 126-34.1 related to the grounds for filing a contested case under the State Personnel Act. For present similar provisions, see G.S. 126-34.01 and G.S. 126-34.02 .

Editor’s Note.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2012-187, s. 8.4, effective July 16, 2012, substituted “Office of Administrative Hearings” for “State Personnel Commission” in subsection (a).

Session Laws 2013-382, s. 6.1, effective August 21, 2013, and applicable to grievances filed on or after that date, rewrote subsection (a) and repealed subsections (b) though (d).

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “North Carolina Human Resources Act” for “State Personnel Act” and “State Human Resources Commission” for “State Personnel Commission” in subsection (a).

Legal Periodicals.

For survey of 1977 constitutional law, see 56 N.C.L. Rev. 943 (1978).

For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).

For survey of 1980 administrative law, see 59 N.C.L. Rev. 1040 (1981).

For article, “The Meaning of Just Cause in North Carolina Public Employment Law: Carroll and its Progeny Provide for a Heightened Multifactor Standard for State Employee Disciplinary Cases,” see 33 Campbell L. Rev. 341 (2011).

CASE NOTES

Editor’s Note. —

Most of the cases below were decided prior to the amendments made by Session Laws 2011-401, which were effective November 1, 2011, and references therein to the Employment Security Commission should be construed as references to the Division of Employment Security (DES) of the Department of Commerce.

Constitutional Implications. —

For case discussing the propriety under U.S. Const., Amends. I and XIV, of adverse personnel actions affecting State employees in exempt positions following the change from the Hunt administration to the Martin administration, see Stott v. Martin, 725 F. Supp. 1365, 1989 U.S. Dist. LEXIS 13544 (E.D.N.C. 1989), rev'd, 916 F.2d 134, 1990 U.S. App. LEXIS 17593 (4th Cir. 1990).

Due Process. —

G.S. 126-35 did not apply to an exempt, non-faculty research assistant at the University of North Carolina. Thus, the research assistant lacked a property interest in her continued and future employment sufficient to trigger constitutional due process protections. Yan-Min Wang v. UNC-CH Sch. of Med., 216 N.C. App. 185, 716 S.E.2d 646, 2011 N.C. App. LEXIS 2150 (2011).

The purpose of this section is to provide the employee with a written statement of the reasons for his discharge so that the employee may effectively appeal his discharge. Leiphart v. North Carolina School of Arts, 80 N.C. App. 339, 342 S.E.2d 914, 1986 N.C. App. LEXIS 2201 , cert. denied, 318 N.C. 507 , 349 S.E.2d 862, 1986 N.C. LEXIS 2726 (1986).

This section was designed to prevent the employer from summarily discharging an employee and then searching for justifiable reasons for the dismissal. Leiphart v. North Carolina School of Arts, 80 N.C. App. 339, 342 S.E.2d 914, 1986 N.C. App. LEXIS 2201 , cert. denied, 318 N.C. 507 , 349 S.E.2d 862, 1986 N.C. LEXIS 2726 (1986).

Section Supplanted by Later-Enacted Statute. —

By its own terms of exclusion, G.S. 126-34.1 (now repealed) of the State Personnel Act [now North Carolina Human Resources Act] superseded and controlled over any contrary earlier enactments, and given its clear and unambiguous language, the later enacted G.S. 126-34.1 (now repealed) supplanted G.S. 126-35 . Univ. of N.C. at Chapel Hill v. Feinstein, 161 N.C. App. 700, 590 S.E.2d 401, 2003 N.C. App. LEXIS 2277 (2003).

Under Univ. of N.C. at Chapel Hill v. Feinstein, 161 N.C. App. 700, 590 S.E.2d 401 (2003), a trial court properly upheld the Office of Administrative Hearings administrative law judge’s decision to dismiss a career state employee’s claim that his reduction in force (RIF) discharge lacked just cause and was the result of procedural violations because the Feinstein case, which ruled that career state employees separated under an RIF could not bring either just cause or procedural appeals based on that separation, controlled the appeal; the court of appeals was not free to revisit the prior panel’s analysis, and the distinction between Feinstein and the employee’s case, university employees as opposed to North Carolina Department of Public Instruction employees, was immaterial to the analysis. Jailall v. N.C. Dep't of Pub. Instruction, 196 N.C. App. 90, 675 S.E.2d 79, 2009 N.C. App. LEXIS 455 , cert. denied, 363 N.C. 582 , 682 S.E.2d 211, 2009 N.C. LEXIS 757 (2009).

This section creates a reasonable expectation of continued employment and a property interest within the meaning of the Due Process Clause of the United States Constitution. Faulkner v. North Carolina Dep't of Cors., 428 F. Supp. 100, 1977 U.S. Dist. LEXIS 17343 (W.D.N.C. 1977).

Where a State employee asserts civil rights violations under 42 U.S.C. § 1983 for his wrongful dismissal, the superior court retains its traditional power to grant preliminary injunctive relief without requiring him to exhaust the administrative remedies provided in Chapter 126 of the General Statutes. Williams v. Greene, 36 N.C. App. 80, 243 S.E.2d 156, 1978 N.C. App. LEXIS 2408 (1978).

A State employee who could be discharged only for cause had a property interest of continued employment created by state law and protected by the Due Process Clause of the United States Constitution. Leiphart v. North Carolina School of Arts, 80 N.C. App. 339, 342 S.E.2d 914, 1986 N.C. App. LEXIS 2201 , cert. denied, 318 N.C. 507 , 349 S.E.2d 862, 1986 N.C. LEXIS 2726 (1986).

To Whom Article Applicable. —

A permanent state employee who alleges he has been reduced in position without just cause is entitled to the review and appeal provisions outlined in this article, whether the motive for his demotion was illegally discriminatory or retaliatory, or apparently or actually disciplinary. Batten v. North Carolina Dep't of Cor., 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

The plaintiff, a discharged Agricultural Extension Agent, could not establish a property right in his job through the State Personnel Act [now North Carolina Human Resources Act] because he was part of the instructional staff of the UNC system and therefore exempt from this act. McCallum v. North Carolina Coop. Extension Serv. of N.C. State Univ., 142 N.C. App. 48, 542 S.E.2d 227, 2001 N.C. App. LEXIS 51 (2001).

Applicability of the just cause requirement set forth in G.S. 126-5(a)(2) is determined by the permanency of employment and not by months of service; therefore, a terminated employee who worked less than 24 months before being terminated while on medical leave was entitled to file a contested case based on a lack of just cause since she had been an employee of the Department of Social Services, which was a local social services department. Early v. County of Durham Dep't of Soc. Servs., 172 N.C. App. 344, 616 S.E.2d 553, 2005 N.C. App. LEXIS 1788 (2005).

Administrative law judge (ALJ) properly concluded that a technician who worked for a county department of social services was a career State employee under the State Human Resources Act (SHRA) and was subject to the SHRA because the county board of commissioners passed resolutions leaving the employees of the consolidated human services agency subject to the SHRA; therefore, just cause was required to support the technician’s termination. Watlington v. Dep't of Soc. Servs. Rockingham Cnty., 252 N.C. App. 512, 799 S.E.2d 396, 2017 N.C. App. LEXIS 220 (2017), overruled in part, Rouse v. Forsyth Cty. Dep't of Soc. Servs., 373 N.C. 400 , 838 S.E.2d 390, 2020 N.C. LEXIS 93 (2020).

Invocation of Jurisdiction. —

Because this section deems such departmental or agency action “disciplinary,” an allegation that an employee has been “demoted in rank without sufficient cause” invokes first the jurisdiction of the State Personnel Commission [now State Human Resources Commission], then, on appeal, that of the Office of Administrative Hearings, even when there has been no documented misconduct by the employee. Batten v. North Carolina Dep't of Cor., 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

Focus of Review. —

Although referred to as “disciplinary,” the focus of review under this section is justification of the adverse departmental action, without regard to whether it is taken in response to employee conduct or in response to the vicissitudes of a department’s personnel needs. Batten v. North Carolina Dep't of Cor., 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

Authority to Hear Action Brought by DOC Employee. —

Among all the provisions of this article, only G.S. 126-37 (now repealed) confers upon the State Personnel Commission [now State Human Resources Commission] or upon the Office of Administrative Hearings the jurisdiction or power to deal with an action brought by a correction employee who was reallocated pursuant to a managerial reallocation. Batten v. North Carolina Dep't of Cor., 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

This section establishes a condition precedent that must be fulfilled by the employer before disciplinary actions are taken: The employer must provide the employee with a written statement enumerating specific acts or reasons for the disciplinary action and containing a statement of the employee’s appeal rights. Leiphart v. North Carolina School of Arts, 80 N.C. App. 339, 342 S.E.2d 914, 1986 N.C. App. LEXIS 2201 , cert. denied, 318 N.C. 507 , 349 S.E.2d 862, 1986 N.C. LEXIS 2726 (1986).

Property Interest in Employment. —

A terminated career state employee was entitled to the “just cause” protection of this section and was therefore imbued with a constitutionally protected property interest in his employment as the Equal Employment Opportunity Officer of a state agency. Peace v. Employment Sec. Comm'n, 349 N.C. 315 , 507 S.E.2d 272, 1998 N.C. LEXIS 728 (1998).

Administrative Law Judge (ALJ) erred in reversing a final agency decision by the county department of social services (DSS) to terminate an employee for her use of a racial epithet because DSS met its initial burden of proving the employee engaged in the conduct alleged; the employee effectively conceded whichever variant she used was improper and unacceptable, and DSS’s allegations sufficiently informed her that the basis of her termination was her use of a racial epithet. Ayers v. Currituck Cty. Dep't of Soc. Servs., 267 N.C. App. 513, 833 S.E.2d 649, 2019 N.C. App. LEXIS 794 (2019).

“Just Cause”. —

This section provides that no employee may be reduced in “pay or position, except for just cause”; this section does not define “just cause,” but giving the words their ordinary meaning, it would include either the undertaking of a private investigation of a superior or the refusal to answer questions in an investigation within a particular department. Reed v. Byrd, 41 N.C. App. 625, 255 S.E.2d 606, 1979 N.C. App. LEXIS 2744 (1979).

Just cause is not defined in this section. Words of statute are to be given their ordinary meaning. Walker v. North Carolina Dep't of Human Resources, 100 N.C. App. 498, 397 S.E.2d 350, 1990 N.C. App. LEXIS 1066 (1990), writ denied, 402 S.E.2d 410, 1991 N.C. LEXIS 81 (N.C. 1991), writ denied, 328 N.C. 98 , 402 S.E.2d 430, 1991 N.C. LEXIS 83 (1991).

The trial court correctly determined that the record lacked substantial evidence to support the Personnel Commission’s conclusion that the Department of Correction had not met its burden of showing just cause for terminating correctional officer; said officer’s behavior in leaving his post without authorization and failing to remain alert while on duty did not only constitute “unsatisfactory job performance” but fell squarely within the category of “unacceptable personal conduct” for which a DOC employee may be terminated without any prior warning. North Carolina Dep't of Correction v. McNeely, 135 N.C. App. 587, 521 S.E.2d 730, 1999 N.C. App. LEXIS 1175 (1999).

There was just cause to demote the highway patrol employee as the employee drank three beers within a short period; proceeded to drive after drinking; exceeded the speed limit; and two alco-sensor tests registered 0.09 and 0.08 alcohol concentration readings. Davis v. N.C. Dep't of Crime Control & Pub. Safety, 151 N.C. App. 513, 565 S.E.2d 716, 2002 N.C. App. LEXIS 777 (2002).

Demotion of a state Department of Correction employee was not based on the just cause of sexual harassment, where unlawful sexual harassment was defined in the Department of Correction policy as including quid pro quo or hostile environment consequences, and the employee’s sexual comments did not include quid pro quo or hostile environment consequences. Lewis v. N.C. Dep't of Corr., 153 N.C. App. 449, 570 S.E.2d 231, 2002 N.C. App. LEXIS 1168 (2002), aff'd, 357 N.C. 246 , 580 S.E.2d 694, 2003 N.C. LEXIS 607 (2003).

When an employee was demoted from his position as a prison food service supervisor, there was substantial evidence, sufficient to satisfy the requirements of G.S. 126-35(a), that he did not satisfactorily meet his job requirements, which included supervising inmate workers and ensuring that the kitchen was kept in a clean and orderly fashion, and he received two written warnings concerning his poor job performance, detailing his failure to follow proper procedure and failure to maintain sanitary conditions in the kitchen. Skinner v. N.C. Dep't of Corr., 154 N.C. App. 270, 572 S.E.2d 184, 2002 N.C. App. LEXIS 1473 (2002).

Summary judgment for a state agency employer in an employee’s petition for review of his demotion was proper where the conduct admitted by the employee constituted “unacceptable personal conduct,” and the State Personnel Commission [now State Human Resources Commission] determined that its regulations and work rules did not contain any qualification or exception for the explanations asserted by the employee. Hilliard v. N.C. Dep't of Corr., 173 N.C. App. 594, 620 S.E.2d 14, 2005 N.C. App. LEXIS 2121 (2005).

Summary judgment for a state agency employer in an employee’s petition for review of his demotion was proper where the conduct admitted by the employee constituted “unacceptable personal conduct,” and the State Personnel Commission [now State Human Resources Commission] determined that its regulations and work rules did not contain any qualification or exception for the explanations asserted by the employee. Hilliard v. N.C. Dep't of Corr., 173 N.C. App. 594, 620 S.E.2d 14, 2005 N.C. App. LEXIS 2121 (2005).

In order to discharge, suspend, or demote a career state employee for disciplinary reasons based on unacceptable personal conduct, the specific misconduct must constitute just cause for the specific disciplinary sanction imposed. Warren v. N.C. Dep't of Crime Control & Pub. Safety, 221 N.C. App. 376, 726 S.E.2d 920, 2012 N.C. App. LEXIS 770 (2012).

Career state employee was properly terminated from the employee’s position at a state university hospital for just cause because the employer’s code of conduct consisted of written work rules authorized by statute and the employee’s disruptive behavior fell within the definition of unacceptable personal conduct under the code. Robinson v. Univ. of N.C. Health Care Sys., 242 N.C. App. 614, 775 S.E.2d 898, 2015 N.C. App. LEXIS 701 (2015).

Employer showed just cause for the termination of a career state employee for grossly inefficient job performance because (1) the employee was required to use good judgment and make discretionary decisions to further inmate safety, and (2) leaving an inmate in handcuffs for five days with nothing to drink and no attention to the inmate’s condition breached the employee’s duty. Blackburn v. N.C. Dep't of Pub. Safety, 246 N.C. App. 196, 784 S.E.2d 509, 2016 N.C. App. LEXIS 297 (2016).

Trial court erred in reversing a state agency’s decision that it had just cause to terminate an employee where the testimony, pictures, and texts supported a finding that he had touched a housing services consumer sexually without her consent, engaged in inappropriate text messaging with her, and failed to report some of her allegations. Barron v. Eastpointe Human Servs. LME, 246 N.C. App. 364, 786 S.E.2d 304, 2016 N.C. App. LEXIS 351 (2016).

Substantial evidence supported the State Bureau of Investigation’s (SBI’s) decision that just cause justified terminating a special agent where the ALJ weighed the conflicting testimony, concluded that she had consumed alcohol and lied about it, considered character testimony, and sufficiently addressed the just cause factors. Brewington v. N.C. Dep't of Pub. Safety, 254 N.C. App. 1, 802 S.E.2d 115, 2017 N.C. App. LEXIS 461 (2017).

Office of Administrative Hearings erred in ordering that an employee be retroactively reinstated because the requirements of 25 N.C. Admin. Code 01J.0605(b) were met, and the employer had just cause to terminate the employee for unacceptable personal conduct; the employee was ultimately terminated due to his failure to correct the deficiencies found in the third written warning, which served as the current incident of unsatisfactory job performance. Cole v. N.C. Dep't of Pub. Safety, 253 N.C. App. 270, 800 S.E.2d 708, 2017 N.C. App. LEXIS 319 (2017).

Superior court did not err in determining that the state highway patrol did not have just cause to terminate a sergeant where it properly found that his conduct in driving his patrol vehicle to a party and consuming alcohol was unacceptable personal conduct and was a willful violation of highway patrol policies, but termination was inconsistent with the state highway patrol’s treatment of similar conduct. Moreover, the sergeant’s excellent work history, tenure of service, and the lack of evidence that his actions resulted in harm mitigated against a finding of just cause for termination. Warren v. N.C. Dep't of Crime Control & Pub. Safety/N.C. Highway Patrol, 267 N.C. App. 503, 833 S.E.2d 633, 2019 N.C. App. LEXIS 755 (2019).

When Finding of Just Cause Is Required. —

A finding of just cause is not required unless the employee is discharged, suspended, or reduced in pay or position. Gibbs v. Department of Human Resources, 77 N.C. App. 606, 335 S.E.2d 924, 1985 N.C. App. LEXIS 4197 (1985).

Burden of Proof. —

The State Personnel Commission [now State Human Resources Commission] was correct in requiring the Employment Security Commission to carry the burden of proving petitioner was terminated for just cause. Employment Sec. Comm'n v. Peace, 122 N.C. App. 313, 470 S.E.2d 63, 1996 N.C. App. LEXIS 383 (1996).

The burden of proof in “just cause” claims under this section may be allocated to an employee without violating due process. Employment Sec. Comm'n v. Peace, 128 N.C. App. 1, 493 S.E.2d 466, 1997 N.C. App. LEXIS 1202 (1997), aff'd in part, 349 N.C. 315 , 507 S.E.2d 272, 1998 N.C. LEXIS 728 (1998).

The government’s interest in maintaining an efficient and productive government or private employee work force supports the allocation of the burden of proof on just cause to the employee. Peace v. Employment Sec. Comm'n, 349 N.C. 315 , 507 S.E.2d 272, 1998 N.C. LEXIS 728 (1998).

Reviewing agency and trial court did not err in placing the burden of proof upon a former career state employee to demonstrate that just cause did not exist for the employee’s termination from a position at a state university hospital. Robinson v. Univ. of N.C. Health Care Sys., 242 N.C. App. 614, 775 S.E.2d 898, 2015 N.C. App. LEXIS 701 (2015).

Failure to Show Just Cause. —

The State Personnel Commission [now State Human Resources Commission] did not err in its conclusion that the Employment Security Commission failed to show “just cause” for its dismissal of petitioner. Employment Sec. Comm'n v. Peace, 122 N.C. App. 313, 470 S.E.2d 63, 1996 N.C. App. LEXIS 383 (1996).

Health board’s dismissal of director for the omission a preaudit certificate on contracts was an error, as the board did not establish that the omission could produce disruption of work, a threat to persons or property, or any other serious effect that required immediate action, as required by G.S. 126-35 . Steeves v. Scot. County Bd. of Health, 152 N.C. App. 400, 567 S.E.2d 817, 2002 N.C. App. LEXIS 913 (2002).

Although there was no bright line test to determine whether a ranger’s conduct established unacceptable personal conduct, and thus “just cause” for a decision by the North Carolina Department of Environment and Natural Resources to demote him and reduce his pay, it was clear that the ranger’s decision to use emergency devices on his vehicle and exceed posted speed limits in trying to reach his mother, who was undergoing a medical emergency, was not conduct that would give just cause for such a severe penalty as demotion; the ranger’s conduct did not justifiably fall under the State Personnel Commission’s [now State Human Resources Commission’s] regulatory definition of “unacceptable personal conduct,” found in N.C. Admin. Code tit. 25, r. 1J .0614(i) (June 2004). N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649 , 599 S.E.2d 888, 2004 N.C. LEXIS 909 (2004).

Trial court properly concluded that North Carolina Department of Environment and Natural Resources (NCDENR) employees had not engaged in unacceptable personal conduct that was detrimental to state service and that there was no just cause for discipline because a “rational nexus” did not exist between the employees’ off-duty criminal conduct and the potential adverse impact on their future ability to perform for NCDENR. Kelly v. N.C. Dep't of Env't & Natural Res., 192 N.C. App. 129, 664 S.E.2d 625, 2008 N.C. App. LEXIS 1544 (2008).

While an expert testified that a highway patrol officer’s use of alcohol was a factor in his behavior, which included firing his firearm into the floor and ingesting sleeping pills, the expert also testified that the officer’s behavior was caused by a combination of alcohol, the officer’s first dose of lithium, “hypomania,” and his being “relatively unmedicated for his bipolar disorder;” accordingly, the challenged finding of fact was supported by substantial evidence. Neither could the court conclude that the application of the rational nexus test resulted in prejudice to the Department of Crime Control and Public Safety; thus, the Department did not have just cause to dismiss the officer. Bulloch v. N.C. Dep't of Crime Control & Pub. Safety, 223 N.C. App. 1, 732 S.E.2d 373, 2012 N.C. App. LEXIS 1135 (2012).

Administrative law judge’s (ALJ) conclusion that an agency did not establish just cause for a state employee’s dismissal was upheld because (1) the ALJ did not have to defer to the agency in finding if just cause existed, as the agency had the burden to show just cause, and (2) substantial evidence supported the ALJ’s factual findings that the employee’s unacceptable personal conduct did not warrant the sanction of dismissal, making those findings binding on appeal, as the ALJ was the sole fact-finder. Harris v. N.C. Dep't of Pub. Safety, 252 N.C. App. 94, 798 S.E.2d 127, 2017 N.C. App. LEXIS 130 , aff'd, 370 N.C. 386 , 808 S.E.2d 142, 2017 N.C. LEXIS 1020 (2017).

Although a university police officer’s failure to file a non-criminal report, in violation of a university work rule, constituted unacceptable personal conduct, the violation did not provide just cause for his dismissal where surveillance video and other evidence showed that no one was being assaulted when he arrived on the scene, a fellow officer who was privy to the information regarding the assault was issued a written warning, and the officer had a discipline-free work history. Whitehurst v. East Carolina Univ., 257 N.C. App. 938, 811 S.E.2d 626, 2018 N.C. App. LEXIS 128 (2018).

Administrative law judge did not commit legal error in finding no just cause for a state employee’s suspension because the employee had eight years of positive employment history, and other employees were able to cover the hour she was late one day, resulting in no negative impact to the operation of a development center or the care of its residents; pursuant to the center’s policy, the employee was never “absent” from work but merely tardy. Peterson v. Caswell Developmental Ctr., 258 N.C. App. 628, 814 S.E.2d 590, 2018 N.C. App. LEXIS 306 (2018).

Administrative law judge (ALJ) acted within her authority by determining the center failed to meet its burden to show just cause existed to warrant a state employee’s suspension for unacceptable personal conduct because the ALJ examined all the facts, circumstances, and equities present in the case, and the imposed written warning was within the authorized disciplinary alternatives. Peterson v. Caswell Developmental Ctr., 258 N.C. App. 628, 814 S.E.2d 590, 2018 N.C. App. LEXIS 306 (2018).

ALJ did not err in finding that a correctional officer’s discharge was unlawful under G.S. 126-35(a) given the lack of argument that just cause for the termination existed. Hunt v. N.C. Dep't of Pub. Safety, 260 N.C. App. 40, 817 S.E.2d 257, 2018 N.C. App. LEXIS 592 (2018).

Internal Grievance Procedures to Be Followed. —

Petitioner could not proceed under this section for a “just cause” violation without first following respondent’s internal grievance procedure. Nailing v. UNC-CH, 117 N.C. App. 318, 451 S.E.2d 351, 1994 N.C. App. LEXIS 1275 (1994).

Where petitioner made no application for leave without pay and respondent placed him involuntarily on sick leave until his accumulated time elapsed, then required him to expend his accumulated vacation, and finally placed him on leave without pay, this was, in essence, a suspension, which could not be made without just cause. White v. North Carolina Dep't of Cor., 117 N.C. App. 521, 451 S.E.2d 876, 1995 N.C. App. LEXIS 13 (1995).

Failure to Perform with Reasonable Care Essential to Just Cause. —

Standard of employee conduct implied in every contract of employment is one of reasonable care, diligence and attention. A State employee does not undertake any greater duty. In attempting to establish that it had just cause to terminate an employee, an agency is bound to make a showing that the employee has not performed with reasonable care, diligence and attention. Walker v. North Carolina Dep't of Human Resources, 100 N.C. App. 498, 397 S.E.2d 350, 1990 N.C. App. LEXIS 1066 (1990), writ denied, 402 S.E.2d 410, 1991 N.C. LEXIS 81 (N.C. 1991), writ denied, 328 N.C. 98 , 402 S.E.2d 430, 1991 N.C. LEXIS 83 (1991).

Failure to fulfill certain quotas and complete certain tasks to the complete satisfaction of a supervisor is not enough to establish just cause. The agency must show that quotas and job requirements were reasonable, and if so, that the employee made no reasonable effort to meet them. Walker v. North Carolina Dep't of Human Resources, 100 N.C. App. 498, 397 S.E.2d 350, 1990 N.C. App. LEXIS 1066 (1990), writ denied, 402 S.E.2d 410, 1991 N.C. LEXIS 81 (N.C. 1991), writ denied, 328 N.C. 98 , 402 S.E.2d 430, 1991 N.C. LEXIS 83 (1991).

Failure to Carry Out Supervisor’s Directives. —

Adequacy of an employee’s work must be, to some extent, a subjective determination made by agency personnel. When an agency seeks to establish before the Commission that an employee was terminated for just cause, however, it cannot rest solely on the grounds that his supervisor’s directives were not carried out to their fullest extent. Walker v. North Carolina Dep't of Human Resources, 100 N.C. App. 498, 397 S.E.2d 350, 1990 N.C. App. LEXIS 1066 (1990), writ denied, 402 S.E.2d 410, 1991 N.C. LEXIS 81 (N.C. 1991), writ denied, 328 N.C. 98 , 402 S.E.2d 430, 1991 N.C. LEXIS 83 (1991).

Where State employees were putting in extra effort to attempt to meet supervisor’s requirements, which failed to take into account many realities of school caseload, and where there was nothing in the record which would indicate that the inability of the employees to meet the supervisor’s goals adversely affected the agency in any way, and where findings indicated that the employer’s clients were well served by each employee, the trial court correctly concluded that the Commission’s own findings did not support its conclusion that just cause was established. Walker v. North Carolina Dep't of Human Resources, 100 N.C. App. 498, 397 S.E.2d 350, 1990 N.C. App. LEXIS 1066 (1990), writ denied, 402 S.E.2d 410, 1991 N.C. LEXIS 81 (N.C. 1991), writ denied, 328 N.C. 98 , 402 S.E.2d 430, 1991 N.C. LEXIS 83 (1991).

Reduced in Position. —

An employee is reduced in position within the meaning of this section when he is placed in a lower paygrade. Gibbs v. Department of Human Resources, 77 N.C. App. 606, 335 S.E.2d 924, 1985 N.C. App. LEXIS 4197 (1985).

Demotion and Transfer Were Not Done Without Just Cause. —

Demotion and transfer were not done without just cause where the petitioner had specifically asked for a transfer back to the town where he had been originally working and expressed a willingness, however begrudgingly, to accept a demotion if that was required. Curtis v. North Carolina DOT, 140 N.C. App. 475, 537 S.E.2d 498, 2000 N.C. App. LEXIS 1215 (2000).

Contested Action Deemed “Disciplinary” Within Meaning of This Section. —

Petitioner’s allegation that he had been “demoted in rank without sufficient cause” stated grounds for his department’s action to be deemed “disciplinary” within the meaning and intent of this section and for his case to be considered “contested” within the meaning and intent of G.S. 126-37(a) (now repealed). Because he had properly pursued all informal procedures mandated by the State Personnel Act [now North Carolina Human Resources Act] and by the North Carolina Administrative Code for the resolution of his grievance, petitioner’s appeal also fit the procedural profile of a “contested case” for purposes of its review by the Office of Administrative Hearings under Chapter 150B. Batten v. North Carolina Dep't of Cor., 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

Discharge of Exempt Employees by Successor Governor. —

Although the North Carolina State Personnel Act [now North Carolina Human Resources Act] provides that no permanent employee subject thereto shall be discharged, suspended or reduced in pay or position except for just cause, the act exempts certain employees by its terms and allows the Governor to designate as exempt from the provisions of the act certain other policy-making or decision-making employees. Where plaintiffs having a position designated as policy-making or confidential by the previous Governor brought suit alleging that each was discharged from an exempt government position for the sole reason of political affiliation, there was a presumption that successor Governor’s actions were proper if done for political patronage reasons that require, as a qualification for the performance of a job, a political affiliation. Stott v. Haworth, 916 F.2d 134, 1990 U.S. App. LEXIS 17593 (4th Cir. 1990), dismissed, 783 F. Supp. 970, 1992 U.S. Dist. LEXIS 2035 (D.N.C. 1992).

Grounds for Dismissal. —

A permanent state employee may be dismissed for (1) inadequate performance of duties or, (2) personal conduct detrimental to state service. Leiphart v. North Carolina School of Arts, 80 N.C. App. 339, 342 S.E.2d 914, 1986 N.C. App. LEXIS 2201 , cert. denied, 318 N.C. 507 , 349 S.E.2d 862, 1986 N.C. LEXIS 2726 (1986).

After Acquired Evidence Doctrine. —

Administrative law judge properly applied the after-acquired-evidence doctrine to a terminated career state employee and barred the employee from reinstatement and additional compensation because, although a state university wrongfully terminated the employee for theft, the university would have terminated the employee immediately upon subsequently learning of the employee’s failure to report criminal convictions on a job application. The employee’s remedy was limited to back pay from the time of the discharge to the discovery of the evidence. Brown v. Fayetteville State Univ., 269 N.C. App. 123, 837 S.E.2d 390, 2020 N.C. App. LEXIS 4 (2020).

Procedural Safeguards. —

Procedural safeguards within subsection (a) serve as a prophylactic protection against summary dismissal based on inadequate notice. Owen v. UNC-G Physical Plant, 121 N.C. App. 682, 468 S.E.2d 813, 1996 N.C. App. LEXIS 152 (1996).

Trial court erred in finding that the employee’s due process rights were violated after the employee failed to show bias from the employee’s direct supervisor’s role in the investigation or the all-female investigation team. Barron v. Eastpointe Human Servs. LME, 246 N.C. App. 364, 786 S.E.2d 304, 2016 N.C. App. LEXIS 351 (2016).

Special agent was not denied due process of law when she was terminated for consuming alcohol while on duty and lying about it where the date of the incident was clarified well before her interview, and she had an opportunity for a contested case hearing. Brewington v. N.C. Dep't of Pub. Safety, 254 N.C. App. 1, 802 S.E.2d 115, 2017 N.C. App. LEXIS 461 (2017).

Prior to dismissal for cause relating to performance of duties, a permanent State employee is entitled to three separate warnings that his performance is unsatisfactory, consisting of (1) an oral warning explaining how he is not meeting the job’s requirements; (2) a second oral warning outlining his unsatisfactory performance, with a follow-up letter reviewing the points covered by the oral warning; (3) a final written warning setting forth in numerical order the specific acts or omissions that are the reasons for the disciplinary action and the employee’s appeal rights. Jones v. Department of Human Resources, 300 N.C. 687 , 268 S.E.2d 500, 1980 N.C. LEXIS 1129 (1980).

The requirement of this section is that a permanent state employee is entitled to three separate warnings giving notice that his performance is unsatisfactory. Parks v. Department of Human Resources, 79 N.C. App. 125, 338 S.E.2d 826, 1986 N.C. App. LEXIS 1979 (1986).

Written Notice at Time of Dismissal. —

When an employee is being dismissed for personal misconduct, the requirement of timely written notice has been met where the written statement of the reasons for dismissal is given to the employee simultaneously with his dismissal. Leiphart v. North Carolina School of Arts, 80 N.C. App. 339, 342 S.E.2d 914, 1986 N.C. App. LEXIS 2201 , cert. denied, 318 N.C. 507 , 349 S.E.2d 862, 1986 N.C. LEXIS 2726 (1986).

Administrator received the notification mandated by G.S. 126-35 in an administrative proceeding concerning the administrator’s dismissal from employment at a State facility for the mentally retarded; as the administrator received a dismissal letter which set forth the specific acts or omissions supporting his dismissal, as well as his appeal rights, and the fact that this notice was given simultaneously with the disciplinary action in this case was not a violation of G.S. 126-35 . Kea v. HHS, 153 N.C. App. 595, 570 S.E.2d 919, 2002 N.C. App. LEXIS 1246 (2002), aff'd, 357 N.C. 654 , 588 S.E.2d 467, 2003 N.C. LEXIS 1416 (2003).

Trial court erred in finding that the employee did not receive sufficient notice under G.S. 126-35(a) after the employee was given numerous forms of written and oral notice pertaining to the text messages and failure to follow reporting requirements, and the employee had waged a robust defense as to all of the allegations. Barron v. Eastpointe Human Servs. LME, 246 N.C. App. 364, 786 S.E.2d 304, 2016 N.C. App. LEXIS 351 (2016).

Department of Public Safety’s motion to dismiss the officer’s petition for review of its refusal to consider his grievance was properly denied where no statement of appeal rights was ever sent, thus, the 15-day time limit of G.S. 126-35(a) was not triggered, and the officer had filed the petition within 30 days of receiving the letter refusing to process the grievance. Hunt v. N.C. Dep't of Pub. Safety, 260 N.C. App. 40, 817 S.E.2d 257, 2018 N.C. App. LEXIS 592 (2018).

Failure to Follow Internal Policy. —

Employee’s claim that his employer did not follow its internal policy in that he was not given an action plan after he received written warnings did not entitle him to relief regarding his eventual demotion because he did not show that there was a substantial chance that if the employer had followed this policy the result of his case would have been different. Skinner v. N.C. Dep't of Corr., 154 N.C. App. 270, 572 S.E.2d 184, 2002 N.C. App. LEXIS 1473 (2002).

Contents of Notice of Dismissal. —

The notice of dismissal need not explain every step in the appeal process. Rather, it must inform the employee of his right to appeal. Leiphart v. North Carolina School of Arts, 80 N.C. App. 339, 342 S.E.2d 914, 1986 N.C. App. LEXIS 2201 , cert. denied, 318 N.C. 507 , 349 S.E.2d 862, 1986 N.C. LEXIS 2726 (1986).

Employee’s notice of dismissal was adequate because the employee was not entitled to notice of all evidence related to the employee’s acts and omissions of which the employee was provided notice. Blackburn v. N.C. Dep't of Pub. Safety, 246 N.C. App. 196, 784 S.E.2d 509, 2016 N.C. App. LEXIS 297 (2016).

Duty of State Agencies to Describe “Specific Acts or Omissions” with Particularity. —

This section imposes an affirmative duty on State agencies to inform discharged employees, in writing, of the “specific acts or omissions” that were the reasons for the disciplinary action; “specific acts or omissions” implies that these incidents should be described with sufficient particularity so that the discharged employee will know precisely what acts or omissions were the basis of his discharge. Employment Sec. Comm'n v. Wells, 50 N.C. App. 389, 274 S.E.2d 256, 1981 N.C. App. LEXIS 2115 (1981).

This section requires that the acts or omissions be described with sufficient particularity so that the discharged employee will know precisely what acts or omissions were the basis of his discharge. Leiphart v. North Carolina School of Arts, 80 N.C. App. 339, 342 S.E.2d 914, 1986 N.C. App. LEXIS 2201 , cert. denied, 318 N.C. 507 , 349 S.E.2d 862, 1986 N.C. LEXIS 2726 (1986).

Failure to include the specific names of the employee’s accusers in her dismissal letter prejudiced her ability to fully prepare her appeal. Owen v. UNC-G Physical Plant, 121 N.C. App. 682, 468 S.E.2d 813, 1996 N.C. App. LEXIS 152 (1996).

Notice Held Inadequate. —

The Employment Security Commission failed to give respondent proper notice of the reasons for his dismissal as an employee as required by this section where the only information given respondent concerning the reasons for his dismissal was contained in the letter of dismissal, which stated that respondent violated agency procedure in attempting to recruit migrant workers from Florida by phone and personal visit, that respondent had forced workers to work for a designated crew leader even though the workers preferred not to work in a crew, and that respondent violated agency procedure by not reporting illegal aliens, since the letter did not describe any incidents with sufficient particularity so that respondent could know precisely what acts or omissions were the basis of his discharge. Employment Sec. Comm'n v. Wells, 50 N.C. App. 389, 274 S.E.2d 256, 1981 N.C. App. LEXIS 2115 (1981).

Although the Department of Human Resources’ original notice to petitioner clearly stated the specific acts underlying its decision to take a particular disciplinary action, i.e., dismissal, the secretary’s subsequent notice that her decision to demote petitioner was “based upon the information presented” was not an adequate statement of the specific acts or omissions underlying her decision to take a different disciplinary action, i.e., demotion. Meyers v. Department of Human Resources, 92 N.C. App. 193, 374 S.E.2d 280, 1988 N.C. App. LEXIS 1012 (1988), writ denied, 324 N.C. 247 , 377 S.E.2d 754, 1989 N.C. LEXIS 127 (1989).

Warnings Required. —

Where petitioner’s performance of his duties as a wildlife officer were what had become accepted standards of reporting and performing his work, disciplinary action by petitioner’s supervisors to halt these accepted standards would have propelled this behavior into the “unsatisfactory job performance” category rather than the “unacceptable personal conduct” category, for which certain warnings were required before petitioner’s termination on the grounds of unsatisfactory job performance. Wilkie v. North Carolina Wildlife Resources Comm'n, 118 N.C. App. 475, 455 S.E.2d 871, 1995 N.C. App. LEXIS 291 (1995).

No Requirement for Administrative Warning Before Demotion. —

There was no basis in this section or relevant regulations to conclude lawful procedure required petitioner be given any administrative warnings before his demotion. Meyers v. Department of Human Resources, 92 N.C. App. 193, 374 S.E.2d 280, 1988 N.C. App. LEXIS 1012 (1988), writ denied, 324 N.C. 247 , 377 S.E.2d 754, 1989 N.C. LEXIS 127 (1989).

Written Statement of Appeal Rights Required. —

Due process under the United States and North Carolina Constitutions requires that a permanent State employee who has been dismissed be provided with a statement in writing setting forth his rights of appeal before the 15- and 30-day time limits for notice of appeal provided in this section and G.S. 126-38 (now repealed) commence to run. Luck v. Employment Sec. Comm'n, 50 N.C. App. 192, 272 S.E.2d 607, 1980 N.C. App. LEXIS 3452 (1980).

Opportunity to Respond. —

A State employee who has a right to continued employment subject to dismissal for just cause is entitled to a predetermination opportunity to respond. Leiphart v. North Carolina School of Arts, 80 N.C. App. 339, 342 S.E.2d 914, 1986 N.C. App. LEXIS 2201 , cert. denied, 318 N.C. 507 , 349 S.E.2d 862, 1986 N.C. LEXIS 2726 (1986).

Impartial Decision Maker. —

A public employee facing an administrative hearing is entitled to an impartial decision maker. However, to make out a due process claim based on this theory, an employee must show that the decision making board or individual possesses a disqualifying personal bias. Leiphart v. North Carolina School of Arts, 80 N.C. App. 339, 342 S.E.2d 914, 1986 N.C. App. LEXIS 2201 , cert. denied, 318 N.C. 507 , 349 S.E.2d 862, 1986 N.C. LEXIS 2726 (1986).

Dean’s consultation with members of the State Personnel Commission [now State Human Resources Commission] prior to dismissing petitioner could not be said to have deprived him of an impartial hearing where petitioner failed to show any disqualifying personal bias on the part of the decision makers because of familiarity with the facts of his case. Leiphart v. North Carolina School of Arts, 80 N.C. App. 339, 342 S.E.2d 914, 1986 N.C. App. LEXIS 2201 , cert. denied, 318 N.C. 507 , 349 S.E.2d 862, 1986 N.C. LEXIS 2726 (1986).

Failure to Follow Established Grievance Procedure. —

Department of Human Resource’s dismissal of employee’s appeal on grounds it was filed one day after the deadline was neither arbitrary or capricious where employee was informed of the time limits for perfecting appeal, offered assistance for complying with appeal procedures since legal representation was not allowed at that time of the proceeding, and employee’s apparent justification for filing late was difficulty in retaining an attorney. Lewis v. North Carolina Dep't of Human Resources, 92 N.C. App. 737, 375 S.E.2d 712, 1989 N.C. App. LEXIS 43 (1989).

School’s failure to follow its internal review process did not automatically entitle petitioner to reversal of dismissal determination. In order to claim any relief based on a violation of internal appeal procedures, petitioner would have had to show that there was a substantial chance there would have been a different result in his case if the established internal procedures had been followed. Leiphart v. North Carolina School of Arts, 80 N.C. App. 339, 342 S.E.2d 914, 1986 N.C. App. LEXIS 2201 , cert. denied, 318 N.C. 507 , 349 S.E.2d 862, 1986 N.C. LEXIS 2726 (1986).

Failure to Make Proper Findings of Facts and Conclusions of Law. —

Case was remanded because the final decision did not indicate that the conduct of a technician who worked for a county department of social services amounted to unacceptable personal conduct, and no conclusion of law asserted the department had substantive just cause for any disciplinary action; the ALJ had to make findings of fact and conclusions of law regarding whether the conduct was unacceptable personal conduct, and whether it amounted to just cause for the disciplinary action taken. Watlington v. Dep't of Soc. Servs. Rockingham Cnty., 252 N.C. App. 512, 799 S.E.2d 396, 2017 N.C. App. LEXIS 220 (2017), overruled in part, Rouse v. Forsyth Cty. Dep't of Soc. Servs., 373 N.C. 400 , 838 S.E.2d 390, 2020 N.C. LEXIS 93 (2020).

Administrative Law Judge (ALJ) erred in reversing a final agency decision by the county department of social services to terminate an employee for her use of a racial epithet because the ALJ’s finding of fact regarding the employee’s alleged conduct was not supported by the evidence in the record; the employee’s testimony was clear and unequivocal that the phrase she used was “nigra rican” and not “Negra-Rican,” as found by the ALJ. Ayers v. Currituck Cty. Dep't of Soc. Servs., 267 N.C. App. 513, 833 S.E.2d 649, 2019 N.C. App. LEXIS 794 (2019).

County department of social services (DSS) did not properly exercise its discretion in its disciplinary investigation of an employee because its representative did not consider the necessary resulting harm factor and thus, did not consider all of the required factors; a remand was necessary for a completion of the investigation, and the court of appeals could conduct meaningful de novo appellate review regarding whether just cause existed to terminate the employee. Ayers v. Currituck Cty. Dep't of Soc. Servs., 2021-NCCOA-521, 279 N.C. App. 514, 866 S.E.2d 785, 2021- NCCOA-521, 2021 N.C. App. LEXIS 529 (2021).

Discretion to Consider Full Range of Punishment. —

Petitioner was dismissed from the North Carolina State Highway Patrol for alleged violations of the Patrol’s truthfulness policy, but because the colonel did not understand that he had discretion to consider the full range of potential discipline, his decision was affected by an error of law; under the flexible definition of just cause, the colonel had discretion in dismissing an employee for violating the policy, and while dismissal may be reasonable for dishonest conduct, the better practice would be to allow for a range of disciplinary actions in response to an individual act of untruthfulness, rather than a categorical approach. Wetherington v. N.C. Dep't of Pub. Safety, 368 N.C. 583 , 780 S.E.2d 543, 2015 N.C. LEXIS 1259 (2015).

Motion In Limine Properly Denied. —

It was no error to deny a career state employee’s motion in limine to limit termination hearing evidence to reasons stated in the employee’s dismissal letter because (1) the employee’s prior discipline was relevant to the level of discipline imposed, and (2) the employee was not entitled to notice of all evidence related to the acts and omissions of which the employee was given notice. Blackburn v. N.C. Dep't of Pub. Safety, 246 N.C. App. 196, 784 S.E.2d 509, 2016 N.C. App. LEXIS 297 (2016).

Record supported North Carolina Department of Health and Human Services’ decision to terminate a health care technician’s employment after other health care technicians saw the employee discard food meant for persons who were in the employee’s care at a nursing home, distribute meals improperly, and fail to bathe a resident. Pittman v. N.C. Dep't of Health and Human Servs., 155 N.C. App. 268, 573 S.E.2d 628, 2002 N.C. App. LEXIS 1579 (2002), rev'd, 357 N.C. 241 , 580 S.E.2d 692, 2003 N.C. LEXIS 602 (2003).

Substantial Evidence. —

Substantial evidence supported an administrative law judge’s factual findings in support of a recommendation to terminate a career state employee because the evidence showed the employee (1) left an inmate in handcuffs despite not regarding the inmate as a threat, (2) did not ensure the inmate was monitored, (3) did not complete reports, and (4) did not accept personal responsibility. Blackburn v. N.C. Dep't of Pub. Safety, 246 N.C. App. 196, 784 S.E.2d 509, 2016 N.C. App. LEXIS 297 (2016).

Dismissal Upheld. —

Dismissal of petitioner from position as Director of Student Activities in the Student Services Department at the North Carolina School of the Arts for personal misconduct involving his role in assembling a meeting of other division directors to discuss complaints about their superior, the Dean of Student Services, in the absence of the Dean, would be upheld. Leiphart v. North Carolina School of Arts, 80 N.C. App. 339, 342 S.E.2d 914, 1986 N.C. App. LEXIS 2201 , cert. denied, 318 N.C. 507 , 349 S.E.2d 862, 1986 N.C. LEXIS 2726 (1986).

Dismissal of State Bureau of Investigation (SBI) agent for failure to comply with five day deadline for SBI agents to file reports was reasonable where the rule was promulgated for the purpose of providing timely written reports to district attorneys, to aid in prosecution, and to enhance the credibility of the testimony of SBI agents and the rule also provided that for legitimate reasons, the five day requirement could be extended. Gainey v. North Carolina Dep't of Justice, 121 N.C. App. 253, 465 S.E.2d 36, 1996 N.C. App. LEXIS 11 (1996).

State Personnel Commissioner [now Director of the Office of State Human Resources] did not err in affirming dismissal based on warnings that occurred two years prior to the actual dismissal, especially when the earlier violations related to the very reasons for which the employee was dismissed. Gainey v. North Carolina Dep't of Justice, 121 N.C. App. 253, 465 S.E.2d 36, 1996 N.C. App. LEXIS 11 (1996).

Substantial evidence supported an administrative law judge’s (ALJ) ruling that the North Carolina Department of Transportation (DOT) had just cause to dismiss an employee for unacceptable personal conduct where he knowingly violated the DOT’s Statement of Understanding and Internet Policy as: (1) the employee’s denial of knowledge of the Statement of Understanding was not credible, (2) the employee’s claim that he was unaware that he had to obtain his supervisor’s approval before installing software on his work computer was not believed by the ALJ, (3) the employee admitted not having permission to install software on his computer, and (4) the unauthorized installation of software was inconsistent with the DOT’s objective to ensure that its files and computer network system were properly protected. Teague v. N.C. DOT, 177 N.C. App. 215, 628 S.E.2d 395, 2006 N.C. App. LEXIS 863 (2006), cert. denied, 362 N.C. 373 , 662 S.E.2d 395, 2008 N.C. LEXIS 363 (2008), cert. dismissed, 677 S.E.2d 842, 2009 N.C. LEXIS 466 (N.C. 2009), cert. denied, 365 N.C. 556 , 722 S.E.2d 602, 2012 N.C. LEXIS 381 (2012), cert. denied, 568 U.S. 949, 133 S. Ct. 444, 184 L. Ed. 2d 271, 2012 U.S. LEXIS 7842 (2012).

Trial court did not err in affirming the State Personnel Commission’s [now State Human Resources Commission’s] decision and order adopting the findings of fact of a North Carolina Office of Administrative Hearings administrative law judge (ALJ) because the ALJ’s findings of fact addressed the same issues that were discussed in the dismissal letter that was sent to a former employee. Woodard v. N.C. DOT, 201 N.C. App. 124, 684 S.E.2d 906, 2009 N.C. App. LEXIS 1871 (2009).

Trial court did not err in affirming the State Personnel Commission’s [now State Human Resources Commission’s] decision to grant a former employer summary judgment because a former employee was dismissed for violating one of the employer’s rules and for her treatment of the co-worker, and she did not assert any issue of fact regarding her behavior towards the co-worker or argue that her treatment of the co-worker, standing alone, did not constitute just cause for her dismissal; the employee did not deny the violation of the employer’s rule and did not argue that willful violation of the rule failed to constitute just cause for dismissal. Woodard v. N.C. DOT, 201 N.C. App. 124, 684 S.E.2d 906, 2009 N.C. App. LEXIS 1871 (2009).

North Carolina State Highway Patrol did not act arbitrarily or capriciously when it dismissed a state trooper because just cause existed, pursuant to G.S. 126-35 , to support the trooper’s termination from the Highway Patrol because the trooper engaged in unacceptable personal conduct by having an extramarital affair over a period of years and engaging in sexual conduct during the affair in a patrol car, behind a patrol car, and in a Highway Patrol office while in uniform. Furthermore, other Highway Patrol officers were terminated for similar misconduct. Poarch v. N.C. Dep't of Crime Control & Pub. Safety, 223 N.C. App. 125, 741 S.E.2d 315, 2012 N.C. App. LEXIS 1191 (2012).

Office of Administrative Hearings erred in granting summary judgment in favor of a career state employee because the employer met the procedural statutory requirements prior to dismissing the employee, the employee was not deprived of her ability to prepare an effective representation or effectively appeal her discharge, and did not meet her burden of showing that her dismissal was based on discrimination inasmuch as she was placed on a performance improvement plan, participated in ongoing progress meetings where she received feedback, guidance, and counseling, received two detailed warnings, a pre-dismissal letter, and a dismissal letter, all of which described in sufficient detail the employee’s unsatisfactory job performance. Heard-Leak v. N.C. State Univ. Ctr. for Urban Affairs, 250 N.C. App. 41, 798 S.E.2d 394, 2016 N.C. App. LEXIS 1367 (2016).

In a case where the North Carolina Department of Public Instruction (DPI) dismissed a career State employee, the final decision of the administrative law judge upholding the employee’s dismissal for just cause was affirmed because the employee engaged in conduct unbecoming of a State employee that was detrimental to State service by becoming involved in a loud confrontation with a female colleague, which resulted in her believing that the employee had harassed her and had created a hostile work environment for female employees; he engaged in inappropriate conduct during a potential employee’s interview; and the employee displayed a pattern of petulant, inappropriate, and insubordinate behavior that extended over the course of several years. Smith v. N.C. Dep't of Pub. Instruction, 261 N.C. App. 430, 820 S.E.2d 561, 2018 N.C. App. LEXIS 923 (2018).

Substantial evidence supported the ALJ’s findings that the employee engaged in unacceptable personal conduct and grossly ineffective job performance, and therefore her termination was upheld, because she was driving a bus with a coworker and a student on board at a high rate of speed, between 80 and 85 miles per hour. The employee’s own admissions showed that it was a requirement of her job and a known work rule that she was not to drive the school’s bus at a speed greater than 55 miles per hour. Sharpe-Johnson v. Nc Dep't of Pub. Instruction E. N.C. Sch. for the Deaf, 2021-NCCOA-562, 280 N.C. App. 74, 867 S.E.2d 188, 2021- NCCOA-562, 2021 N.C. App. LEXIS 582 (2021).

Dismissal Held Unjustified. —

Dismissal of superintendent of the Department of Correction’s Treatment Facility for Women (TFW) in Charlotte, a minimum custody prison or “halfway house”, on grounds of insubordination held not justified under the evidence. Kandler v. Department of Cor., 80 N.C. App. 339, 342 S.E.2d 910 (1986).

Petitioner-employee was not fired for just cause where her termination was based on her refusal: (1) to provide services to a client whose dad was sexually harassing her and; (2) to attend several meetings with supervisors after her complaints about her client’s sexual harassment were met with disbelief, little or no attention and investigation or ignored. Souther v. New River Area Mental Health Dev. Disabilities & Substance Abuse Program, 142 N.C. App. 1, 541 S.E.2d 750, 2001 N.C. App. LEXIS 29 , aff'd, 354 N.C. 209 , 552 S.E.2d 162, 2001 N.C. LEXIS 932 (2001).

Editor’s Note.

Former G.S. 126-36 pertained to the appeal of unlawful State employment practice. Former G.S. 126-36 .1 pertained to the appeal to Office of Administrative Hearings by applicant for employment. Former G.S. 126-36.2 pertained to the appeal to Office of Administrative Hearings by career State employee denied notice of vacancy or priority consideration. Former G.S. 126-37 pertained to the Administrative Law Judge’s final decision. Former G.S. 126-38 pertained to time limit for appeals. Former G.S. 126-39 pertained to scope of this Article. Former G.S. 126-41 pertained to attorney and witness fees.

Former G.S. 126-40 was repealed by Session Laws 1985, s. 746, s. 16.

Editor’s Note.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “North Carolina Human Resources Act” for “State Personnel Act” in the last sentence of subsection (b).

Editor’s Note.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “State Human Resources Commission” for “State Personnel Commission.”

Editor’s Note.

Session Laws 1981, c. 917, s. 2 provided: “Nothing herein contained shall be construed to obligate the General Assembly to appropriate any additional funds, nor permit coverage under the Teachers’ and State Employees’ Retirement System and health benefits program in Articles 1 and 3 of Chapter 135 except as otherwise provided for therein.”

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “Office of State Human Resources” for “Office of State Personnel,” “State Human Resources Commission” for “State Personnel Commission,” and “Director of the Office of State Human Resources” for “State Personnel Director.”

Editor’s Note.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “State Human Resources Commission” for “State Personnel Commission” and “North Carolina Human Resources Act” for “State Personnel Act.”

Editor’s Note.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “State Human Resources Commission” for “State Personnel Commission” twice.

Session Laws 2014-115, s. 55.4(c), effective August 11, 2014, substituted “State Human Resources system” for “State Personnel System” in the last sentence.

Editor’s Note.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section, brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “State Human Resources Commission” for “State Personnel Commission.”

Editor’s Note.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “State Human Resources Commission” for “State Personnel Commission.”

Editor’s Note.

Former G.S. 126-79 pertained to required reports.

CASE NOTES

Construction with Other Sections. —

Pursuant to G.S. 126-83 , employees of the System designated in G.S. 126-5(a)(2) are expressly excluded from the preference afforded by this section but, if qualified under G.S. 128-15 , are entitled to the veterans preference thereunder applicable to all employees of State departments, agencies and institutions. Wright v. Blue Ridge Area Auth., 134 N.C. App. 668, 518 S.E.2d 772, 1999 N.C. App. LEXIS 899 (1999).

Editor’s Note.

Session Laws 2007-286, s. 3, provides that the State Personnel Commission [now State Human Resources Commission] and State agencies, departments, and institutions shall adopt rules to implement this act.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”

Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”

Effect of Amendments.

Session Laws 2007-286, s. 2, effective July 27, 2007, added the last sentences in subsections (a) and (b).

Session Laws 2013-382, s. 9.1(c), effective August 31, 2013, substituted “State Human Resources Commission” for “State Personnel Commission” throughout the section.

Session Laws 2014-115, s. 55.3(e), effective August 11, 2014, substituted “that denial as provided by G.S. 126-34.01 and G.S. 126-34.02 ” for “directly to the State Human Resources Commission” in subsection (d).

CASE NOTES

Veteran’s Preference. —

The Commission’s rule that the veteran’s preference applies only to “initial selection” and “reduction in force” situations was reasonable and permissible. Dunn v. North Carolina Dep't of Human Resources, 124 N.C. App. 158, 476 S.E.2d 383, 1996 N.C. App. LEXIS 1005 (1996).

OPINIONS OF ATTORNEY GENERAL

The State Personnel Commission [now State Human Resources Commission] has the statutory authority, under this section and G.S. 126-4 , 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. See opinion of Attorney General to Mr. Ronald Penny, State Personnel Director, Office of State Personnel, 1998 N.C. Op. Att'y Gen. 10 (2/12/98).

CASE NOTES

Application of Veterans Preference. —

Pursuant to this section, employees of the System designated in G.S. 126-5(a)(2) are expressly excluded from the preference afforded by G.S. 126-80 but, if qualified under G.S. 128-15 , are entitled to the veterans preference thereunder applicable to all employees of State departments, agencies and institutions. Wright v. Blue Ridge Area Auth., 134 N.C. App. 668, 518 S.E.2d 772, 1999 N.C. App. LEXIS 899 (1999).

Editor’s Note.

Session Laws 2018-41, s. 10, made the amendment of subsection (a) by Session Laws 2018-41, s. 7, effective June 22, 2018, and applicable to actions brought on or after that date.

Session Laws 2019-80, s. 4, provides: “Effective when this act becomes law [July 4, 2019], the head of each State agency, department, and institution shall notify its employees of the changes made by this act.”

Effect of Amendments.

Session Laws 2018-41, s. 7, in (a), in the introductory paragraph, substituted “have a duty” for “be encouraged” and added “any of the following” at the end, and made punctuation changes at the end of (a)(1) through (a)(4). For effective date and applicability, see editor’s note.

Session Laws 2019-80, s. 1, effective July 4, 2019, inserted “or providing statements or testimony to agents and employees of legislative panels duly appointed by the President Pro Tempore and/or the Speaker of the House designated to conduct inquiries on behalf of such legislative panels” to the end of subsection (b).

Legal Periodicals.

For article, “23RD Annual Institute for Law & Economic Policy Symposium: Secrecy: Confidentiality and Whistleblowing,” see 96 N.C.L. Rev. 751 (2018).

For article, “Fraud in the Pandemic: How COVID-19 Affects Qui Tam Whistleblowers and The False Claims Act,” see 43 Campbell L. Rev. 273 (2021).

CASE NOTES

Purpose of Act to Protect State Employee From Retaliation for Truthful Reporting, Not to Condone Untruthful Conduct. —

Trial court properly granted a motion to dismiss by state agencies and officials of a former law enforcement officer’s action under the Whistleblower Act, G.S. 126-84 et seq., where the officer admitted that he failed to file a complete and accurate report of an arrest incident that he observed involving another trooper and a suspect, wherein excessive force was suspected; the purpose of the Whistleblower Act was to protect a state employee from retaliation when he engaged in truthful reporting, not to condone untruthful conduct. Newberne v. Crime Control & Pub. Safety, 168 N.C. App. 87, 606 S.E.2d 742, 2005 N.C. App. LEXIS 176 , rev'd, 359 N.C. 782 , 618 S.E.2d 201, 2005 N.C. LEXIS 835 (2005).

Construction with Other Statutes. —

G.S. 126-36(b) (now repealed) merely provided a plaintiff with “the right to appeal” a wrongful retaliation claim directly to the State Personnel Commission [now State Human Resources Commission]. and such “right to appeal” did not otherwise bar an action which met the requirements of the Whistleblower Act, G.S. 126-84 et seq.; when former G.S. 126-36(b) was read in para materia with the Whistleblower Act, the two statutes are not irreconcilable. Wells v. State DOC, 152 N.C. App. 307, 567 S.E.2d 803, 2002 N.C. App. LEXIS 929 (2002).

Jurisdiction. —

When an employee alleged the employee was terminated in violation of North Carolina’s Whistleblower Act, a trial court did not lack subject matter jurisdiction due to administrative proceedings below because the claim was dismissed at the administrative level for lack of subject matter jurisdiction, so administrative jurisdiction was never acquired, and the doctrine of administrative exhaustion did not bar the suit. Hodge v. N.C. DOT, 246 N.C. App. 455, 784 S.E.2d 594, 2016 N.C. App. LEXIS 370 (2016).

Office of Administrative Hearings (OAH) had no jurisdiction to hear an employee’s appeal of an alleged denial of a promotion for reporting other employees’ improper acts because, (1) as a career state employee, the employee was required by the statute in effect to file a Whistleblower Act claim in the OAH within 30 days after the promotion was denied, which the employee did not do, and (2) the date on which the employee’s claim allegedly accrued was irrelevant. Brown v. N.C. Dep't of Pub. Safety, 256 N.C. App. 425, 808 S.E.2d 322, 2017 N.C. App. LEXIS 977 (2017).

Applicability. —

Whistleblower Act, G.S. 126-84 through G.S. 126-88 , applied to a University of North Carolina research scientist because G.S. 126-5(c5) excluded the Whistleblower Act from the exemption in G.S. 126-5(c1)(8). Yan-Min Wang v. UNC-CH Sch. of Med., 216 N.C. App. 185, 716 S.E.2d 646, 2011 N.C. App. LEXIS 2150 (2011).

Burden of Proof. —

Even if it were assumed arguendo that a former employee established a prima facie claim of retaliation, the employee’s suit against corrections officials was properly disposed through summary judgment because the officials articulated some legitimate, non-retaliatory reasons for terminating the employee’s employment with a correctional facility, but the employee failed to show that the given reasons were pretextual. Sivaramalingam Manickavasagar v. N.C. Dep't of Pub. Safety, 238 N.C. App. 418, 767 S.E.2d 652, 2014 N.C. App. LEXIS 1403 (2014).

Trial court properly granted the university and supervisor summary judgment on a whistleblower claim where the issues that ultimately prompted the university to terminate employment arose around 18 months prior to an internal audit investigation, the employee had not shown any improvement despite being given an opportunity to do so and, thus, the employee failed to establish a causal connection between her protected activity and her termination. Hubbard v. N.C. State Univ., 248 N.C. App. 496, 789 S.E.2d 915, 2016 N.C. App. LEXIS 812 (2016).

When an employee alleged the employee was terminated in violation of North Carolina’s Whistleblower Act, the employer was entitled to summary judgment because the employee’s alleged circumstantial evidence showed the employer’s reason for firing the employee was pretextual, but the employee did not point to specific, non-speculative facts, beyond that required to state a prima facie case, discrediting the employer’s non-retaliatory motive. Hodge v. N.C. DOT, 246 N.C. App. 455, 784 S.E.2d 594, 2016 N.C. App. LEXIS 370 (2016).

Burden of Persuasion. —

Claims brought under the North Carolina Whistleblower Act, G.S. 126-84 through 126-88, should be adjudicated according to the following procedures: (1) the plaintiff must endeavor to establish a prima facie case of retaliation under the statute, the plaintiff should include any available direct evidence that the adverse employment action was retaliatory along with circumstantial evidence to that effect; (2) the defendant should present its case, including its evidence as to legitimate reasons for the employment decision; and (3) once all the evidence has been received, the court should determine whether the McDonnell Douglas or Price Waterhouse framework properly applies to the evidence before it. If the plaintiff has demonstrated that he or she engaged in a protected activity and the defendant took adverse action against the plaintiff in his or her employment, and if the plaintiff has further established by direct evidence that the protected conduct was a substantial or motivating factor in the adverse employment action, then the defendant bears the burden to show that its legitimate reason, standing alone, would have induced it to make the same decision; if, however, the plaintiff has failed to satisfy the Price Waterhouse threshold, the case should be decided under the principles enunciated in McDonnell Douglas and Burdine, with the plaintiff bearing the burden of persuasion on the ultimate issue whether the employment action was taken for retaliatory purposes. Newberne v. Dep't of Crime Control & Pub. Safety, 359 N.C. 782 , 618 S.E.2d 201, 2005 N.C. LEXIS 835 (2005).

Protected Activity. —

Terminated employee’s conduct in disclosing confidential patient information was not a protected activity under the North Carolina Whistle-blower Act, G.S. 126-84 et seq. Holt v. Albemarle Reg'l Health Servs. Bd., 188 N.C. App. 111, 655 S.E.2d 729, 2008 N.C. App. LEXIS 95 (2008).

Administrative record was insufficient to determine whether a university research scientist engaged in protected activity when she reported to her employer that there was a problem with the mouse population his lab was using because the agency did not make factual findings explaining its conclusory statement that there was no retaliation and that the scientist’s employment was not continued because of a personality conflict. Yan-Min Wang v. UNC-CH Sch. of Med., 216 N.C. App. 185, 716 S.E.2d 646, 2011 N.C. App. LEXIS 2150 (2011).

Doctor’s claim of being fired from a correctional institution in retaliation for reporting discrimination based on race or national origin was without merit because, based on statements by the doctor, it was clear that the doctor did not believe that the doctor was ever discriminated against at the institution because of race or national origin. As such, a letter by the doctor did not involve reporting racial discrimination, and instead constituted an employee grievance matter, which was not a protected activity. Sivaramalingam Manickavasagar v. N.C. Dep't of Pub. Safety, 238 N.C. App. 418, 767 S.E.2d 652, 2014 N.C. App. LEXIS 1403 (2014).

Sufficiency of Complaint. —

State trooper’s claim for wrongful termination in violation of the North Carolina Whistleblower Act, G.S. 126-84 through 126-88, was wrongfully dismissed where the trooper, who alleged that the actual reason for his termination was his disclosure of a possible abuse of authority in an amended statement that corrected a possibly misleading statement, stated a claim for relief under G.S. 126-84 (a). Newberne v. Dep't of Crime Control & Pub. Safety, 359 N.C. 782 , 618 S.E.2d 201, 2005 N.C. LEXIS 835 (2005).

Trial court properly dismissed for failure to state a claim a former employee’s complaint alleging that a university and its chancellor violated the Whistleblower Act by unlawfully retaliating against her, discriminating against her, and discharging her for her refusal to carry out the chancellor’s directive to pay a member of the university’s board of trustees $10,000 from university funds to obtain an option to purchase real property because the employee’s complaint failed to sufficiently allege that she was engaged in a protected activity within the meaning of the Act, G.S. 126-84 ; that the university could or could not have had the funds in the future to exercise the option at the time it was purchased did not affect the option’s value, and that the employee did not anticipate acquiring sufficient funds to exercise the option before its expiration also did not affect the option’s value. Helm v. Appalachian State Univ., 194 N.C. App. 239, 670 S.E.2d 571, 2008 N.C. App. LEXIS 2251 (2008), rev'd, 363 N.C. 366 , 677 S.E.2d 454, 2009 N.C. LEXIS 602 (2009).

Earlier Suit Was Not Basis for Claim Under Whistleblower Act. —

Employee was not entitled to seek relief for alleged employment retaliation under the Whistleblower Act, G.S. 126-84 , on the theory that his earlier suit seeking reinstatement into his former position constituted reporting to “another appropriate authority” since the earlier suit did not concern matters affecting general public policy. Hodge v. N.C. DOT, 175 N.C. App. 110, 622 S.E.2d 702, 2005 N.C. App. LEXIS 2726 (2005).

Settlement of Administrative Action Did Not Bar Suit Under Whistleblower Act. —

Agreement settling a former employee’s administrative action against an agency did not estop the former employee from seeking damages under the Whistleblower Act, G.S. 126-84 et seq., because the former employee did not allege a Whistleblower Act claim in the administrative action and such remedies were not recoverable in the administrative action; the settlement agreement did not contain any release of a claim under the Whistleblower Act. The former employee’s acceptance of the settlement agreement and subsequent voluntary resignation did not negate the fact that the former employee’s employment was terminated. Newberne v. N.C. Dep't of Crime Control & Pub. Safety, 192 N.C. App. 703, 666 S.E.2d 195, 2008 N.C. App. LEXIS 1647 (2008).

Claim for Conversation Failed. —

Trial court erred by failing to grant summary judgment to the North Carolina Department of Correction (NCDOC) and one of its officials in a suit brought by a correctional officer asserting claims for conversion, a violation of 42 U.S.C.S. § 1983, and violations of North Carolina’s Whistleblower Act, G.S. 126-84 through G.S. 126-88 , as the conversion claim was barred by sovereign immunity since it was an intentional tort; the 42 U.S.C.S. § 1983 claim was barred since neither the State nor its officials could be liable for monetary damages under § 1983; and, as to his whistleblower claims, the officer’s reassignment to a different post was not shown to be a demotion since he failed to show that his reassignment resulted in a pay loss of any kind and, based on his own testimony, his resignation was not an employment action relevant to the claim since he only told one person affiliated with the NCDOC about his intent to resign, and that person tried to discourage the same. Demurry v. N.C. Dep't of Corr., 195 N.C. App. 485, 673 S.E.2d 374, 2009 N.C. App. LEXIS 204 (2009).

Adequate State Remedy. —

Former employee did not adequately allege a free speech claim, an equal protection claim, and an exclusive emoluments claim when she had an adequate state remedy for those violations because the employee’s claim under the Whistleblower Act, G.S. 126-86 , was an adequate state law remedy for her alleged free speech violation, her claim of misappropriation of state funds was expressly covered by the Act, G.S. 126-84 , and thus was an adequate state law remedy for her exclusive emoluments clause claim; because the employee’s equal protection claim alleged discrimination based on activities protected by the Whistleblower Act, it was also precluded. Helm v. Appalachian State Univ., 194 N.C. App. 239, 670 S.E.2d 571, 2008 N.C. App. LEXIS 2251 (2008), rev'd, 363 N.C. 366 , 677 S.E.2d 454, 2009 N.C. LEXIS 602 (2009).

Editor’s Note.

Session Laws 2008-215, s. 9, provides: “This act is effective when it becomes law [August 15, 2008] and applies to all information received or collected by the State Auditor concerning alleged violations of Chapters 138A or 120C of the General Statutes or Article 14 of Chapter 120 of the General Statutes on or after January 1, 2007.”

Session Laws 2019-80, s. 4, provides: “Effective when this act becomes law [July 4, 2019], the head of each State agency, department, and institution shall notify its employees of the changes made by this act.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2008-196, s. 2(b), effective August 8, 2008, added “or to the Program Evaluation Division as authorized by G.S. 120-36.12(10)” at the end of subsection (c).

Session Laws 2008-215, s. 8, effective August 15, 2008, substituted “G.S. 147-64.6B” for “G.S. 147-64.6(c)(16)” in subsection (c). See Editor’s note for applicability.

Session Laws 2019-80, s. 2, effective July 4, 2019, rewrote subsection (c), which formerly read: “The protections of this Article shall include State employees who report any activity described in G.S. 126-84 to the State Auditor as authorized by G.S. 147-64.6 B or to the Program Evaluation Division as authorized by G.S. 120-36.12(10).”

Session Laws 2021-180, s. 27.2(e), effective July 1, 2021, substituted “or to a legislative committee” for “to the Program Evaluation Division as authorized by G.S. 120-36.12(10), or to a legislative panel duly appointed by the President Pro Tempore and/or the Speaker of the House or an agent or employee of such a legislative panel” in subsection (c).

CASE NOTES

Exhaustion of Remedies. —

Trial court properly dismissed a judicial action brought by a former police officer under G.S. 126-86 , which was commenced prior to the exhaustion of an administrative action before the Office of Administrative Hearings, that the former officer brought pursuant to G.S. 126-34.1(a)(7) (now repealed), alleging retaliation and racial discrimination in violation of G.S. 126-85 . Newberne v. Crime Control & Pub. Safety, 168 N.C. App. 87, 606 S.E.2d 742, 2005 N.C. App. LEXIS 176 , rev'd, 359 N.C. 782 , 618 S.E.2d 201, 2005 N.C. LEXIS 835 (2005).

When an employee alleged the employee was terminated in violation of North Carolina’s Whistleblower Act, a trial court did not lack subject matter jurisdiction due to administrative proceedings below because the claim was dismissed at the administrative level for lack of subject matter jurisdiction, so administrative jurisdiction was never acquired, and the doctrine of administrative exhaustion did not bar the suit. Hodge v. N.C. DOT, 246 N.C. App. 455, 784 S.E.2d 594, 2016 N.C. App. LEXIS 370 (2016).

Interest on Backpay Award Not Allowed. —

Superior court erred when it awarded a terminated state employee interest on a backpay award, which was entered after a jury rendered a verdict for the employee on his retaliation claim under G.S. 126-85(a) because pursuant to 25 N.C. Admin. Code 1B.0425, North Carolina could not be required to pay interest on any backpay award. Brookshire v. N.C. DOT, DMV, 180 N.C. App. 670, 637 S.E.2d 902, 2006 N.C. App. LEXIS 2513 (2006).

Summary Judgment Appropriate. —

Where although plaintiff’s complaint contained allegations of Whistleblower violations, plaintiff’s concessions made it clear that certain defendants committed no violations of the Whistleblower Act, the trial court should have granted summary judgment on these claims. Minneman v. Martin, 114 N.C. App. 616, 442 S.E.2d 564, 1994 N.C. App. LEXIS 437 (1994).

Where defendant’s motion for summary judgment was amply supported by evidence establishing a legitimate reason for plaintiff’s transfer to a substantially similar job, and plaintiff failed to meet her burden of coming forward with a showing that defendant’s stated reasons were not simply a pretext for discrimination, the trial court properly granted summary judgment in favor of defendant. Kennedy v. Guilford Technical Community College, 115 N.C. App. 581, 448 S.E.2d 280, 1994 N.C. App. LEXIS 924 (1994), overruled in part, Newberne v. Dep't of Crime Control & Pub. Safety, 359 N.C. 782 , 618 S.E.2d 201, 2005 N.C. LEXIS 835 (2005).

Trial court properly granted summary judgment for the university and university officials on a campus police officer’s claim that the officer was disciplined in retaliation for refusing to withdraw a citation issued to a university trustee’s child; the officer failed to appeal an administrative order that upheld the disciplinary action, and therefore failed to exhaust administrative remedies. Swain v. Elfland, 145 N.C. App. 383, 550 S.E.2d 530, 2001 N.C. App. LEXIS 663 , cert. denied, 354 N.C. 228 , 554 S.E.2d 832, 2001 N.C. LEXIS 1002 (2001).

Trial court erred by failing to grant summary judgment to the North Carolina Department of Correction (NCDOC) and one of its officials in a suit brought by a correctional officer asserting claims for conversion, a violation of 42 U.S.C.S. § 1983, and violations of North Carolina’s Whistleblower Act, G.S. 126-84 through G.S. 126-88 , as the conversion claim was barred by sovereign immunity since it was an intentional tort; the 42 U.S.C.S. § 1983 claim was barred since neither the State nor its officials could be liable for monetary damages under § 1983; and, as to his whistleblower claims, the officer’s reassignment to a different post was not shown to be a demotion since he failed to show that his reassignment resulted in a pay loss of any kind and, based on his own testimony, his resignation was not an employment action relevant to the claim since he only told one person affiliated with the NCDOC about his intent to resign, and that person tried to discourage the same. Demurry v. N.C. Dep't of Corr., 195 N.C. App. 485, 673 S.E.2d 374, 2009 N.C. App. LEXIS 204 (2009).

When an employee alleged the employee was terminated in violation of North Carolina’s Whistleblower Act, the employer was entitled to summary judgment because the employee’s alleged circumstantial evidence showed the employer’s reason for firing the employee was pretextual, but the employee did not point to specific, non-speculative, facts, beyond that required to state a prima facie case, discrediting the employer’s non-retaliatory motive. Hodge v. N.C. DOT, 246 N.C. App. 455, 784 S.E.2d 594, 2016 N.C. App. LEXIS 370 (2016).

Motion to Dismiss Properly Granted. —

Trial court properly dismissed for failure to state a claim a former employee’s complaint alleging that a university and its chancellor violated the Whistleblower Act by unlawfully retaliating against her, discriminating against her, and discharging her for her refusal to carry out the chancellor’s directive to pay a member of the university’s board of trustees $10,000 from university funds to obtain an option to purchase real property because the employee’s complaint failed to sufficiently allege that she was engaged in a protected activity within the meaning of the Act, G.S. 126-84 ; that the university could or could not have had the funds in the future to exercise the option at the time it was purchased did not affect the option’s value, and that the employee did not anticipate acquiring sufficient funds to exercise the option before its expiration also did not affect the option’s value. Helm v. Appalachian State Univ., 194 N.C. App. 239, 670 S.E.2d 571, 2008 N.C. App. LEXIS 2251 (2008), rev'd, 363 N.C. 366 , 677 S.E.2d 454, 2009 N.C. LEXIS 602 (2009).

Office of Administrative Hearings (OAH) had no jurisdiction to hear an employee’s appeal of an alleged denial of a promotion for reporting other employees’ improper acts because, (1) as a career state employee, the employee was required by the statute in effect to file a Whistleblower Act claim in the OAH within 30 days after the promotion was denied, which the employee did not do, and (2) the date on which the employee’s claim allegedly accrued was irrelevant. Brown v. N.C. Dep't of Pub. Safety, 256 N.C. App. 425, 808 S.E.2d 322, 2017 N.C. App. LEXIS 977 (2017).

Motion to Dismiss Improperly Granted. —

State trooper’s claim for wrongful termination in violation of the North Carolina Whistleblower Act, G.S. 126-84 through 126-88, was wrongfully dismissed for failure to state a cause of action because the trooper, who alleged that the actual reason for his termination was his disclosure of a possible abuse of authority in an amended statement that corrected a possibly misleading statement, stated a claim for relief under G.S. 126-84 (a). Newberne v. Dep't of Crime Control & Pub. Safety, 359 N.C. 782 , 618 S.E.2d 201, 2005 N.C. LEXIS 835 (2005).

A prima facie claim under this statute consists of the following elements: (1) plaintiff engaged in protected activity, (2) followed by an adverse employment action, and (3) that the protected conduct was a substantial or motivating factor in the adverse action. Hanton v. Gilbert, 126 N.C. App. 561, 486 S.E.2d 432, 1997 N.C. App. LEXIS 617 (1997).

No Private Cause of Action. —

The plain language of G.S. 126-85 addresses only state employees and agencies, and nothing in the Whistleblower Act indicates that it was intended to serve as public policy for the public at large; thus, the Act did not create a private cause of action for a former at-will employee’s wrongful termination action against his private employer and corporate officers. Hardin v. Belmont Textile Mach., Co., 2006 U.S. Dist. LEXIS 54452 (W.D.N.C. Aug. 3, 2006), aff'd, 355 Fed. Appx. 717, 2009 U.S. App. LEXIS 26668 (4th Cir. 2009).

Employee Grievance Not A Protected Activity. —

Doctor’s claim of being fired from a correctional institution in retaliation for reporting discrimination based on race or national origin was without merit because, based on statements by the doctor, it was clear that the doctor did not believe that the doctor was ever discriminated against at the institution because of race or national origin. As such, a letter by the doctor did not involve reporting racial discrimination, and instead constituted an employee grievance matter, which was not a protected activity. Sivaramalingam Manickavasagar v. N.C. Dep't of Pub. Safety, 238 N.C. App. 418, 767 S.E.2d 652, 2014 N.C. App. LEXIS 1403 (2014).

Retaliatory Discharge Motivated by Complaints of Racial Discrimination. —

Leave to amend to add a claim under the North Carolina Whistleblower Act was granted because the provisions of that Act referring to retaliation for reporting a violation of state or federal statutes applied to claims for retaliatory discharge motivated by the employee’s complaint of racial discrimination. Jenkins v. Trs. of Sandhills Cmty. College, 2002 U.S. Dist. LEXIS 25252 (M.D.N.C. Dec. 3, 2002).

Retaliatory Firing Not Shown. —

Where the evidence was that there were questions regarding the adequacy of plaintiff’s performance, of which plaintiff had knowledge, even before his reports and the nonappointment was based on the plaintiff’s inability to collaborate with others the evidence was simply too speculative to support a finding that the plaintiff’s nonrenewal was in any way related to the report. Aune v. University of N.C. 120 N.C. App. 430, 462 S.E.2d 678, 1995 N.C. App. LEXIS 891 (1995).

Where defendants motion for summary judgment was supported with evidence that teacher’s termination was based on insubordination and the teacher failed to meet her burden of coming forward with evidence which showed that whistleblowing activity was a substantial causative factor for her dismissal, summary judgment for defendants was appropriate. Hanton v. Gilbert, 126 N.C. App. 561, 486 S.E.2d 432, 1997 N.C. App. LEXIS 617 (1997).

Superior court did not abuse its discretion when it denied defendants’ motions for a directed verdict and for a judgment notwithstanding a jury’s verdict because the fired state employee who filed the suit against defendants presented sufficient evidence to support submitting his retaliation claim under G.S. 126-85 to the jury; the employee presented more than a mere scintilla of evidence showing that he had engaged in protected activity by participating in a state investigation of his state agency employer, that he was terminated after his supervisors learned of that activity, and that the activity was a substantial or motivating factor in his termination. Brookshire v. N.C. DOT, DMV, 180 N.C. App. 670, 637 S.E.2d 902, 2006 N.C. App. LEXIS 2513 (2006).

Employee was not wrongfully terminated by a supervisor for the employee’s employer, which was a district health department, because the employee’s conduct in disclosing confidential patient information, even construing the evidence in the employee’s favor, was not a protected activity under the North Carolina Whistle-blower Act, G.S. 126-84 et seq.; alternatively, the employee failed to raise a factual issue as to whether the reason given for the termination of the employee’s employment was merely a pretext. Holt v. Albemarle Reg'l Health Servs. Bd., 188 N.C. App. 111, 655 S.E.2d 729, 2008 N.C. App. LEXIS 95 (2008).

CASE NOTES

Application to District Attorneys. —

The former administrative assistant to a district attorney made a prima facie claim of retaliatory discharge under this section, where her evidence tended to show that she had received satisfactory performance evaluations before she spoke to state investigators concerning their investigation of the district attorney but was discharged almost immediately thereafter. Caudill v. Dellinger, 129 N.C. App. 649, 501 S.E.2d 99, 1998 N.C. App. LEXIS 755 (1998), aff'd in part, 350 N.C. 89 , 511 S.E.2d 304, 1999 N.C. LEXIS 50 (1999).

Claims for Retaliatory Discharge Motivated by Complaints of Racial Discrimination. —

Leave to amend to add a claim under the North Carolina Whistleblower Act was granted because the provisions of that Act referring to retaliation for reporting a violation of state or federal statutes applied to claims for retaliatory discharge motivated by the employee’s complaint of racial discrimination. Jenkins v. Trs. of Sandhills Cmty. College, 2002 U.S. Dist. LEXIS 25252 (M.D.N.C. Dec. 3, 2002).

Earlier Suit Was Not Basis for Claim under Whistleblower Act. —

Employee was not entitled to seek relief for alleged employment retaliation under the Whistleblower Act, G.S. 126-84 , on the theory that his earlier suit seeking reinstatement into his former position constituted reporting to “another appropriate authority” since the earlier suit did not concern matters affecting general public policy. Hodge v. N.C. DOT, 175 N.C. App. 110, 622 S.E.2d 702, 2005 N.C. App. LEXIS 2726 (2005).

Choice of Remedies. —

State employee may choose to pursue a whistleblower claim pursuant to G.S. 126-85 in either the superior court or the Office of Administrative Hearings, but not both. Swain v. Elfland, 145 N.C. App. 383, 550 S.E.2d 530, 2001 N.C. App. LEXIS 663 , cert. denied, 354 N.C. 228 , 554 S.E.2d 832, 2001 N.C. LEXIS 1002 (2001).

Doctrine of administrative exhaustion did not prevent a state trooper from filing a whistleblower claim in a superior court because the state trooper had the choice to pursue the whistleblower claim in either a judicial forum, pursuant to G.S. 126-86 , or an administrative forum, pursuant to G.S. 126-34.1 , but not both. Additionally, the trooper, while he requested an administrative hearing on an issue, did not request a hearing on his whistleblower claim. Newberne v. Dep't of Crime Control & Pub. Safety, 359 N.C. 782 , 618 S.E.2d 201, 2005 N.C. LEXIS 835 (2005).

Conversation Claim Failed. —

Trial court erred by failing to grant summary judgment to the North Carolina Department of Correction (NCDOC) and one of its officials in a suit brought by a correctional officer asserting claims for conversion, a violation of 42 U.S.C.S. § 1983, and violations of North Carolina’s Whistleblower Act, G.S. 126-84 through G.S. 126-88 , as the conversion claim was barred by sovereign immunity since it was an intentional tort; the 42 U.S.C.S. § 1983 claim was barred since neither the State nor its officials could be liable for monetary damages under § 1983; and, as to his whistleblower claims, the officer’s reassignment to a different post was not shown to be a demotion since he failed to show that his reassignment resulted in a pay loss of any kind and, based on his own testimony, his resignation was not an employment action relevant to the claim since he only told one person affiliated with the NCDOC about his intent to resign, and that person tried to discourage the same. Demurry v. N.C. Dep't of Corr., 195 N.C. App. 485, 673 S.E.2d 374, 2009 N.C. App. LEXIS 204 (2009).

Adequate State Remedy. —

Former employee did not adequately allege a free speech claim, an equal protection claim, and an exclusive emoluments claim when she had an adequate state remedy for those violations because the employee’s claim under the Whistleblower Act, G.S. 126-86 , was an adequate state law remedy for her alleged free speech violation, her claim of misappropriation of state funds was expressly covered by the Act, G.S. 126-84 , and thus was an adequate state law remedy for her exclusive emoluments clause claim; because the employee’s equal protection claim alleged discrimination based on activities protected by the Whistleblower Act, it was also precluded. Helm v. Appalachian State Univ., 194 N.C. App. 239, 670 S.E.2d 571, 2008 N.C. App. LEXIS 2251 (2008), rev'd, 363 N.C. 366 , 677 S.E.2d 454, 2009 N.C. LEXIS 602 (2009).

CASE NOTES

Interest on Backpay Award Not Allowed. —

Superior court erred when it awarded a terminated state employee interest on a backpay award, which was entered after a jury rendered a verdict for the employee on his retaliation claim under G.S. 126-85(a) because pursuant to 25 N.C. Admin. Code 1B.0425, North Carolina could not be required to pay interest on any backpay award. Brookshire v. N.C. DOT, DMV, 180 N.C. App. 670, 637 S.E.2d 902, 2006 N.C. App. LEXIS 2513 (2006).

Attorneys’ Fees. —

Office of Administrative Hearings (OAH) could award a state employee appellate attorneys’ fees in an employment case because (1) OAH’s authority was not statutorily limited to the administrative part of a contested case, (2) such a limit would not be read into the statute, and (3) the statute expanded OAH’s authority to award fees by authorizing remedies where an employee prevailed on appeal of a whistleblower grievance. Hunt v. N.C. Dep't of Pub. Safety, 266 N.C. App. 24, 830 S.E.2d 865, 2019 N.C. App. LEXIS 547 (2019).

Editor’s Note.

Session Laws 2011-145, s. 20.5A, provides: “During the 2011-2013 fiscal biennium, notwithstanding the provisions of G.S. 143C-6-10 , 126-95, 116-17.2, or any other law to the contrary, the sum of one million five hundred thousand dollars ($1,500,000) from the savings in the employer’s share of contributions under the Federal Insurance Contributions Act on account of the reduction in salary may be transferred from the NCFlex FICA Fund to the Office of State Personnel [now Office of State Human Resources] to support program components of the HCM System.”

Session Laws 2011-145, s. 1.1, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2011.’ ”

Session Laws 2011-145, s. 32.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium.”

Session Laws 2011-145, s. 32.5, is a severability clause.

Session Laws 2013-292, s. 5, provides: “State entities shall use a competitive bid process to award contracts to third-party providers for TRICARE supplement options. The NC Flex plan administered by the Office of State Personnel [now Office of State Human Resources] shall offer a TRICARE supplement no later than January 1, 2015.”

Effect of Amendments.

Session Laws 2013-292, s. 4, effective July 18, 2013, in subsection (b), substituted “3B” for “3” in the second sentence and added the fourth sentence.

Session Laws 2013-382, s. 1.4, effective August 21, 2013, added subsection (c).

Session Laws 2019-152, s. 2, effective July 22, 2019, substituted “System, the Consolidated Judicial Retirement System, the Legislative Retirement System” for “System” in subsection (c).