When a North Carolina county board of health wants to fire its County Health Director, can it discharge the director at will, or does the State Personnel Act (Chapter 126) protect the director?

Plain-English summary

Cleveland County's Board of Health and the county itself were contemplating firing their County Health Director. Both their attorneys jointly asked the AG whether the State Personnel Act (Chapter 126) governed the discharge, which would mean the director had specific procedural rights and could appeal, or whether the director served at the will of the board.

Assistant Attorney General Norma S. Harrell concluded Chapter 126 applied. The director could not be discharged at will.

The reasoning was textual and traced through two chapters of statute.

Chapter 126 covers local health department employees. § 126-5(a) makes the State Personnel Act applicable to all state employees plus certain enumerated local employees. Local health department employees are on the list. The statute then lists various exemptions. Local health directors are not on the exemption list.

Chapter 130A is silent on the question. The local-health-department statute (Chapter 130A, Article 2) deals with the appointment of the local health director by the board of health (§ 130A-40), the qualifications (set by the State Personnel Commission), and the powers and duties of the position (§ 130A-41). It does not address termination of the director's employment.

The predecessor statute did address termination. Old G.S. § 130-18, which Chapter 130A superseded in 1983, expressly said that the board of health could terminate the director "subject to the provisions of Chapter 126." When the General Assembly rewrote Chapter 130 into Chapter 130A in 1983, this sentence dropped out.

The question was what to make of that omission.

The AG concluded the omission did not change the legal result. The sentence in old § 130-18 had been unnecessary in the first place. § 126-5(a) already covered the health director, and the unnecessary sentence in § 130-18 merely confirmed the obvious. Omitting an unnecessary sentence does not change the underlying rule. To strip the director of Chapter 126 protection, the legislature would have had to add the director to the § 126-5 exemption list, not just drop a redundant reinforcing sentence.

The opinion also addressed the surrounding text. § 130A-41(b)(12), the provision describing the director's authority to hire and dismiss the subordinates of the health department, said the director acts "subject to the provisions of Chapter 126." That sentence might be read as implying that the director's own employment was not governed by Chapter 126 (since the legislature did not similarly cross-reference Chapter 126 in describing the director's own position). The AG rejected that reading. The cross-reference in § 130A-41(b)(12) was either surplusage or aimed at confirming the director's authority to act on personnel matters, not at delineating the director's own status.

The bottom line: a fired county health director had the right to invoke the State Personnel Act appeal process and pursue any remedy Chapter 126 made available, including reinstatement and back pay.

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The State Personnel Act has been substantially restructured since 1986. Chapter 126 was renamed the State Human Resources Act (2013 S.L. 2013-382), and the State Personnel Commission is now the State Human Resources Commission, with the Office of State Human Resources replacing the Office of State Personnel. The basic question of whether local health directors are SHRA-covered remains a matter of statutory coverage in the current text of § 126-5. Local health department reorganizations (consolidated human services agencies under G.S. § 153A-77, for example) can also affect whether a "county health director" exists in a particular county. A modern board contemplating director discharge should check the current statute, the current SHRA rules, and whether the local health department has been consolidated into a larger human services structure.

Background and statutory framework

North Carolina's State Personnel Act protects covered public employees from arbitrary discharge. Just-cause discharge requires the employer to follow specified procedures (notice, opportunity to respond, written statement of reasons) and the employee has appeal rights to the (then) State Personnel Commission. The Act applied to state employees by default and to specific categories of local employees by statutory inclusion.

Local public health workers were included because of the structural relationship between state and local public health. The State Department of Human Resources (now Health and Human Services) controls much of the policy framework, sets qualifications, and channels significant funding to local health departments. Local employees were folded into the SPA framework to keep the workforce on a single standard.

The 1986 question came up in the wake of the 1983 chapter rewrite. Cleveland County's board of health probably hoped, or its lawyers hoped, that the dropped sentence in old § 130-18 had de-coupled the director from Chapter 126 protection. The AG's textual analysis closed that door. The director's status under § 126-5(a) survived the rewrite.

The opinion is a clean example of how to read statutory rewrites. The legislature is generally presumed to know what the law is when it rewrites a statute. Omissions are sometimes significant (deletion of operative language usually does change the law) and sometimes not (deletion of a redundant cross-reference usually does not). The AG distinguished between the two: an unnecessary belt-and-suspenders sentence can drop out without changing the underlying rule.

Common questions

Could the board still fire the director for cause?

Yes. The State Personnel Act allows discharge for just cause, with appropriate procedures. The director is not immune from being fired; the director just has SPA procedural protections and appeal rights.

What procedures did the board need to follow?

The 1986 framework required notice of the contemplated discharge, the specific reasons, an opportunity to be heard, and a written statement of the discharge decision and its grounds. The dismissed employee could then appeal to the State Personnel Commission. The specifics of the modern process are governed by current State Human Resources Commission rules.

What if the director had only worked for the department for a short time?

Probationary employees have fewer protections under the SPA. A director who had not completed the probationary period might be subject to discharge with less process. The opinion did not address probationary-period considerations.

What about the district health director of a multi-county district?

The opinion was framed around a county health director, but the same § 126-5(a) coverage applies to all local health department employees, whether the department is single-county or multi-county. A district health director hired by a district board of health under § 130A-36 would have the same SPA protections.

Could the board reduce the director's role or pay rather than discharge?

A material reduction in role or pay could be a constructive discharge or a demotion that itself requires SPA procedures. The opinion did not address this scenario, but the answer would track the same Chapter 126 analysis.

Source

• Landing page: https://ncdoj.gov/opinions/application-of-chapter-126-to-discharge-of-county-health-director/

Citations

• G.S. § 126-5(a) (State Personnel Act applicability)
• G.S. §§ 130A-40, 130A-41 (local health department; director appointment and duties)
• Former G.S. § 130-18 (predecessor; expressly subjected director discharge to Chapter 126)
• Chapter 130A, Article 2 (local health departments)

Original opinion text

Requested By: Michael S. Kennedy, Esq. Attorney for Cleveland County Board of Health

Robert W. Yelton, Esq. Attorney for Cleveland County

Question: Is a County Health Director covered by, and subject to the provisions of, the State Personnel Act, Chapter 126 of the General Statutes, so that his discharge must comply with the requirements of that Chapter?

Conclusion: Yes.

The question has arisen whether a County Health Director is subject to Chapter 126 of the General Statutes, the State Personnel Act, such that his discharge and any appeal rights would be governed by the provisions of Chapter 126 and the regulations of the State Personnel Commission adopted pursuant thereto. Chapter 126 is generally applicable to all state employees, except those specifically exempted in Chapter 126 or in other statutes, and to certain local employees, including the employees of local health departments. G.S. § 126-5(a). A number of exemptions are included in G.S. § 126-5, but nothing in that statute specifically exempts, or can be interpreted as exempting, local public health directors.

Local health departments are created and administered pursuant to Article 2 of Chapter 130A of the General Statutes. The local board of health, after consultation with the appropriate county board or boards of commissioners, appoints the local health director. G.S. § 130A-40. Qualifications for the position are determined by the State Personnel Commission after consultation with the Commission for Health Services, under guidelines suggested by the statute.

G.S. § 130A-40. Nothing in Chapter 130A specifically provides that the Health Director is or is not subject to the provisions of Chapter 126 of the General Statutes.

The Health Director is the administrative head of the local health department and performs such duties as the statute prescribes and as the Board assigns pursuant to those statutes under the supervision of the local board of health. G.S. § 130A-41(a). His specific powers and duties are set out in greater detail in G.S. § 130A-41(b).

Chapter 130A was enacted in 1983, superseding applicable provisions of Chapter 130 of the General Statutes. Previously, G.S. § 130-18 specified that the local board of health could terminate the services of the Health Director subject to the provisions of Chapter 126. Nothing in the current provisions under Chapter 130A requires that any dismissal of the Health Director be subject to Chapter 126. In fact, the current provisions do not speak at all to the termination of the Health Director.

Nothing else appearing, all employees of a local health department, whether county or district, are subject to the provisions of Chapter 126. As noted above, the explicit provisions of Chapter 126 so provide. Nothing in Chapter 126 places the Director in a different position from that of other employees. Chapter 130A, unlike the predecessor provisions of Chapter 130, does not specify that the Health Director can be terminated only subject to the provisions of the State Personnel Act. However, such a sentence is not necessary to make the Health Director subject to the State Personnel Act. Only if he were to be exempt from the Personnel Act would it be necessary either to specify that he is exempt from the Act or to provide explicitly that his dismissal would be at the discretion of the Board or that he served at the will of the Board. The fact that a prior version of the statute included an unnecessary sentence that his dismissal would be subject to the provisions of Chapter 126 does not require a conclusion that he is exempt from Chapter 126 in the absence of such language. The language was unnecessary, and no rule of statutory construction requires an interpretation that omission of an unnecessary sentence in a rewritten statute would change the normal interpretation and application of other statutory provisions. Similarly, the fact that G.S. § 130A-41(b)(12) specifies that the Director employs and dismisses employees subject to the provisions of Chapter 126 does not require a conclusion that the lack of such specificity as to the Director renders him exempt from the Personnel Act. Such language may be mere surplusage, or it may be intended to remove any doubt about the authority of the Director, rather than the Board, to hire and dismiss other employees and to avoid any suggestion that their employment or dismissal was intended to be at the will of the Director. Since there is no language whatsoever referring to termination of the Director, it is not necessary to specify that his termination is subject to the Personnel Act in order to avoid any inferences anyone might otherwise draw from language referring to the entity or individuals with authority to dismiss.

It is therefore our opinion that the employment and termination of a local health director are subject to the provisions of Chapter 126 of the General Statutes, the State Personnel Act, and that termination or discharge of a Health Director must comply with all statutory provisions and regulations duly adopted by the State Personnel Commission pursuant to Chapter 126. A discharged Health Director has all rights resulting from his status of being subject to the State Personnel Act, including appeal rights for local employees, as and when applicable.

LACY H. THORNBURG
Attorney General

Norma S. Harrell
Assistant Attorney General