Can a new state authority use its broad 'hire as it deems necessary' language to skip over former state employees who hold priority reemployment rights under the State Personnel System?

Plain-English summary

The North Carolina Technological Development Authority asked whether its power to employ staff “as it deems necessary” exempted it from the State Personnel System’s priority reemployment rights. The AG answered no. The opinion says the staffing language did not expressly remove the Authority from the system or exempt its vacancies from priority reemployment.

The opinion quotes Dept. of Corrections v. Hill: when a person with priority rights is qualified for an available state job, that person “must be offered this job before it can be filled by anyone else, by promotion or otherwise.” The AG said this applies when entitlement to those rights has been determined judicially or by the State Personnel Commission. The opinion also characterized priority reemployment as a property right. In its view, limiting that right by removing an agency’s vacancies required specific statutory language, which the Authority’s staffing provision lacked.

The opinion mentions a preceding companion opinion but does not describe that opinion’s conclusion or assign staffing management to another department. Its answer here is about whether this Authority’s general hiring power created an exception to priority reemployment.

Currency note

This opinion interprets statutes and personnel rules as they stood in 1989. Check current law and rules before applying it to a present vacancy.

Background and statutory framework

The AG identified Chapter 126 and State Personnel Commission rules as the sources defining the rights and privileges of state employees. G.S. 126-5(e), as interpreted in Hill, created the priority offer right. The opinion reasoned that reducing the pool of available state positions would reduce that statutory right. Because the Authority’s law merely allowed it to employ staff it deemed necessary within available funds, the AG found no express exemption from making vacant positions available to qualified people with priority rights.

Common questions

Does general authority to hire necessary staff override priority reemployment?

Not for the Authority in this opinion. The AG said its staffing provision had no express exemption from the State Personnel System or from priority reemployment rights.

Is every former state employee entitled to an offer before anyone else?

The opinion describes a narrower rule. Entitlement must be established, the state position must be available, and the person must be qualified for it.

Did the opinion decide who controls the Authority’s staffing decisions?

No. It refers to a companion opinion but answers only whether the Authority’s own staffing language displaced priority reemployment rights.

Citations

• N.C.G.S. § 126-4 (State Personnel Commission rulemaking authority)
• N.C.G.S. § 126-4(9) (specific rule on offering positions to priority candidates)
• N.C.G.S. § 126-5(a)(1) (scope of State Personnel System)
• N.C.G.S. § 126-5(e) (priority reemployment right)
• N.C.G.S. § 143B-471.3A(2) (NCTDA staffing authority, "as it deems necessary")
• Chapter 126 of the General Statutes (State Personnel System)
• Dept. of Corrections v. Hill, 313 N.C. 481, 329 S.E.2d 377 (1985) (employee with priority reemployment status must be offered qualifying available position before any other hire)
• Bean v. Taylor, 408 F.Supp. 614 (M.D.N.C.), aff'd, 534 F.2d 328 (4th Cir. 1976) (statutory state-employment protections are property rights protected by due process)

Source

• Landing page: https://ncdoj.gov/opinions/n-c-technological-development-authority-due-process/

Original opinion text

Requested By: Mr. Brent Lane, Executive Director, N.C. Technological Development Authority

Question: Does the power of the North Carolina Technological Development Authority under G.S. 143A-471.3A(2) to "employ . . . staff as it deems necessary" exempt the agency from having to accept state employees entitled to priority reemployment rights under the State Personnel System?

Conclusion: No. G.S. 143B-471.3A(2) does not exempt the North Carolina Technological Development Authority from having to accept a qualified individual with priority reemployment rights under the State Personnel System.

Chapter 126 of the North Carolina General Statutes creates rights and privileges for State employees. Legislation enacted by the General Assembly and properly adopted rules of the State Personnel Commission define the scope of those rights and the circumstances under which they arise, G.S. 126-4, G.S. 126-5(a)(1). A statutorily created right is the right of priority reemployment. "[W]e hold that in N.C.G.S. 126-5(e) (1981) 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," Dept. of Corrections v. Hill, 313 N.C. 481, 486, 329 S.E.2d 377, 380 (1985). Therefore, when it has been determined either judicially or by the State Personnel 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. G.S. 126-4(9).

Reducing the number of possible employment opportunities obviously has a negative impact on the priority reemployment rights of the individuals. Priority reemployment is a property right, and therefore constitutional considerations mandate that any such reduction be accomplished properly. Bean v. Taylor, 408 F.Supp. 614 (M.D.N.C.), aff'd., 534 F.2d 328 (4th Cir. 1976). Because priority reemployment is a right based on statutory law, only the General Assembly can properly authorize a limitation of that right. The comprehensive nature of the statutes and rules addressing State employees support the conclusion that, in the absence of an express statutory exemption, priority reemployment rights may be exercised in regard to vacancies in all State agencies. In other words, once an individual is entitled to priority employment rights within the State Personnel System, only specific statutory language will be sufficient to eliminate an agency from making a vacancy available to the individual.

As noted in the preceding companion opinion, the language of G.S. 143B-471.3A(2) granting power to the N.C. Technological Development Authority (NCTDA) to "employ such other professional staff and clerical and secretarial staff as it deems necessary within the funds available to it" does not expressly remove NCTDA from the State Personnel System nor does it expressly exempt the NCTDA from making any of its vacant positions available to State employees with priority reemployment rights. Exempting NCTDA in the absence of explicit statutory language would constitute a significant reduction of a property right by limiting the employee's employment opportunities without proper authority and in violation of the employee's constitutionally protected rights.

LACY H. THORNBURG
ATTORNEY GENERAL

Charles J. Murray
Special Deputy Attorney General