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 Act?
Plain-English summary
The companion to the same-day Type II transfer opinion. The N.C. Technological Development Authority (NCTDA) wanted to know whether its general staffing language in G.S. 143B-471.3A(2) ("employ such other professional staff and clerical and secretarial staff as it deems necessary") let it disregard former state employees who, under the State Personnel Act, were entitled to priority reemployment when positions became available.
Special Deputy AG Charles J. Murray, writing under AG Lacy H. Thornburg, said no. Chapter 126 of the General Statutes creates rights and privileges for state employees, defined and enforced by the State Personnel Commission and its rules. One of those rights, set out in G.S. 126-5(e) and read by the NC Supreme Court in Dept. of Corrections v. Hill, 313 N.C. 481 (1985), is that an employee with priority reemployment status "must be offered" any qualifying available position before it can be filled by anyone else, whether by hire or by promotion.
Two doctrines made it impossible to read NCTDA's "as it deems necessary" language as an exemption.
First, priority reemployment is a property right. Bean v. Taylor, 408 F.Supp. 614 (M.D.N.C.), aff'd, 534 F.2d 328 (4th Cir. 1976), held as much. Property rights are protected by the Due Process Clause; the state cannot diminish them except through clear statutory authority and proper procedure.
Second, the comprehensive structure of Chapter 126 and the State Personnel Commission rules signaled a legislative intent that priority reemployment rights apply to vacancies in all state agencies unless an exemption is written into the agency's enabling statute. Implicit or inferred exemptions are not enough. The AG read NCTDA's authorizing statute closely and found no express removal from the State Personnel System and no express exemption from making vacant positions available to priority reemployment candidates. Without that language, exempting NCTDA would unconstitutionally reduce a property right.
The opinion paired with the same-day Type II transfer opinion to give NCTDA a complete picture: management decisions on staffing belonged to Commerce (per the first opinion), and the vacancies created by those decisions had to be offered to State Personnel System priority reemployment candidates first (per this opinion). The Authority's policy autonomy did not extend to either.
Currency note
This opinion was issued in 1989. 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.
Chapter 126 has been substantially restructured since 1989. The State Personnel Act became the State Human Resources Act in 2013 (S.L. 2013-382). The Office of State Personnel was renamed the Office of State Human Resources. The priority reemployment framework still exists in modified form. Anyone applying this opinion to a current vacancy should pull the current Chapter 126, the current Title 25 of the NC Administrative Code (OSHR rules), and any later decisions interpreting the modern framework.
Common questions
Q: What is "priority reemployment"?
A: Under G.S. 126-5(e) as it stood in 1989, an employee who had been separated from state service in certain circumstances (typically a reduction in force) and was qualified for a vacant state position was entitled to be offered that position before the agency could fill it any other way. It was a queue-jumping right for laid-off state workers, designed to keep them in state service.
Q: Why did the Hill case treat this as a "must be offered" rule?
A: The statutory text said the employee "shall have priority to any position that becomes available for which the employee is qualified." The NC Supreme Court in Dept. of Corrections v. Hill, 313 N.C. 481, 486 (1985), read that as a mandatory offer requirement: the employee had to be offered the job before the agency could fill it by promotion or other hire.
Q: Why is priority reemployment a "property right"?
A: Because it is created by statute and limits the government's discretion in a way that gives the individual a legitimate claim of entitlement. Bean v. Taylor, 408 F.Supp. 614 (M.D.N.C. 1976), aff'd 534 F.2d 328 (4th Cir. 1976), applied the Bd. of Regents v. Roth line of cases to NC state employment rights and held that statutory employment protections create property interests for due process purposes.
Q: Could NCTDA have argued that "as it deems necessary" was a constructive exemption?
A: The AG considered and rejected that reading. The phrase grants discretion about the number and kind of positions; it does not address the queue order for filling those positions when they become available. Without express language exempting NCTDA from priority reemployment rules, no exemption can be inferred.
Q: What would an express exemption look like?
A: Something like: "Notwithstanding G.S. 126-5(e) or any other provision of Chapter 126, positions in the N.C. Technological Development Authority shall not be subject to priority reemployment rights." The General Assembly did not include such language in NCTDA's authorizing statute.
Q: Does this rule apply to new agencies generally?
A: The AG's reasoning was general: any new state agency takes priority reemployment rights of existing State Personnel System employees as a baseline. The General Assembly can carve out specific agencies (and has, for some categories of exempt positions), but the default is full coverage.
Background and statutory framework
The State Personnel Act, Chapter 126 of the General Statutes (later renamed the State Human Resources Act), established the merit-based personnel system that governs most NC state employment. Its core features include hiring rules, salary administration, grievance and appeal procedures, layoff/reduction-in-force procedures, and the priority reemployment rights at issue in this opinion. The State Personnel Commission (now State Human Resources Commission) adopts implementing rules under G.S. 126-4.
Priority reemployment is one of several statutory protections that follow a state employee after separation from active service. It is closely related to (but distinct from) the property interest in continued employment recognized by Bd. of Regents v. Roth, 408 U.S. 564 (1972), and Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985). Bean v. Taylor, decided in the Middle District of North Carolina in 1976 and affirmed by the Fourth Circuit, applied the Roth framework to NC state employment rights and treated statutory employment protections as property interests for due process purposes.
When the General Assembly creates a new state agency, the default rule is that the agency's positions are subject to Chapter 126 unless the authorizing statute provides otherwise. The legislature has carved out specific categories of exempt positions (statutory exempt, policy-making exempt, etc.) under G.S. 126-5 and the parallel exemption tracks for various departments. An agency's general staffing language, without more, does not create an exemption.
This opinion sits at the intersection of three rules: (a) priority reemployment is a property right; (b) property rights cannot be reduced by inference; (c) NCTDA's "as it deems necessary" language does not contain an express reduction. The combination dictated the result.
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 Act)
- 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
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