At the North Carolina Industrial Commission, is hiring and firing the Chairman's job alone, or does the whole three-member Commission have to decide?

Plain-English summary

A member of the North Carolina Industrial Commission asked the AG who had final authority over the Commission's personnel decisions: the Chairman alone, or the Commission as a body. Assistant Attorney General D. Sigsbee Miller answered that the personnel authority belonged to the full Commission.

The Industrial Commission was created in 1929 to administer the Workers' Compensation Act and was given Tort Claims Act jurisdiction in 1949. It has three commissioners appointed by the Governor under N.C.G.S. § 97-77. One of them is designated by the Governor to act as chairman.

The personnel statutes (N.C.G.S. §§ 97-78(b), 97-79, and 143-296) each say the "Commission" appoints the secretary, deputies, and clerical staff. The term "Commission" is defined in § 97-2(8) as the Industrial Commission itself, not as the Chairman. So the natural reading is that personnel decisions belong to the body as a body. The Supreme Court had held in Gant v. Crouch that the Commission acts by majority of its members, and § 12-3(2) of the General Statutes generally says boards act by majority. Two votes of three constitute the majority. Two commissioners can act for the Commission; one cannot.

The Chairman's specific statutory authorities are narrow: settling records on appeal, certifying in forma pauperis appeals, setting appeal bonds, and designating deputies to sit on the Full Commission when needed (Rule 18 of the Appellate Procedure rules, and §§ 97-85, 97-86, 143-293). None of those touch personnel. The AG noted that Black's Law Dictionary and Robert's Rules of Order both define "chairman" as a presiding officer, not as a hiring authority. Under Abernethy v. Board of Comm'rs, statutory terms get their ordinary meaning, so the Chairman is the presiding officer at meetings, not the agency's HR head.

The second question (whether the Full Commission could delegate its personnel authority to the Chairman by rule) got the same negative answer. The Commission has rulemaking authority under §§ 97-80 and 143-300, but those grants are for adopting procedures under the Workers' Compensation Act and Tort Claims Act, not for restructuring the Commission's internal decisionmaking. Even if the rulemaking authority reached internal matters, a rule giving the Chairman sole personnel authority would conflict with §§ 97-78 and 97-79's express vesting in "the Commission," and inconsistent rules are not allowed.

The AG suggested a workable middle path: the Chairman could "initiate" personnel actions which the other Commissioners then "ratify." This is an informal procedure that keeps the Commission as the decisionmaker while letting the Chairman do the routine groundwork. As long as the other two Commissioners actually exercised their judgment on the ratification (rather than rubber-stamping), the statutory requirement was satisfied.

The final piece of the opinion addressed the 1989 Type II transfer of the Industrial Commission to the Department of Economic and Community Development. A Type II transfer (per § 143A-6) keeps an agency intact and lets it exercise its statutory powers "independently of the head of the principal department," except for "management functions" (planning, organizing, staffing, directing, coordinating, reporting, budgeting), which are performed under the direction and supervision of the principal department head. Hiring and firing is staffing, which is a management function. So the AG concluded that the Industrial Commission had authority over its "professional and technical personnel" (executive secretary, deputy commissioners, chief claims examiner, and similar positions), and the rest of the staffing authority sat with DECD. Smith v. State and Hedgecock v. Frye supported that allocation.

Currency note

This opinion was issued in 1990. 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 Industrial Commission's parent department has changed since 1990. The general principles about collegial-body personnel authority and Type II transfer structure remain intact, but specific reporting lines, the scope of "professional and technical personnel," and applicable State Personnel System rules should be verified against current statute and OSHR policy.

Background and statutory framework

The Industrial Commission was originally a stand-alone agency directly under the Governor. Like most quasi-judicial agencies, its decisional structure is collegial: three commissioners who together make the agency's binding decisions on workers' compensation and tort claims appeals. The Chairman's role is the role of a presiding officer at hearings and the convener of the body, not an executive director.

The collegial structure has consequences for how personnel decisions get made. A unilateral hiring or firing by the Chairman would not have the buy-in of the other Commissioners and could destabilize the working relationship that makes a three-member panel function. The General Assembly's choice to vest "appointment" authority in the Commission rather than in any single member reflects a judgment that personnel decisions, like substantive case decisions, are better made by deliberation among the three members.

The 1989 Type II transfer to the Department of Economic and Community Development introduced a wrinkle. The "Department of Economic and Community Development" had been recreated to consolidate several agencies, and the Industrial Commission was put under its umbrella for administrative purposes. The "management functions" language in § 143A-6 is the framework the AG used to allocate authority between the Commission and DECD: the Commission keeps decisional independence on its core functions (case adjudication, professional and technical personnel), while DECD handles management functions like budgeting and most staffing.

The "professional and technical personnel" exception in the AG's reading is significant. The Commission retained meaningful personnel authority over the staff who do legal-adjudicatory work (deputy commissioners hear cases; the executive secretary manages the agency's docket; the chief claims examiner has substantive responsibility for claim review). Those positions are the ones where Commission control matters most for the integrity of the agency's quasi-judicial function. Clerical and administrative staff slipped into DECD's management orbit.

The opinion did not address what happens if the Commission and DECD disagreed about a specific personnel action, or whether the Commission could veto a DECD-initiated termination of a Commission employee. Those disputes were apparently resolved by administrative practice rather than litigation.

Common questions

Could the Commission fire its own deputy commissioners on its own authority?

Yes, with respect to professional and technical personnel decisions, the Commission retained the authority. Deputy commissioners hear workers' compensation and tort claim cases and were treated by the AG as professional/technical personnel within the Commission's control.

Did this opinion mean the Commission Chairman was just a figurehead?

No. The Chairman had specific statutory powers (settling appeal records, certifying IFP appeals, setting appeal bonds, designating deputies) plus the soft power of presiding over Commission meetings and serving as the Commission's public face. What the opinion ruled out was unilateral personnel authority.

What if the Chairman just fired someone without a Commission vote?

The action would have been ultra vires. The AG's reasoning meant a unilateral Chairman firing did not have the force of a Commission action. The fired employee would have grounds to challenge the action, and might have a claim under the State Personnel Act depending on the circumstances.

Could the Commission set up subcommittees to handle personnel?

The opinion did not address subcommittee structures. As a practical matter, a subcommittee of fewer than two commissioners could not act for the Commission because it would not constitute a majority. A two-commissioner subcommittee on personnel matters could function, though the AG's preferred informal-ratification model spreads the burden across all three.

Did the Type II transfer to DECD eliminate any of the Commission's adjudicatory independence?

No. The Type II transfer explicitly preserved the Commission's quasi-judicial powers independent of the department head. The Commission still decided its cases the same way it always had; what changed was the administrative reporting line for management functions.

Citations

• N.C.G.S. § 12-3(2), § 97-2(8), 97-77, 97-78(b), 97-79, 97-80, 97-85, 97-86
• N.C.G.S. § 124-4, § 143-293, 143-296, 143-300
• N.C.G.S. § 143A-2, 143A-6, 143A-8, 143A-9, 143A-11
• N.C.G.S. § 143B-427 to 431
• N.C. Rules of Appellate Procedure, Rule 18
• Gant v. Crouch, 243 N.C. 604 (1956)
• Abernethy v. Board of Comm'rs, 169 N.C. 631 (1915)
• Nance v. Southern Railway, 149 N.C. 366 (1908)
• State v. Williams, 286 N.C. 422 (1975)
• State v. White, 58 N.C. App. 558 (1982)
• Allen v. Town of Reidsville, 178 N.C. 513 (1919)
• Hedgecock v. Frye, 1 N.C. App. 369 (1968)
• Smith v. State, 298 N.C. 115 (1979)

Source

• Landing page: https://ncdoj.gov/opinions/industrial-commission-personnel-authority-to-hire-and-fire/

Original opinion text

Requested By: J. Randolph Ward, Commissioner, North Carolina Industrial Commission, 430 North Salisbury Street, Raleigh, North Carolina 27611

Questions:

(1) Does the Chairman of the Industrial Commission have exclusive responsibility for personnel matters at the Commission, including the hiring, firing, and discipline of the Commission's employees?

(2) If not, may the Full Commission delegate the authority and sole responsibility for such matters to the Chairman of the Commission?

Conclusions:

(1) No. The Chairman of the Industrial Commission does not have exclusive responsibility for personnel matters at the Industrial Commission.

(2) No. The Full Commission may not delegate its personnel responsibilities to the Chairman of the Commission.

AUTHORITY OF CHAIRMAN FOR PERSONNEL MATTERS

The North Carolina Industrial Commission was created in 1929 for the purpose of administering the Workers' Compensation Act. G.S. § 97-77, et. seq. The Commission consists of three commissioners appointed by the Governor. G.S. § 97-77. The statute creating the Commission also provides that "[o]ne member, to be designated by the Governor shall act as chairman." G.S. 97-77. In 1949, the Commission was also given the responsibility of hearing and determining tort claims against state departments and agencies. Session Laws 1949, c. 1138.

The personnel powers of the Commission are set forth in three statutes: The first, G.S. § 97-78(b), provides in pertinent part:

The Commission may appoint a secretary whose duties shall be prescribed by the Commission, and who shall be subject to the State Personnel System and who, upon entering upon his duties, shall give bond in such sum as may be fixed by the Commission. The Commission may also employ such clerical or other assistance as it may deem necessary, and fix the compensation of all persons so employed, such compensation to be in keeping with the compensation paid to the persons employed to do similar work in other State departments.

The Commission may appoint deputies who shall have the same power to issue subpoenas, administer oaths, conduct hearings, hold persons, firms or corporations in contempt as provided in Chapter 5A of the General Statutes, take evidence, and enter orders, opinions, and awards based thereon as is possessed by the members of the Commission, and such deputy or deputies shall be subject to the State Personnel System.

The third, G.S. § 143-296, provides in pertinent part:

The Industrial Commission is authorized to appoint deputies and clerical assistants to carry out the purpose and intent of this Article, and such deputy or deputies are hereby vested with the same power and authority to hear and determine tort claims against State departments, institutions, and agencies as is by this Article vested in the members of the Industrial Commission.

Each of the three statutes vests the personnel authority of the Commission in the "commission." The term "commission" is defined in G.S. 97-2(8) as "the North Carolina Industrial Commission." Although the Workers' Compensation Act and the Tort Claims Act provide little guidance as to the internal workings of the Commission, it has been judicially determined that as a commission the Industrial Commission acts by a majority of its qualified members; a vote of two members, therefore, would constitute a majority of the Commission empowered to act on behalf of the Commission. Gant v. Crouch, 243 N.C. 604, 91 S.E.2d 705 (1956). Although Gant dealt with the procedure for determination of a Workers' Compensation case, the two member majority suggested therein is the only practical method for the three member panel to act. See also, G.S. § 12-3(2) to similar effect.

Even though G.S. 97-77 provides that one member of the Commission shall act as its chairman, it does not further define the authority, if any, of that position. The only specific authorities conferred on the Chairman of the Industrial Commission are to settle records on appeal, certify in forma pauperis appeals, set appeal bonds, and designate deputies to sit on the Full Commission when necessary. See, Rule 18, N.C. Rules of Appellate Procedure, G.S. §§ 97-85, 97-86, and 143-293. The statutes cited above do not specifically clothe the chairman with any power relating to personnel matters. Neither the Workers' Compensation Act nor the Tort Claims Act defines the term "chairman." Thus, generally accepted definitions of the term must be considered. Black's Law Dictionary defines chairman as "the presiding officer of an assembly, public meeting, convention, deliberative or legislative body, board of directors, committee, etc." p. 290, (4th Rev.Ed. 1968). Similarly, Robert's Rules of Order defines a chairman as "the presiding officer of a deliberative assembly." H. Robert, Parliamentary Law, p. 303 (1923); Robert's Rules of Order, p. 375, (Rev. Ed. 1970). When construing a statute the words used therein will be given their ordinary meaning, unless it appears from the context that they should be taken in a different sense. Abernethy v. Board of Comm'rs, 169 N.C. 631, 86 S.E. 577 (1915). It is reasonable to conclude that the legislature meant for the chairman to preside over hearings, meetings, and so forth. However, the general meaning of the term "chairman" does not include personnel authority and none can be inferred. The Industrial Commission is not a principal department and its chairman does not have the powers of a head of such a department. G.S. §§ 143A-2, 143A-8, In conclusion, the Chairman of the Industrial Commission does not have exclusive responsibility for the enumerated personnel functions at the Commission.

COMMISSION'S AUTHORITY TO DELEGATE PERSONNEL DECISIONS TO CHAIRMAN

As set forth above, the personnel authority is vested in the Industrial Commission as a three member panel. To allow the chairman alone to exercise the personnel power would be to strike out or construe away the specific language chosen by the legislature. Such is not permitted. See Nance v. Southern Railway, 149 N.C. 366, 63 S.E.2d 116 (1908). A statute must be construed, if possible, so as to give effect to every part of it, it being presumed that the legislature did not intend any of its provisions to be surplusage. State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975).

The Commission was given certain rule making authority to aid in its implementation of the Workers' Compensation Act and the Tort Claims Act. G.S. § 97-80 and G.S. § 143-300. The former statute provides, "The Commission may make rules, not inconsistent with this Article, for carrying out the provisions of this Article." (emphasis added). The latter provides, "The Industrial Commission is hereby authorized and empowered to adopt such rules and regulations as may, in the discretion of the Commission, be necessary to carry out the purpose and intent of this Article."

Reading these statutes in context it appears that they were intended by the legislature to enable the Commission to establish procedures for the presentation of claims. Such statutes must be read in context. See, State v. White, 58 N.C. App. 558, 294 S.E.2d 1 (1982) and Nance v. Southern Railway, 149 N.C. 366, 63 S.E. 116 (1908). Even if the two statutes were read to allow rule making concerning personnel matters, a rule delegating the Commission's personnel authority to the Chairman would not be permissible since it would be inconsistent with other sections within Article I of Chapter 97, namely, § 97-78 and § 97-79.

Thus, the Full Commission cannot delegate sole responsibility for personnel matters to its Chairman. Even so, an informal procedure may be implemented whereby the Chairman initiates personnel actions which are then ratified by the other Commissioners. In this manner the Commission is still the decision making authority in compliance with the statutes.

In addition, all personnel actions taken by the Commission must comply with applicable statutes, rules, and regulations governing the State Personnel System. See, G.S. §§ 97-78, 97-79, 143-296, and 124-4, et. seq.

Finally, it should be noted that when the Department of Economic and Community Development was created in 1989 the Industrial Commission was made a subpart thereof by a Type II transfer. G.S. §§ 143B-427 to 431. The applicable statute provides in pertinent part,

(a) The functions of the Department of Economic and Community Development, except as otherwise expressly provided by Article 1 of this Chapter or by the Constitution of North Carolina, shall include:

(2) All functions, powers, duties and obligations heretofore vested in an agency enumerated in Article 15 of Chapter 143A, to wit: . . .

d. The North Carolina Industrial Commission. . . all of which enumerated agencies are hereby expressly transferred by a Type II transfer, as defined by G.S. 143A-6, to this recreated and reconstituted Department of Economic and Community Development; and,

(3) All other functions, powers, duties and obligations as are conferred by this Chapter, delegated or assigned by the Governor and conferred by the Constitution and laws of this State. Any agency transferred to the Department of Economic and Community Development by a Type II transfer, as defined by G.S. 143A-6, shall have the authority to employ, direct and supervise professional and technical personnel, and such agencies shall not be accountable to the Secretary of Economic and Community Development in their exercise of quasi-judicial powers authorized by statute, notwithstanding any other provisions of this Chapter, . . . .

G.S. 143B-431(a)(1989).

The meaning of a Type II transfer is

the transferring intact of an existing agency, or part thereof, to a principal department established by this Chapter. When any agency, or part thereof, is transferred to a principal department under a Type II transfer, that agency, or part thereof, shall be administered under the direction and supervision of that principal department but shall exercise all its prescribed statutory powers independently of the head of the principal department, except that under a Type II transfer the management functions of any transferred agency, or part thereof, shall be performed under the direction and supervision of the head of the principal department.

G.S. § 143A-6(b). The term "management functions" includes "planning, organizing, staffing, directing, coordinating reporting and budgeting." G.S. § 143A-6. Hiring and firing of employees falls within the scope of G.S. § 143A-6(c). See, Smith v. State, 298 N.C. 115, 257 S.E.2d 299 (1979).

It is well established that all statutes relating to the same subject matter should be considered together as one law. See, Allen v. Town of Reidsville, 178 N.C. 513, 101 S.E. 267 (1919). When G.S. §§ 97-77, 97-78, 97-79, 143-296, 143A-6, and 143B-431 are read together it becomes clear that the members of the Industrial Commission have the authority to employ, direct and supervise professional and technical personnel; the remainder of the authority for staffing, directing and supervising is vested in the principal department, the Department of Economic and Community Development. G.S. §§ 143A-6, 143A-9, and 143A-11. Professional and technical personnel would include the executive secretary, deputy commissioners, chief claims examiner and those occupying similar positions. See, Hedgecock v. Frye, 1 N.C. App. 369, 161 S.E.2d 647 (1968).

D. Sigsbee Miller, Assistant Attorney General