Can the North Carolina State Personnel Commission adopt a rule giving veterans an automatic 10-point preference on numerically scored state employment examinations?

Plain-English summary

NC's State Personnel Commission asked whether it could adopt a rule giving veterans a 10-point preference on numerically scored state employment examinations. The AG confirmed it could.

Two statutory anchors.

N.C.G.S. § 126-4 gives the Commission plenary authority over recruitment and selection, including the power to set "reasonable qualifications" and "recruitment programs designed to promote public employment, communicate current hiring activities within State government, and attract a sufficient flow of internal and external applicants; and determine the relative fitness of applicants for the respective positions."

N.C.G.S. § 126-82 is the more specific authority. It directs the Commission to provide veterans preferences in three forms:

• (a) Credit for military service, schooling, and experience that bears a reasonable and functional relationship to the position's required knowledge, skills, and abilities, in evaluating against minimum requirements;
• (b) Once a veteran meets minimum requirements (after subsection (a) credit), additional experience credit for related and unrelated military service, "as determined by the Commission";
• (c) Discretionary credit for military service in reduction-in-force decisions where seniority is a factor.

The phrase "as determined by the Commission" in (b) is the key. It delegates to the Commission the design of the specific preference. A 10-point preference on a numerically scored exam is a reasonable design choice.

Judicial deference. The AG relied on two cases:

State ex rel. Commissioner of Insurance v. N.C. Rate Bureau, 300 N.C. 381 (1980), upheld the Insurance Commissioner's authority to order data audits even though no statute mentioned audits. The Supreme Court read the broad rulemaking grant as authorizing reasonable rules necessary to discharge the agency's statutory functions.

Davis v. Vance County Department of Social Services, 91 N.C. App. 428 (1988), is the closer case. The Court of Appeals reviewed a state agency's failure to allow a veteran's preference to substitute for a four-year degree minimum. The court treated the 10-point veteran preference under § 128-15 as legitimate but held it did not let the candidate skip the bachelor's-degree minimum requirement. Notably, the court did not strike down the 10-point preference itself.

Bottom line for the Commission. A rule giving veterans 10 points on numerically scored examinations is within the Commission's authority. The Commission can defend the rule under either the specific § 126-82(b) "as determined by the Commission" language or the general § 126-4 rulemaking authority. NC courts will apply rational-basis-style deference to the rule, asking only whether it is a reasonable implementation of the legislative intent to provide veterans preferences.

Currency note

This opinion was issued in 1998. 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.

NC's state employment system has been substantially restructured since 1998 (the State Human Resources Act replaced the State Personnel Act in 2013, and OSHR replaced OSP). Veterans preference rules remain in NC HR practice but the specific point allocations have evolved. Anyone working on current veterans preference questions should consult OSHR's current rules and the current text of § 126-82.

Common questions

Q: What is a 10-point veterans preference?
A: On a numerically scored employment exam (where applicants are ranked by raw score), a veteran gets an extra 10 points added to their score before ranking. The bump can move a veteran applicant up the candidate list. Many state and federal civil service systems use similar preferences.

Q: Does the 10-point preference let a veteran skip minimum requirements?
A: No, per Davis v. Vance County DSS. The preference operates within the population of qualified applicants. A veteran must still meet the position's minimum qualifications (education, licenses, certifications); the bump is on the scoring step that follows.

Q: Who counts as a "veteran" for this preference?
A: NC's statutory definition of "eligible veteran" is in § 128-15 (the parallel preference statute for veterans in state employment). Generally it includes honorably discharged former members of the U.S. Armed Forces with qualifying service, plus certain surviving spouses and dependents.

Q: Could the Commission set the preference at 5 points or 20 points instead?
A: Probably yes within reason. The statute delegates to the Commission to determine the specific preference design under § 126-82(b). The exact point allocation is a Commission policy choice subject to deferential judicial review.

Q: Are veterans preferences constitutional under equal protection?
A: Yes. Federal and state courts have consistently upheld veterans preferences against equal-protection challenge, treating them as rational responses to the unique sacrifices of military service.

Q: Does this apply to private employers in NC?
A: No. The opinion addresses state government employment under § 126-82. Private employers in NC are governed by federal USERRA (for active-duty rehires) and various state and federal antidiscrimination laws, but not by NC's state-employee veterans preference rule.

Background and statutory framework

NC's State Personnel Act (Chapter 126) established the merit-based career service for state government. Veterans preferences have been part of NC's civil service structure since at least the mid-twentieth century, reflecting policy choices that go back to the post-WWII era.

The 1980 N.C. Rate Bureau decision is the leading NC Supreme Court precedent on administrative rulemaking authority. It established a deferential framework: courts uphold reasonable rules necessary to discharge an agency's statutory functions, even where the specific rule is not spelled out in the underlying statute. The Court of Appeals' 1988 Davis decision applied the same principle in the personnel context.

The veterans preference at the federal level (5 U.S.C. § 3309 for federal civil service) is structurally similar to NC's: 5 points for general veterans, 10 points for disabled veterans or certain widows/widowers. NC followed that template in setting up its state preference. The AG opinion confirmed that the Commission could continue using a 10-point preference design under § 126-82(b)'s delegated authority.

Citations

• N.C. Gen. Stat. § 126-4 (State Personnel Commission rulemaking authority over recruitment and selection)
• N.C. Gen. Stat. § 126-82 (veterans preference framework, directing Commission to design specific rules)
• N.C. Gen. Stat. § 126-82(a) (credit for military service in evaluating minimum requirements)
• N.C. Gen. Stat. § 126-82(b) (additional experience credit "as determined by the Commission")
• N.C. Gen. Stat. § 126-82(c) (discretionary RIF preference)
• N.C. Gen. Stat. § 128-15 (parallel veterans preference statute applied in Davis)
• State ex rel. Commissioner of Insurance v. N.C. Rate Bureau, 300 N.C. 381, 269 S.E.2d 547 (1980) (deferential review of administrative rulemaking)
• Davis v. Vance County Department of Social Services, 91 N.C. App. 428, 372 S.E.2d 88 (1988) (veterans preference does not waive minimum qualifications)

Source

• Landing page: https://ncdoj.gov/opinions/state-personnel-act-application-of-the-veterans-preference/

Original opinion text

Best-effort transcription based on the text NCDOJ publishes at the landing URL; the published page omits the salutation block and begins mid-statute-quotation. The linked landing page is authoritative.

(3) For each class of positions, reasonable qualifications as to education, experience, specialized training, licenses, certifications, and other job-related requirements pertinent to the work to be performed.

(4) Recruitment programs designed to promote public employment, communicate current hiring activities within State government, and attract a sufficient flow of internal and external applicants; and determine the relative fitness of applicants for the respective positions.

N.C. Gen. Stat. § 126-4 (1995). Thus, the Commission has plenary statutory authority to promulgate rules governing recruitment and selection of individuals for state employment.

As you know, N.C. Gen. Stat. § 126-82 explicitly delegates to the State Personnel Commission the power to provide certain preferences:

(a) The State Personnel Commission shall provide that in evaluating the qualifications of an eligible veteran against the minimum requirements for obtaining a position, credit shall be given for all military service training or schooling and experience that bears a reasonable and functional relationship to the knowledge, skills, and abilities required for the position.

(b) The State Personnel Commission shall provide that if an eligible veteran has met the minimum requirements for the position, after receiving experience credit under subsection (a) of this section, he shall receive experience credit as determined by the Commission for additional related and unrelated military service.

(c) The State Personnel Commission may provide that in reduction in force situations where seniority or years of service is one of the considerations for retention, an eligible veteran shall be accorded credit for military service. N.C. Gen. Stat. § 126-82 (1995).

Both subsections (a) and (b) allow the Commission to provide for general "experience credit." In fact, subsection (b) provides that such experience credit shall be "as determined by the Commission." Given the broad language of these three subsections, in addition to the broad grant of powers to the Commission generally in N.C. Gen. Stat. § 126-4, we conclude that the Commission has the authority to approve OSP-generated rules which contain a 10-point preference on numerically-scored examinations.

The Courts have held that administrative agencies have plenary authority generally to promulgate reasonable rules and regulations necessary to accomplish the Legislature's intent and to accomplish the functions of the administrative agency given by the Legislature to the agency. In State ex rel Comm'r of Insurance v. N.C. Rate Bureau, 300 N.C. 381, 269 S.E.2d 547 (1980), the Supreme Court held that the Insurance Commissioner did not exceed his statutory authority in ordering that certain data be audited even though neither of the two pertinent statutes dealing with the data collection and availability mentioned a requirement that data be audited. In upholding the Commissioner's ability to impose requirements outside the strict language of the statute, the Court noted that other statutes gave the Commissioner the "power and authority to make rules and regulations, not inconsistent with law . . . and to make such further rules and regulations not contrary to any provision of this Chapter which will prevent practices injurious to the public by insurance companies." Id. at 400, 269 S.E.2d at 562. The Court further noted that the Court's "primary function" when "construing the laws creating and empowering administrative agencies . . . is to ensure that the purpose of the Legislature in enacting the law . . . is accomplished." Id. at 369, 269 S.E.2d at 561. The Court then held that in construing the applicable statutes in pari materia, they reached the conclusion that "without question . . . our Legislature intended for the Commissioner of Insurance to promulgate such reasonable rules and regulations as he deems necessary to discharge the functions of his office in seeing 'that all laws of this State governing insurance companies . . . or bureaus relating to the business of insurance are faithfully executed'" such that the Commissioner's desire that data submitted in a rate making case be audited was not an action in excess of his statutory powers. Id. at 400, 269 S.E.2d at 562.

In a more specific and related context, our Court of Appeals addressed the 10-point preference about which you asked and did not rule that the State Personnel Commission exceeded its authority in promulgating rules regarding the preference. In Davis v. Vance Co. Dep't of Social Services, 91 N.C. App. 428, 372 S.E.2d 88 (1988), the Court of Appeals considered the question of whether the respondent agency's failure to allow the petitioner to meet the minimum requirements of a posted position where he lacked a four year degree exceeded the agency's statutory authority. The petitioner had been informed that although "equivalencies" were sometimes considered in recruitment, the agency was not considering any combinations of education, experience and training in lieu of the four year degree in its selection process for the position for which petitioner had applied. The Court of Appeals rejected Davis' contention that the agency's failure to allow education equivalencies to fulfill the position's minimum education requirements was arbitrary and capricious because N.C. Gen. Stat. § 128-15 provided for an employment preference for veterans. In rejecting Davis' position, the Court stated: "Although the statute awards a preference rating of ten points to veterans who apply for employment with the State or any of its departments, it states nowhere that the minimum requirements specified for a position may be ignored." Id. at 431, 372 S.E.2d at 90.

Thus, considering the Legislature's clear intent under N.C. Gen. Stat. § 126-82 that a veteran's preference be given, and the clear intent that the Commission define the specific parameters of the generically described related and unrelated experience, training, and schooling "credit" to be awarded to veterans and further considering the Commission's general rulemaking authority under N.C. Gen. § 126-4, a rule providing a 10 point preference on numerically scored examinations should be upheld as within the Legislature's intent that the Commission "promulgate such reasonable rules and regulations as [it] deems necessary to discharge the functions of [its] office in seeing 'that the laws of this State governing . . . .' [personnel matters and the hiring of veterans] are faithfully executed." Id.

Given the above, it appears that the veteran's preference 10-point rule does not exceed the Commission's statutory authority. We trust this response fully answers your question. If we can be of further assistance, please let us know.

signed by:

Ann Reed
Senior Deputy Attorney General

Valerie L. Bateman
Assistant Attorney General