Can a North Carolina state agency limit job-posting applicants to people already inside the agency, and can the agency limit the number of internal positions any one employee may apply for?

Plain-English summary

N.C.G.S. § 126-7.1 is the NC State Personnel Act's vacancy-posting rule. It requires that all vacancies state agencies "openly recruit" for must be posted in two places:

1. The personnel office of the "agency, department, or institution" with the vacancy, and
2. The particular work unit with the vacancy, in a location accessible to employees.

If the agency decides, initially or while the vacancy is open, to accept applicants from outside the recruiting agency, the vacancy must also be listed with the NC Office of State Personnel, so other state employees agency-wide can see it.

NC State Personnel Director Ronald G. Penny asked the AG two questions about how this works in practice.

Question 1: Can an agency limit applicants to people who work somewhere in the agency, as opposed to only the specific work unit?

The AG's reading: yes, with two layers. Subsection (a)(1) requires posting at the agency's personnel office (a single office that serves the entire agency). Subsection (a)(2) requires posting at the smaller "particular work unit." Because the posting goes to the entire agency's personnel office, the agency cannot refuse to accept applications from other people in the same agency, even if they work in a different work unit. But the agency can still refuse to consider applicants from outside the agency entirely.

So the structure is:
- Internal to a single work unit: not allowed; must accept applications from anywhere in the agency.
- Internal to the entire agency: allowed.
- Open to all NC state employees: required if any outside applicant is "received" or considered.

Question 2: Can the agency cap the number of internal positions any employee can apply for?

No. Nothing in the posting statute or anywhere else authorizes such a cap. The implementing administrative rule, 25 N.C.A.C. 1H .0602(a), reinforces this: vacancies "shall be publicized by the agency having the vacancy to permit an open opportunity for all interested employees and applicants to apply." If a state employee is interested and qualified, they get to apply.

The compliance pattern. An agency designing its internal recruitment process needs to decide up front whether the recruitment is agency-internal or open. If agency-internal, it must accept any agency employee's application and not artificially limit how many openings each applicant pursues. If at any time the agency considers an outside application, it must trigger the OSP-wide listing and open the position to all state employees.

The opinion is a precision read of statutory text and administrative rule. The AG distinguishes between receiving an application (the agency's choice) and posting the vacancy (a statutory duty), then aligns those choices with the OSP-listing trigger.

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.

The State Personnel Act has been substantially restructured since 1998. NC moved its state personnel functions under the State Human Resources Act (renamed in 2013), and § 126-7.1 has been amended. The basic statutory architecture (require posting, allow internal-only recruitment with a trigger for outside applicants) appears to have remained. Anyone in a current personnel role should pull the current statute and administrative rules.

Common questions

Q: What does "openly recruit" mean?
A: Filling the vacancy through any process where applications are solicited rather than filled by direct appointment, internal promotion-only-from-named-candidates, or other non-recruitment mechanisms. If the agency is going to look at applications, the posting rule kicks in.

Q: Does this opinion apply to political-appointment positions?
A: The State Personnel Act has carve-outs for exempt positions (policy-making, confidential aides, certain political appointments). Those are outside the posting framework. The opinion addresses State Personnel Act covered positions only.

Q: What is the practical effect of the "must list with OSP if outside applications received" rule?
A: It prevents an agency from pretending to keep a search internal while quietly considering outside candidates. Once the agency opens the door to outsiders at all, it has to open it to every state employee statewide.

Q: Can a hiring manager prefer internal candidates?
A: Yes, in the sense that an agency can run an internal-only search. But once internal-only is set, the manager must accept all qualified internal applicants for consideration, agency-wide. The manager cannot screen out, say, applications from sister divisions in advance.

Q: Can the agency limit the number of applications an employee submits in one calendar quarter?
A: The opinion does not address explicitly, but the same reasoning would apply: the posting statute and administrative rule give every interested qualified employee an open opportunity to apply. A cap on application volume is the same kind of artificial restriction.

Q: What is the difference between "personnel office" and "work unit"?
A: The personnel office serves the larger agency, department, or institution and is the central HR hub. The work unit is the smaller team or division where the vacancy specifically sits. The statute requires both postings to make sure the vacancy is visible to the immediate team and to the broader agency.

Background and statutory framework

NC's State Personnel Act was enacted to professionalize the state workforce and create a merit-based career service. The vacancy-posting rule in § 126-7.1 is one of several mechanisms (open competition, anti-discrimination protections, grievance rights) that together create the merit framework.

The architecture in subsection (a) reflects a layered openness principle: at minimum, post internally to the agency and the work unit; if the agency wants to consider outsiders, scale up to a statewide listing. The point is to prevent secret outside hires that would deprive state employees of meaningful internal mobility.

The administrative rule at 25 N.C.A.C. 1H .0602(a) implements the statute. The Office of State Personnel (now the Office of State Human Resources, OSHR) maintains the listing infrastructure.

The "no cap on applications per employee" point reflects a strong NC policy interest in employee mobility within state government. Capping applications would let agencies hoard talent or push employees away from competitive vacancies. The AG read the statute and rule as broadly protecting that interest.

Citations

• N.C. Gen. Stat. § 126-7.1 (State Personnel Act vacancy-posting rule)
• 25 N.C.A.C. 1H .0602(a) (administrative rule requiring open posting and equal opportunity to apply)

Source

• Landing page: https://ncdoj.gov/opinions/state-personnel-act-posting-and-announcements-of-vacancies/

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 inside the statutory quotation. The linked landing page is authoritative.

(a) All vacancies for which any State agency, department, or institution openly recruit shall be posted within at least the following:

(1) The personnel office of the agency, department, or institution having the vacancy; and

(2) The particular work unit of the agency, department, or institution having the vacancy in a location readily accessible to employees. If the decision is made, initially or at any time while the vacancy remains open, to receive applicants from outside the recruiting agency, department, or institution, the vacancy shall be listed with the Office of State Personnel for the purpose of informing current State employees of such vacancy.

In summary, the law requires that all vacancies for which open recruitment occurs shall be posted in (1) the personnel office of the "agency, department, or institution" having the vacancy and (2) the particular work unit of the "agency, department or institution" having the vacancy. Thus, the language used in subsection (a)(1) of the statute contemplates a larger work unit called an "agency, department or institution," which is large enough to have a personnel office. The language used in subsection (a)(2) of the statute appears to contemplate a smaller "work unit" in which the particular vacancy occurs. Posting of the vacancy is required in both the smaller work unit and the personnel office of the larger agency. Therefore, since an agency must post a position at the personnel office of the larger agency, presumably the agency may not refuse to receive applications from individuals employed in the larger agency, even if those individuals are from outside the smaller work unit in which the particular vacancy occurs.

The agency nevertheless may be able to limit its applicants to individuals employed in the larger agency served by the personnel office referred to in the statute given the language in the statute. This limitation seems intended from the language in the statute which suggests that, at any time a vacancy remains open, a decision can be made "to receive applicants from outside the recruiting agency, department, or institution." "Received" in this context appears to mean not only physically received by the agency but also considered during the selection process. Therefore, the statute allows an agency to refuse to receive applicants from outside the agency during the selection process for a vacancy within the agency.

However, the statute is also clear that once any applications are "received" or considered from outside the "recruiting agency, department or institution," the vacancy must be opened to, at least, all current State employees of the agency and the vacancy must be listed with the Office of State Personnel for this purpose. If an agency "receives" or considers any applications from outside the agency, the agency is then obligated to give all State employees an opportunity to be considered for the position by posting the position with the Office of State Personnel. Thus, so long as an agency makes it clear that it is not "receiving" or considering any applications from outside the agency and does not, in fact, "receive" or consider any applications from outside the agency, the statute seems to allow the limitation of applicants to those individuals within a particular agency served by the central personnel office.

In a letter dated April 22, 1998, you also ask whether an agency may limit the number of vacant positions for which an individual may apply within the agency or, alternatively, whether an agency may refuse to consider an individual's application for certain positions if the number of positions for which the employee has applied is in excess of some number set by the agency.

There is no authority in the posting statute or elsewhere for such a limitation. Moreover, the explicit language of the administrative rules seems at odds with such a practice. The administrative rules which implement the posting statute provide:

(a) Vacant positions to be filled in state government shall be publicized by the agency having the vacancy to permit an open opportunity for all interested employees and applicants to apply. The term "agency" as used in this Subsection includes all state departments, institutions, commissions, and boards.

25 N.C.A.C. 1H .0602(a). If an individual is "interested," then presumably that individual is entitled to apply for all positions for which he or she is qualified.

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