When a North Carolina county becomes an 'Electing County' under the Work First welfare reform program and runs its own program, can the county still use the state hearing officers (under G.S. 108A-79) to hear appeals from people whose benefits the county denied?

Plain-English summary

The federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) replaced the old AFDC program with TANF, giving states (and through them, counties) more flexibility to design welfare programs. NC's implementation is called "Work First." Most NC counties participate in the "Standard Work First Program," which is run by the state Department of Health and Human Services. Some counties applied to become "Electing Counties," which means the county commissioners design and administer their own Work First program.

Division of Social Services Director Kevin FitzGerald asked: when an Electing County receives an appeal from a denied applicant, can it send the case to state-level hearing officers under N.C.G.S. § 108A-79?

Senior Deputy AG Ann Reed and Assistant AG Grady L. Balentine Jr. said no. Electing Counties must run their own appeals process.

The structural reasoning:

Standard vs. Electing programs. Under the Standard Work First Program, the state runs the program. State-level appeals under § 108A-79 are statutorily designated as the appeals path. § 108A-27.15 specifically states the Standard Program "is a program of temporary public assistance for the purpose of an appeal under G.S. 108A-79." That tethers the state appeal process to the state program.

Under the Electing County route, the county runs the program. § 108A-27(f) makes the board of county commissioners responsible for development, administration, and implementation. § 108A-27.3 lets the county set eligibility criteria, benefit calculation methods, and eligibility determinations. § 108A-27.3(a)(14) requires the Electing County to develop and implement an appeals process "substantially compl[iant]" with the two-tier framework in § 108A-79, but the appeal is the county's process, not the state's.

Hearing officer authority is statutory. Departmental hearing officers (the state-level second tier) are creatures of statute. Their authority comes from the enabling statutes assigning them to hear specific kinds of appeals. By statute (§ 108A-27.15 and § 108A-79), they hear Standard Program appeals. The legislature did not assign them to hear Electing County appeals. State ex rel. Com'r of Ins. v. North Carolina Rate Bureau, 61 N.C. App. 262 (1983), is cited for the proposition that administrative bodies act only as the legislature prescribes.

Counties cannot expand state hearing officer authority. An Electing County cannot unilaterally extend the hearing officers' jurisdiction. The legislature alone has that power. The county can structure its own appeals process however it wants (within the substantial-compliance requirement), but it cannot draft state employees into the role.

The substantially-complies requirement. The county's process must mirror the structural features of § 108A-79: two-tier review, first at the county level (board of social services or county commissioners), then a higher-level review with hearing officer, proposed decision, final decision by designated official, and then judicial review available in superior court. The county can use county employees, contracted hearing officers, administrative law judges, or any other structure as long as substantial compliance is achieved.

The opinion preserves the policy choice of welfare-reform flexibility for Electing Counties while making clear that flexibility comes with appeals-administration responsibility. Counties got more autonomy on substance; they cannot offload the corresponding due process burden onto the state.

Currency note

This opinion was issued in 1999. 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 Work First program has been modified by multiple subsequent legislative actions. The Electing County mechanism itself was discontinued in some forms and modified in others over the years. Federal TANF regulations have been updated. Anyone administering or appealing under Work First today should consult the current statutes in Chapter 108A and current DHHS guidance.

Background and statutory framework

PRWORA was a transformative federal welfare reform law that gave states block grants (TANF replacing AFDC) and broad flexibility to design state and local programs. The flexibility came with conditions, including work requirements, time limits, and accountability for outcomes. Most states retained centralized administration; NC's Electing County mechanism was unusual in giving individual counties their own program-design authority.

The structural choice between state and county administration is a classic federalism question played out at the state-county level. The legislature chose to permit both, with Electing Counties as the option for counties wanting to customize. The trade-off is between local responsiveness (Electing) and state-wide consistency and administrative efficiency (Standard).

The appeals question is a downstream consequence. State-level appeals are administratively efficient and produce consistent precedent across counties. County-level appeals are responsive to local circumstances but can produce inconsistent results across counties. The legislature did not directly choose between these models; it implied the choice by limiting state hearing officers to Standard Program appeals.

The AG's reading honors that implication. If Electing Counties could use state hearing officers, the practical distinction between Standard and Electing would erode. The county would have all the substantive policy freedom of Electing status, but the appeals process would be functionally state-centralized. The legislature evidently meant to bundle the two: choose Electing, run your own appeals.

The opinion also illustrates an administrative law principle. Specialized adjudicatory officers (departmental hearing officers, ALJs, board members) are statutory creatures. They cannot accept jurisdiction beyond their statutory grant, even if a county or other party invites them. The Rate Bureau case cited is one of many NC cases holding administrative bodies to statutory authority limits.

Common questions

Can an Electing County contract with the state to use hearing officers?

Per the AG's analysis, no. The hearing officers' authority comes from the statute, not from contract. Even if DHHS and the county both wanted such an arrangement, the legislature would need to authorize it. As of 1999, the legislature had not done so.

Can an Electing County use Administrative Law Judges from the Office of Administrative Hearings?

The opinion does not address this directly. ALJs in OAH have authority under Chapter 150B for contested cases. Whether an Electing County could route its Work First appeals through OAH would depend on whether the county's appeals process qualifies as a "contested case" under Chapter 150B and whether the county elects to use that route. This is a county-level structural choice.

What if a county's Electing-County appeal process does not substantially comply with § 108A-79?

A denied applicant could challenge the process. The remedy could be a writ of mandamus requiring substantial compliance, or a declaratory judgment that the county's process is procedurally invalid. The county would have to fix the process. If the process is so deficient that due process is denied, federal civil rights claims could also be available.

Can a denied applicant petition the state-level officers anyway, asserting that the county process is invalid?

The state-level officers would have no jurisdiction to hear the case directly because the legislature did not assign Electing County appeals to them. The applicant's remedy is to challenge the county process through judicial review in superior court, not to short-circuit to state-level review.

Source

• Landing page: https://ncdoj.gov/opinions/appeal-process-for-electing-counties-under-the-work-first-program/

Citations

• N.C.G.S. § 108A-27(f)
• N.C.G.S. § 108A-27.3
• N.C.G.S. § 108A-27.3(a)(14)
• N.C.G.S. § 108A-27.15
• N.C.G.S. § 108A-79
• State ex rel. Com'r of Ins. v. North Carolina Rate Bureau, 61 N.C. App. 262 (1983)

Original opinion text

Reply to: Grady L. Balentine, Jr.
Health & Public Assistance
Tele: (919) 716-6840
Fax: (919) 716-6758

April 9, 1999

Kevin M. FitzGerald
Director, Division of Social Services
N.C. Dept. of Health and Human Services
325 N. Salisbury Street
Raleigh, NC 27603

Re: Advisory Opinion: Appeal Process for Electing Counties Under the Work First Program; G.S. 108A-27.3 and 108A-79

Dear Mr. FitzGerald:

You have asked whether the State level appeal hearing prescribed by G.S. 108A-79 applies to Electing Counties under the Work First Program. Specifically, you wish to know whether an Electing County can utilize the hearing officers provided by the State to Standard Counties and have them resolve Electing County appeals pursuant to G.S. 108A-79. The answer is no.

In response to federal welfare reform initiatives, the legislature replaced the public assistance program entitled Aid To Families With Dependent Children with a program of temporary public assistance entitled Work First. Under Work First, individual counties may participate in a Standard Work First Program established, developed, supervised, and monitored by the Department of Health and Human Services (the "Department"). In the alternative, counties may apply to become Electing Counties. In Electing Counties the board of county commissioners is responsible for the development, administration, and implementation of the Work First Program in that county. G.S. 108A-27(f). Moreover, the board of county commissioners in an Electing County is responsible for establishing eligibility criteria for recipients, prescribing the method of calculating benefits for recipients, and determining those persons eligible for the Work First Program. G.S. 108A-27.3.

Within the Work First statutes the legislature specifically stated that the Standard Work First Program is a program of temporary public assistance for the purpose of an appeal under G.S. 108A-79. G.S. 108A-27.15. The legislature provided no such language for Electing Counties. On the contrary, Electing Counties were directed to develop and implement an appeals process for their Work First Program that substantially complies with the two level appeal process outlined in G.S. 108A-79. G.S. 108A-27.3(a)(14).

G.S. 108A-79 establishes a right of appeal for applicants and recipients of public assistance from decisions of county boards of social services, county departments of social services, or boards of county commissioners granting, denying, terminating, or modifying assistance, or the failure of any of the above to act within a reasonable time under the rules and regulations of the Social Services Commission or the Department. This statute establishes a two tier appeal process. The second tier consists of a State level hearing before a departmental hearing officer. The hearing officer prepares a proposal for decision. The final decision is made by a designated Department official based on, or in conformity with, pertinent State and federal law and regulations. An applicant or recipient who is dissatisfied with the final decision may petition for judicial review in superior court.

Hearing officers are creatures of the statutes. As such, their authority to act is governed by the enabling legislation; they may act only as the legislature has prescribed. (See State ex rel. Com'r of Ins. v. North Carolina Rate Bureau, 61 N.C. App. 262 (1983)). By hearing appeals involving the Standard Work First Program, departmental hearing officers are performing a departmental function assigned to them by G.S. 108A-27.15 and 108A-79.

Electing Counties have opted out of the Standard Work First Program; they have developed and implemented their own individualized Work First Programs. As such, Electing Counties have also opted out of the appeals process established by G.S. 108A-79. The legislature directed Electing Counties to develop and implement their own appeals process. Electing Counties have no authority to develop a program that utilizes departmental hearing officers to conduct their appeals. The legislature provides the only authority under which departmental hearing officers can act. An Electing County cannot unilaterally expand this authority to authorize departmental hearing officers to perform the county function of hearing appeals for an Electing County program based on county rules and standards.

Very truly yours,

Ann Reed
Senior Deputy Attorney General

Grady L. Balentine, Jr.
Assistant Attorney General