GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1991

H	1 

HOUSE BILL 549*

Short Title:  Clarify State Personnel Act Scope.	(Public)
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Sponsors: Representatives Fitch; H. Hunter and Stamey.
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Referred to:  Public Employees.
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April 1, 1991

A BILL TO BE ENTITLED
AN ACT TO PROVIDE CLARIFICATION ON THE APPLICATION OF THE VARIOUS PROVISIONS OF CHAPTER 126 OF THE GENERAL STATUTES TO THE DIFFERENT CATEGORIES OF STATE EMPLOYEES.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 126-5 reads as rewritten:
"§ 126-5.  Employees subject to Chapter; exemptions.
(a)	All provisions of this Chapter shall apply to:
(1)	All State employees, including employees of State boards, commissions, councils, or authorities, except as:
a.	Expressly exempted in this Chapter; or
b.	Expressly exempted by some other provision of law, and
(2)	To employees of area mental health, mental retardation, and substance abuse authorities and to employees of local social services departments, public health departments, and local emergency management agencies that receive federal grant-in-aid funds; and the provisions of this Chapter may apply to such other county employees as the several boards of county commissioners may from time to time determine.
(b)	As used in this section, 'policymaking position' means a position delegated with the authority to impose the final decision as to a settled course of action to be followed within a department, agency or division.
(c)	Except as to the policies, rules, and plans established by the Commission pursuant to G.S. 126-4(1), 126-4(2), 126-4(3), 126-4(4), 126-4(5), 126-4(6), 126-4(7), 126-4(8), 126-4(10), 126-4(14), and 126-4(15), and 126-7, and except as to the provisions of Articles 4, 5, 6, 7, 10, 12, 13, and 14 of this Chapter, the remaining provisions of this Chapter shall not apply to:
(1)	An employee of the State of North Carolina who:
a.	Is in a grade 60 or lower position and has not been continuously employed by the State of North Carolina for the immediate 12 preceding months;
b.	Is in a grade 61 to grade 65 position and has not been continuously employed by the State of North Carolina for the immediate 36 preceding months;
c.	Is in a grade 66 to grade 70 position and has not been continuously employed by the State of North Carolina for the immediate 48 preceding months; or
d.	Is in a grade 71 or higher position and has not been continuously employed by the State of North Carolina for the immediate 60 preceding months.
(2)	One confidential assistant and two confidential secretaries for each elected or appointed department head and one confidential secretary for each chief deputy or chief administrative assistant.
(3)	Employees in positions designated as policymaking pursuant to G. S. 126-5(d).
(4)	The chief deputy or chief administrative assistant to the head of each State department named in G. S. 126-5(d)(1) who is designated either by statute or by the department head to act for and perform all of the duties of such department head during his absence or incapacity.
(c1)	Except as to the provisions of Articles 5, 6, 7, and 14 of this Chapter, the remaining provisions of this Chapter shall not apply to:
(1)	Constitutional officers of the State.
(2)	Officers and employees of the Judicial Department.
(3)	Officers and employees of the General Assembly.
(4)	Members of boards, committees, commissions, councils, and advisory councils compensated on a per diem basis.
Notwithstanding the provisions of this subsection, the policies, plans, and procedures established by the Commission pursuant to G. S. 126-4(5) related to paid leave and holidays will apply to the regular classified employees of the Judicial Department.
										(c1.1)  Except as to:
(1)	Those policies, plans, and procedures established by the Commission pursuant to G.S. 126-4(5) related to paid leave and holidays; and
(2)	The provisions of Articles 5, 6, 7, and 14 of this Chapter,
the remaining provisions of this Chapter shall not apply to:
(1)	Officials or employees whose salaries are fixed by the General Assembly, or by the Governor, or by the Governor and Council of State, or by the Governor subject to the approval of the Council of State.
(2)	Employees of the Office of the Governor that the Governor, at any time, in his discretion, exempts from the application of the remaining provisions of this Chapter by means of a letter to the State Personnel Director designating these employees.
(3)	Employees of the Office of the Lieutenant Governor, that the Lieutenant Governor, at any time, in his discretion, exempts from the application of the remaining provisions of this Chapter by means of a letter to the State Personnel Director designating these employees.
(4)	Employees whose salaries are fixed under the authority vested in the State Board of Community Colleges pursuant to G.S. 115D-3.
(5)	Employees of the North Carolina Low-Level Radioactive Waste Management Authority whose salaries are fixed pursuant to G.S. 104G-5(g)(1) and G.S. 104G-5(g)(2).
(6)	Employees of the North Carolina Hazardous Waste Management Commission whose salaries are fixed pursuant to G.S. 130B-6(g)(1) and G.S. 130B-6(g)(2).
(7)	All State employees whose positions are created or identified in statutes other than this Chapter, when those statutes contain language that has been interpreted and applied to exempt those employees from all provisions of this Chapter.
(8)	North Carolina School of Science and Mathematics' employees whose salaries are fixed pursuant to G.S. 116-235(c)(1) and G.S. 116-235(c)(2).
(c1.2)  Except as to:
(1)	The minimum leave provisions of G.S. 126-8 as applied to those employees who regularly work 12 months each year; and
(2)	The provisions of Articles 5, 6, 7, and 14 of this Chapter,
the remaining provisions of this Chapter shall not apply to:
(1)	Instructional and research staff, physicians, and dentists of The University of North Carolina.
(2)	Employees whose salaries are fixed under the authority vested in the Board of Governors of The University of North Carolina pursuant to G.S. 116-11(4), 116-11(5), and 116-14.
(3)	Employees of the North Carolina State Ports Authority.
(c2)	Except as to the provisions of Article 14 of this Chapter, the remaining provisions of this Chapter shall not apply to:
(1)	Public school superintendents, principals, teachers, and other public school employees.
(3)	Employees of community colleges whose salaries are fixed pursuant to G.S. 115D-5 and G.S. 115D-20.
(c3)	Except as to the policies, rules, and plans established by the Commission pursuant to G.S. 126-4(5) and the provisions of Articles 6 and 14 of this Chapter, the remaining provisions of this Chapter shall not apply to: Teaching and related educational classes of employees of the Department of Correction, the Department of Human Resources, and any other State department, agency or institution, whose salaries shall be set in the same manner as set for corresponding public school employees in accordance with Chapter 115C of the General Statutes.
(c4)	The State Personnel Commission shall establish a position and appointment type for certain field force positions and employees in the Division of Highways, Department of Transportation, where, in the judgment of the Commission, such appointment is for a position that is an entry level occupation, is for a duration of at least one-half of the workdays of each pay period for at least nine calendar months per year, and is reflective of employment practices in competing labor markets.  This appointment type shall be for 'permanent hourly employees.'  Except as to the policies, rules, and plans established by the Commission pursuant to G.S. 126-4(1), 126-4(2), and 126-4(3), and except as to the provisions of Articles 5, 6, 7, and 14 of this Chapter, the provisions of this Chapter shall not apply to permanent hourly employees.  The State Personnel Commission regulations shall provide that these employees will be guaranteed two hours show-up pay when work is postponed, and pay for holidays falling within periods of employment.
	(d)	(1)	General. – The Governor may designate certain positions as policymaking positions, as provided below, in each of the following departments:
a.	Department of Administration;
b.	Department of Economic and Community Development;
c.	Department of Correction;
d.	Department of Crime Control and Public Safety;
e.	Department of Cultural Resources;
f.	Department of Human Resources;
g.	Department of Environment, Health and Natural Resources;
h.	Department of Revenue; and 
i.	Department of Transportation.
	The Secretary of State, the Auditor, the Treasurer, the Attorney General, the Superintendent of Public Instruction, the Commissioner of Agriculture, the Commissioner of Insurance, and the Labor Commissioner may designate policymaking positions, consistent with the provisions of subdivisions (2) through (7) of this subsection, in their respective offices.  Positions designated as policymaking pursuant to this subdivision shall be exempt from those provisions of this Chapter set forth in G.S. 126-5(c)(3).
(2)	Number.  The number of positions designated as policymaking in each department of office listed in subsection (d) (1), except the Department of Economic and Community Development, shall be limited to one and two tenths percent (1.2%) of the number of full-time positions in the department office, or 30 positions in the department or office, or 30 positions, whichever is greater.  The Governor may designate as policymaking 85 positions in the Department of Economic and Community Development.  Provided, however, that the Governor or elected department head may request that additional positions be designated as policymaking.  The request shall be made by sending a list of positions designated as policymaking that exceed the limit imposed by this subsection to the Speaker of the North Carolina House of Representatives and the President of the North Carolina Senate.  A copy of the list also shall be sent to the State Personnel Director.  The General Assembly may authorize all, or part of, the additional positions to be designated as policymaking. If the General Assembly is in session when the list is submitted and does not act within 30 days after the list is submitted, the list shall be deemed approved by the General Assembly, and positions shall be designated as policymaking.  If the General Assembly is not in session when the list is submitted, the 30-day period shall not begin to run until the next date that the General Assembly convenes or reconvenes, other than for a special session called for a specific purpose not involving the approval of the list of additional positions to be designated as policymaking; the positions shall not be designated as policymaking during the interim.
(3)	Letter.  Those positions designated as policymaking pursuant to G.S. 126-5(d)(1); those confidential assistants or secretaries described in G.S. 126-5(c)(2); and those chief deputies or chief administrative assistants described in G.S. 126-5(c)(4) shall be listed in a letter to the State Personnel Director, the Speaker of the House of Representatives, and the President of the Senate by May 1 of the year in which the oath of office is administered to each Governor unless the provisions of subdivision (4) of this subsection apply.
(4)	Vacancies.  In the event of a vacancy in the Office of the Governor or in the office of a member of the Council of State, the person who succeeds to or is appointed or elected to fill the unexpired term shall make such designations in a letter to the State Personnel Director, the Speaker of the House of Representatives, and the President of the Senate within 120 days after the oath of office is administered to that person.
(5)	Creation, Transfer, or Reorganization.  The Governor or elected department head may designate as policymaking a position that is created or transferred to a different department, or is located in a department in which reorganization has occurred, after May 1 of the year in which the oath of office is administered to the Governor.  The designation must be made in a letter to the State Personnel Director, the Speaker of the North Carolina House of Representatives, and the President of the North Carolina Senate within 120 days after such position is created, transferred, or in which reorganization has occurred.
(6)	Reversal.  Subsequent to the designation of a position as policymaking pursuant to G.S. 126-5(d)(1); any confidential assistant or secretary described in G.S. 126-5(c)(2); or any chief deputy or chief administrative assistant described in G.S. 126-5(c)(4), the status of the position may be reversed and made subject to all provisions of this Chapter by the Governor or by an elected department head in a letter to the State Personnel Director, the Speaker of the North Carolina House of Representatives, and the President of the North Carolina Senate.
(7)	Hearing Officers.  Except as otherwise specifically provided by this section, no employee, by whatever title, whose primary duties include the power to conduct hearings, take evidence, and enter a decision based on findings of fact and conclusions of law based on statutes and legal precedents shall be designated as policymaking.  
(e)	Any employee in a position described in G.S. 126-5(c)(2), (c)(3), or (c)(4) may be transferred, demoted, or separated from his position by the Governor, the department head, or a designee, except:
(1)	When an employee who has the minimum service requirements described in subsection (c)(1) above but less than 10 years of cumulative service in subject positions prior to placement in an exempt position is removed from an exempt position, for reasons other than just cause, the employee shall have priority to any position that becomes available for which the employee is qualified, according to rules and regulations regulating and defining priority as promulgated by the State Personnel Commission; or
(2)	When an employee who has 10 years or more cumulative service, including the immediately preceding 12 months, in subject positions prior to placement in an exempt position is removed from an exempt position, for reasons other than just cause, the employee shall be reassigned to a subject position within the same department or agency, or if necessary within another agency, and within a 35 mile radius of the exempt position, at the same grade and step.
(f)	A department head is authorized to use existing budgeted positions within his department in order to carry out the provisions of subsection (e) of this section.  If it is necessary to meet the requirements of subsection (e) of this section, a department head may use salary reserve funds authorized for his department.
(g)	No employee shall be placed in a position designated as: policymaking pursuant to G.S. 126-5(d)(1); a confidential assistant or secretary described in G.S. 126-5(c)(2); or a chief deputy or chief administrative assistant described in G.S. 126-5(c)(4) without 10 working days prior written notification that such position is so designated.  An applicant for any such position must be notified in writing at the time he makes the application that the position is designated as policymaking pursuant to G.S. 126-5(d)(1); is a confidential assistant or secretary as described in G.S. 126-5(c)(2); or a chief deputy or chief administrative assistant as described in G.S. 126-5(c)(4).
(h)	In case of dispute as to the extent to which an employee is subject to the provisions of this Chapter, the question shall be investigated by the State Personnel Office, and the dispute shall be resolved as provided in Article 3 of Chapter 150B."
Sec. 2.  G.S. 126-15.1 reads as rewritten:
"§ 126-15.1.  Probationary State employee defined.
As used in this Article, 'probationary State employee' means a State employee who is exempt from those provisions of this Chapter set forth in G.S. 126-5(c), only because he has not been continuously employed by the State for the appropriate period required by G.S. 126-5(c)(1)."
Sec. 3.  This act is effective upon ratification.