NORTH CAROLINA GENERAL ASSEMBLY

1975 SESSION

 

 

CHAPTER 667

HOUSE BILL 132

 

 

AN ACT TO AMEND CHAPTER 126 OF THE GENERAL STATUTES OF NORTH CAROLINA, MODIFYING THE STATE PERSONNEL SYSTEM.

 

The General Assembly of North Carolina enacts:

 

Section 1.  All amending provisions of this bill refer to Chapter 126 as it appears in North Carolina General Statutes 1974 Replacement Volume 3B.

Sec. 2.  G.S. 126 is amended to substitute the word "Commission" for the word "Board" wherever it is shall appear.

Sec. 3.  G.S. 126-2 is amended by rewriting subsection (c) to read as follows:

"(c)       Members of the Commission appointed after February 1, 1976, shall be appointed subject to confirmation by the General Assembly of North Carolina. If the General Assembly is not in session when an appointment is made, the appointee shall temporarily exercise all of the powers of a confirmed member until the convening of the next legislative session. If the General Assembly does not act on confirmation of a proposed member within 30 legislative days of the submission of the name, the member shall be considered confirmed. If the Governor does not appoint a new member within 60 calendar days of the occurrence of a vacancy or the rejection of an appointment by the General Assembly, the remaining members of the Board shall have the authority to fill the vacancy."

Sec. 4.  G.S. 126-2(f) is amended by changing the first word "Five" to read "Four".

Sec. 5.  G.S. 126-3 is rewritten to read as follows:

"§ 126-3.  Office of State Personnel established; administration and supervision; appointment, compensation and tenure of Director. — There is hereby established the Office of State Personnel (hereinafter referred to as 'the Office') which shall be placed for organizational purposes within the Department of Administration. Notwithstanding the provisions of North Carolina State Government Reorganization as of January 1, 1975, and specifically notwithstanding the provisions of Chapter 864 of the 1971 North Carolina Session Laws, the Office of State Personnel shall exercise all of its statutory powers in this act independent of control by the Secretary of Administration and shall be under the administration and supervision of a State Personnel Director (hereinafter referred to as 'the Director') appointed by the Governor and subject to the supervision of the Commission for purposes of this act. The salary of the Director shall be fixed by the Governor subject to the approval of the Advisory Budget Commission. The Director shall serve at the pleasure of the Governor."

Sec. 6.  G.S. 126-4 is amended by rewriting subsection (9) to read as follows:

"(9)      The investigation of complaints and the hearing of appeals of applicants, employees, and former employees and the issuing of such binding corrective orders or such other appropriate action concerning employment, promotion, demotion, transfer, discharge, and reinstatement in all cases as the Commission shall find justified."

Sec. 7.  G.S. 126-4 is further amended by redesignating subsection (10) as subsection (13) and by inserting new subsections (10), (11) and (12) to read as follows:

"(10)    In cases where the Commission finds discrimination or orders reinstatement, the assessment of reasonable attorney fees and witness fees against the State agency involved.

(11)      The appointment of hearing officers to hear appeals at various locations around the State as provided for in Article 3 of Chapter 150A, and the relationship of the record made by such hearing officers to proceedings by the Commission.

(12)      The employment of independent attorneys to represent the Department when some conflict would result from using Department of Justice attorneys."

Sec. 8.  G.S. 126-5 is amended by rewriting subsection (b) in its entirety to read as follows:

"(b)      The provisions of this Chapter shall not apply to public school superintendents, principals, teachers, and other public school employees. Except as to Articles 6 and 9, the provisions of this Chapter shall not apply to the following persons or employees: instructional and research staff, physicians and dentists of the University of North Carolina; employees whose salaries are fixed under the authority vested in the Board of Governors of the University of North Carolina by the provisions of G.S. 116-11(4), 116-11(5), and 116-14; community colleges' employees whose salaries are fixed in accordance with the provisions of G.S. 115A-5 and 115A-14; members of boards, committees, commissions, councils, and advisory councils compensated on a per diem basis; officials or employees whose salaries are fixed by the Governor, or by the Governor and Council of State, or by the Governor subject to the approval of the Council of State or the Advisory Budget Commission; employees of the General Assembly and its agencies and temporary employees of activities ancillary to the General Assembly; employees of the Judicial Department; blind or visually handicapped employees of the Department of Human Resources, Division of Services for the Blind, Business Enterprise Section, vending stand employees; constitutional officers of the State and except as to salaries:

(1)        The chief deputy or chief administrative assistant to the head of each State department who is designated either by statute or by the administrative head to act for and perform all of the duties of such administrative head during his absence or incapacity;

(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)        Other deputies, administrative assistants, division or agency heads or other employees, by whatever title, that serve in policy-making positions such positions be designated by the Governor or by each elected department head in a letter to the State Personnel Director, the Speaker of the North Carolina House o Representatives, and the President of the North Carolina Senate by May 1 of the year in which the oath of office is administered to each governor;

(4)        One confidential secretary to each position designated under the provisions of G.S. 126-5(b)(3);

(5)        All employees of the offices of the Governor and Lieutenant Governor.

Sec. 9.  G.S. 126-5 is amended by adding subsections (c), (d) and (e) to read as follows:

"(c)       Any career employee who has occupied a position subject to the personnel act and who is replaced after the position is exempted as provided in G.S. 126-5(b) shall be provided with all possible assistance in being appropriately relocated in State Government. Any person appointed to an exempt position shall not be considered a career employee in that position. If a career employee in a subject position transfers to an exempt position, the career employee may retain status in his former position as if on leave of absence for the term of his exempt appointment.

(d)        In case of dispute as to whether an employee is subject to the provisions of this Chapter, the question shall be investigated by the State Personnel Office and decided by the State Personnel Commission, subject to the approval of the Governor, and such decision shall be final.

(e)        For the purposes of this act, a career employee is defined as one who has been employed by the State for five consecutive years."

Sec. 10.  A new Article 7 is added to Chapter 126 to read as follows:

"ARTICLE 7.

"Employee Appeals of Grievances and Disciplinary Action.

"§ 126-17  Grievance appeal for State employees. — Any permanent State employee having a grievance arising out of or due to his employment and who does not allege discrimination because of his age, sex, race, color, national origin religion creed, physical disability, or political affiliation shall first discuss his problem or grievance with his supervisor and follow the grievance procedure established by his department or agency.

"§ 126-18  Written statement of reason for disciplinary action. — No permanent employee subject to the State Personnel Act shall be discharged suspended, or reduced in pay or position, except for just cause In cases of such disciplinary action, the employee shall, before the action is taken, be furnished with a statement in writing setting forth in numerical order the specific acts or omissions that are the reasons for the disciplinary action and the employees appeal rights. The employee shall be permitted 15 days from the date the statement is delivered to appeal to the head of the department A copy of the written statement given the employee and the employee s appeal, shall be tiled by the department with the State Personnel Director within five days of their delivery However, an employee may be suspended without warning for causes relating to personal conduct detrimental to State service, pending the giving of written reasons in order to avoid undue disruption of work or to protect the safety of persons or property or for other serious reasons. The employee, if he is not satisfied with the final decision of the head of the department or if he is unable, within a reasonable period of time, to obtain a final decision by the head of the department, may appeal to the State Personnel Commission. Such appeal shall be filed not later than 30 days after receipt of notice of the department head's decision.

"§ 126-19.  Appeal of unlawful State employment practice. — Any applicant for State employment or State employee or former State employee who has reason to believe that employment, promotion, training, or transfer was denied him or that demotion, lay-off or termination of employment was forced upon him because of his age, sex, race, color, national origin, religion, creed, political affiliation, or physical disability except where specific age, sex or physical requirements constitute a bona fide occupational qualification necessary to proper and efficient administration, shall have the right to appeal directly to the State Personnel Commission.

"§ 126-20.  Personnel Director investigate, hear, recommend settlement; Personnel Commission hear or review findings and make binding decision. — The State Personnel Director or any other person or persons designated by the Commission shall investigate the disciplinary action or alleged discrimination which is appealed to the Commission. The State Personnel Commission may hear the case or direct the State Personnel Director or other person or persons designated by the Commission to conduct a hearing of the facts and issues. If, following the investigation and hearing, a settlement is agreed to by both parties, the State Personnel Director or the designated agent shall certify the settlement to the Commission. If, following the investigation and hearing, there are issues and facts on which agreement cannot be reached, the Personnel Director or the designated agent shall report his findings to the Commission with his recommendations. The Commission at its next meeting, or as soon as possible thereafter, shall consider the report and modify, alter, set aside or affirm said report and certify its findings to the appointing authority which shall be binding. The State Personnel Commission is hereby authorized to reinstate any employee to the position from which he has been removed, to order the employment, promotion, transfer, or salary adjustment of any individual to whom it has been wrongfully denied or to direct other suitable action to correct the abuse which may include the requirement of payment for any loss of salary which has resulted from the improperly discriminatory action of the appointing authority. The decisions of the State Personnel Commission shall be binding in appeals of local employees subject to this Chapter if the Commission finds that the employee has been subjected to discrimination prohibited by Article 6 of this Chapter or in any case where a binding decision is required by applicable federal standards. However, in all other local employee appeals, the decisions of the State Personnel Commission shall be advisory to the local appointing authority."

Sec. 11.  A new Article 8 is added to Chapter 126 to read as follows:

"ARTICLE 8.

"The Administrative Procedure Act and Modifications.

"§ 126-21.  The Administrative Procedure Act. — The provisions of the Administrative Procedure Act, Chapter 150A, shall apply to the State Personnel System and hearing and appeal matters before the Commission, except where there are specific statutory provisions to the contrary, including the following:

(a)        G.S. 150A-29, concerning the rules of evidence, shall not apply, except on specific written request to the Commission by an aggrieved party appearing before the Commission.

(b)        The last sentence of G.S. 150A-27, concerning fees for subpoenaed witnesses, shall not apply.

"§ 126-22.  Witness fees. — The party requesting the subpoena to subpoenaed witnesses who are not State officials or employees shall pay witness fees in accordance with G.S. 7A-314. State officials or employees who are subpoenaed shall not be entitled to any witness fees, but they shall receive their normal salary and they shall not be required to take any annual leave for the witness days. Travel expenses of State officials or employees who are subpoenaed shall be reimbursed as provided in G.S. 138-6.

"§ 126-23.  Disqualification of hearing officers. — A party may by making timely written objection cause the disqualification of up to two hearing officers assigned to hear his case, unless the hearing shall be before a member, or members of the Commission. Commission members may be disqualified only under the provisions of G.S. 150A-32(b) of the Administrative Procedure Act."

Sec. 12.  G.S. 126-10 is amended by deleting the words "State Personnel Department" in lines 2 and 3 in the 1974 Replacement of Volume 3B of the General Statutes of North Carolina and substituting the words "Office of State Personnel".

Sec. 13.  This act shall become effective on February 1, 1976.

In the General Assembly read three times and ratified, this the 18th day of June, 1975.