2005 North Carolina Code - General Statutes Article 5 - Political Activity of Employees.

Article 5.

Political Activity of Employees.

§ 126‑13.  Appropriate political activity of State employees defined.

(a)       As an individual, each State employee retains all the rights and obligations of citizenship provided in the Constitution and laws of the State of North Carolina and the Constitution and laws of the United States of America; however, no State employee subject to the Personnel Act or temporary State employee shall:

(1)       Take any active part in managing a campaign, or campaign for political office or otherwise engage in political activity while on duty or within any period of time during which he is expected to perform services for which he receives compensation from the State;

(2)       Otherwise use the authority of his position, or utilize State funds, supplies or vehicles to secure support for or oppose any candidate, party, or issue in an election involving candidates for office or party nominations, or affect the results thereof.

(b)       No head of any State department, agency, or institution or other State employee exercising supervisory authority shall make, issue, or enforce any rule or policy the effect of which is to interfere with the right of any State employee as an individual to engage in political activity while not on duty or at times during which he is not performing services for which he receives compensation from the State.  A State employee who is or may be expected to perform his duties on a twenty‑four hour per day basis shall not be prevented from engaging in political activity except during regularly scheduled working hours or at other times when he is actually performing the duties of his office.  The willful violation of this subdivision shall be a Class 1 misdemeanor. (1967, c. 821, s. 1; 1985, c. 469, s. 1, c. 617, s. 5; 1993, c. 539, s. 930; 1994, Ex. Sess., c. 24, s. 14(c).)

 

§ 126‑14.  Promise or threat to obtain political contribution or support.

(a)       It is unlawful for a State employee or a person appointed to State office, other than elective office or office on a board, commission, committee, or council whose function is advisory only, whether or not subject to the Personnel Act, to coerce:

(1)       a State employee subject to the Personnel Act,

(2)       a probationary State employee,

(3)       a temporary State employee, or

(4)       an applicant for a position subject to the Personnel Act

to support or contribute to a political candidate, political committee as defined in G.S. 163‑278.6, or political party or to change the party designation of his voter registration by threatening that change in employment status or discipline or preferential personnel treatment will occur with regard to a person listed in subdivisions (1) through (4).

(b)       Any person violating this section shall be guilty of a Class 2 misdemeanor.

(c)       A State employee subject to the Personnel Act, probationary State employee, or temporary State employee who without probable cause falsely accuses a State employee or a person appointed to State office of violating this section shall be subject to discipline or change in employment status in accordance with the provisions of G.S. 126‑35, 126‑37, and 126‑38 and may, as otherwise provided by law, be subject to criminal penalties for perjury or civil liability for libel, slander, or malicious prosecution. (1967, c. 821, s. 1; 1985, c. 469, s. 2; 1991, c. 505, s. 1; 1993, c. 539, s. 931; 1994, Ex. Sess., c. 24, s. 14(c).)

 

§ 126‑14.1.  Threat to obtain political contribution or support.

(a)       It is unlawful for any person to coerce:

(1)       a State employee subject to the Personnel Act,

(2)       a probationary State employee,

(3)       a temporary State employee, or

(4)       an applicant for a position subject to the Personnel Act

to support or contribute to a political candidate, political committee as defined in G.S. 163‑278.6, or political party or to change the party designation of his voter registration by explicitly threatening that change in employment status or discipline or preferential personnel treatment will occur with regard to any person listed in subdivisions (1) through (3) of this subsection.

(b)       Any person violating this section shall be guilty of a Class 2 misdemeanor.

(c)       A State employee subject to the Personnel Act, probationary State employee, or temporary State employee, who without probable cause falsely accuses a person of violating this section shall be subject to discipline or change in employment status in accordance with the provisions of G.S. 126‑35, 126‑37, and 126‑38 and may, as otherwise provided by law, be subject to criminal penalties for perjury or civil liability for libel, slander, or malicious prosecution. (1985, c. 469, s. 3; 1991, c. 505, s. 2; 1993, c. 539, s. 932; 1994, Ex. Sess., c. 24, s. 14(c).)

 

§ 126‑14.2.  Political hirings limited.

(a)       It is the policy of this State that State departments, agencies, and institutions select from the pool of the most qualified persons for State government employment based upon job‑related qualifications of applicants for employment using fair and valid selection criteria.

(b)       All State departments, agencies, and institutions shall select from the pool of the most qualified persons for State government employment without regard to political affiliation or political influence. For the purposes of this section, the "most qualified persons" shall mean each of the State employees or applicants for initial State employment who:

(1)       Have timely applied for a position in State government;

(2)       Have the essential qualifications for that position; and

(3)       Are determined to be substantially more qualified as compared to other applicants for the position, after applying fair and valid job selection criteria, in accordance with G.S. 126‑5(e), G.S. 126‑7.1, Articles 6 and 13 of this Chapter, and State personnel policies approved by the State Personnel Commission.

(c)       It is a violation of this section giving rise to the remedies set forth in G.S. 126‑14.4 if:

(1)       The complaining State employee or applicant for initial State employment timely applied for the State government position in question;

(2)       The complaining State employee or applicant for initial State employment was not hired into the position;

(3)       The complaining State employee or applicant for initial State employment was among the most qualified persons applying for the position as defined in this Chapter;

(4)       The successful applicant for the position was not among the most qualified persons applying for the position; and

(5)       The hiring decision was based upon political affiliation or political influence.

(d)       The provisions of this section shall not apply to positions exempt from this Chapter, except that this section does apply to exempt managerial positions as defined by G.S. 126‑5(b)(2). (1997‑520, s. 1.)

 

§ 126‑14.3.  Open and fair competition.

The State Personnel Commission shall adopt rules or policies to:

(1)       Assure recruitment, selection, and hiring procedures that encourage open and fair competition for positions in State government employment and that encourage the hiring of a diverse State government workforce.

(2)       Assure the proper and thorough advertisement of job openings in State government employment and lengthen, as appropriate, the period for submitting applications for State government employment.

(3)       Require that a closing date shall be posted for each job opening, unless an exception for critical classifications has been approved by the State Personnel Commission.

(4)       Require that timely written notice shall be provided to each unsuccessful applicant for State employment who is in the pool of the most qualified applicants for a position, as defined by G.S. 126‑14.2(b).

(5)       Assure that State departments, agencies, and institutions follow similar selection processes when hiring State employees in accordance with this Chapter.

(6)       Assure that State supervisory and management personnel, and personnel professionals, receive adequate training and continuing education to carry out the State's policy of hiring from among the most qualified persons.

(7)       Establish a monitoring system to measure the effectiveness of State agency personnel procedures to promote fairness and reduce adverse impact on all demographic groups in the State government workforce.

(8)       Otherwise implement the State's policy of nonpolitical hiring practices in accordance with this Chapter. (1997‑520, s. 1.)

 

§ 126‑14.4.  Remedies.

(a)       A State employee or applicant for initial State employment who has reason to believe that he or she was among the pool of the most qualified persons for a position in State government employment and was denied employment or promotion in violation of G.S. 126‑14.2 because of political affiliation or political influence may complain directly through the Civil Rights Division of the Office of Administrative Hearings, which shall be responsible for making an initial determination of whether there is probable cause to believe that there has been a violation of G.S. 126‑14.2.

The complaining State employee or applicant shall file a complaint with the Civil Rights Division of the Office of Administrative Hearings within 30 days after the complainant receives written notice that the position in question has been filled.

The Civil Rights Division of the Office of Administrative Hearings shall promptly make appropriate formal and informal inquiries in its investigatory, fact‑finding role and may consider any matter, document, or statement deemed pertinent to the initial determination, including telephone conversations, in determining if there is probable cause to believe there has been a violation of G.S. 126‑14.2. The Civil Rights Division may apply to an administrative law judge in the Office of Administrative Hearings for the issuance of oaths and subpoenas under G.S. 7A‑756. The investigation and fact‑finding phase of the complaint shall be completed by the Civil Rights Division within 30 days.

(b)       The Civil Rights Division of the Office of Administrative Hearings shall notify the person alleged to have been hired in violation of G.S. 126‑14.2 of the appeal, and the person may present any information to the Civil Rights Division that is pertinent to the initial determination of probable cause. The person alleged to have been hired in violation of G.S. 126‑14.2 shall be notified of the results of the initial determination and shall have a right to intervene in any administrative proceedings pursuant to G.S. 150B‑23(d).

(c)       Upon an initial determination that there is probable cause to believe there has been a violation of G.S. 126‑14.2, the complainant may file within 15 days a petition for a contested case pursuant to G.S. 126‑34.1 and Article 3 of Chapter 150B of the General Statutes.

(d)       An initial determination by the Civil Rights Division that there is not probable cause to believe there has been a violation of G.S. 126‑14.2 shall be conclusive of any rights under that section but shall not be admissible or binding in any separate or subsequent civil action or proceeding.

(e)       Within 90 days after the filing of a contested case petition, the administrative law judge shall issue a recommended decision to the State Personnel Commission which shall include findings of fact and conclusions of law and, if the administrative law judge has found a violation of G.S. 126‑14.2, an appropriate recommended remedy.

(f)        Within 60 days of receipt of the official record by the Office of Administrative Hearings, the State Personnel Commission shall make a final written decision as to whether there has been a violation of G.S. 126‑14.2. In any case where a violation is found, the State Personnel Commission shall take suitable action to correct the violation, which may include:

(1)       Directing the State agency, department, or institution to declare the position vacant, and to hire from among the most qualified State employees or applicants for initial State employment who had applied for the position, or

(2)       Requiring that the vacancy be posted pursuant to this Chapter.

(g)       A career State employee with:

(1)       Less than 10 years of service who was placed in an exempt managerial position, as defined by G.S. 126‑5(b)(2), shall be given priority consideration for a position at the same salary grade equal to that held in the most recent position prior to the promotion if he or she has to vacate because of violation of G.S. 126‑14.2.

(2)       10 or more years of service who was placed in an exempt managerial position, as defined by G.S. 126‑5(b)(2), shall be placed in a comparable position at the same grade and salary equal to that held in the most recent position prior to the promotion if he or she had to vacate because of violation of G.S. 126‑14.2. (1997‑520, s. 2.)

 

§ 126‑15.  Disciplinary action for violation of Article.

Failure to comply with this Article is grounds for disciplinary action which, in case of deliberate or repeated violation, may include dismissal or removal from office. (1967, c. 821, s. 1.)

 

§ 126‑15.1.  Probationary State employee defined.

As used in this Article, "probationary State employee" means a State employee who is exempt from the Personnel Act only because he has not been continuously employed by the State for the period required by G.S. 126‑5(c). (1985, c. 469, s. 4; 1987, c. 282, s. 19.)