2005 North Carolina Code - General Statutes § 126-14.4. Remedies.

§ 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.)