2005 North Carolina Code - General Statutes § 126-5. Employees subject to Chapter; exemptions.

§ 126‑5.  Employees subject to Chapter; exemptions.

(a)       The provisions of this Chapter shall apply to:

(1)       All State employees not herein exempt, and

(2)       All employees of the following local entities:

a.         Area mental health, developmental disabilities, and substance abuse authorities.

b.         Local social services departments.

c.         County health departments and district health departments.

d.         Local emergency management agencies that receive federal grant‑in‑aid funds.

An employee of a consolidated county human services agency created pursuant to G.S. 153A‑77(b) is not considered an employee of an entity listed in this subdivision.

(3)       County employees not included under subdivision (2) of this subsection as the several boards of county commissioners may from time to time determine.

(b)       As used in this section:

(1)       "Exempt position" means an exempt managerial position or an exempt policymaking position.

(2)       "Exempt managerial position" means a position delegated with significant managerial or programmatic responsibility that is essential to the successful operation of a State department, agency, or division, so that the application of G.S. 126‑35 to an employee in the position would cause undue disruption to the operations of the agency, department, institution, or division.

(3)       "Exempt 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, so that a loyalty to the Governor or other elected department head in their respective offices is reasonably necessary to implement the policies of their offices. The term shall not include personnel professionals.

(4)       "Personnel professional" means any employee in a State department, agency, institution, or division whose primary job duties involve administrative personnel and human resources functions for that State department, agency, institution, 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), and 126‑7, and except as to the provisions of Articles 6 and 7 of this Chapter, the provisions of this Chapter shall not apply to:

(1)       A State employee who is not a career State employee as defined by this Chapter.

(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 exempt policymaking positions designated pursuant to G.S. 126‑5(d).

(4)       The chief deputy or chief administrative assistant to the head of each State department 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 6 and 7 of this Chapter, the 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.

(5)       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.

(6)       Employees of the Office of the Governor that the Governor, at any time, in the Governor's discretion, exempts from the application of the provisions of this Chapter by means of a letter to the State Personnel Director designating these employees.

(7)       Employees of the Office of the Lieutenant Governor, that the Lieutenant Governor, at any time, in the Lieutenant Governor's discretion, exempts from the application of the provisions of this Chapter by means of a letter to the State Personnel Director designating these employees.

(8)       Instructional and research staff, physicians, and dentists of The University of North Carolina.

(9)       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.

(10)     Repealed by Session Laws 1991, c. 84, s. 1.

(11)     North Carolina School of Science and Mathematics' employees whose salaries are fixed in accordance with the provisions of G.S. 116‑235(c)(1) and G.S. 116‑235(c)(2).

(12),    (13) Repealed by Session Laws 2001‑474, s. 15, effective November 29, 2001.

(14)     Employees of the North Carolina State Ports Authority.

(15)     Employees of the North Carolina Global TransPark Authority.

(16)     The executive director and one associate director of the North Carolina Center for Nursing established under Article 9F of Chapter 90 of the General Statutes.

(17)     Repealed by Session Laws 2004‑129, s. 37, effective July 1, 2004.

(18)     Employees of the Tobacco Trust Fund Commission established in Article 75 of Chapter 143 of the General Statutes.

(19)     Employees of the Health and Wellness Trust Fund Commission established in Article 21 of Chapter 130A of the General Statutes.

(20)     Employees of the North Carolina Rural Redevelopment Authority created in Part 2D of Article 10 of Chapter 143B of the General Statutes.

(21)     Employees of the Clean Water Management Trust Fund.

(22)     Employees of the North Carolina Turnpike Authority.

(23)     The Executive Administrator and the Deputy Executive Administrator of the Teachers' and State Employees' Comprehensive Major Medical Plan.

(24)     Employees of the Teachers' and State Employees' Comprehensive Major Medical Plan as designated by law or by the Executive Administrator of the Plan.

(25)     The North Carolina State Lottery Director and employees of the North Carolina State Lottery.

(c2)     The provisions of this Chapter shall not apply to:

(1)       Public school superintendents, principals, teachers, and other public school employees.

(2)       Recodified as G.S. 126‑5(c)(4) by Session Laws 1985 (Regular Session, 1986), c. 1014, s. 41.

(3)       Employees of community colleges whose salaries are fixed in accordance with the provisions of G.S. 115D‑5 and G.S. 115D‑20, and employees of the Community Colleges System Office whose salaries are fixed by the State Board of Community Colleges in accordance with the provisions of G.S. 115D‑3.

(c3)     Except as to the policies, rules, and plans established by the Commission pursuant to G.S. 126‑4(5) and the provisions of Article 6 of this Chapter, the provisions of this Chapter shall not apply to: Teaching and related educational classes of employees of the Department of Correction, the Department of Health and Human Services, 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)     Repealed by Session Laws 1993, c. 321, s. 145(b).

(c5)     Notwithstanding any other provision of this Chapter, Article 14 of this Chapter shall apply to all State employees, public school employees, and community college employees.

(c6)     Article 15 of this Chapter shall apply to all State employees, public school employees, and community college employees.

(c7)     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), 126‑7, 126‑14.3, and except as to the provisions of G.S. 126‑14.2, G.S. 126‑34.1(a)(2), and Articles 6 and 7 of this Chapter, the provisions of this Chapter shall not apply to exempt managerial positions.

(c8)     Except as to the provisions of Articles 5, 6, 7, and 14 of this Chapter, the provisions of this Chapter shall not apply to:

(1)       Employees of the University of North Carolina Health Care System.

(2)       Employees of the University of North Carolina Hospitals at Chapel Hill, as may be provided pursuant to G.S. 116‑37(a)(4).

(3)       Employees of the clinical patient care programs of the School of Medicine of the University of North Carolina at Chapel Hill as may be provided pursuant to G.S. 116‑37(a)(4).

(4)       Employees of the Medical Faculty Practice Plan, a division of the School of Medicine of East Carolina University.

(d)      (1)       Exempt Positions in Cabinet Department. – The Governor may designate a total of 100 exempt policymaking positions throughout the following departments:

a.         Department of Administration;

b.         Department of Commerce;

c.         Department of Correction;

d.         Department of Crime Control and Public Safety;

e.         Department of Cultural Resources;

f.          Department of Health and Human Services;

g.         Department of Environment and Natural Resources;

h.         Department of Revenue;

i.          Department of Transportation; and

j.          Department of Juvenile Justice and Delinquency Prevention.

The Governor may designate exempt managerial positions in a number up to one percent (1%) of the total number of full‑time positions in each cabinet department listed above in this sub‑subdivision, not to exceed 30 positions in each department. Notwithstanding the provisions of this subdivision, or the other requirements of this subsection, the Governor may at any time increase by five the number of exempt policymaking positions at the Department of Health and Human Services, but at no time shall the total number of exempt policymaking positions exceed 105. The Governor shall notify the General Assembly and the State Personnel Director of the additional positions designated hereunder.

(2)       Exempt Positions in Council of State Departments and Offices. – The Secretary of State, the Auditor, the Treasurer, the Attorney General, the Commissioner of Agriculture, the Commissioner of Insurance, and the Labor Commissioner may designate exempt positions. The State Board of Education may designate exempt positions in the Department of Public Instruction. The number of exempt policymaking positions in each department headed by an elected department head listed above in this sub‑subdivision shall be limited to 20 exempt policymaking positions or one percent (1%) of the total number of full‑time positions in the department, whichever is greater. The number of exempt managerial positions shall be limited to 20 positions or one percent (1%) of the total number of full‑time positions in the department, whichever is greater.

(2a)     Designation of Additional Positions. – The Governor, elected department head, or State Board of Education may request that additional positions be designated as exempt. The request shall be made by sending a list of exempt positions 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 exempt positions. 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 the positions shall be designated as exempt positions. 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 exempt positions; the policymaking positions shall not be designated as exempt during the interim.

(3)       Letter. – These positions shall be designated 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 subsection (d)(4) apply.

(4)       Vacancies. – In the event of a vacancy in the Office of 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. In the event of a vacancy in the Office of Governor, the State Board of Education shall make these 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 the Governor.

(5)       Creation, Transfer, or Reorganization. – The Governor, elected department head, or State Board of Education may designate as exempt 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 an exempt position as hereinabove provided, the status of the position may be reversed and made subject to the provisions of this Chapter by the Governor, by an elected department head, or by the State Board of Education 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 exempt. This subdivision shall apply beginning July 1, 1985, and no list submitted after that date shall designate as exempt any employee described in this subdivision.

(e)       An exempt employee may be transferred, demoted, or separated from his or her position by the department head authorized to designate the exempt position 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 salary, including all across‑the‑board increases since placement in the position designated as exempt, as his most recent subject position.

(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 an exempt position without 10 working days prior written notification that such position is so designated. A person applying for a position that is designated as exempt must be notified in writing at the time he makes the application that the position is designated as exempt.

(h)       In case of dispute as to whether an employee is subject to the provisions of this Chapter, the dispute shall be resolved as provided in Article 3 of Chapter 150B. (1965, c. 640, s. 2; 1967, c. 24, s. 20; cc. 1038, 1143; 1969, c. 982; 1971, c. 1025, s. 2; 1973, c. 476, s. 143; 1975, c. 667, ss. 8, 9; 1977, c. 866, ss. 2‑5; 1979, 2nd Sess., c. 1137, s. 40; 1983, c. 717, s. 41; c. 867, s. 2; 1985, c. 589, s. 38; c. 617, s. 1; c. 757, s. 206(c); 1985 (Reg. Sess., 1986), c. 955, s. 43; c. 1014, ss. 41, 235; c. 1022, s. 9; 1987, c. 320, s. 4; c. 395, s. 1; c. 809, s. 1; c. 850, s. 19; 1987 (Reg. Sess., 1988), c. 1064, s. 3; 1989, c. 168, s. 9; c. 236, s. 3; c. 484; c. 727, s. 218(85); c. 751, s. 7(13); 1991, c. 65, s. 2; c. 84, ss. 1, 2; c. 354, s. 3; c. 749, s. 4; 1991 (Reg. Sess., 1992), c. 879, s. 5; c. 959, s. 85; 1993, c. 145, s. 1; c. 321, s. 145(b); c. 553, ss. 39, 40; 1993 (Reg. Sess., 1994), c. 777, s. 4(g); 1995, c. 141, ss. 3, 5; c. 393, s. 1; 1995 (Reg. Sess., 1996), c. 690, s. 15; 1997‑443, ss. 11A.118(a), 11A.119(a), 22.2(b); 1997‑520, s. 3; 1998‑212, s. 11.8(b); 1999‑84, s. 21; 1999‑253, s. 1; 1999‑434, s. 25; 2000‑137, s. 4(nn); 2000‑147, s. 4; 2000‑148, s. 3; 2001‑92, s. 2; 2001‑424, s. 32.16(a); 2001‑474, s. 15; 2001‑487, ss. 21(d), 30(a), (b); 2002‑126, s. 28.4; 2002‑133, s. 4; 2004‑124, s. 31.27(b); 2004‑129, s. 37; 2005‑276, s. 29.34(b); 2005‑344, s. 9.)