GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1997

H	1 

HOUSE BILL 316

Short Title:  Change SPA Exemption Process.	(Public)

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Sponsors: Representatives Russell; Aldridge, Allred, Arnold, Baddour, Bonner, Brawley, Brown, Buchanan, Capps, Carpenter, Church, Davis, Grady, Gulley, Hiatt, Mitchell, Morris, Nichols, Rayfield, Sexton, Starnes, Thompson, and C. Wilson.

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Referred to:  State Government, if favorable, Judiciary I.

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February 25, 1997

A BILL TO BE ENTITLED
AN ACT MODIFYING THE MANNER OF DESIGNATING POSITIONS AS EXEMPT FROM THE STATE PERSONNEL ACT, REQUIRING THE APPROVAL OF THE GENERAL ASSEMBLY BEFORE CERTAIN POSITIONS MAY BE DESIGNATED AS POLICY-MAKING CONFIDENTIAL POSITIONS EXEMPT FROM THE STATE PERSONNEL ACT, AND CHANGING THE TREATMENT OF POLICY-MAKING CONFIDENTIAL EMPLOYEES RELATIVE TO COVERAGE UNDER CERTAIN PROVISIONS OF THE STATE PERSONNEL ACT.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 126-5 reads as rewritten:
"§ 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)	To all employees of the following local entities:
a.	Area mental health, developmental disabilities, and substance abuse authorities.
b.	Local social services departments.
c.	Local public 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)	‘Elected department head' means members of the Council of State and includes the State Board of Education.
(2)	‘Policy-making confidential position' means a position that has been (i) designated as such by either the Governor or by an elected department head and (ii) approved by the General Assembly, in accordance with the provisions of this section.
(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 a State employee who is not a career State employee as defined by this Chapter.  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), and 126-4(5), and except as to the provisions of Articles 6 and 7 of this Chapter, the provisions this Chapter shall not apply to employees in policy-making confidential positions.
			(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.
		(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)	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).
(13)	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).
(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.
(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 Department of Community Colleges 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 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)	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.
	(d)																	(d1)	Policy-Making Confidential Positions. – The Governor and each elected department head may specify certain policy-making positions for exemption from the provisions of this Chapter only as provided by this subsection.  Except as otherwise provided by this subsection, the designated positions shall be approved by the General Assembly before exempt status may become effective.
(1)	Exemption Proposals. – By March 1 of the year in which the oath of office is admininstered to each Governor, the Governor and each elected department head shall submit a letter to the Speaker of the House of Representatives, to the President Pro Tempore of the Senate, and to the State Personnel Director listing by job title and position classification each position proposed for designation as a policy-making confidential position.
(2)	Approval Process. – The General Assembly may consider together or separately the Governor's list of proposed positions and the lists of the respective elected department heads and may approve, disapprove, modify, or take no action as to each respective list.
a.	If all of the proposed positions are approved by the General Assembly, then the Speaker of the House of Representatives and the President Pro Tempore of the Senate shall jointly submit an approval letter to the Governor or to the respective elected department head and to the State Personnel Director by April 1 of the year in which the oath of office is administered to each Governor.
b.	If the General Assembly approves some, but not all, of the proposed positions on or before April 1 of the year in which the oath of office is administered to each Governor, the number of policy-making positions approved by the General Assembly shall be no less than the number set forth in subdivision (3) of this subsection.
c.	If the General Assembly fails to approve any submitted list of proposed positions by April 1 of the year in which the oath of office is administered to each Governor, then the number of exempt positions shall be the number of positions set forth in subdivision (3) of this subsection.
(3)	Number. – The number of policy-making confidential positions for each executive branch department or office shall be as follows unless otherwise provided for by the General Assembly in accordance with this subsection:
a.	Office of the Governor	87
b.	Housing Finance Agency	1
c.	Office of State Personnel	5
d.	Department of Administration	5
e.	Department of Commerce	5
f.	Department of Correction	5
g.	Department of Crime Control
	and Public Safety	5
h.	Department of Cultural Resources	5
i.	Department of Human Resources	5
j.	Department of Environment,
	Health, and Natural Resources	5
k.	Department of Revenue	5
l.	Department of Transportation	5
m.	Office of Lieutenant Governor	9
n.	Secretary of State	5
o.	Auditor	10
p.	Treasurer	10
q.	Attorney General	10
r.	Commissioner of Agriculture	10
s.	Commissioner of Insurance	10
t.	Commissioner of Labor	10
u.	Department of Public Instruction	10.
The number of policy-making confidential positions that may be proposed by the Governor, however, shall not exceed one and two-tenths percent (1.2%) of the total number of full-time positions in the departments and offices which are listed as subdivisions a. through l. in the preceding table.
(4)	Procedure When General Assembly Fails to Act or Approve by April 1. – When the General Assembly fails to act or to approve any positions as policy-making confidential positions by April 1 of the year in which the oath of office is administered to each Governor, then on or before May 1, a list of positions specifying job titles and position classifications shall be submitted by the Governor and each elected department head in a letter to the Speaker of the House of Representatives, the President Pro Tempore of the Senate, and the State Personnel Director.  The number of positions on each list shall not exceed the limits set forth in this section.  All such positions submitted shall become exempt effective May 1.
(5)	Failure to Submit List of Proposed Positions. – If the Governor or elected department head fails to submit the required list by May 1, no positions shall be designated as exempt for the respective department or office and those positions previously designated as policy-making confidential exempt positions shall become subject to this Chapter and shall be considered vacant.  Those vacancies shall be filled as provided by subdivision (6) of this subsection.
(6)	Exempt Positions That Become Subject to the State Personnel Act. – On May 2 of the year in which the oath of office is administered to each Governor, all positions that have been changed from exempt status to a status not otherwise exempt from this Chapter will be considered vacant.  Vacancies shall be filled according to policies and rules for positions subject to this Chapter.  At the discretion of the Governor or an elected department head, persons in those positions on May 1 of the same year may remain in those positions on a temporary status and apply for continued employment.  However, no person shall occupy such a changed status position on temporary status after May 31 of the same year.  The Director of the Office of State Personnel shall be responsible for terminating all persons in such a temporary status and shall be responsible for ensuring that any positions that become vacant through the process set forth in this section are filled in accordance with the policies and rules adopted by the Commission for positions subject to this Chapter.
(7)	When a Position Subject to This Chapter Becomes a Policy-Making Confidential Position. – Whenever a career State employee is not retained in a position that has changed from being subject to this Chapter to a policy-making confidential position, the career State employee shall be retained in employment in a position subject to this Chapter in the same or another State department, agency, or institution.  A career State employee who is retained pursuant to this subdivision shall be paid at the same pay grade and salary that the employee earned before the change in status of the employee's former position and may not be assigned to a position that is beyond a 35-mile radius of the former position.  A State department, agency, or institution may use available salary reserve funds to meet the requirements of this subdivision.
(8)	A State employee in a policy-making confidential position serves at the pleasure of the Governor or the elected department head.  A State employee in a policy-making confidential position may be transferred or separated from employment by the Governor or by the elected department head for any reason not prohibited by law.
(d2)	No position, by whatever title, having primary duties that 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 a policy-making confidential position.
				(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."
Section 2.  This act is effective when it becomes law.