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Fact check: Did recent bills limit North Carolina's gubernatorial powers?

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January 27, 2017
By Sara Reynolds

A recent Huffington Post article on North Carolina's legislative battles claimed: "The Republican-controlled state legislature introduced bills on Wednesday evening designed to undercut the administrative abilities of the state’s governor, giving outgoing incumbent Gov. Pat McCrory (R) the power to sign away his successor’s authority. The bills drastically limit [Democratic Gov. Roy] Cooper’s ability to make appointments to various state boards and departments."[1]

Did recent bills "drastically limit" Gov. Cooper’s ability to make appointments to various state boards and departments?

In a special session on December 14, 2016, House Bill 17 (HB 17) and Senate Bill 4 (SB 4) were introduced. Within the next five days, both bills were passed and signed into law.[2][3]

Although "drastically" is a subjective term, the legislation did limit the governor's authority by:

  • Requiring senate confirmation of department heads appointed by the governor, which was not previously necessary.[2]
  • Changing the number of exempt employees the governor may appoint in cabinet departments from 1,500 to 425, not an unprecedented change, based on North Carolina's legislative history.[2][4]
  • Disbanding the State Ethics Commission and the State Board of Elections, and creating the Bipartisan State Board of Elections and Ethics Enforcement. This modification reduced gubernatorial appointments.[3]

Background

In losing to Cooper, the four-term attorney general, McCrory became the state’s first sitting governor to lose re-election. Cooper's election shifted the balance of political power by ending the state's Republican trifecta, in which the governorship, the state senate, and the state house are all controlled by the same political party.[5][6]

The State Board of Education and Cooper both filed lawsuits challenging the new laws, and a state court on January 5, 2017 granted Cooper's request to block implementation of parts of SB 4 pertaining to the State Board of Elections.[7] Since then, Cooper has also asked the courts to block portions of HB 17 pertaining to senate confirmations of department heads, and the North Carolina Human Resources Act.[8]

Senate confirmation of department heads

HB 17 requires the "advice and consent" of the state senate for all non-elected principal state department heads.[2] These state departments include the Department of Natural and Cultural Resources, the Department of Health and Human Services, the Department of Revenue, and the Department of Public Safety, among others.[9]

Exempt position appointments

HB 17 also modified the North Carolina Human Resources Act, changing the number of "exempt" personnel the governor may appoint in cabinet departments from 1,500 to 425. It also reduced the number of departments to which the governor may appoint exempt employees from 12 to 10.[2]

An exempt position refers to either a managerial or policymaking position which is not subject to the North Carolina Human Resources Act.[10][11] They are not subject to posting requirements, can be hired immediately, and can be discharged without cause. Historically, these positions are political appointees in cabinet departments such as the Chairman of the Employment Security Commission or the Executive Director of the Administration Department.[12][13]

Since 2012, the number of exempt positions increased from about 400 to 1,500.[4] House Bill 950, signed in 2012, gave the governor the authority to designate 1,000 exempt positions, up from 100, in eight departments.[14] House Bill 834, signed into law in 2013, increased the number to 1,500.[15]

Before 2012, the number of governor-appointed exempt positions had not changed since 1985, when the governor could appoint about 325 exempt positions.[4]

State Board of Elections and Ethics Enforcement

SB 4 replaced the State Ethics Commission and the State Board of Elections with the Bipartisan State Board of Elections and Ethics Enforcement, referred to as the "State Board."

The State Ethics Commission had eight members, four appointed by the governor, and four appointed by the General Assembly, with an even partisan split.[16] The State Board of Elections consisted of five members appointed by the governor, with a 3-2 partisan split.[17]

Under SB 4, the consolidated State Board consists of eight individuals: four appointed by the governor, two by the state senate, and two by the state house. The governor and each body are required to appoint half of the members from the state's largest political party, and half from the second largest.[3]

Conclusion

A Huffington Post article about changes in North Carolina's law said, "The Republican-controlled state legislature introduced bills on Wednesday evening designed to undercut the administrative abilities of the state’s governor, giving outgoing incumbent Gov. Pat McCrory (R) the power to sign away his successor’s authority. The bills drastically limit Cooper’s ability to make appointments to various state boards and departments."[1]

Although "drastically" is a relative term, House Bill 17 and Senate Bill 4 did limit the governor's ability to make appointments.

HB 17 added a requirement for state Senate confirmations for governor-appointed cabinet members. It also changed the number of exempt employees the governor could appoint, from 1,500 to 425.[2] This particular change is not unprecedented in North Carolina's legislative history.[4]

By disbanding the State Ethics Commission and the State Board of Elections, and creating the Bipartisan State Board of Elections and Ethics Enforcement, SB 4 reduced the number of appointments the governor could make from nine to four.[3]

See also

Sources and Notes

  1. ↑ 1.0 1.1 The Huffington Post, "Keith Ellison Just Made North Carolina Politics A Democratic Party Fight," December 16, 2016
  2. ↑ 2.0 2.1 2.2 2.3 2.4 2.5 General Assembly of North Carolina, “House Bill 17 / S.L. 2016-126,” accessed January 4, 2017
  3. ↑ 3.0 3.1 3.2 3.3 General Assembly of North Carolina, “Senate Bill 4 / S.L. 2016-125,” accessed January 4, 2017
  4. ↑ 4.0 4.1 4.2 4.3 WRAL, “New law means McCrory can hire, fire more state workers,” August 2, 2013
  5. ↑ Ballotpedia, “North Carolina gubernatorial election, 2016,” accessed January 4, 2017
  6. ↑ Ballotpedia, “State government trifectas,” accessed January 27, 2017
  7. ↑ State of North Carolina, County of Wake, “Order Allowing Motion for Preliminary Injunction,” January 6, 2017
  8. ↑ WRAL, “Amended Complaint,” January 10, 2017
  9. ↑ General Assembly of North Carolina, "Chapter 143B. Executive Organization Act of 197," January 10, 2017
  10. ↑ General Assembly of North Carolina, “Chapter 126. North Carolina Human Resources Act,” accessed January 9, 2017
  11. ↑ General Assembly of North Carolina, “House Bill 17: Modify Certain Appts/Employment,” December 16, 2016
  12. ↑ WRAL, “Q&A: Personnel Act changes,” August 9, 2013
  13. ↑ WRAL, “Database: Exempt employees,” August 23, 2013
  14. ↑ General Assembly of North Carolina, “Session Law 2012-142, House Bill 950,” accessed January 9, 2017
  15. ↑ General Assembly of North Carolina, “House Bill 834 / S.L. 2013-382,” accessed January 9, 2017
  16. ↑ General Assembly of North Carolina, “Chapter 138A. State Government Ethics Act,” accessed January 4, 2017
  17. ↑ General Assembly of North Carolina, “Subchapter II. Election Officers. Article 3. State Board of Elections,” accessed January 4, 2017
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