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Caudill v. Dellinger6/16/1998
pter 126, I believe that the legislature did not intend that term to include constitutional officers.
As noted above, an earlier subsection of the same statute lists officers and employees separately: G.S. 126-5(c1) states that the provisions of Chapter 126 do not apply to "officers and employees of the Judicial Department," or to "officers and employees of the General Assembly" (emphasis added). This demonstrates that the terms "officers" and "employees" were not intended to be synonymous.
When it enacted G.S. 126-5(c5) in 1989, the legislature could have expressly included "officers of the Judicial Department," "officers of the General Assembly," and "constitutional officers of the State" among the persons subject to Article 14. It did not. Instead, the legislature used the term "State employees," a term which does not embrace or include "officers."
Nothing in G.S. 126-85(a) suggests otherwise. That statute reads in relevant part,
No head of any State department, agency or institution or other State employee exercising supervisory authority shall discharge, threaten, or otherwise discriminate against a State employee regarding the State employee's compensation, terms, conditions, location or privileges of employment because the State employee . . . reports . . . any activity described in G.S. 126-84 . . . .
A district attorney is not the "head of any State department, agency or institution." While a district attorney does exercise supervisory authority over his administrative assistant, see N.C. Gen. Stat. ยง 7A- 68(a) (1995), there is no indication in G.S. 126-85(a) that a district attorney--a constitutional officer of the State--is a "State employee" as contemplated by the legislature.
For the foregoing reasons, I believe that constitutional officers are excepted from the "whistleblower" statute. Why the legislature did not create a "whistleblower" statute without any exceptions is not before us, and could not be.
I respectfully Dissent.
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