North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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May 4, 1978

Subject:

State Departments, Institutions, and Agencies; Personnel; Licenses and Licensing; Architects

Requested By:

Mr. Harold H. Webb, Director Office of State Personnel

Questions:

  1. Must a person performing work in the Personnel classification of Consulting Architect I, II or III be a registered architect pursuant to Chapter 83 of the North Carolina General Statutes?

  2. Can only a registered architect be appointed to such positions in State government?

  3. Should the class specifications for architects include registration as a legal requirement to qualify for appointment to an architect position?

Conclusions:

  1. Yes; the duties of Consulting Architects I, II and III fall within the definition of the practice of architecture in G.S. 83-1(3), and no exemption is provided for State employees.

  2. Yes; only a registered architect can perform the duties of these positions, and the State should not provide for or authorize the employment of persons to perform jobs which they may not perform without violating provisions of the North Carolina General Statutes.

  3. Yes.

The North Carolina State Personnel Commission has authority to establish certain policies and rules including "(f)or each class of positions, reasonable qualifications as to age, character, physical condition, and other attributes pertinent to the work to be performed." G.S. 126-4(3). The Commission is also charged with establishing policies and rules governing position classification and reclassification according to the duties and responsibilities of each position.

G.S.
126-4(1). Pursuant to these grants of authority, the Commission has adopted specifications for the positions of Consulting Architects I, II, and III. The Consulting Architect I performs such duties as preparing plans and specifications for new buildings and for renovation of existing buildings at state institutions and agencies and reviewing plans and specifications submitted by architects and engineers to determine compliance with various legal requirements and to detect errors, discrepancies and omissions. These duties, and the similar duties of the Consulting Architects II and III, appear to fall within the definition of the practice of architecture as set out in
G.S.
83-1(3).

The question has arisen whether a person employed as a Consulting Architect under State Personnel specifications must be a registered architect pursuant to Chapter 83 of the General Statutes? The general rule is that a statute of general applicability does not bind the state unless the state is expressly mentioned or included therein. Yancey v. State Highway Commission, 222

N.C. 106; 12 Strong's North Carolina Index 3d, Statutes § 5 (1978). However, this rule has been applied only in situations in which the applicability of a statute to the State or one of its political subdivisions, as an entity, was in question, such as where the court was considering whether interest ran against the state or whether a county was a "distributor" within the meaning of particular tax laws. There is no indication that this principle should be extended to exempt state or local government employees from licensing requirements if they are otherwise performing duties which would bring them within those requirements. This conclusion is buttressed by the numerous instances in which licensing acts exempt state and/or local government employees in whole or in part. See e.g., G.S. 89C-19, - 25(7) Engineering and Land Surveying); G.S. 90-187.10(3) (Veterinarians); G.S. 90-270.4(a), (c) Psychologists); G.S. 90-294(h) (Speech and Language Pathologists and Audiologists). These exemptions would be superfluous if a person were excluded from the licensing requirements merely because he or she is an employee of the State or one of its subdivisions.

As noted above, the duties of persons in positions designated by the State Personnel Commission as Consulting Architects I, II, and III appear to fall within the definition of the practice of architecture for which registration is normally required. No provision in either Chapter 83, governing registration of architects, or Chapter 126, the State Personnel Act, exempts persons employed by the State or its political subdivisions or persons subject to the Personnel Act from the requirement that persons engaging in the practice of architecture be admitted to practice pursuant to Chapter 83 of the General Statutes. Moreover, G.S. 133-1.1 specifically requires that the plans and specifications for the construction or repair of public buildings or state-owned and operated utilities, involving the expenditure of public funds in excess of $45,000.00, must be prepared by a registered architect, in accordance with the provisions of Chapter 83 of the General Statutes, or by a registered engineer, in accordance with the provisions of Chapter 89 (now 89c) of the General Statutes. If a Consulting Architect, within the meaning of the State Personnel specifications, is preparing plans for the construction or renovation of a public building involving the expenditure of more than $45,000 of public funds or is approving or passing upon plans and specifications submitted by outside architects and engineers to determine compliance with various legal requirements and to detect errors, discrepancies and admissions, he or she is engaged in the practice of architecture as defined in G.S. 83-1(3) and is presenting himself to the public as an architect by passing upon the plans and specifications of outside architects and engineers to determine compliance with various legal requirements and to detect errors, discrepancies and admissions, he or she is engaged in the practice of architecture as defined in G.S. 83-1(3) and is presenting himself to the public as an architect by passing upon the plans and specifications of outside architects or engineers or by undertaking the responsibility of preparing plans and specifications for buildings for public use.

Since persons who are employed by the State and its subdivisions and who are subject to the State Personnel Act must be registered to practice architecture, the State should not employ persons who are not registered in positions in which they must engage in practices or perform services which require registration as an architect. The State should not by its specifications for the job classifications of Consulting Architects I, II and III promote violation of the law by failing to require registration as an architect for persons qualifying for appointment to positions where they will be preparing plans and specifications for public buildings and also approving and passing on plans and specifications submitted by engineers and architects from outside state or local government.

Rufus L. Edmisten Attorney General

Norma S. Harrell Associate Attorney


May 4, 1978

Subject:

State Departments, Institutions, and Agencies; Personnel; Licenses and Licensing; Engineers

Requested By:

Mr. Harold H. Webb, Director Office of State Personnel

Question:

Must a person performing "engineering work" as employee of the State or as a local government employee subject to the State Personnel Act be a registered engineer under the provisions of Chapter 89C of the General Statutes?

Conclusion:

No. Chapter 89C regulates the "practice of engineering" and does not require the registration of State and local governmental employees performing "engineering work". However, any such State or local governmental employee having supervision of the preparation of plans and specifications for an engineering project is required to be registered under the provisions of G.S. 89C-19, except those who are exempt under the Grandfather Clause of that section.

The North Carolina State Personnel Commission, pursuant to G.S. 126-4(3), establishes rules and regulations including "(f)or each class of positions, reasonable qualifications as to the age, character, physical condition, and other attributes pertinent to the work to be performed." Also, by virtue of G.S. 126-4(1), the Commission's rules and policies include a position classification plan providing for classification and reclassification of positions according to their duties and responsibilities. Pursuant to this authority, the Commission has adopted specifications for a number of engineering jobs subject to the State Personnel Act. The question has arisen whether persons employed in such engineering positions must be registered engineers within the meaning of Chapter 89C of the North Carolina General Statutes.

Practice of Engineering

The "practice of engineering" is defined in G.S.89C-3(6). Any person engaging in the "practice of engineering" or offering to engage in the practice of engineering without being legally authorized to do so is guilty of a misdemeanor punishable by a fine, imprisonment or both. G.S. 89C-23; G.S. 89C-2. While G.S. 39C-3(6) defines the practice of engineering, the definition is a rather lengthy sentence of nineteen lines and it is difficult to simplify in layman's terms. It serves no useful purpose to quote the definition here as the statute can be referred to if needed. From the list of exclusions and exceptions, the statutory definition appears to be rather comprehensive and apparently covers activities, the performance of which may involve some engineering knowledge and some which are not generally thought of as the "practice of engineering". G.S. 89C-25, and in particular Subsections (7), (8) and (9), contain numerous limitations as to the application of the Chapter. Such exclusion from the application of Chapter 89C includes activities such as manufacturing, installation and servicing of products, the maintenance of equipment by employees, inspection, maintenance and service of full-time governmental employees, maintenance and servicing of streets, sewage treatment plants and disposal plants, the work of mechanics, routine maintenance of service of machinery, the inspection and supervision of construction by an agent of an architect or professional engineer, the services of an operational nature by an employee in a lab or public service, corporation, or governmental operation.

Engineering Work - No License Required

The specific question asked by the State Personnel Commission is the requirement of a State or local government employee who performs "engineering work", to be registered. "Engineering work" is not defined in Chapter 89C. "Engineering work" is defined in 30 CJS 705 as "any work of construction or alteration or repair of the railroad, harbor, dock, canal, or sewer; . . ."

The "practice of engineering" as defined by the statute and the performance of "engineering work" is not synonymous. While the statute requires registration for the "practice of engineering", it makes no provision for registration of individuals performing "engineering work". This is evidenced by the following provisions of the statute:

  1. G.S. 89C-13. This requires a graduate of an engineering school to have a record of eight years progressive experience on engineering projects "in order to be registered".

  2. G.S. 89C-24 provides for the "practice of engineering" by a corporation or partnership. It provides that a corporation or partnership may engage in the "practice of engineering" provided "the person or persons connected with such corporation or partnership in charge of designing and supervision which constitutes such practice is or are registered as herein required of professional engineers. . . ." G.S. 89C-24 does not require registration of persons employed by the corporation performing engineering work, except the persons in charge of design or supervision which constitutes such practice.

  3. G.S. 89C-25(4). "Engineering" performed by an employee or assistant to a professional engineer, but excluding responsible charge of design or supervision, is not required to be registered. It provides that the Chapter does not prevent "engaging in engineering" as an employee or assistant under the responsible charge of a professional engineer.

  4. G.S. 89C-25(9). This statute provides for inspection and supervision of construction of an engineering project by persons not registered. It provides that Chapter 89C does not prevent the inspection or supervision of construction by an agent of the architect or professional engineer.

  5. G.S. 89C-25(7). While "engineering work" is not defined by Chapter 89C, one section does refer to "engineering work". G.S. 89C-25(7) following the list of exclusions on the application of the chapter provides as follows: "Engineering work, not related to the foregoing exceptions, where the safety of the public is directly involved, shall be under the responsible charge of a registered professional engineer, or in accordance with standards prepared or approved by a registered professional engineer." (G.S. 89C-25(4).

The conclusion from the foregoing application of the Chapter is that in general there is no registration requirement for those persons performing "engineering work", except those in responsible charge of the design and supervision. However, G.S. 89C-25(7) requires only that "engineering work" (which is not excluded by G.S. 89C-25(7)) shall be under the responsible charge of a registered engineer, or in accordance with standards prepared or approved by a registered engineer.

Application of Chapter 89C to Government Units and its Employees.

G.S.
89C-2 and G.S. 89-23 make it unlawful for any person to "practice engineering" without being registered. G.S. 89C-3(5) defines a person as "any natural person, firm, partnership, corporation or other legal entity." It does not specifically include the State.
G.S.
89C-24 provides for the "practice of engineering" by corporations and partnerships. It specifically authorizes a corporation or partnership to practice engineering, provided "the person or persons connected with such a corporation or partnership in charge of the designing or supervision which constitutes such practice is or are registered as herein required as professional engineers. . . ."
G.S.
89C-25(6) provides that Chapter 89C shall not prevent the "practice" by members of armed forces or employees of the government of the United States while engaged in the "practice of engineering" solely for said government on government owned works and projects.
G.S.
89C-19 is directed to the "practice of engineering" by State and governmental units. It provides as follows: The State and governmental units "officials, or employees thereof shall not engage in the practice of engineering . . . involving either public or private property where the safety of the public is directly involved without the project being under the supervision of a professional engineer for the preparation of plans and specifications for engineering projects, . . .".

We believe that G.S. 89C-19 is controlling as it relates to the "practice of engineering" by State and local governments and their employees under the State Personnel Act, and it only requires registration of those persons having supervision for the preparation of plans and specifications for engineering projects. We believe that this is consistent with the application of other portions of the Registration Act. G.S. 89C-19 has no application to the supervision or construction of engineering projects, and is applicable only to the preparation of plans and specifications. This Office is of the opinion that only to the preparation of plans and specifications. This Office is of the opinion that only the employees under the State Personnel Act who have charge of design of engineering projects are required to be registered, unless exempt under the Grandfather Clause of

G.S. 89C-19.

Grandfather Clause and Clarifying Construction

Section 19 contains a Grandfather Clause. It exempts certain officers and employees from the requirements of this section for the registration, holding the position as set out in this section of June 19, 1975 so long as he is performing substantially the same type of work. This Grandfather Clause is specific in referring to the provisions of the section and not the provisions of the Chapter. The General Assembly added a further clarifying provision to G.S. 89C-19 to provide that nothing in this section shall be construed to prohibit employees of the government from the construction and maintenance of street, street lighting, traffic signals, water works, steam electric and sewage treatment. This clarifying construction of the General Assembly further supports the conclusion that only the supervision of the preparation of plans and specifications engineering projects is required to be under a professional engineer.

Chapter 133 - Public works

There is one further provision in G.S. 89C-19 which provides that this section shall not be construed to alter or modify the requirements of article 1 of Chapter 133 of the General Statutes. Chapter 133 requires that the design and supervision of construction of public buildings be by a registered architect or a registered engineer. Chapter 133 has no application to other engineering projects. Had the General Assembly intended to extend the application of Chapter 133 to supervision of engineering projects, instead of just their design, it could easily have amended Chapter 133 to add engineering projects. G.S. 89C-19 requires only that the preparation of plans and specifications for engineering projects be under the supervision of a "professional engineer".

Other Exclusions from the Chapter

There is some exclusion from the application of the Chapter to State activities in G.S. 89C-25. That section provides that the Chapter shall not prevent or effect (7), "The internal engineering or surveying activities of a person, firm or corporation engaged in manufacturing, processing or producing a product, including the activities of public service corporations, public membership corporates, or the installation and servicing of their product in the field;" a number of exclusions following this including inspection, maintenance, service work by governmental employees including the construction, installation, servicing, and maintenance by regular full-time employees of streets, lighting, traffic control, etc. superintendents, inspectors, foremen. The foregoing exclusions are followed by the proviso that "the internal engineering or surveying activities is not a holding out to or offer to the public of engineering of any service thereof as prohibited by the Chapter." While there is one question as to the extent of the exclusion as it relates to State agencies, it appears to exclude internal engineering and surveying activities. G.S. 89C-26(9) provides that the Chapter does not prevent services of an "operational nature" performed by an employee of a "governmental operation". There is also some question as to the limits of this exclusion, if any, as applied to governmental activities. However, in view of our construction of the Act, it is not necessary to determine the extent of these exclusions as applied to State and local governmental activities.

Conclusion

There is no registration requirement for the performance of "engineering work". G.S. 89C-19 requires that the preparation of plans and specifications for engineering projects be under the supervision of a "professional engineer". With the exception of governmental employees performing the foregoing described duties of supervising the preparation of plans and specifications for engineering projects, there is no requirement that employees of State and local government under the State Personnel Act engaged in the design and construction of engineering projects be registered for the purpose of the State Personnel Act. The General Statutes and ordinances relating to other specific activities may require that the activities be under the supervision of a registered professional engineer. The State Personnel Commission may also establish the requirement for registration for particular provisions under the authority of G.S. 126-4.

Rufus L. Edmisten Attorney General

Eugene Smith Special Deputy Attorney General