¶1dissenting.
¶2I respectfully dissent only as to Part I of the majority opinion; I concur in all other parts.
¶3Mr. Dellinger, a former district attorney, was sued in his official capacity for violating G.S. § 126-85, also known as the “whistle-blower” statute. Section 126-85 is contained within Article 14 of Chapter 126 of the General Statutes. I believe the General Assembly has excepted constitutional officers such as Mr. Dellinger from the *661provisions of Article 14. I reach this conclusion because I do not believe that constitutional officers are “State employees” as that term is used in G.S. 126-5(c5) and G.S. 126-85.
¶4General Statute section 126-5(cl) states that, except as to Articles 6 and 7, the provisions of Chapter 126 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!,]” and various other persons. As the majority correctly notes, district attorneys are constitutional officers of the State. Section 126-5(cl) provides that constitutional officers are not subject to Article 14.
¶5I cannot agree that G.S. 126-5(c5) requires a contrary result. Section 126-5(c5) reads, “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.” Although the term “State employees” is not expressly defined in Chapter 126,1 believe that the legislature did not intend that term to include constitutional officers.
¶6As noted above, an earlier subsection of the same statute lists officers and employees separately: G.S. 126-5(cl) 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.
¶7When 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.”
¶8Nothing 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 ....
¶9*662A 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. § 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.
¶10For 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.
¶11I respectfully dissent.