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THE LIBRARY OF THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL THE COLLECTION OF NORTH CAROLINIANA C3U0 N87a 1979/80 UNIVERSITY OF N.C. AT CHAPEL HILL lliilllilillllliliii 00033947427 FOR USE ONLY IN NORTH CAROLINA COLLECTION NORTH CAROLINA ATTORNEY GENERAL REPORTS Volume 49 Number 1 FUS L. EDMISTEN TORNEY General \9 N.C.A.G. No. 1 Pages 1 through 90 NORTH CAROLINA ATTORNEY GENERAL REPORTS Opinions of the Attorney General July 1, 1979 through December 31, 1979 MAILING ADDRESS: Post Office Box 629 Raleigh, North Carolina 27602 Digitized by tine Internet Arciiive in 2011 witii funding from Ensuring Democracy tiirough Digital Access (NC-LSTA) http://www.archive.org/details/northcarolinaatt19791980 RUFUS L. EDMISTEN /^7'9A Attorney General James F. Bullock Andrew A. Vanore, Jr. Senior Deputy Senior Deputy Attorney General Attorney General Robert Bruce White, Jr. Senior Deputy Attorney General Jean A. Benoy William M. Melvin Deputy Attorney General Deputy Attorney General Millard R. Rich, Jr. Deputy Attorney General Charles H. Smith Howard A. Kramer Administrative Deputy Deputy Attorney General Attorney General for Legal Affairs John A. Elmore, II Special Assistant to the Attorney General Isaac T. Avery, III Thomas F. Moffitt Myron C. Banks Charles J. Murray Lester V. Chalmers, Jr. William F. O'Connell H. Al Cole, Jr. WOliam A. Raney, Jr. T. Buie Costen James B. Richmond David S. Crump Jacob L. Safron Ann Reed Dunn " Eugene A. Smith Herbert Lamson, Jr. Edwin M. Speas, Jr. Richard N. League WilHam W. Webb John R. B. Matthis Special Deputy Attorney General Archie W. Anders Rudolph A. Ashton, III Rebecca R. Bevacqua David R. Blackwell George W. Boylan Jean W. Boyles William F. Briley Elisha H. Bunting, Jr. Elizabeth C. Bunting Henry H. Burgwyn Joan H. Byers James M. Carpenter Christopher S. Crosby John C. Daniel, Jr. Thomas H. Davis, Jr. Amos C. Dawson, III Roy A. Giles, Jr. Frank Graham Richard L. Griffin Donald W. Grimes Guy A. Hamlin Norma S. Harrell Claude W. Harris Ralf F. Haskell Charles M. Hensey Alan S. Hirsch LB. Hudson, Jr. Ben G. Irons, II Douglas A. Johnston Sandra M. King George W. Lennon James R. Lore James E. Magner, Jr. Daniel F. McLawhom Nonnie F. Midgette Mary I. Murriell Dennis P. Myers Robert W. Newson, III Daniel C. Oakley George J. Oliver WilUam B. Ray Robert R. Reilly Marilyn Y. Rich Alfred N. Salley Jo Ann Sanford Marvin Schiller Tiara B. Smiley James P. Smith Donald W. Stephens James L. Stuart Jane R. Thompson J. Gregory Wallace Acie L. Ward Kaye R. Webb Robert G. Webb Thomas B. Wood Assistant Attorneys General Benjamin G. Alford Sylvia X. Allen Christopher P. Brewer Blackwell M. Brodgen, Jr. Steven F. Bryant Robert E. Cansler Lucien Capone, III Richard H. Carlton Evelyn M. Coman Francis W. Crawley Chfton H. Duke Fred R. Gamin Max A. Gamer Michael D, Gordon Jane P. Gray James C. GuHk Elaine M. Guth Richard D. Hancock Harry H. Harkins, Jr. Robert L. Hillman Lemuel W. Hinton Grayson G. Kelley Richard L. Kucharski Barry S. McNeill Thomas G. Meacham Mary E. Noonan John C. Prather Steven M. Shaber WilUam L. Shenton Michael W. Taylor Roger B. Wall Reginald L. Watkins Sarah C. Young Thomas J. Ziko Associate Attorneys 2 July 1979 Subject: Motor Vehicle; Rules of the Road; Passing Where There are Solid Center Lines Requested by: Claire McNaught Public Safety Attorney Winston-Salem, N. C. Question: Are solid center lines considered "markers" under G.S. 20-1 50(e)? Conclusion: Yes. As of July 1, 1979, soHd center lines are "markings" under G.S. 20-1 500(e) (Chapter 472, 1979 Session Laws, H.B. 1064). Chapter 472 of the 1979 Session Laws (H.B. 1064) amended G.S. 20-1 50(e) effective July 1, 1979 to read: "The driver of a vehicle shall not overtake and pass another on any portion of the highway which is marked by signs, markers or markings placed by the Department of Transportation stating or clearly indicating that passing should not be attempted." (Emphasis added) The 1 979 amendment estabHshes a mandatory duty to obey highway markings placed there by the Department of Transportation. The North Carolina Highway Marking Manual and Supplement (1978) Section 4A-7 outlines the pavement markings for no passing zones. Solid yellow center lines shall indicate no passing zones at specified intersections and on specified grades and curves. The North Carolina Department of Transportation's Drivers Handbook under Rules of the Road states: "There are some places where passing is always unsafe \ and usually against the law. Passing should not be tried: ... 4. Whenever there is a solid yellow line in your lane." -1- G.S. 20-1 50(e), as amended, prohibits passing on solid yellow center lines as they constitute "markings placed by the Department of Transportation stating or clearly indicating that passing should not be attempted." Rufus L. Edmisten, Attorney General William W. Melvin Deputy Attorney General 31 July 1979 Subject: Requested by: Question: Conclusion: Social Services; Child Support; International Reciprocal Enforcement of Support ObUgations Robert H. Ward, Director Social Services Division Department of Human Resources Is the Nation of West Gennany a foreign jurisdiction which has a substantially similar support law such that reciprocal enforcement may be effectuated under the North Carohna uniform reciprocal enforcement of support act (N.C. Gen. Stat. 52A-1 to 52A-32)? Yes. i I The Uniform Reciprocal Enforcement of Support Act (hereinafter referred to as URESA) is codified in the North Carolina General Statutes under Chapter 5 2A. As stated in 52A-2, the purposes of the Chapter "are" to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto." It is clear that URESA is a uniform law, reciprocal in nature and purpose and should be liberally construed to effectuate its purpose to accomplish and enforce the duty of a parent to support his children. Kline v. Kline, 542 S.W.2d 499 (1976). The purpose of URESA is to provide a prompt expeditious way of enforcing the duty to support minor children without getting the parties involved in complex collateral issues. Thompson v. Kite, 522 P.2d 327 (1974). URESA was designed to provide economical and expedient means of enforcing support orders for parties who are located in different states or jurisdictions. Rainey v. Rainey, 536 S.W.2d 617 (1976). From the very onset of its first adoption in the early fifties, it has been clear that URESA has been a success and the various states have adopted it, as well as its amendments, quite readily. The act seeks to apply an equitable and expeditious method of dealing with the complex problems involved. As stated in the Family Law Reporter, 4 FLR 4017, May 2, 1978: "URESA was a recognition by the states that problems of child and spousal support were no longer a purely local concern. Conventional judicial proceedings were simply unsuitable for effective enforcement of support orders because the absent spouse was normally outside the jurisdiction of the dependent's state courts, because the stay-at-home spouse could rarely afford to track down and sue the absent spouse in another jurisdiction, and because the federal courts have traditionally been closed to domestic relations actions .... URESA is an attempt to provide a consistent statutory mechanism for the interstate, and occasionally international, enforcement of support decrees without forcing the person seeking support to bring the action in the absent spouse's jurisdiction .... Even though the typical URESA proceeding involves an obligee in one state and an obligor in another state, the act's mechanism may also be used within a state on a county-to-county basis, and is occasionally used in support enforcement cases which cross national boundaries." (P. 4017) -3- In conference at the September, 1967, meeting of the National Conference on the Uniform Reciprocal Enforcement of Support Act, the central committee decided that it would be far more desirable to have state action on reciprocity with foreign jurisdictions than to seek federal involvement. Basically, this was due to the belief that the federal government would be reluctant to delve into matters relating to family law coupled with the additional problem as to which federal agency could properly and effectively represent the various states. Thus it was left to the individual states to broaden the definition in their statutes to include foreign nations. This was accomplished by a re-examination of the statutory definitions of URESA. As a result, in 1968 URESA was rewritten such that the definition of "State" in the revised resion of URESA (called RURESA) was expanded to include "any foreign jurisdiction in which this or a substantially similar reciprocal law is an effect." In 1971 , the Council of State Governments on completion of a study of URE5A found that nineteen states had provisions in their acts which permitted reciprocity with other nations. North Carolina was not among those enumerated. In this regard, it is noted that North Carolina General Statute 52A-3(8) in 1971 provided that a "State" included "any state, territory, or possession of the United States, and District of Columbia, in which this or a substantially similar reciprocal law has been enacted." Therefore, it is clear that prior to 1975, the North Carolina definition of "State" excluded anything other than a state, territory, or possession of the United states in which a reciprocal law was in effect. In order to correct the limited scope of the statute and to broaden the definition of "State", in 1975 the statute was amended so that the definition of "State" now includes any "state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the provinces of Canada in which reciprocity can be effected by administrative action, and any foreign jurisdiction in which this or a substantially similar reciprocal law is in effect:' See N.C. Gen. Stat. 52A-3(13). Obviously, the North Carolina Legislature intended that the statute as amended should include foreign nations which have a substantially similar reciprocal law within the scope of URESA. Proceeding under the new amendments, North Carolina has recently begun to enforce support laws with Ontario, Canada and thus support duties are now being enforced on behalf of North Carolina residents against residents of Ontario, and vice versa. The amendment made in 1975 clearly evidences legislative intent that the same procedure is permissable with other foreign nations. It should be noted that the objection to reciprocity with a foreign nation on the grounds that international enforcement violates the constitutional prohibition against individual states entering into treaties with foreign governments has been considered and rejected in at least one case. See Blouin v. Dembitz, 367 F. Supp. 415, D.N.Y.; aff'd 489 F.2d 488 (2d Cir. 1973). In Blouin, supra, the Court held that the statute has reciprocal effect and grants to the foreign jurisdiction the same procedural remedies in New York Courts as the foreign state grants to our citizens. The Court further held that it was not a compact with a foreign government, nor did the statute disrupt or embarrass our relations with other countries. Pp. 417-418. A review of the law of West Germany reveals that the support laws there are substantially similar to those which exist in North CaroHna and, in fact, often are broader than our own. For example, the obhgation to support includes legitimate and illegitimate children up until age eighteen. There is no statute of hmitations for the establishment of paternity. The amount of support is determined by financial need of the child and the ability of the parent to pay. Foreign orders estabhshing paternity and/or support are recognized and can be enforced in German courts or, if no judgment exists, a standard URESA petition may be sent to the German authorities who will seek to have a suitable order entered in Germany. Enforcement is through contempt proceedings similar to those followed in North Carolina. Thus, it is clear that the 1 a w of West Germany is "substantially similar" to our own. In other states which have considered this problem, notably California and Oklahoma, we find that the term "State" is defined in the same manner as it is in North CaroHna. Both Oklahoma and California have determined that West Germany is a reciprocating nation within the ambit of URESA and have granted reciprocity. Further, the West German Child Support authorities have indicated through correspondence that they are wilhng to reciprocate in the handhng of support matters. In summary, based on the history of URESA, the legislative intent as evidenced by recent amendments and action by the various states which have considered this problem, it is apparent that our Chapter 52A intends that any foreign nation which has a substantially similar support law should be granted reciprocity and that West Germany falls within the statutory definition. Rufus L. Edmisten, Attorney General Henry H. Burgwyn Associate Attorney 7 August 1979 Subject : Requested by: Question: Conclusion: Public Officers and Employees; Conflict of Interest; Remuneration of Area Board Member for Services Rendered to Program Under Contract With Area Authority Sarah T. Morrow, M.D., M.P.H., Secretary Department of Human Resources Is it allowable under the General Statutes for a member of an Area Mental Health Board to contract his services to a program which is under contract by the Area Authority? Contract for remuneration for services as described would appear to violate G.S. 14-234. I This question appears to have arisen because of the specific method of operation of group homes under the auspices of area mental health authorities in this state. An area mental health authority is a local governmental entity responsible for the delivery of mental -6- health, mental retardation, etc. services within its geographic situs, with an area mental health board serving as its governing body. See Article 2F, Chapter 122. In delivering some of these services, an area authority customarily contracts with a group home which is operated by a non-profit corporation. The situation under scrutiny involves remuneration of an attorney who is a member of the area mental health board, but has rendered services to the group home. G.S. 14-234, in essence, proscribes any public official from making any contract for his own benefit under authority of his office. Lexington Insulation Company v. Davidson County, 243 N.C. 252 (1955). Thus, it is very clear that the attorney-board member could not contract with the board for his own services. 40 N.C.A.G. 566 (1969). However, the present situation is somewhat more compHcated of resolution. This Office has previously held to be forbidden contracts between governmental boards and a private business when a member of the board is also a partner of the business or an officer or stockholder in a corporation operating the business. See 44 N.C.A.G. 128 (1974); 42 N.C.A.G. 180 (1973); 42 N.C.A.G. 9 (1972); 40 N.C.A.G. 565 (1970); 40 N.C.A.G. 561 (1969); 41 N.C.A.G. 371 (1971). Conversely, where a board member is merely an employee of the other contracting party with no pecuniary benefit flowing directly to him as a person, the situation falls outside the ambit of G.S. 14-234. State v. Debnam, 196 N.C. 740 (1929); 44 N.C.A.G. 293 (1975); 40 N.C.A.G. 565 (1970). (It should be noted that one prior member of the Supreme Court of North Carohna has had occasion to describe even a case involving only an employee of a contracting party as "...not altogether seemly, nor to be commended..." State v. Weddell, 153 N.C. 587, at page 590 (1910)) The situation presented does not squarely fall into any of the factual settings dealt with in prior opinions of this Office. However, G.S. 122-35.43 requires the Area Authority (through its board) to review and evaluate the area needs and programs and to develop the annual plan for utilization of facilities and resources; this plan must include the inventory of services to be provided and must set forth an indication of the expenditure of all funds by the Authority. G.S. 122-35.43. Consonant with these responsibilities, the Area Authority must submit a budget report indicating the receipts and -7- expenditures for the total area mental health program. G.S. 122-35.44. This particular situation, which has been characterized as a typical development if the question posed is answered in the affirmative, points up the probability of a conflict with the statute due to normal methods of operation. As described, what would be envisaged here is a transfer of specific funds into a proper line item in order to remunerate the attorney for services rendered, with the area board approving such transfer. Thus, in application, regardless of the absence of any improper motives on the part of any party, this type of transaction would indisputably present the appearance of evil and would appear to amount to a direct violation of G.S. 14-234. Rufus L. Edmisten, Attorney General WiUiam F. O'Connell Special Deputy Attorney General 9 August 1979 Subject: Education; Articles 3 2A, 32B and §115-166 of the North Carolina General Statutes; Home Instruction of a Child in Lieu of Attending a Public School. j Requested by: Mr. George T. Rogister, Jr. Attorney for the Wake County Board of Education Questions: 1. Does home instruction of a child qualify as "a school of religious charter" or as a "nonpubhc school" as used in Articles 32A and 32B of Chapter 115 of the North Carolina General Statutes? 2. Is the instruction of a child by a tutor in a private home, instruction in a "private school" as contemplated in the Compulsory Attendance Law, N.C.G.S. 115-166? Conclusions: 1. No. 2. No. The 1979 Session of the General Assembly amended Chapter 115 of the General Statutes to add two new articles, Articles 32A and 32B, both of which have the effect of Umiting the authority of the State Board of Education to regulate the educational programs of nonpubhc schools providing instruction to children of compulsory attendance age. Chapters 505 and 506 of the 1979 Session Laws. The enactment of this legislation has stirred interest in home instruction as an alternative to the education of children in either public or private schools. This Office has previously ruled that home instruction does not suffice to meet the requirements of the Compulsory Attendance Law, G.S. 115-166, et seq., 40 N.C.A.G. 211 (1969). George P. Rogister, Jr., Attorney for the Wake County Board of Education, has requested a reconsideration of this earlier opinion in light of recently enacted Articles 32A and 32B of Chapter 115. The specific question posed is whether home instruction is encompassed within the meaning of the word "school" as used in those Articles. Any discussion of the impact of legislation on education in North CaroUna is necessarily directed by several provisions of our Constitution. The appropriate role of the State in the education of its citizens is clearly set forth as follows: "The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right. N.C. Const. Art. 1, §15 Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools, libraries, and the means of education shall forever be encouraged. N.C. Const. Art. IX, §1 The General Assembly shall provide that every child of appropriate age and of sufficient ability shall attend the public schools, unless educated by other means." N.C. Const. Art. IX, §3 There can be no doubt that the North Carolina Constitution not only requires education to be encouraged, indeed it places on the State the duty to ensure that the people, most particulary the children, are educated. Any legislation which the General Assembly approves in the area of education must be read in the light of this constitutional mandate. "Every statute is to be considered in the light of the Constitution, and with a view to its intent." State v. Emery, 224 N.C. 581, 585, 31 S.E. 2d 858 (1944). Articles 32A and 32B are similar in that they both substantially limit the State's regulatory authority over nonpubhc schools. Article 32A deals specifically with "private church schools and schools of religious charter," while article 32B addresses all "qualified nonpubhc schools." In substance, the regulatory scheme is the same for schools falling under either Article 32A or 32B. The word "school" is not defined in either of these Articles. The authors of the legislation set forth in Article 32B, however, did hst the types of schools which shall qualify as "nonpublic schools". "The provisions of this Article shall apply to nonpublic schools which: (a) shall be accredited by the State Board of Education; or (b) shall be accredited by the Southern Association of Colleges and Schools; or (c) shall be an active member of the North CaroUna Association of Independent Schools; or (d) receives no funding from the State of North Carolina." N.C.G.S. 115-257.8. -10- It may be inferred from the list set forth that the legislature intended only established educational institutions, whether religious or secular, to fall within this article. All schools which would be included in subsections (a), (b), or (c) are institutions consisting of several teachers, classes of children of varying ages, a recognized and accountable administration, and a regular place for meeting. Subsection (d) is a general term, following a list of specific ones. I "In the construction of statutes, the ejusdem generis rule is that jwhere general words follow a designation of particular subjects or things, the meaning of the general words will ordinarily be presumed to be and construed as, restricted by the particular designations and as including only things of the same kind, character and nature as jthose specifically enumerated." State v. Fenner, 263 N.C. 694, 697, |140 S.E. 2d 349 (1965). Accordingly, we believe the references to ischools in subsection (d) to include only estabhshed educational iinstitutions. Sit was then apparently the intent of the legisture in enacting these [Articles to include only estabhshed and identifiable institutions within the operation of these deregulatory Articles. The intent of the legislature is, of course, controlhng in the interpretation of a statute. State v. Hunt, 287 N.C. 76, 213 S.E. 2d 291 (1975). We are of the opinion that home instruction of a child cannot reasonably be interpreted as instruction in an estabhshed and identifiable educational institution as contemplated in Articles 32A and 32B. This opinion is buttressed by the failure of the legislature to specifically include home instruction in these Articles, a failure we deem of particular significance given the constitutional duty of the legislature to "guard and maintain" the right of the people "to the privilege of an education." In addition to evaluating the impact of Articles 32A and 32B upon our earlier opinion that home instruction did not suffice to meet the requirements of the Compulsory Attendance Law, we have reexamined the statutory and decisional law which formed the basis of that opinion. G.S. 115-166, the statute upon which the earlier opinion was based, has not been amended since 1969 and there has been no court decision in North Carolina or any other jurisdiction which would cause us to change our earlier opinion. Accordingly, it is and remains the opinion of this Office that a parent does not neet the requirements of the Compulsory Attendance Law by providing liis child with instruction in the home. -11- Rufus L. Edmisten, Attorney General Edwin M. Speas, Jr. Special Deputy Attorney General 13 August 1979 Subject: Requested by: Question: Conclusion: Health; Imposition of Fee for Issuance of a Permit Thomas R, Dundon Health Director Forsyth County May a local board of health impose a fee pursuant to G.S. 130-1 7(e) for the issuance of a permit pursuant to authority delegated by the Department of Human Resources? No. The Commission for Health Services is created by G.S. 143B-142 and is granted certain powers and duties to promulgate rules concerning the pubhc health. The Commission is authorized to adopt rules governing food and lodging establishments, sewage disposal, public water systems, solid waste management, mass gatherings and numerous other matters affecting the public health. The Department of Human Resources is charged with the responsibility of enforcing the State health laws and rules by G.S. 130-11(1). Additionally, the Department may obtain assistance from local health departments in enforcing the health laws and rules. G.S. 143B-142(4) provides in part that "When directed by the Department of Human Resources, local health departments shall enforce Commission for Health Services' rules and regulations under the supervision of the Department of Human Resources." The Department, pursuant to authority contained in G.S. 130-l(d), has authorized individual sanitarians employed by local health departments to enforce State health laws and rules. The individual sanitarians are issued identification cards pursuant to G.S. 128-14. -12- Local boards of health are also authorized to make rules and regulations as are necessary to protect the public health. Such rules and regulations may be more stringent than State rules where there is an emergency or "pecuUar local condition or circumstance." Otherwise, where there is conflict, the State rules prevail over the local rules and regulations. An exception is provided by G.S. ;1 30-1 60(b) wherein the local health boards' rules and regulations 'governing sewage disposal may be approved by the Commission for Health Services and thereafter enforced by the local health departments instead of the State sewage disposal rules. The question presented herein arises because G.S. 130-1 7(e) provides {a procedure whereby the local health departments may impose fees for services rendered. A fee plan must be recommended by the local health director and then approved by the local health board and the appropriate board or boards of county commissioners. The fee is hmited to "services voluntarily rendered and voluntarily received, but shall not apply where the charging of a fee for a particular service is specfically prohibited by statute, regulation or ordinance." An example of a prohibitory statute is G.S. 130-88, as rewritten by Chapter 56, 1979 Session Laws, which provides in part that "The local health department shall administer the required immunizations without charge." Interpretation of the first phrase "voluntarily rendered and voluntarily received" is assisted by examination of Chapter 508, 1973 Session Laws, which substituted the present language "but shall not apply where..." for the prior language "and shall not apply to services required by statute, regulation, or ordinance to be rendered or received." Under the prior language, the local health departments were not authorized to charge a fee for issuance of a permit, for example, for installing a septic tank system because local health regulations required that the site be inspected and permit be issued before the septic tank installed. Under the present language, charging a fee is authorized because, although the permit is still required, charging of a fee is not specifically prohibited. Therefore, in order to give effect to the 1973 amendment, voluntariness cannot be negated merely because inspection and issuance of a permit is required before one undertakes a certain activity. Rather, voluntariness means that one freely applies for a service from the local health department such as the issuance of a permit for a septic tank system. -13- Although a local health department may impose a fee for services rendered, the question remains whether the department may impose a fee for inspections performed and permits issued at the direction of the Department of Human Resources. Chapter 130 of the General Statutes, which contains most of the public health laws, specifically authorizes the collection of fees by the Department of Human Resources for certain services but is silent concerning the remaining services. For example, G.S. 130-166.55, enacted by Chapter 788, 1979 Session Laws, imposes certain fees for analysis of water samples; G.S. 130-243 requires a one hundred dollar fee to accompany an application for a mass gathering permit; G.S. 130-177 imposes a permit fee on bedding manufacturers; and G.S . 130-166 authorizes the collection of fees for the issuance of certified copies of birth and death certificates. On the other hand, no fee is authorized for solid waste disposal regulation (G.S. 130-166.16 et seq.), for sewage disposal regulation (G.S. 130-160) or food and lodging establishment inspections (G.S. 72-46 et seq.). Furthermore, there is no general authority equivalent to G.S. 130-1 7(c) for the Department of Human Resources to impose a fee for services rendered. In fact. Chapter 559, 1979 Session Laws, effective May 1, 1981, states that "the legislative grant of authority to an agency to make and promulgate rules shall not be construed as a grant of authority to the agency to establish by rule a fee or a charge for the rendering of any service or fulfilling of any duty to the public, unless the statute expressly provides for the grant of authority to establish a fee or charge for that specific authority." "Agency" is defined to include every State department, institution or agency but to exclude counties and cities. Construing the foregoing Laws, it is the opinion of this Office that the authority of the Department of Human Resources to impose fees in matters pertaining to the public health is hmited to those matters which are expressly authorized by statute. In enforcing State health laws and rules, the local health departments are acting at the direction of the Department of Human Resources, and the local sanitarians are acting as the authorized agents of the Department. Therefore, when local health departments are enforcing State health laws and rules, they are subject to the same hmitations as the Department of Human Resources and may only collect fees specifically authorized by statute. When local health departments ^ enforce local rules and regulations, they may collect fees authorized -14- by the local board of health pursuant to G.S. 130-1 7(e). j Rufus L. Edmisten, Attorney General ! Robert R. Reilly "- Assistant Attorney General 13 August 1979 Subject: {Requested by: Question: Conclusion : Security Guards; Concealed Weapons Mr. Haywood R. Starling, Director N. C. State Bureau of Investigations Is it lawful for a registered security guard to carry a concealed weapon while performing his contractual duties within the confines of a building which is not owned by either the security guard or the contracting security company by which he is employed? No. ^. registered security guard is not permitted to carry a concealed tveapon. "§14-269. Carrying concealed weapons. - If anyone, except when on his own premises, shall willfully and intentionally carry concealed about his person any bowie knife, dirk, dagger, sling shot, loaded cane, brass, iron or metallic knuckles, razor, pistol, gun or other deadly weapon of Hke-kind, he shall be guilty of misdemeanor punishable by a fine not to exceed five hundred dollars ($500.00), imprisonment for not more than six months, or both. This section shah not apply to the following persons: Officers and enlisted personnel of the armed forces of the United States when in discharge of their official duties as such and acting under orders requiring to carry arms or 15- weapons, civil officers of the United States while in discharge of their official duties, officers and soldiers of the militia and the State guard when called into actual service, officers of the State, or of any county, city, or town, charged with the execution of the laws of the State, when acting in the discharge of their official duties, provided, however, full-time sworn law enforcement officers may carry a concealed weapon when off-duty in jurisdiction where assigned if so authorized by written regulations of the law enforcement unit, which must be filed with the clerk of court in the county where the law enforcement unit is located, provided further, that no such regulation shall permit the carrying of a concealed weapon while the officer is consuming or under the influence of intoxicating liquor." The registered security guard is not in a class specifically exempted f in G.S. §14-269 from the statutory prohibition against carrying a concealed weapon off ones own premises. The right to carry a concealed weapon off ones own premises is limited to officers of the military and the various governments in the discharge of their official duties and only with special permission and limitations when off duty. G.S. §14-269. The business of furnishing protection for private premises has expanded rapidly in recent years. Employees of companies contracted to provide security have generally replaced the company night watchman. The security guard on duty often has no direct contact with the owners or possessors of the premises. He simply patrols whichever premises he is directed to by the company. These security guards have no interest nor dominion over the land but are mere employees furnishing security. The General Assembly in the 1979 Session (Chapter 818) rewrote the 1973 Private Protective Services Act as Chapter 74 C. of the General Statutes, This act requires the hcensing of all persons, firms, associations and corporations in any manner working in private protective services. A security guard or night watchman is clearly within the scope of the act. G.S. §74C-3. This act establishes a Private Protective Services Board to set educational and training -16- requirements for all those in the private protective services business and to administer the licensing of those complying. The act sets requirements for the registration of all armed security guards which includes the completion of a basic training course on legal Umitations on the use of hand guns and on the powers and authority of an armed private security officer. G.S. §74C- 13(h)(1)(a). The registration permit authorizes the armed security officer, "while in the performance of his duties or traveling directly to and from work, to carry a standard .38 calibur or .32 caUbur revolver or any other firearm approved by the board and not otherwise prohibited by law." G.S. §74C-1 3(b)(1). The contention that a man driving in his own car on a public highway is on his own premises as to G.S. §14-269 has been specifically rejected. State v. Gainey, 273 N.C. 620 (1968). This section nor any other section in the act allows a private security officer to carry a concealed weapon while on business, traveling to and from business, or at any other time. In passing the Private Protective Services Act, the legislature puts strict requirements and regulation procedures on the business of private protective services. The act clearly spells out the firearms rights secured through a registration permit. While this statute in no way affects the right of citizens to openly bear arms, it does put restrictions on those furnishing private protective services. The statute does not authorize a security agent to exceed the statutory limitations on the carrying of concealed weapons. Rufus L. Edmisten, Attorney General William W. Melvin Deputy Attorney General 28 August 1979 Subject: Criminal Law and Procedure; Youthful Offenders; Expungement; Records and Recording Laws. 17- Requested by: The Honorable Russell G. Walker, Jr. District Attorney Nineteenth-B Prosecutorial District Question: Where a person under the age of 18 years, ^ • who has not previously or subsequently been convicted of any offense, is charged with several misdemeanor offenses, the charges are consolidated for trial and judgment, and the sentence imposed is within the statutory limit for conviction of a single offense, may the court order if expungement of the record pursuant to ] G.S. 15-223? Ij Conclusion: ; Yes. The clerks of superior court of the State are required by law to ;j maintain certain records, including records of criminal actions and \ juvenile actions, G.S. 7A-180. These records are open to public i inspection, G.S. 7A-109; 132-1, et seq., and are the property oft the people of the State. State v. West, 293 N.C. 18, 235 S.E.2d j 150 (1977). While courts have the inherent power and duty to take \ such action as is necessary to make their records speak the truth, i State V. Old, 271 N.C. 341, 156 S.E.2d 756 (1967); Mallard,^ "Inherent Power of the Courts of North Carolina," 10 Wake Forest j L. Rev. 1, 22 (1974), they are without authority to annul or expunge an accurate record, or the records of another agency of government, absent the authority of statute. State v. Bellar, 16 N.C.App. 339, | 192 S.E.2d 86 (1972). In this State, a person arrested, though in error, has no right to have the fact of his arrest removed from his criminal record except as authorized by statute, see Session Laws f' 1979, Chapter 6\, compare Code of South Carolina of 1976 17-1-40, though there may be, in some jurisdictions, a right to restrict access • to or use which may be made of such erroneous arrest record, see \' generally, 28 C.F.R., Part 20; Anno., "Right of Exonerated arrestee i to Have Fingerprints, Photographs, or Other Criminal Identification \ or Arrest Records Expunged or Restricted," 46 A.L.R.3d 900 (1972). Court records are protected by law from wrongful disposition or destruction, G.S. 14-76; 132-3,-9. Thus, statutes such as G.S. 15-223, 15-223.1, 90-96 and 90-113.14 are an exception -18- to the general prohibition of expungement or alteration of records which speak the truth. G.S. 15-223 provides: "§15-223. Expunction of records for first offenders under the age of 18 at the time of conviction of misdemeanor.~(a) Whenever any person who has not yet attained the age of 1 8 years and has not previously been convicted of any felony, or misdemeanor other than a traffic violation, under the laws of the United States, the laws of this State or any other state, pleads guilty to or is guilty of a misdemeanor other than a traffic violation, he may file a petition in the court where he was convicted for expunction of the misdemeanor from his criminal record. The petition cannot be filed earlier than two years after the date of the conviction or any period of probation, whichever occurs later, and the petition shall contain, but not be limited to, the following: 1 . An affidavit by the petitioner that he has been of good behavior for the two-year period since the date of conviction of the misdemeanor in question and has not been convicted of any felony, or misdemeanor other than a traffic violation, under the laws of the United States or the laws of this State or any other state. 2. Verified affidavits of two persons who are not related to the petitioner or to each other by blood or marriage, that they know the character and reputation of the petitioner in the community in which he lives and that his character and reputation are good. 3. A statement that the petition is a motion - in the cause in the case wherein the petitioner was convicted. -19- 4. Affidavits of the clerk of superior court, chief of police, where appropriate, and sheriff of the county in which the i petitioner was convicted and, if different, j the county of which the petitioner is a|l resident, showing that the petitioner has I not been convicted of a felony or' misdemeanor other than a traffic violation ! under the laws of this State at any time prior to the conviction for the misdemeanor in question or during the two-year period following that conviction, j The petition shall be served upon the district attorney of the court wherein the case was tried resulting in conviction. The district attorney shall have 10 days thereafter in which to file any objection thereto and shall be duly notified as to the date of the hearing of the petition. The judge to whom the petition is presented is authorized to call upon a probation officer for any; additional investigation or verification of the petitioner's conduct during the two-year period thatji he deems desirable. (b) If the court, after hearing, finds that the petitioner had remained of good behavior and been free of conviction of any felony or misdemeanor, otherj than a traffic violation, for two years from the date of the conviction of the misdemeanor in question, and petitioner was not 18 years old at the time of the| conviction in question, it shall order that such personj be restored, in the contemplation of the law, to the| status he occupied before such arrest or indictmentj or information. No person as to whom such order hasj been entered shall be held thereafter under anys provision of any laws to be guilty of perjury oi otherwise giving a false statement by reason of his failure to recite or acknowledge such arrest, oi indictment, information, or trial, or response to any inquiry made of him for any purpose. | -20- (c) The court shall also order that the said misdemeanor conviction be expunged from the records of the court, and direct all law enforcement agencies bearing record of the same to expunge their records of the conviction. The clerk shall forward a certified copy of the order to the sheriff, chief of police, or other arresting agency. The sheriff, chief or head of such other arresting agency shall then transmit the I copy of the order with a form supplied by the State I Bureau of Investigation to the State Bureau of I Investigation, and the State Bureau of Investigation shall forward the order to the Federal Bureau of Investigation. The cost of expunging such records shall be taxed against the petitioner. (d) The clerk of superior court in each county in North Carolina shall, as soon as practicable after each term of court in his county, file with the Administrative Office of the Courts, the names of those persons granted a discharge under the provisions of this section, and the Administrative Office of the Courts shall maintain a confidential file containing the names of persons granted conditional discharges. The information contained in such file shall be disclosed only to judges of the General Court of Justice of North CaroUna for the purpose of ascertaining whether any person charged with an offense has been previously granted a discharge. (1973, c. 47, s. 2; c. 748; 1975, c. 650, s. 5; 1977, c. 642, s. 1; c. 699, ss. 1, 2; 1979, c. 431, ss. 1, 2.)" ^'his statute, under State v. Bellar, supra., gives the court the equisite authority to expunge records of the arrest and conviction if persons who meet the requirements thereof. Since the statute •perates as an exception to general principles concerning the Iteration of accurate judicial records, it would appear, under the •rdinary principles of statutory contruction, that the statute should -e strictly construed, see generally , 12 Strong's North CaroHna Index d, Statutes 5, 5.2 (1978). The statute is phrased throughout in Ingular terms. If the statute is to be strictly construed, the rule -21- of G.S. 12-3(1) which allows the singular to import the plural could not be appUed. The intention of the General Assembly as ascertained from the language of the session law, Wright v. Casualty & Fidelity Company, 270 N.C. 577, 155 S.E.2d 100 (1967), is controlling, 12 Strong's , North Carolina Index 3d, Statutes 5.1 (1978). In Session Laws 1973, i Chapter 748, 1, which is the basic act from which current G.S. , 15-223 is derived, we find the following aid to interpretation of the section: "Purpose of Act. The purpose of this act is to protect the future of youthful offenders of the law. Once a criminal record is created by conviction of a person, said criminal record remains a part of his past for so long as he may live. Many youths have only one small encounter with the law. They go on to be excellent citizens, raise good families, but are always hindered by having a criminal conviction on their record. This bill is not intended to excuse those who repeat their wrongdoing, but to somehow pardon a youthful oversight in an isolated occurrence." The General Assembly's statement of purpose further articulates legislative intent as evident from the section. The statute denies the remedy to a person who has been convicted prior or subsequent) to the conviction he desires to have expunged. To that end, we| think that G.S. 15-223 would be characterized by our courts as being remedial in character, and thus subject to a rule of liberal rather than strict construction and interpretation, 3 Sutherland Statutory Construction, Chapter 60, (Sands ed., 4th ed. 1974). Furthermore, the statute provides a benefit to a juvenile offender, which some courts have held to be remedial and subject to rules | of hberal construction. In re Aline D., 14 Cal.3d 557, 121 Cal. Rptr. j 816, 536 P.2d 65 (1975); Briones v. Juvenile Court for City and} County of Denver, 534 P.2d 624 (Colo. 1975). Further evidence of the remedial intent of the General Assembly may be inferred from its enactment in the 1 979 session of Chapter 61. Chapter 61 of the 1979 Session Laws 1 (effective 20 February 1979) establishes a new section to be codified as G.S. 15-223.1. -22- Under that section, a person has not yet attained the age of 18 years, and who has not previously been convicted of any offense other than a traffic violation may have expunged the record of his arrest for any felony or misdemeanor offense if the charge is dismissed or if he is acquitted. UnUke G.S. 15-223, there is no limitation on the availability of the remedy under the new statute to a single use. The General Assembly's mercy for the youthful offender is therefore apparent. The rules governing the disposition of multiple charges in a single sentence are well established, see generally 4 Strong's North Carolina Index 3d, Criminal Law 92, et seq. (1976). The joinder of offenses for trial or disposition is addressed to the sound discretion of the court, State v. Slade, 291 N.C. 275, 229 S.E.2d 92 (1976); State V. Anderson, 281 N.C. 261, 188 S.E.2d 336 (1972). The verdict or plea of guilty to consoUdated charges authorizes the imposition of separate sentences on each charge, 4 Strong's North Carolina Index 3d, Criminal Law 137.1 (1976), but the sentence cannot exceed the maximum authorized by statute. Id. Where multiple charges are consoUdated for sentence, a sentence in excess of the maximum authorized for a single offense will not be sustained on the theory of an intent to impose consecutive sentences, State v. Austin, 241 N.C. 548, 85 S.E.2d 924 (1955). Therefore, if multiple misdemeanor charges against a youthful offender are consolidated for judgment and sentence, the sentence imposed cannot exceed the authorized sentence for conviction of a single offense. The sentencing judge, by consolidating the charges for judgment has indicated his intent to treat the charges as a single offense for the ipurpose of sentencing, even though the judgment may recite pleas of guilty to or conviction of more than a single offense. Your inquiry is directed to a case in which three charges were consoUdated for disposition and the sentence imposed within the statutory Umit for a single offense. In those circumstances and in the Ught of the purposes of G.S. 15-223, we think the convictions should be treated as a single misdemeanor for the purpose of expungment. It would be ironic and unjust that one youthful defendant could plead guilty to a single charge, have two other :jharges dismissed, receive sentence and be entitled to expungement while a second youthful offender who pleads guilty to three charges and receives an identical sentence would be ineligible for the remedy. -23- The State Bureau of Investigation's Identification and Records Sections receive many orders to expunge their records, as provided for by the statute. We are, therefore, aware that many judges of the State do order expungement in the circumstances which you describe. In our opinion, the discretionary nature of consohdation and the fact that the remedy of expungement is available only once to a youthful offender neither previously nor subsequently convicted provide adequate safeguards against abuse. We offer this interpretation in the hope that practice may be more uniform throughout the State and that the General Assembly's remedial purpose may be carried out. Rufus L. Edmisten, Attorney General David S. Crump Special Deputy Attorney General Special Assistant to the Attorney General 28 August 1979 Subject: Reciprocal Enforcement of Support i Action; Child Support; Registration of! Foreign Support Orders Requested by: Question : Mr. Larry T. Black District Court Judge 26 Judicial District Do the registration provisions of the North i Carohna Uniform Reciprocal Enforcements of Support Act (G.S. 52A-25 through 30))' apply so as to allow enforcement in North t Carolina of foreign state support orders entered prior to October 1, 1975? Conclusion: Yes. G.S. Chapter 52A, the Uniform Reciprocal Enforcement of Support Act (hereinafter URESA) was first enacted in North Carolina la# in 1951. In 1975 the act was rewritten in its entirety to substantially -24- conform to the 1968 revisions of URESA by the National Conference of Commissioners on Uniform State Laws which include a new procedure for the registration and enforcement of foreign support orders. Pinner v. Pinner, 33 N.C. App. 204, 234 S.E.2d 633 (1977). The new registration provisions are codified as G.S. 52A-25 through 30. The URESA, including the registration procedure established thereunder, creates no new substantive rights between the party seeking support and the party from whom support is being sought. The act merely sets up new procedural mechanisms whereby through substantially uniform legislation establishing reciprocity states have i created a new and more efficient way of enforcing support lobhgations. 2 Lee, N.C. Family Law 3d §169 (1963). By enacting substantially similar Uniform Reciprocal Enforcement of Support Acts, all fifty states have sought to avoid support enforcement problems previously experienced because of the inapplicability of the full faith and credit clause of Article IV, Section 1 of the United States Constitution to foreign state support orders deemed to be ijnon-final. Brockelbank and Infausto, Interstate Enforcement of Wamily Support, pp. 77-90 (2d ed. 1971). The bill (Senate Bill 357) passed in 1975 revising the Uniform Reciprocal Enforcement of Support Act is entitled: "AN ACT TO REWRITE CHAPTER 52A OF THE GENERAL STATUTES ENTITLED 'UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT ACT'." N.C. Sess. Laws 1975 -c. 656, s.l. After completely rewriting the text of the Uniform Reciprocal Enforcement of Support Act in Section 1 of the bill, the General Assembly went on in Section 2 of the bill to state as follows: "This act shall not apply to pending litigation including proceedings which have been initiated in a state other than North Carolina." N.C. Sess. Laws 1975 c. 656 S.2. 3! pThe foregoing statement by the General Assembly in Section 2 of jfhe bill relating to the applicability of the rewritten URESA raises -25- I the present issue as to whether the newly estabHshed registration provisions may be used to obtain interstate enforcement of a support order of another state predating the effective date (October 1 , 1 975) of Senate Bill 357. In an analogous case the North Carolina Supreme Court has addressed the effect of applicability language virtually identical to the language used in Section 2 of Senate Bill 357. Spencer v. McDowell Motor Company, 236 N.C. 239, 72 S.E.2d 598 (1952). In the Spencer case the defendant Motor Company was contesting the effect of the General Assembly's enactment of an evidentiary statute after the point in time when the plaintiff's cause of action arose. In addressing the defendant's allegation that the statute should not be retroactively applied because of language of non-applicability to "pending litigation", the court in relevant part states: "While appellant motor company does not contend that the Legislature is without authority to change the rules of evidence ..., it contends that under rules of interpretation the Act should not be given retroactive effect, that is, as to existing causes of act, ... It seems clear, however, from the language of the Act that the Legislature intended that on and after 1 July 1951, the only hmitation upon the applicability of the Act is that it shall not apply to pending litigation, that is, litigation then pending. It is so expressly provided. An action is pending from the time it is commenced until its final determination. And a civil action is commenced by the issuance of a summons. ... Moreover, the maxim expressio unius est exclusio alterius, that is, that the expression of one thing is the exclusion of another applies. From the fact that the Legislature expressly provided that the provisions of the Act shall not apply to pending Htigation, it may be imphed that it should apply in all other cases. ...(L)aw5 which change the rules of evidence relate to I the remedy only, and are at all times subject to \ modification and control by the Legislature, and ... \ -26- changes thus made may be made applicable to existing causes of action. ... Retrospective laws would certainly be in violation of the spirit of the Constitution if they destroyed or impaired vested right, but ... one can have no vested right in a rule of evidence when he could have no such right in the remedy, and ... there is no such thing as a vested right in any particular remedy. " Spencer v. McDowell Motor Company, supra, 236 N.C. at 246. (quotations and citations omitted) (emphasis supplied) I Similarly, the Act in question, N.C. Sess. Laws 1975 c. 656, and j specifically the registration provisions codified as G.S. 52A-26 ithrough 30 are purely remedies. Referring to the URESA as a whole G.S. 52A-4 reads: "These remedies herein are in addition to and not a substitution for any other remedies." :In addition to the foregoing provision concerning remedies, the section of the Act immediately preceding the registration provisions states: "If the duty of support is based on a foreign support order, the obligee has the additional remedies provided in the following sections". G.S. 52A-25. (emphasis supplied) Accordingly, the URESA as rewritten in 1975 does not affect any vested right of a potential defendant from whom support is sought. A defendant has no vested right in limiting an obligee to pre-URESA remedies for interstate enforcement of support duties, to wit: following a defendant obligor into a foreign state forum for purposes of lawsuit de novo there or after reducing any preexisting initiating state support order to final judgment, pursuing the defendant obligor to a foreign state for suit on the final judgment obtained under the doctrine of full faith and credit. A plaintiff's cause of action for failure to support, including that under the URESA, is based on attempted enforcement of a duty of support. Under the URESA this term is defined as follows: -27- i '"Duty of Support' means a duty of support whether imposed or imposable by law or by order, decree, or judgment of any court whether interlocutory or final or whether incidental to an action for divorce, separation, separate maintenance, or otherwise and includes the duty to pay arrearages of support past due and unpaid". G.S. 52A-3(2). (emphc^is supplied) Oftentimes, the obligee in an interstate support case has previously obtained a support order in a state from which an obligor has fled. Under the terminology of the URESA, when the registration remedy ^ (52A-25 through 30) is attempted to be invoked, the state in which the order was initially obtained would be termed the "rendering state". G.S. 52A-3(11). Whenever a support order is outstanding in the state from which; the obligor has fled, the obligee could in the alternative choose to use the traditional URESA remedy. (G.S. 52A-1 through 52A-24). 2 Lee N.C. Family Law 3d §169 nn. 264-5(1963); Brockelbank and Infausto, Interstate Enforcement of Family Support, p. 80 nn.; 189-190 (2nd ed. 1971). When proceeding under the traditional URESA remedy, the state in which a support order was originally obtained is termed the "initiating state". G.S. 52A-3(4). Whenever there is a preexisting support order in a "rendering state" or "initiating state", it may be argued there exists "pending litigation" or "proceedings which have been initiated in a state other, than North CaroUna" as the terms are used in N.C. Sess. Laws 1975 c. 656 S.2. In support matters htigation is always pending for the cause of action remains in the continuing jurisdiction of the court! and motions may always be made therein. Barber v. Barber, 216 N.C. 232, 4 S.E.2d 447 (1939). Nevertheless, a preexisting order in another state cannot be logicallyj interpreted to be "pending litigation" or "proceedings initiated in, another state" so as to bar use of the registration procedures for foreign state support orders obtained prior to October 1, 1975, the. effective date of the legislation. Because Section 2 of Senate Bill 357 says "(t)his act shall not apply to pending litigation including proceedings which have been instituted in a state other than Northi -28- ! Carolina", such an interpretation would arguably make the totally rewritten URESA mechanism, be it the traditional method or the new registration method, unavailable to any obligee having, as is often the case, a support order outstanding in an "initiating state" or "rendering state" predating October 1, 1975. A statutory construction of this nature would operate to defeat the objects of the URESA and "must be avoided if that can be reasonably done without violence to the legislative language". 12 N.C. Index 3d, Statutes §5.9. The URESA contains two sections relating to the objects of this Legislative Act which state: "The purposes of this Chapter are to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto." G.S. 52A-2; and "This Chapter shall be so interpreted and construed and as to effectuate its general purpose to make uniform the law of those states having a substantially similar act." G.S. 52A-32. Consequently, it would be an illogical construction of Section 2 of Sentate Bill 357, rewriting the URESA in its entirety, for the words "pending litigation" or "proceedings initiated in another state" to include a preexisting order of another state used as a basis to estabHsh the duty of support under G.S. 52A-3(2) and a concomitant basis for invoking either- the traditional or registration remedies of the Act. If the construction was otherwise, all URESA remedies would arguably be barred for all cases involving a pre-October 1, 1975, order entered in a state other than North Carolina while URESA cases for the same time frame but based on the mere existence of a legal relationship hke parent/child would be proper. This alternative construction steadfastly holding to a literal interpretation of the statute would lead to an anomalous, absurd result both unintended by the General Assembly and properly avoidable. In general see 12 N.C. Index 3d Statutes § 5.9 (1978). Moreover, there is yet another reason why the language in question was not intended to encompass preexisting orders of other states; -29- that is, the North Carohna "act" as rewritten obviously could not "apply" to pure orders of foreign states. With the exception of proceedings or pending litigation instituted under a foreign URESA with a view towards obtaining a support order in North Carohna through the procedures established under the North Carolina URESA, pending foreign proceedings or litigation are beyond the jurisdiction of our legislative enactments. Therefore, the words in question must logicahy refer to "pending URESA Htigation" or URESA proceedings which have been initiated in a state other than North Carohna." i For these reasons it is the opinion of this Office that the existence of foreign state orders for support predating October 1, 1975, do not bar the use of the URESA registration procedures (G.S. 52A-26 through 30) for purposes of registering and seeking enforcement of such preexisting orders. Rufus L. Edmisten, Attorney General R. James Lore Associate Attorney 29 August 1979 Subject: Requested by: Retirement; Local Disabihty Retirement ! Plan; Longevity Pay Considered in Computation. Robert J. Robinson, City Attorney Asheville Question : Conclusion: Should longevity pay be taken into j consideration in computing disability | payments to policemen retiring pursuant to \ provisions of the Asheville Pohcemen'sj Pension and Disability Fund? j Yes. Asheville policemen are members of the Asheville Policemen's Pension and Disability Fund, pursuant to Chapter 188 of the 1977 -30- Session Laws, amended by Chapter 429 of the 1 979 Session Laws. The question has arisen whether longevity pay should be taken into account in computing disability payments for policemen suffering disability in the line of duty. Section 3(a) requires the deduction of "five percent (5%) of the monthly salary of every member of the policemen's fund" as a mandatory contribution to the Asheville Pohcemen's Pension and Disability Fund. The term "monthly salary" is not defined anywhere in the Act. Service retirement benefits and benefits for disability not incurred in the line of duty are computed according to a formula based upon the member's total earnings in the last twenty years of service for service retirement or since beginning service with the i Asheville Police Department for Disabihty not incurred in the hne j of duty. A member who is disabled while acting in the line of duty or as a result of the performance of duties as a member of the Asheville Police Department is entitled to "receive monthly a sum equal to seventy percent (70%) of his monthly salary as then paid by the City of Asheville ... ." Secfion 9(a), Chapter 188, 1977 payments shall be taken into consideration in computing seventy percent (70%) of the monthly salary, or what constitutes the police officer's monthly salary for purposes of computing the seventy percent (70%) for disability retirement benefits. I'Employees of the City of Asheville who have completed five or more years of service are ehgible for longevity pay bonuses, at a graduated rate according to the number of years of service. Longevity pay bonuses are paid annually, during the second pay period during the month of December. The "Longevity Pay Plan Administration Guidehnes for Fiscal Year 1978-79" included a statement that longevity pay bonuses are classified by the Internal Revenue Service as part of an employee's normal income for the current calendar year and that, as such, the bonuses were subject to the normal deductions, including federal and state income tax, .social security, and appHcable retirement and pension plans. In other words, contributions to the Asheville Pohcemen's Pension and Disability Fund have been deducted from these annual longevity payments. The Guidehnes for administration of the longevity pay plan for the fiscal year 1 978-79 include methods for computing the bonus on a pro-rata basis for each month of service for employees ion leave without pay during part of the fiscal year and for employees -31- who retired during the fiscal year. However, it appears that contributions to the Asheville PoUcemen's Pension and Disabihty Fund have not been deducted for longevity pay bonuses paid on a pro-rata basis to employees who have retired or applied for disability retirement on the basis of a disability incurred in the line of duty or as a result of the performance of their duties even though these pro-rata longevity pay bonuses have been paid for the period during which these pohcemen were in active service. Given all the facts and circumstances, it appears that a portion of the longevity bonuses which represent one month's employment should be included in the member's monthly salary" in order to compute seventy percent (70%) of the monthly salary of a policeman retiring on disability incurred in the line of duty or as a result of performance of duties. Although contributions to the Asheville Policemen's Pension and Disability Fund are not deducted from longevity pay bonuses made after the employee ceases to work because of disability, normally pension fund contributions are deducted from longevity pay bonuses. It does not appear reasonable to conclude that "monthly salary" includes longevity pay bonuses for purposes of determining deductions from one's salary, but not for purposes of computing seventy percent (70%) of the salary for benefits. Barring specific statutory provisions to the contrary, funds from which disabihty and pension fund contributions are deducted should be included in the basis for computing a disability and pension fund benefit. Therefore, it is our opinion that longevity pay bonuses should be taken into consideration in computing seventy percent (70%) of an Asheville policeman's salary for purposes of determining monthly benefits for a pohce officer who becomes disabled in the hne of duty or as a result of the performance of duties as an Asheville pohce officer. The same conclusion would not necessarily hold true for persons retiring from the Asheville Pohcemen 's Pension and Disability Fund i on a line of duty disabihty basis when the provisions as amended in 1979 control. The 1979 amendments, in Chapter 429 of the Session Laws, provide for a line of duty disability in the amount of seventy percent (70%) of the member's "basic monthly salary rate as then paid by the City of Asheville." The change in language for hne of duty disabihty, with no change in the language directing the deduction of five percent (5%) from the member's "monthly -32- salary," requires the conclusion that the basis upon which the line of duty disability is figured will differ from the compensation from which the mandatory five percent (5%) employee contribution is deducted. Rufus L. Edmisten, Attorney General Norma S. Harrell Assistant Attorney General 29 August 1979 Subject: Requested by: Question : Railroad Company; North Carolina Railroad Company; Atlantic and North Carohna Railroad Company; Acquisitions and Dispositions of Real Property; Governor and Council of State. Mr. Joseph W. Grimsley, Secretary Department of Administration Do future land acquisitions or dispositions planned by the North Carohna Railroad Company and the Atlantic and North Carolina Railroad Company require the prior approval of the Governor and Council of State? Future dispositions of real property by these companies must be approved by the Governor and Council of State. Acquisitions of real property by these companies are not subject to the approval of the Governor and Council of State unless the acquisition constitutes an encumbrance on the property of the Railroad. The North Carolina Railroad Company was incorporated by the General Assembly of North Carohna as a private corporation in -33- Conclusion: II 1849. Session Laws of North Carolina, 1849, Chapter 83. The Atlantic and North Carolina Railroad Company was incorporated by the General Assembly of North Carohna as a private corporation in 1852. Session Laws of North Carohna, 1852, Chapter 136. The State of North Carolina is the majority stockholder in each of the corporations. The State owns 75.8 percent of the stock in the North Carolina Railroad Company. It owns 73.5 percent of the stock in the atlantic and North Carolina Railroad Company. G.S. 124-5 reads as follows: "no corporation or company in which the State has or owns any stock or any interest shall sell, lease mortgage, or otherwise encumber its franchise, right-of-way, or other property, except by and with the approval and consent of the Governor and Council of State." This statute, if given its full Uteral affect, would apply to a disposition of real property by any corporation in which the State owns a single share of stock. Such a construction might give rise to a question of constitutionality. However, it is unnecessary to address that question at this time. The State of North Carolina is the majority stockholder in each of the Railroad companies. There is a presumption in favor of the constitutionahty of a statute. Strong's N. C. Index 3d, Statutes, §4.1. We are of the opinion that this statute would be constitutional as applied to the North Carolina Railroad Company and the Atlantic and North Carohna Railroad Company. Therefore, we conclude that future dispositions of real property by these companies require the approval of the Governor and Council of State. G.S. 124-5 appUes only to dispositions of property. It does not apply to acquisitions of property except when the acquisition would constitute an encumbrance on the property of the Railroad. We are unable to find any other statutory provision which requires approval by the Governor and Council of State for acquisition of property by these companies. Since these companies are private corporations, the provisions of Chapter 146 of the General Statutes relating to acquisitions of real property by State agencies would not apply. -34- 4 September 1979 Subject: Requested by: Questions: Conclusion: Rufus L. Edmisten, Attorney General Roy A. Giles, Jr. Assistant Attorney General Courts; Costs; Witnesses; Worthless Checks; G.S. 7A-314; G.S. 14-107(5) as Enacted by Chapter 837, Session Laws of 1979. Honorable John S. Gardner Chief District Court Judge 704 W. 27th St. Lumberton, N. C. 28358 1. In a worthless check prosecution pursuant to G.S. 14-107 where the defendant pays the worthless check and court costs to the magistrate before the date of trial, and the prosecuting witness is not present before the magistrate, should the prosecuting witness be paid the witness fee under G.S. 14-107(5)? Should the fee be included in the bill of cost? 2. If on the date of trial, the defendant pleads guilty, and the prosecuting witness is not present in court and does not testify, would the prosecuting witness be entitled to the witness fee under G.S. 14-107(5) and should it be taxed as costs? 1 No. No. In its strict legal sense, the word "witness" means one who gives evidence in a cause before the court. 97 CJS 350. -35- The right of a witness to compensation is purely statutory, and the court's power to tax costs is entirely dependent upon statutory authorization. State v. Johnston, 282 N.C. 1. The right to tax costs did not exist at common law. Costs are penal in nature and statutes relating to costs are strictly construed. City of Charlotte v. McNeely, 281 N.C. 692. In McNeely, supra, the Court held that a party who testified for himself was not entitled to a witness fee. The general rule seems to be that a witness must be in actual attendance on the Court to be entitled to compensation, but he need not be called to testify. Likewise, the rule is that in order to tax the other party for plaintiff's witness fees, the plaintiff's witnesses must be under subpoena, and must be examined or tendered. Johnson, supra. G.S. 7A-314 provides that a witness under subpoena, bound over or recognized to testify shall be entitled to receive $5.00 per day or fraction thereof, during his attendance. (Emphasis added) Chapter 837, Session Laws of 1979, amended G.S. 14-107 by adding subsection (5) to read: "(5) In deciding to impose any sentence other than an active prison sentence, the sentencing judge may require, in accordance with the provisions of G.S. 15A-1343, restitution to the victim for the amount of the check or draft and each prosecuting witness (whether or not under subpoena) shall be entitled to a witness fee as provided by G.S. 7A-314, which shall be taxed as part of the cost and assessed to the defendant." Thus, we conclude that in those cases where the prosecuting witness is entitled to a witness fee, the prosecuting witness must be in attendance upon the Court before the witness fee can be taxed as part of the costs. -36- G.S. 14-107(5) is an exception to the requirement that the witness must be under subpoena, but actual attendance on the Court is required. The compensation to a witness is not to pay him for testifying, but simply to provide partial reimbursement for the time and expense incurred from being in attendance upon the Court. Under the facts presented, the prosecuting witness was not in attendance upon the court and witness fee authorized by G.S. 14-107(5) should not be taxed as costs. Rufus L. Edmisten, Attorney General James F. Bullock Senior Deputy Attorney General 13 September 1979 Subject : Requested by: Question: Conclusion: Constitution; U.S. Constitution; First Amendment Right to Association; Municipal Employees; Unions; Supervisory Personnel Membership in Union Representing Employees. E. Murray Tate, Jr., Esquire City Attorney Hickory, North Carolina May a city terminate the employment of a Fire Department Officer with supervisory duties solely on account of his membership in a labor union which counts non-supervisory fire department personnel among its members? A city has a legitimate interest in maintaining a disciplined and efficient fire department. That interest is significantly compromised by the conflicting loyalties -37- which unavoidably arise when fire \ department supervisors join unions which ^ represent fire department employees. Therefore, the city may legally prohibit i supervisory personnel from joining unions i which include in their membership non-supervisory fire department ! employees. ' It has long since been decided that the freedom of association attendant to and protected by the First and Fourteenth i Amendments of the United States Constitution encompasses i economic associations such as labor unions, Thomas v. Collins, 323 i U.S. 516 (1945); Atkins v. City of Charlotte, 296 F. Supp. 1078 (W.D.N.C. 1969). Moreover, one may no longer seriously question whether public employees have the same associational rights as their privately employed counterparts, Elrod v. Bums, 427 U.S. 347 (1976); McLaughlin v. Tilendis 398 F.2d 287 (7 Cir. 1968); AFSCME V. Woodward, 406 F.2d 137 (8 Cir. 1969). Nevertheless, a public employee's First Amendment rights are not without Hmit. See Civil Service Commission v. National Association of Letter \ Carriers, 413 U.S. 548 (1973); Broadrick v. Oklahoma, 413 U.S. 601 (1973); Elk Grove Fire Fighters Local No. 2340 v. Willis, 400 I F. Supp. 1097 (N.D. 111. 1975), affirmed, 539 F.2d 714 (7 Cir. 1976); York County Fire Fighters Association, Local 2498 v. York , County, 589 F.2d 775 (4 Cir. 1978). i Contemporary First Amendment analysis requires that the constitutionality of a state action be determined only after the public interest which the state's action purports to protect is balanced against the individual interests of the person or persons i affected by the action. Following this analysis, the United States Supreme Court has held that a state may not limit First Amendment \ freedoms unless it first estabhshes: (1) the existence of a substantial, j legitimate state interest; (2) a direct relationship between that i interest to be served and the proposed state action; and (3) the | action is the least drastic restriction of constitutional rights which \ will accomplish the state's purpose, Shelton v. Tucker, 364 U.S. i 479 (1960). Several federal courts have recently had an occasion to apply this three-prong test to state laws which prohibit publicly employed -38- supervisors from joining unions which include in their membership employees under those supervisors' authority. In three cases deaUng specifically with fire department personnel, these courts have upheld a state's right to impose this limit upon their supervisors' union membership. In Elk Grove Fire Fighters Local Na 2340 v. Willis, supra. Local 2263, International Association of Fire Fighters v. City of Tupelo, Mississippi, 439 F. Supp. 1224 (N.D. Miss., Ed 1977), and York County Fire Fighters v. Yorktown, supra, federal courts were asked to determine whether a municipahty might constitutionally prohibit fire department supervisory personnel from joining unions which counted non-supervisory fire department employees among its members. Following the analysis and guidelines established by the { United States Supreme Court, these courts first found that the state has a legitimate and substantial interest in the efficiency of its fire departments. I'The courts next found supervisor membership in unions to be inimical to fire department efficiency, Elk Grove, supra, at 1100. In reaching this conclusion, the judges reHed heavily upon the congressional judgment embodied in Section 14(a) of the Labor Management Relations Act (29 U.S.C. §169 (a)). That section of the Taft-Hartley Amendments freed employers to discharge supervisors who joined unions and reflected a legislative determination that management, like labor, must be assured a contingent of loyal agents. See Beasley v. Food Fair of North Carolina, 416 U.S. 653 (1974). Though noting that the NLRA is limited to private employers, the courts pointed out the parallels between the private and public sector which make that determination equally applicable to government employers. Legislation aside, the courts found support for their holding in the adversarial labor-managemetn relation. In times of labor unrest (strikes, picketing, slowdowns) unionized supervisors' loyalties would naturally be divided. Moreover, a more pervasive and potentially more disruptive conflict of interest would necessarily arise out of the cities' use of unionized officers to implement municipal policies [which the union might oppose. - -- -39- "Practically the only circumstance in which a conflict of interest would fail to arise would be if there were no conflict between (city) officials and the firefighters union over any aspect of working conditions, a rather unlikely eventuality." Elk Grove, supra at 1103. Thus the courts found that supervisor membership in unions would retard department efficiency and interfere with a substantial state interest. Finally, the courts found the regulations in question to be the least restrictive means of accomplishing the state's objectives. They emphasized that the regulations did not prohibit supervisors from joining any union, but only enjoined their membership in unions which counted fire department employees among their members. The courts held such a limitation to be clearly and precisely drawn to achieve the state's legitimate objectives while avoiding undue restriction of the supervisors' rights. In sum it has been determined that the state's interest in maintaining \ an effective fire fighting force outweighs the supervisors' limited 1 interest in belonging to a union which represents their subordinates. Therefore, a city may constitutionally prohibit a fire department I officer from joining a labor union which includes non-supervisory \ fire department employees among its members. Rufus L. Edmisten, Attorney General I Thomas J. Ziko ' Associate Attorney 14 September 1979 Subject : Requested by: Licenses and Licensing; Occupational Licensing Board; Travel Expense of Members; Payment of Actual Travel Expenses Henry L. Bridges State Auditor ^0- Question: Does G.S. 138-7 authorize the payment of actual travel expenses to members of occupational licensing boards, over and above the amounts provided in the schedule in G.S. 138-6(a)(3) for officers and employees of State departments? Conclusion: No. G.S. 138-7 does not authorize the reimbursement of excess travel expenses of members of occupational licensing boards, by reason of: (1) the express limitation of G.S. 93B-5(b) restricting reimbursement of occupational licensing board members to amounts "not to exceed that authorized under G.S. 138-6(a) (1)(2) and (3)" for State employees; (2) the express restriction of G.S. 93B-5(d) which provides that "except as provided herein, board members shall not be paid a salary or receive any compensation for services rendered as members of the board"; and (3) the absence of any express exception in G.S. 138-7 to G.S. 93B-5 as was made to G.S. 138-5 and G.S. 138-6. iG.S. 93B-5 provides for compensation exclusively for members of occupational licensing boards. Subsection (b) provides for reimbursement of travel expenses "in an amount not to exceed that authorized under G.S. 138-6(a)(l)(2) and (3) for officers and employees of State departments". Subsection (d) provides: "except as provided herein board members shall not be paid a salary or receive any additional compensation for services rendered as members of the board. " |G.S. 138-6(a) provides for travel allowances for State officers and employees of State departments, institutions and agencies which operate from funds deposited with the State Treasurer. Subsection (3) provides for "in lieu of actual expenses incurred for subsistence, payment of $31.00 per day when traveling in State or $39.00 per day when traveling out-of-state." It further provides for proration of subsistence payment when travel involves less than a 24 hour -41- period in accordance with regulations promulgated by the Director of the Budget. G.S. 138-7 as rewritten by the 1979 General Assembly provides that "expenditures in excess of the maximum amount set forth in G.S. 138-5 and G.S. 138-6 for travel and subsistence may be reimbursed if the prior approval of the department head is obtained." The Budget Director is required to establish and promulgate regulations under which "actual expense in excess of travel and subsistence allowance and convention registration fees as prescribed in G.S. 138-5 and G.S. 138-6 may be authorized by department heads for hotel, meals and registration." (Chapter 838, Section 17, 1979 Session Laws). G.S. 138-5 provides for compensation for all boards and commissions, (excluding occupational licensing boards), which operate from funds deposited with the State Treasurer. Subsection (2) provides for the payment of subsistence while traveling at the rate of $15.00 per day or $35.00 per day when away over-night. The language of G.S. 93B-5 is clear and does not require interpretation. G.S. 93B-5 deals exclusively with the compensation of occupational Hcensing board members and controls over any other statutes having general application. The language used expressly Umits subsistence of occupational licensing board members to amounts not to exceed that authorized by G.S. 138-6(a)(3). By reference, an express limitation of $31.00 per day for in-state travel and $39.00 per day out-of-state is placed on the amount of ) subsistence to be reimbursed, subject to proration according to regulation promulgated by the director of the budget for periods j of travel less than a twenty-four hour period. G.S. 93B-5 further i prohibits the payment of any additional compensation for services except as provided by G.S. 93B-5. G.S. 138-7 expressly provides for exceptions to G.S. 138-5 and G.S. 138-6 and authorizes reimbursement for actual expenses in excess of travel and subsistence as "prescribed by G.S. 138-5 and G.S. 138-6." G.S. 138-5 and G.S. 138-6 prescribe compensation for members of State boards and commissions excluding occupational licensing boards and for officers and employees of State agencies, which operate from funds deposited with the State Treasurer. G.S. -42- 138-7 does not provide an exception to the statute authorizing compensation to occupational licensing board members (G.S. 93B-5) as it does to other statutes authorizing compensation for members of boards and commissions excluding occupational Ucensing boards I (G.S. 138-5) and to State officers and employees (G.S. 138-6). Where I express exceptions are made, the legal presumption is that the Legislature did not intend to save other cases from the operation lof the statute. 50 Am. Jur. Statutes §434. A review of the history of the statutes providing for reimbursement for travel expenses supports the conclusion that G.S. 138-7 has no ! appHcation to the reimbursement of travel expenses for occupational 'licensing board members. The statute (G.S. 93B-5) dealing exclusively with occupational licensing boards was passed and i codified in 1957. In 1961, the General Assembly enacted and codified G.S. 138-5, G.S. 138-6 and G.S. 138-7 (Chapter 833, Sections 5, 6 and 6.1). The provisions were basically the same as had been previously provided in the 1957 and 1959 Budget Appropriations Acts with two exceptions. G.S. 138-5 and G.S. 138-6 as now codified only apply to boards and commissions and State departments and agencies "which operate from funds deposited with the State Treasurer". The other exception is that previously no excess payments had been authorized and a specific provision was made for reimbursement for excess travel expenses incurred over the amounts in the schedule which was codified as G.S. 138-7. i G.S. 138-7 expressly provides exceptions to G.S. 138-5 and G.S. 138-6" and requires the Director of the Budget to promulgate regulations under which actual expenses in excess of those ''prescribed by G.S. 138-5 and G.S. 138-6 may be reimbursed. We have considered the 1979 amendment. The 1979 amendment to G.S. 138-7: (1) reversed the sequence of the two sentences in that section; (2) eliminated the requirement for approval of the Advisory Budget Commission for the promulgation of the rules and regulations; and (3) provided for prior approval of the department head for reimbursement of travel and subsistence in heu of the prior approval of the Director of the Budget. We do not find that the rewrite of G.S. 138-7 by the 1979 General Assembly extended the exceptions to the statute providing compensation to occupational licensing board members or to agencies which operate from funds iwhich are not deposited with the State Treasurer. -43- For the foregoing reasons, this Office is of the opinion that G.S. 138-7 does not authorize the reimbursement of occupational licensing board members for subsistence expenses incurred in connection with travel in excess of the rates specified in G.S. 138-6(a)(3). Rufus L. Edmisten, Attorney General Eugene A. Smith Special Deputy Attorney General 17 September 1979 Subject: Requested by: Questions: Lotteries; Bingo; Raffles; High School Booster's Club; Five-Hundred Dollars t ($500) Limitation; Merchandise Mr. R. Michael Jones Lucas, Rand, Rose, Meyer, Jones & Orcutt, P.A. Counsel for the Wilson County School System 1. May the local high school booster's club legally sponsor a raffle which offers merchandise as a prize or must any prize be in the form of cash? 2. If an exempt organization may offer merchandise as well as cash prizes in the conduct of a raffle, does the five hundred dollars ($500) limitation apply to prizes in the form of merchandise? Conclusions: 1. Yes. An exempt organization may legally sponsor a raffle which offers merchandise as a prize; the prize need not be in the form of cash. 2. No. Only a cash prize is limited in the amount of five hundred dollars ($500). -44- Subsection (g) of G.S. 14-292.1 deals with the limitations on the amount of cash prizes and the value of merchandise prizes to be offered or paid in bingo games and raffles. Subsection (g) reads as follows: "(g) The maximum prize in cash or merchandise that may be offered or paid for any one game of bingo is five hundred dollars ($500.00). The maximum aggregate amount of prizes, in cash andIor merchandise, that may be offered or paid at any one session of bingo is one thousand five hundred dollars ($1,500). Provided, however, that if an exempt organization holds only one session of bingo during a calendar week, the maximum aggregate amount of prizes, in cash andlor merchandise, that may be offered or paid at any one session is two thousand five hundred dollars ($2,500). The maximum cash prize that may be offered or paid for any one raffle is five hundred dollars ($500.00)." (Emphasis added) Each of the above limitations on prizes for both raffles and bingo games are very specific. These specific limitations are hmitations on the general exemption from North CaroHna lottery laws (Article 37 I of Chapter 14 of the General Statutes) for exempt organizations 'to operate and sponsor bingo games and raffles. The clear and definite use of the terms "cash" and "merchandise" in the three sentences in subsection (g) relating to bingo games and the term "cash" in the last sentence of subsection (g) relating to raffles leads jto the conclusion that the legislature- clearly intended to make no ispecific limitation in regards to merchandise prizes for raffles. i ITherefore, provided the exempt organization meets all other requirements of G.S. 14-292.1, merchandise may be offered or paid as prizes for a raffle and there is no limitation as to the value of [such merchandise prizes. Rufus L. Edmisten, Attorney General ! Acie L. Ward Assistant Attorney General -45- 3 October 1979 Subject: Motor Vehicles; Size of Vehicles and Loads Requested by: Mr. Randy Jones North Carohna Department of Natural Resources & Community Development Division of Environmental Management Question: Does G.S. 20-1 16(g) apply to a basically "unloaded" truck that is depositing material on the road? Conclusion: Yes. G.S. 20-1 16(g) reads in relevant part: "(g) No vehicle shall be driven or moved on any highway unless such vehicles is so constructed or loaded as to prevent any of its load from dropping, sifting, leaking, or otherwise escaping therefrom, except that sand may be dropped for the purpose of securing traction, or water or other substance may be sprinkled on a roadway in cleaning or maintaining such roadway. ..." Any part of a load or what may remain as a prior load dropping, , sifting, leaking, or otherwise escaping from a vehicle other than sand being dropped for the purpose of securing traction or water or other substance being sprinkled on the roadway for the purpose of maintaining the roadway would constitute a violation of this section. The provision appearing in the last unnumbered paragraph of this section relative to the transportation of poultry, livestock, silage or other feed grain should be noted. Rufus L. Edmisten, Attorney General William W. Melvin Deputy Attorney General -46- 3 October 1979 Subject: Courts; Costs Allowed for Service of Civil Process. Requested by: Larry J. McGlothlin Cumberland County Sheriff's Attorney Question: Does G.S. 7A-3 11(a)(1) require civil process fees to be assessed, collected and remitted when the law enforcement officer serves or attempts to serve civil process? Conclusion: Yes. Chapter 310, Session Laws of 1965, enacted G.S. 7A-311 and provided the fee to be assessed and collected for each item of civil |)rocess served or attempted to be served. Iphapter 417, Session Laws of 1973 amended G.S. 7A-311(a)(r) by jieleting the phrase "or attempted to be served". { Iphapter 1139, Session Laws of 1973 (2d Session) amended G.S. i7A-311 (a)(1) by adding a new sentence: "If the process is served, [t)r attempted to be served by the sheriff, the fee shall be remitted (o the city rather than the county." Chapter 801, Session Laws of 1979 rewrote G.S. 7A-31 1(a)(1) and livided it into subsections (a) and (b). The first deals with the imount of the fee to be assessed and (b) contains the language that the process is served, or attempted to be served, the fee shall e paid to the city if by a policeman and to the county if by the heriff. t appears clear from the history and language of G.S. 7A-31 1(a)(1), hat the fee is paid when the process is served, or attempted to )e served, by the law enforcement officer. Rufus L. Edmisten, Attorney General James F. Bullock "^ Senior Deputy Attorney General -47- 3 October 1979 Subject: Register of Deeds; Mortgages and Deeds of Trust-Cancellation Requested by: W. W. Speight Pitt County Attorney Question: Is the beneficiary of a deed of trust who is also the payee or holder of the note entitled to have the deed of trust cancelled of record? Conclusion: Yes. G.S. §45-37(2) provides that a deed of trust may be cancelled of record if the deed of trust and note or other instrument secured thereby are exhibited to the Register of Deeds, with the endorsement of payment and satisfaction by i (a) The obligee (b) The mortagee (c) The trustee (d) An assignee of the obhgee, mortgagee, or trustee, or (e) Any chartered banking institution. As pointed out in a previous opinion, the beneficiary of a deed of trust, as such, is not one of the persons authorized by the statute to obtain cancellation. 48 N.C.A.G. 50 (1978). There was no indication in the question upon which that opinion was based that the beneficiary was an obligee, a bank or assignee thereof. Id, at[ p. 51. : The question presented here clearly states that the beneficiary of; the deed of trust is also the payee or holder of the underlying indebtedness. In this case, the beneficiary is an obligee. See,, BLACK'S LAW DICT. 1226 (Rev. 4th Ed. 1968). Therefore, thei beneficiary, in his capacity as obligee may make the required endorsements and obtain cancellation of record of the deed of trust, i -48- Rufus L. Edmisten, Attorney General Lucien Capone, III Associate Attorney General October 1979 Subject : Requested by: I j buestion: Weapons; Carrying Concealed Weapons; Railroad Police Lawton Eure, Training Evaluator Criminal Justice Training & Standards Council Can Railroad police carry concealed weapons anywhere in the State when in the performance of their official duties? iConclusion: Yes. I [n relevent part, G.S. 14-269 reads as follows: §14-269. Carrying concealed weapons -If anyone, except when on his own premises, shall willfully and intentionally carry concealed about his person any bowie knife, dirk, dagger, sling shot, loaded cane, brass, iron or metallic knuckles, razor, pistol, gun or other deadly weapon of hke kind, he shall be guilty of a misdemeanor punishable by a fine not to exceed five hundred dollars ($500.00), imprisonment for not more than six months, or both. This section shall not apply to the following persons: ... officers of the State, or of any county, city, or town, charged with the execution of the laws of the State when acting in the discharge of their official duties, ..." -, .S. 74A-2, in relevant part, reads as follows: "§74A-2. Oath, powers, and bond of company police; exceptions as to railroad police.-(a.) Every poUceman -49- so appointed shall, before entering upon the duties of | his office, take and subscribe the usual oath. ' (b) Such pohcemen, while in the performance of the i | duties of their employment, shall severally possess all I the powers of municipal and county police officers to make arrests for both felonies and misdemeanors: [ (1) Upon property owned by or in the | possession and control of their respective employers; or ^ (2) Upon property owned by or in the i possession and control of any person or persons ' who shall have contracted with their employer ( or employers to provide security for protective | services for such property; or (3) Upon any other premises while in hot pursuit of any person or persons for any offense committed upon property vested in subdivisions (1) and (2) above. (d) The limitations on the power to make arrests contained in subdivision (1), (2) (and) (3) of subsection (b) shall not be applicable to pohcemen appointed for any railroad company. Policemen appointed for railroad companies shall be required to post a bond in the sum of five hundred dollars ($500.00) in lieu of the bond required by subsection (c)." G.S. 74A-3 reads: "74A-3. Company police to wear badges-Such policemen shall, when on duty, severally wear a shield with the words 'Railway PoHce' or 'Company Pohce' and the name of the corporation for which appointed inscribed thereon, and this shield shall always be worn -50- 'i in plain view except when such police are employed as detectives." G.S. 74C-3(8)(b)(6) reads: "Private protective services shall not mean: (6) Company poHce or railroad police as defined in Chapter 74A of the General Statutes of North Carolina; ..." In Tate v. R.R., 205 N.C. 51 (1933), the Court held: "The weight of authority maintains the position that special officers appointed by the State for poHce duty at the expense of a railway company or other corporation are prima facie public officers, ..." In Assoc, of Licensed Detectives v. Morgan, Attorney General, 17 N.C. App. 701 (1973) the Court said: "Private or special police are public officers, Tate v. R.R., 205 N.C. 51, 169 S.E. 816 (1933), and therefore, a proper subject of regulation by the State in exercise of its police power." It would appear that railroad pohce fall into one of two categories; i.e., those hired for the purpose of security of railroad property, and those who serve in the capacity of detectives. Those who serve in the general capacity of security of property should comply with the provisions of G.S. 74A-3 relative to the wearing of a shield with the words "Railway Police" and the name of the company or ; corporation for which they are appointed. Therefore, if a weapon is needed, concealment would serve no purpose, however, such does not appear to be prohibited while on the railway's property. Railway police employed as detectives are not required to wear a shield as they are exempt from the requirements of G.S. 74A-3. Further, I being a pubUc officer, they are also exempt from the provisions I of G.S. 14-269 while on duty. As to whether a railway detective is on duty is simply a question of fact. -51- Rufus L. Edmisten, Attorney General William W. Melvin Deputy Attorney General 9 October 1979 Subject: Requested by: Question: Conclusion: Counties, Municipalities, Garnishment, Child Welfare, Garnishment for Enforcement of Child Support, N.C.G.S. 110-136. Rufus C. Boutwell, Jr. Assistant City Attorney City of Durham Does a city have immunity fromi [ garnishment proceedings brought for child support under N.C.G.S. 110-136? No. The legislative intent of Article 9, Chapter 110 of the General Statutes is to provide financial support for dependent | children and to provide an enforcement' procedure against the parent responsible; for providing support to such children.! Thus, limited to the narrow area of child' support under Article 9, it is the opinion of this Office that the General Assembly: did not intend to provide a remedy ofi support for all children except those whosei parents are employed by a governmental! entity. Therefore, the city may be ai garnishee for this hmited purpose. | We find no North Carolina case dealing with the specific question in the area of child support or construing G.S. 110-136 where a governmental entity was the garnishee. The general rule in this State, and apparently the majority rule, is that the State, or poUtical subdivisions and agencies thereof, cannot be summoned as garnishees -52- in any action without statutory authority. Various reasons have been given by the courts, including the reason that public pohcy demands the exemption of the government and its agencies from Hability as garnishees. In Swepson v. Turner, 16 N.C. 115, the North Carolina Supreme Court adopted the pubhc policy view. So far as can be ascertained, however, this case has not been cited or reHed upon in this State since the opinion was written in 1877. We do not depart from the general rule stated above, but we do construe the language of G.S. 110-136, and the purpose set forth in G.S. 110-128 as revealing a legislative intent to provide child support for all dependent children and not to discriminate against those children whose parents happen to be employed by the State ] or any of its agencies or poHtical subdivisions thereof. I The pertinent statute, G.S, 110-136, providing for garnishment for enforcement of child-support obhgation, commences with the words i "(n)otwithstanding any other provision of the law". These words generally mean in spite of other provisions and that the statute operates without obstruction from other statutes. This has been held ; to carry over to decisional law. Dover v. Dover, 15 C.A. 3d 675, 93 Cal. Rptr. 384; Words and Phrases, Vol. 28A. Further, the garnishment statute under inquiry provides, in part, that "(t)he garnishee is the person, firm, association, or corporation i by whom the responsible parent is employed." G.S. 1 10-1 36(a). G.S. 12-3(b) defines the word "person" as extending to and applied i to bodies politic and corporate, as well as individuals, unless the * context clearly shows otherwise. A body politic is a State, county, or municipal corporation. Student Baf Asso. v. Byrd, 293 N.C. at !600. Thus, we construe the word "person" as used in G.S. 110-136 as embracing the State, a county or municipality. The welfare of children has always been a paramount concern of the courts and the State. The General Assembly, in recent years, has expressed its concern in this area by the enactment of various (legislation. It does not seem reasonable to think that it intended i'to deny a valuable remedy for enforcement of the support obligation ito some children simply because the responsible parent is an employee of the State, county, city or other governmental entity. -53- We hold, therefore, that, by reason of the legislative intent and pubhc policy expressed in G.S. 110-136, the statute is applicable to the State, counties and municipal corporations, and they are not immune from garnishment proceedings brought thereunder. Rufus L. Edmisten, Attorney General William F. Briley Assistant Attorney General 10 October 1979 Subject: Requested by: Question: Conclusion: Social Services; Medicaid; Mental Health; Hospitals Dr. Sarah T. Morrow, Secretary North Carohna Department of Human Resources Under the 1979 Appropriations Act, may mental and specialty hospitals in North Carohna be reimbursed by the Medicaid \ program for an unUmited number of administrative days? Yes. Under Section 23 of the 1979 Appropriations Act for the State | of North Carohna (Chapter 838 of the 1979 Session Laws), the;, Medicaid program will pay on behalf of its recipients allowable costs for all hospital in-patient care rendered, subject to the exception that payment for administrative days shall be limited to a maximum of three days for any period of hospitalization. It is our understanding that administrative days are days during which alternative placement of a patient is planned and effected and for which there is no medical necessity for hospital in-patient care. In essence, these days constitute a grace period for the orderly placement of a Medicaid patient into a lesser level of care or home setting. The apparent intent of the General Assembly in enacting the provision relating to administrative days was to provide a -54- financial disincentive to allowing Medicaid patients to linger in hospitals when the medical necessity for hospitalization had expired. By imposing the aforementioned limitation on Medicaid payment for administrative days, it appears that it was the expectation of the General Assembly that hospitals would act in their own best financial interest by providing for the timely and appropriate discharge of Medicaid patients who no longer require hospitaUzation. iOn the other hand, the Medicaid payment basis for mental and specialty hospital services under Section 23 of the 1979 Appropriations Act is not subject to any limitation on allowable costs. Hence, the indisputable answer to the question posed is that (under the 1 979 Appropriations Act for the State of North Carolina mental and specialty hospitals may be reimbursed by the Medicaid program for an unlimited number of administrative days. The absence of any Umitation on Medicaid payment for administrative days with respect to mental and specialty hospitals is probably {founded on the rather substantial difficulty in making alternative placement arrangements for mentally and physically handicapped patients. It should be noted that this Opinion addresses a narrow question relating exclusively to the State Appropriations Act. We have neither JDeen asked for nor offer our opinion on whether the difference in payment basis between regular hospital in-patient care and mental ;ind specialty hospital care may conflict with federal law or regulations or constitutional mandates. Rufus L. Edmisten, Attorney General William Woodward Webb Special Deputy Attorney General 10 October 1979 subject: Mental Health, Area Mental Health, Mental Retardation and Substance Abuse Authorities; marking of motor vehicles _ owned by area authorities. -55- Requested by: Question: Conclusion: Sarah T. Morrow, M.D., M.P.H. Secretary Department of Human Resources Does G.S. 14-250 requiring certain publicly owned vehicles to be marked apply to vehicles owned by an area mental health, mental retardation and substance abuse authority? No. ' As pertaining to this inquiry, G.S. 14-250 provides as follows: "It shall be the duty of the executive head of every department of the State government, and of any county, or of any institution or agency of the State, to have painted on every motor vehicle owned by the State, or by any county, or by any institution or agency of the State, a statement that such car belongs to the State or to some county, or institution or agency of the State." By statutory definition, an area mental health, mental retardationi and substance abuse authority is a local political subdivision of the State. (G.S. 122-35.36(1)). Title to the type of personal property described in the present query is held by the area authority. (G.S. 122-35.53). Prior opinions of the Attorney General have been consonant with these statutory provisions (or their predecessors) and have been based upon the premise that an area authority is a separate entity from the State and from the county. See, 47 N.C.A.G. 8 (1977); 44 N.C.A.G. 185 (1975); 45 N.C.A.G. 120 (1975); 42 N.C.A.G.! 120 (1972); 45 N.C.A.G. 70 (1975). As a result, an area mental health, mental retardation and substance abuse authority does not fall within the provisions of G.S. 14-250. Rufus L. Edmisten, Attorney General William F. O'Connell Special Deputy Attorney General -56- 10 October 1979 Subject: Requested by: Questions: Conclusions: Social Services; Mental Health; Conflict of Interest; Payment of Public Assistance to Persons in Rest Homes W. W. Speight County Attorney for Pitt County 1 . May payment of public assistance be made for the care of a person in a home for the aged, family care home, or other domicihary facihty which is owned or operated in whole or in part by an employee of a State Alcoholic Rehabilitation Center? 2. May payment of pubhc assistance be made for the care of a person in a home for the aged, family care home, or other domiciliary facility which is owned or operated in whole or in part by a corporation of which an employee of a State Alcoholic Rehabilitation Center is an officer or a shareholder? 3. May payment of pubhc assistance be made for the care of a person in a home for the aged; family care home, or other domiciliary facility which is rented from an employee of an area mental health, mental retardation and substance abuse authority? 1. 2. No. No. Yes. IG.S. 108-65.2, as amended by 1979 Session Laws, Chapter 702, effective May 30, 1979, provides as follows: -57- "108-65.2. Limitations on payments-No payment of public assistance under this Part shall be made for the care of any person in a home for the aged, family care home, or other domiciliary facility which is owned or operated in whole or in part by any of the following: 1. a member of the Social Services Commission, of any county board of social services, or of any board of county commissioners; 2. an official or employee of the Department of Human Resources or of any county department of social services; 3. a spouse of a person designated in subdivisions (1) and (2)." The State Alcohohc RehabiUtation Centers are set up by the Department of Human Resources and are an integral part of thatj department. See G.S. 122-7.1. Since the chnical director is an employee of the Department of Human Resources, the proscriptions: of G.S. 108-65.2 apply to any home of the type described therein i which is owned by that employee. Similarly, these prohibitions! would also seem to apply to situations wherein an employee of an Alcohohc Rehabilitation Center is an officer or a shareholder of a corporation which owns or operates, in whole or in part, one of these types of homes. That conclusion has been reached with regard to the interpretation of the language of G.S. 14-234 and no distinction can logically be made here. For prior opinions of this Office in comparable situations, see 44 N.C.A.G. 128 1974), 42 N.C.A.G. 180 (1973); 42 N.C.A.G. 9 (1972); 40 N.C.A.G. 565 (1970); 40 N.C.A.G. 561 (1969). On the other hand, an area mental health, mental retardation and substance abuse authority is a local political subdivision of the State. See G.S. 122-35.36(1)). As a result an employee of an area mentalj health, mental retardation and substance abuse authority is not an employee or an official of the State or of any county. See G.S. 122-35.45(b); 47 N.C.A.G. 8 (1977); 45 N.C.A.G. 70 (1975). Thus the provisions of G.S. 180-65.2 would be inapphcable to such an employee. -58- 12 October 1979 Subject: Requested by: Questions: Ll Conclusions: Rufus L. Edmisten, Attorney General William F. O'Connell Special Deputy Attorney General Mental Health; Mental Hospitals; Requiring Residents to Participate in Fire Drills Sarah T. Morrow, M.D., M.P.H. Secretary Department of Human Resources 1. In a fire-drill situation at a State mental hospital is the staff authorized to physically remove a non-consenting patient from his ward? 2. In such a situation would it make any difference if the patient were on voluntary or involuntary status? 3. If the answer to question (1) is yes, what degree of force should be utiHzed in removing the patient? 1 Yes. No. 3. Only a reasonable degree of force under existing circumstances should be utilized in removing the patient. jit appears that the Life-Safety Code and accreditation standards vital ' 'to the operation and funding of State mental hospitals require that internal disaster, fire and evacuation drills shall be held at least quarterly for each work shift of program personnel in each separate -59- patient-occupied building. These questions are prompted by the refusal, on occasion, of some patients to get out of bed and leave the ward during such a drill. The patients involved include some who are involuntarily committed to the hospital by court order, others who are voluntarily admitted upon their own request, and juveniles or other incompetents who are voluntarily admitted with court ordered approval. In all of these situations, the State occupies the position of parens patriae regarding these residents; as a result, the State is responsible for the patient's safety, health and welfare. Certainly the evacuation of all residents, including those reluctant to participate would be necessary in order to truly evaluate the adequacy of evacuation procedures. Thus, the ability to require participation in the basic drills described is a fundamental necessity in order to enable the fulfillment of the State's responsibilities-for the short range purpose of immediate protection of the residents involved as well as for the long range purpose of insuring the continued operation of the hospitals in order? \ to care for present and future mentally ill persons. No distinctionj; should be made on this score as to the right to refuse to participate by the voluntarily admitted patient or those patients present! pursuant to a court order. In other words, the remedy available] to a purely voluntary competent patient, should he so desire, would-be a request for discharge within the time hmitations levied by G.S. 122-56.3, not absolution from compliance with reasonable requirements of the hospital. In order to secure evacuation, reasonable force may be utilized. As. an addendum, though, it would seem that the employees securing! compliance should be persons trained in the handling of mentally' ill patients who have performed similar functions in insuring' compliance with other reasonable hospital directives. On aj cautionary note, it should be recognized that any foreseeable injuryj to the patients which is caused by undue force could well leavej the hospital, the State and the individual employee vulnerable tcl litigation seeking damages. ' Rufus L. Edmisten, Attorney General WilHam F. O'Connell Special Deputy Attorney General -60- 23 October 1979 Subject: i Requested by: Social Services; Confidentiality of Public Assistance Records; G.S. 108-45 Dr. Sarah T. Morrow, Secretary North Carolina Department of Human Resources iQuestion: bonclusion : Is it lawful, under applicable State and federal laws and regulations, for a county department of social services to disclose names and other information concerning persons receiving public assistance to the Evaluation Section of the North Carolina Department of Human Resources or its contractual agent in order that an evaluation and report on the expenditure of State funds for the homemaker/chore services program may be done? Yes. It is our understanding that the General Assembly of North Carolina specifically requested an evaluation and report by the Department of Human Resources on the expenditure of State funds for the homemaker/chore services program provided under Title XX of the Social Security Act. The responsibility for making this evaluation and report has been assigned to the Evaluation Section of the Department of Human Resources. In order to discharge this iresponsibihty, the Evaluation Section will require access to the records of Title XX public assistance recipients within the county departments of social services. Pursuant to the provisions set forth in Section 2003(d)(1)(B) of the Social Security Act (42 U.S.C. § 1397b(d)(l)(B)), the federal regulations found at 45 C.F.R. 205.50, and G.S. 108^5(a), public assistance records generally (and Title XX records in particular) are enveloped with confidentiahty except for purposes directly :onnected with the administration of the various programs of public assistance. It is our interpretation of these provisions that county -61- departments of social services may legally release names and other i information concerning persons receiving Title XX public assistance that are contained in the records of the department since the purpose ' for acquiring this information is without a doubt directly connected | with the administration of a program of public assistance (i.e., Title XX). Moreover, in view of our conclusion, there is no need for the county department of social services to obtain the consent of the 3 recipient prior to the release of the information sought. | We reach the same conclusion should the Evaluation Section decide to contract with another agency outside the Department of Human Resources to conduct the actual evaluation provided the contract j contains a provision prohibiting disclosure of the information * gathered to third parties. The purpose in collecting the information remains the same irrespective of who does the collecting, j Additionally, with the contractual prohibition against disclosure, the agency conducting the evaluation is subject to standards of t, confidentiality comparable to those governing the county j departments of social services. Accordingly, under the authority of] the federal regulation found at 45 C.F.R. §205.50(a)(2)(ii), it would j be lawful for the county departments of social services to release Ij to the contractor information concerning individuals receiving Title 1^ XX public assistance. 24 October 1979 Subject: Requested by: Rufus L. Edmisten, Attorney General William Woodward Webb Special Deputy Attorney General Administrative Px rio»^c.e.»dsuuruievso ^Avc^tv;, ^ Department of Administration; Office of the Governor; Division of State Budget and Management; Budget Manuel Administrative Rules Review Committee of the General Assembly -62- Questions: 1. Is the budget manual of the Division of State Budget and Management required I to be filed with the Attorney General? 2. Is the budget manual of the Division of State Budget and Management subject to the adoption and amendment procedural requirements of the Administrative Procedures Act? Conclusion: 1. Yes, except for those parts already I -' filed or which are not rules. i 2. Yes, except for those parts already filed or which are not rules. |. G.S. 150A-58, in relevant part, reads as follows: (b) As used in this Article, "rule" means every rule, regulation, ordinance, standard, and amendment thereto adopted by any agency and shall include rules and regulations regarding substantive matters, standards for products, procedural rules for complying with statutory or regulatory authority or requirements and executive orders of the Governor. r.S. 150A-59, in relevant part, reads as follows: Rules adopted by any agency on or after February 1 , 1976, shall be filed with the Attorney General. All rules shall become effective 30 days after fiHng, unless the agency shall certify the existence of good cause for, and shall specify, an earlier or later effective date. An eariier effective date shall not precede the date of filing. I North Carohna Administrative Code 2A .0103 reads as ?"ollows: ll The budget manual sets forth policies and procedures to be followed by state agencies in preparing, -63- monitoring and executing the state's budget. Copies of the budget manual shall be provided to the various departments of state government and are available for public inspection at the division office. History Note: Statutory Authority G.S. Chapter 143, Article 1 ; Eff. February 1, 1976; Readopted Eff. February 27, 1979. G.S. 150A-63, in relevant part, reads as follows: (c) If the Attorney General determines that pubUcation of any rule would be impracticable, he shall substitute a summary with specific reference to the official rule on file in his office. Chapter 150A, the Administrative Procedures Act, has two separate and distinct definitions of "rule." The definition in Article 5. Publication of Administrative Rules, is more inclusive than the rule making definition in Article 2, Rule Making, Regulations exempt from the rule making article are not exempt from the pubhcation article unless the regulation is exempted by G.S. 150A-58(b)(l^). G.S. 150A-59 states no rule, as defined in G.S. 150A-58, may j become effective any eariier than the date of filing with the Attorney General. The budget manual is a compilation of rules and regulations developed by the Division of State Budget and Management which sets forth pohcies and procedures state agencies must follow in preparing, monitoring and executing the state's budget. An examination of the contents of the manual discloses that it consists of (1) reprints of General Statutes, (2) reprints of other sections of the Administrative Code, and (3) regulations not contained in other sections of the code. This last category includes regulations developed by the Division of State Budget and Management which are necessary to provide more specific procedures for complying with the requirements of the General Statutes and the Executive Orders of the Governor. The last category also contains the portions of the budget manual which have not been filed with the Attorney -64- , General. The rule on file, 1 N.C.A.C. 2A .0103, describes the budget i manual and states it may be inspected in the division office. G.S. 1 150A-63(c) allows for a summary rule if the publication of a rule 'would be impracticable, but it requires the official rule must be on file in the Attorney General's Office. Those portions of the budget manual which are rules within the the meaning of G.S. i 150A-58 and which have not previously been filed with the Attorney i General must be filed with the Attorney General to be effective. (2) In relevant part, G.S. 150A-9, reads as follows: It is the intent of this Article to establish basic minimum procedural requirements for the adoption, amendment, or repeal of administrative rules ... No rule hereafter adopted is vahd unless adopted in substantial comphance with this article. G.S. 150A-10, in relevant part, reads as follows: As used in this Article, "rule" means each agency regulation, standard or statement of general applicabihty that implements or prescribes law or poHcy, or describes the organization, procedure, or practice requirements of any agency. The term includes the amendment or repeal of a prior rule but does not include the following: (1) Statements concerning " only the internal management of an agency and not affecting private rights or procedures available to the pubhc; (6) Interpretative rules and general statements of policy of the agency. G.S. 150A-12, in relevant part, reads as follows: (f) No rule making hearing is required for the adoption, amendment or repeal of a rule which solely describes the organization of the agency or describes forms or instructions used by an agency. -65- G.S. 150A-14, in relevant part, reads as follows: An agency may adopt, by reference in its rules and without publishing the adopted matter in full, all or any part of a code, standard or regulation which has been adopted by any other agency of this State or any agency of the United States or by a generally recognized organization or association. G.S. 150A-2, in relevant part, reads as follows: (1) "Agency" means every ... department, division, council, member of Council of State, or officer of the State Government of the State of North Carolina... ' ! Article 2, Rule Making has a definition of "rule" which varies substantially from that of Article 5. The definition in G.S. ISOA-IO! determines which regulations are subject to the procedural requirements of Article 2, which include notice of hearing and public^ hearing prior to adoption. The two exemptions cited above, G.S. 150A-10(1) and (6), may include some of the unfiled portions of!; the budget manual. In applying the definition of "rule," the exemption created by G.S. 150A-10(1) should be limited to those regulations concerning the internal management of the Division of State Budget and Management. Some guidance on the exemption created by G.S. 150A-10(6) is provided by Professor Charles E.; Daye in his 1975 article entitled "North Carolina's New Administrative Procedures Act: An Interpretive Analysis," 53 N.C. Law Review 833-923, (1975). At page 853, it states: "Generally speaking, interpretative rules carry no sanction, and if a sanction is involved, it is seen as emanating from the statute ... It should be emphasized that careful scrutiny of the substance of the rule in question is critical, since the interpretive rule exclusion, if not confined to proper boundaries, could well subsume the rulemaking provisions." Finally, two separate statutory sections may exempt certain of thai regulations of the budget manual from rulemaking or publication in full. G.S. 150A-12(f) exempts any regulations which describe -66- "forms or instructions used by an agency." G.S. 150A-14 exempts Tom publication in full any regulations adopted by another agency bf the State which are adopted by reference. It should be noted any regulations so adopted must be amended any time the promulgating agency alters a regulation for the adopting agency to maintain the same regulations or the promulgating agency. 'Each regulation in the budget manual must be individually examined to determine (1) whether it is a rule within the meaning of G.S. 150A-10; (2) whether, although it is rule, it is exempted from the rule making requirements by G.S. 150A-12(f); and (3) whether it was adopted by reference and thereby exempt from pubhcation. When the manual was developed, the Division of State Budget and Management was a part of the Department of Administration. By Executive Order 38, that division was transferred to the Office of the Governor on September 10, 1979. Both the Governor's Office and the Department of Administration are agencies within the statutory definitions of "agency" m G.S. 150A-2(1) and G.S. ;150A-58(c) and are required to comply with Article 2, Rule Making, and Article 5, Publication of Administrative Rules, to the same extent as are other agencies not specifically exempted. Rufus L. Edmisten, Attorney General Daniel F. McLawhom Assistant Attorney General 25 October 1979 Subject: Requested by: Mental Health, Area Mental Health, Mental Retardation and Substance Abuse Authorities; Use of proxy votes at Area Mental Health, Mental Retardation and substance abuse Board Meetings. Mr. Mansfi
Object Description
Description
Title | North Carolina Attorney General reports |
Contributor | North Carolina. Department of Justice. |
Date | 1979; 1980 |
Subjects |
Attorneys general's opinions--North Carolina Automobiles--Transportation--Law and legislation Children Criminal law Education Genealogy Local government Mental health laws Public health Public officers--North Carolina Public welfare Taxation--Law and legislation |
Place | North Carolina, United States |
Time Period | (1945-1989) Post War/Cold War period |
Description | Opinions of the Attorney General. |
Publisher | Raleigh, N.C. :Dept. of Justice,1970- |
Agency-Current | North Carolina Department of Justice |
Standard Number | 0364-362X |
Rights | State Document see http://digital.ncdcr.gov/u?/p249901coll22,63754 |
Physical Characteristics | v. ;23 cm. |
Collection | Health Sciences Library. University of North Carolina at Chapel Hill |
Type | text |
Language | English |
Format | Reports |
Digital Characteristics-A | 11037 KB; 270 p. |
Digital Collection |
Ensuring Democracy through Digital Access, a North Carolina LSTA-funded grant project North Carolina Digital State Documents Collection |
Digital Format | application/pdf |
Title Replaces | North Carolina. Department of Justice..Biennial report of the Attorney General of the State of North Carolina |
Audience | All |
Pres File Name-M | pubs_edp_biennialreportattorneygeneral19791980.pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_edp\images_master\ |
Full Text | THE LIBRARY OF THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL THE COLLECTION OF NORTH CAROLINIANA C3U0 N87a 1979/80 UNIVERSITY OF N.C. AT CHAPEL HILL lliilllilillllliliii 00033947427 FOR USE ONLY IN NORTH CAROLINA COLLECTION NORTH CAROLINA ATTORNEY GENERAL REPORTS Volume 49 Number 1 FUS L. EDMISTEN TORNEY General \9 N.C.A.G. No. 1 Pages 1 through 90 NORTH CAROLINA ATTORNEY GENERAL REPORTS Opinions of the Attorney General July 1, 1979 through December 31, 1979 MAILING ADDRESS: Post Office Box 629 Raleigh, North Carolina 27602 Digitized by tine Internet Arciiive in 2011 witii funding from Ensuring Democracy tiirough Digital Access (NC-LSTA) http://www.archive.org/details/northcarolinaatt19791980 RUFUS L. EDMISTEN /^7'9A Attorney General James F. Bullock Andrew A. Vanore, Jr. Senior Deputy Senior Deputy Attorney General Attorney General Robert Bruce White, Jr. Senior Deputy Attorney General Jean A. Benoy William M. Melvin Deputy Attorney General Deputy Attorney General Millard R. Rich, Jr. Deputy Attorney General Charles H. Smith Howard A. Kramer Administrative Deputy Deputy Attorney General Attorney General for Legal Affairs John A. Elmore, II Special Assistant to the Attorney General Isaac T. Avery, III Thomas F. Moffitt Myron C. Banks Charles J. Murray Lester V. Chalmers, Jr. William F. O'Connell H. Al Cole, Jr. WOliam A. Raney, Jr. T. Buie Costen James B. Richmond David S. Crump Jacob L. Safron Ann Reed Dunn " Eugene A. Smith Herbert Lamson, Jr. Edwin M. Speas, Jr. Richard N. League WilHam W. Webb John R. B. Matthis Special Deputy Attorney General Archie W. Anders Rudolph A. Ashton, III Rebecca R. Bevacqua David R. Blackwell George W. Boylan Jean W. Boyles William F. Briley Elisha H. Bunting, Jr. Elizabeth C. Bunting Henry H. Burgwyn Joan H. Byers James M. Carpenter Christopher S. Crosby John C. Daniel, Jr. Thomas H. Davis, Jr. Amos C. Dawson, III Roy A. Giles, Jr. Frank Graham Richard L. Griffin Donald W. Grimes Guy A. Hamlin Norma S. Harrell Claude W. Harris Ralf F. Haskell Charles M. Hensey Alan S. Hirsch LB. Hudson, Jr. Ben G. Irons, II Douglas A. Johnston Sandra M. King George W. Lennon James R. Lore James E. Magner, Jr. Daniel F. McLawhom Nonnie F. Midgette Mary I. Murriell Dennis P. Myers Robert W. Newson, III Daniel C. Oakley George J. Oliver WilUam B. Ray Robert R. Reilly Marilyn Y. Rich Alfred N. Salley Jo Ann Sanford Marvin Schiller Tiara B. Smiley James P. Smith Donald W. Stephens James L. Stuart Jane R. Thompson J. Gregory Wallace Acie L. Ward Kaye R. Webb Robert G. Webb Thomas B. Wood Assistant Attorneys General Benjamin G. Alford Sylvia X. Allen Christopher P. Brewer Blackwell M. Brodgen, Jr. Steven F. Bryant Robert E. Cansler Lucien Capone, III Richard H. Carlton Evelyn M. Coman Francis W. Crawley Chfton H. Duke Fred R. Gamin Max A. Gamer Michael D, Gordon Jane P. Gray James C. GuHk Elaine M. Guth Richard D. Hancock Harry H. Harkins, Jr. Robert L. Hillman Lemuel W. Hinton Grayson G. Kelley Richard L. Kucharski Barry S. McNeill Thomas G. Meacham Mary E. Noonan John C. Prather Steven M. Shaber WilUam L. Shenton Michael W. Taylor Roger B. Wall Reginald L. Watkins Sarah C. Young Thomas J. Ziko Associate Attorneys 2 July 1979 Subject: Motor Vehicle; Rules of the Road; Passing Where There are Solid Center Lines Requested by: Claire McNaught Public Safety Attorney Winston-Salem, N. C. Question: Are solid center lines considered "markers" under G.S. 20-1 50(e)? Conclusion: Yes. As of July 1, 1979, soHd center lines are "markings" under G.S. 20-1 500(e) (Chapter 472, 1979 Session Laws, H.B. 1064). Chapter 472 of the 1979 Session Laws (H.B. 1064) amended G.S. 20-1 50(e) effective July 1, 1979 to read: "The driver of a vehicle shall not overtake and pass another on any portion of the highway which is marked by signs, markers or markings placed by the Department of Transportation stating or clearly indicating that passing should not be attempted." (Emphasis added) The 1 979 amendment estabHshes a mandatory duty to obey highway markings placed there by the Department of Transportation. The North Carolina Highway Marking Manual and Supplement (1978) Section 4A-7 outlines the pavement markings for no passing zones. Solid yellow center lines shall indicate no passing zones at specified intersections and on specified grades and curves. The North Carolina Department of Transportation's Drivers Handbook under Rules of the Road states: "There are some places where passing is always unsafe \ and usually against the law. Passing should not be tried: ... 4. Whenever there is a solid yellow line in your lane." -1- G.S. 20-1 50(e), as amended, prohibits passing on solid yellow center lines as they constitute "markings placed by the Department of Transportation stating or clearly indicating that passing should not be attempted." Rufus L. Edmisten, Attorney General William W. Melvin Deputy Attorney General 31 July 1979 Subject: Requested by: Question: Conclusion: Social Services; Child Support; International Reciprocal Enforcement of Support ObUgations Robert H. Ward, Director Social Services Division Department of Human Resources Is the Nation of West Gennany a foreign jurisdiction which has a substantially similar support law such that reciprocal enforcement may be effectuated under the North Carohna uniform reciprocal enforcement of support act (N.C. Gen. Stat. 52A-1 to 52A-32)? Yes. i I The Uniform Reciprocal Enforcement of Support Act (hereinafter referred to as URESA) is codified in the North Carolina General Statutes under Chapter 5 2A. As stated in 52A-2, the purposes of the Chapter "are" to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto." It is clear that URESA is a uniform law, reciprocal in nature and purpose and should be liberally construed to effectuate its purpose to accomplish and enforce the duty of a parent to support his children. Kline v. Kline, 542 S.W.2d 499 (1976). The purpose of URESA is to provide a prompt expeditious way of enforcing the duty to support minor children without getting the parties involved in complex collateral issues. Thompson v. Kite, 522 P.2d 327 (1974). URESA was designed to provide economical and expedient means of enforcing support orders for parties who are located in different states or jurisdictions. Rainey v. Rainey, 536 S.W.2d 617 (1976). From the very onset of its first adoption in the early fifties, it has been clear that URESA has been a success and the various states have adopted it, as well as its amendments, quite readily. The act seeks to apply an equitable and expeditious method of dealing with the complex problems involved. As stated in the Family Law Reporter, 4 FLR 4017, May 2, 1978: "URESA was a recognition by the states that problems of child and spousal support were no longer a purely local concern. Conventional judicial proceedings were simply unsuitable for effective enforcement of support orders because the absent spouse was normally outside the jurisdiction of the dependent's state courts, because the stay-at-home spouse could rarely afford to track down and sue the absent spouse in another jurisdiction, and because the federal courts have traditionally been closed to domestic relations actions .... URESA is an attempt to provide a consistent statutory mechanism for the interstate, and occasionally international, enforcement of support decrees without forcing the person seeking support to bring the action in the absent spouse's jurisdiction .... Even though the typical URESA proceeding involves an obligee in one state and an obligor in another state, the act's mechanism may also be used within a state on a county-to-county basis, and is occasionally used in support enforcement cases which cross national boundaries." (P. 4017) -3- In conference at the September, 1967, meeting of the National Conference on the Uniform Reciprocal Enforcement of Support Act, the central committee decided that it would be far more desirable to have state action on reciprocity with foreign jurisdictions than to seek federal involvement. Basically, this was due to the belief that the federal government would be reluctant to delve into matters relating to family law coupled with the additional problem as to which federal agency could properly and effectively represent the various states. Thus it was left to the individual states to broaden the definition in their statutes to include foreign nations. This was accomplished by a re-examination of the statutory definitions of URESA. As a result, in 1968 URESA was rewritten such that the definition of "State" in the revised resion of URESA (called RURESA) was expanded to include "any foreign jurisdiction in which this or a substantially similar reciprocal law is an effect." In 1971 , the Council of State Governments on completion of a study of URE5A found that nineteen states had provisions in their acts which permitted reciprocity with other nations. North Carolina was not among those enumerated. In this regard, it is noted that North Carolina General Statute 52A-3(8) in 1971 provided that a "State" included "any state, territory, or possession of the United States, and District of Columbia, in which this or a substantially similar reciprocal law has been enacted." Therefore, it is clear that prior to 1975, the North Carolina definition of "State" excluded anything other than a state, territory, or possession of the United states in which a reciprocal law was in effect. In order to correct the limited scope of the statute and to broaden the definition of "State", in 1975 the statute was amended so that the definition of "State" now includes any "state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the provinces of Canada in which reciprocity can be effected by administrative action, and any foreign jurisdiction in which this or a substantially similar reciprocal law is in effect:' See N.C. Gen. Stat. 52A-3(13). Obviously, the North Carolina Legislature intended that the statute as amended should include foreign nations which have a substantially similar reciprocal law within the scope of URESA. Proceeding under the new amendments, North Carolina has recently begun to enforce support laws with Ontario, Canada and thus support duties are now being enforced on behalf of North Carolina residents against residents of Ontario, and vice versa. The amendment made in 1975 clearly evidences legislative intent that the same procedure is permissable with other foreign nations. It should be noted that the objection to reciprocity with a foreign nation on the grounds that international enforcement violates the constitutional prohibition against individual states entering into treaties with foreign governments has been considered and rejected in at least one case. See Blouin v. Dembitz, 367 F. Supp. 415, D.N.Y.; aff'd 489 F.2d 488 (2d Cir. 1973). In Blouin, supra, the Court held that the statute has reciprocal effect and grants to the foreign jurisdiction the same procedural remedies in New York Courts as the foreign state grants to our citizens. The Court further held that it was not a compact with a foreign government, nor did the statute disrupt or embarrass our relations with other countries. Pp. 417-418. A review of the law of West Germany reveals that the support laws there are substantially similar to those which exist in North CaroHna and, in fact, often are broader than our own. For example, the obhgation to support includes legitimate and illegitimate children up until age eighteen. There is no statute of hmitations for the establishment of paternity. The amount of support is determined by financial need of the child and the ability of the parent to pay. Foreign orders estabhshing paternity and/or support are recognized and can be enforced in German courts or, if no judgment exists, a standard URESA petition may be sent to the German authorities who will seek to have a suitable order entered in Germany. Enforcement is through contempt proceedings similar to those followed in North Carolina. Thus, it is clear that the 1 a w of West Germany is "substantially similar" to our own. In other states which have considered this problem, notably California and Oklahoma, we find that the term "State" is defined in the same manner as it is in North CaroHna. Both Oklahoma and California have determined that West Germany is a reciprocating nation within the ambit of URESA and have granted reciprocity. Further, the West German Child Support authorities have indicated through correspondence that they are wilhng to reciprocate in the handhng of support matters. In summary, based on the history of URESA, the legislative intent as evidenced by recent amendments and action by the various states which have considered this problem, it is apparent that our Chapter 52A intends that any foreign nation which has a substantially similar support law should be granted reciprocity and that West Germany falls within the statutory definition. Rufus L. Edmisten, Attorney General Henry H. Burgwyn Associate Attorney 7 August 1979 Subject : Requested by: Question: Conclusion: Public Officers and Employees; Conflict of Interest; Remuneration of Area Board Member for Services Rendered to Program Under Contract With Area Authority Sarah T. Morrow, M.D., M.P.H., Secretary Department of Human Resources Is it allowable under the General Statutes for a member of an Area Mental Health Board to contract his services to a program which is under contract by the Area Authority? Contract for remuneration for services as described would appear to violate G.S. 14-234. I This question appears to have arisen because of the specific method of operation of group homes under the auspices of area mental health authorities in this state. An area mental health authority is a local governmental entity responsible for the delivery of mental -6- health, mental retardation, etc. services within its geographic situs, with an area mental health board serving as its governing body. See Article 2F, Chapter 122. In delivering some of these services, an area authority customarily contracts with a group home which is operated by a non-profit corporation. The situation under scrutiny involves remuneration of an attorney who is a member of the area mental health board, but has rendered services to the group home. G.S. 14-234, in essence, proscribes any public official from making any contract for his own benefit under authority of his office. Lexington Insulation Company v. Davidson County, 243 N.C. 252 (1955). Thus, it is very clear that the attorney-board member could not contract with the board for his own services. 40 N.C.A.G. 566 (1969). However, the present situation is somewhat more compHcated of resolution. This Office has previously held to be forbidden contracts between governmental boards and a private business when a member of the board is also a partner of the business or an officer or stockholder in a corporation operating the business. See 44 N.C.A.G. 128 (1974); 42 N.C.A.G. 180 (1973); 42 N.C.A.G. 9 (1972); 40 N.C.A.G. 565 (1970); 40 N.C.A.G. 561 (1969); 41 N.C.A.G. 371 (1971). Conversely, where a board member is merely an employee of the other contracting party with no pecuniary benefit flowing directly to him as a person, the situation falls outside the ambit of G.S. 14-234. State v. Debnam, 196 N.C. 740 (1929); 44 N.C.A.G. 293 (1975); 40 N.C.A.G. 565 (1970). (It should be noted that one prior member of the Supreme Court of North Carohna has had occasion to describe even a case involving only an employee of a contracting party as "...not altogether seemly, nor to be commended..." State v. Weddell, 153 N.C. 587, at page 590 (1910)) The situation presented does not squarely fall into any of the factual settings dealt with in prior opinions of this Office. However, G.S. 122-35.43 requires the Area Authority (through its board) to review and evaluate the area needs and programs and to develop the annual plan for utilization of facilities and resources; this plan must include the inventory of services to be provided and must set forth an indication of the expenditure of all funds by the Authority. G.S. 122-35.43. Consonant with these responsibilities, the Area Authority must submit a budget report indicating the receipts and -7- expenditures for the total area mental health program. G.S. 122-35.44. This particular situation, which has been characterized as a typical development if the question posed is answered in the affirmative, points up the probability of a conflict with the statute due to normal methods of operation. As described, what would be envisaged here is a transfer of specific funds into a proper line item in order to remunerate the attorney for services rendered, with the area board approving such transfer. Thus, in application, regardless of the absence of any improper motives on the part of any party, this type of transaction would indisputably present the appearance of evil and would appear to amount to a direct violation of G.S. 14-234. Rufus L. Edmisten, Attorney General WiUiam F. O'Connell Special Deputy Attorney General 9 August 1979 Subject: Education; Articles 3 2A, 32B and §115-166 of the North Carolina General Statutes; Home Instruction of a Child in Lieu of Attending a Public School. j Requested by: Mr. George T. Rogister, Jr. Attorney for the Wake County Board of Education Questions: 1. Does home instruction of a child qualify as "a school of religious charter" or as a "nonpubhc school" as used in Articles 32A and 32B of Chapter 115 of the North Carolina General Statutes? 2. Is the instruction of a child by a tutor in a private home, instruction in a "private school" as contemplated in the Compulsory Attendance Law, N.C.G.S. 115-166? Conclusions: 1. No. 2. No. The 1979 Session of the General Assembly amended Chapter 115 of the General Statutes to add two new articles, Articles 32A and 32B, both of which have the effect of Umiting the authority of the State Board of Education to regulate the educational programs of nonpubhc schools providing instruction to children of compulsory attendance age. Chapters 505 and 506 of the 1979 Session Laws. The enactment of this legislation has stirred interest in home instruction as an alternative to the education of children in either public or private schools. This Office has previously ruled that home instruction does not suffice to meet the requirements of the Compulsory Attendance Law, G.S. 115-166, et seq., 40 N.C.A.G. 211 (1969). George P. Rogister, Jr., Attorney for the Wake County Board of Education, has requested a reconsideration of this earlier opinion in light of recently enacted Articles 32A and 32B of Chapter 115. The specific question posed is whether home instruction is encompassed within the meaning of the word "school" as used in those Articles. Any discussion of the impact of legislation on education in North CaroUna is necessarily directed by several provisions of our Constitution. The appropriate role of the State in the education of its citizens is clearly set forth as follows: "The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right. N.C. Const. Art. 1, §15 Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools, libraries, and the means of education shall forever be encouraged. N.C. Const. Art. IX, §1 The General Assembly shall provide that every child of appropriate age and of sufficient ability shall attend the public schools, unless educated by other means." N.C. Const. Art. IX, §3 There can be no doubt that the North Carolina Constitution not only requires education to be encouraged, indeed it places on the State the duty to ensure that the people, most particulary the children, are educated. Any legislation which the General Assembly approves in the area of education must be read in the light of this constitutional mandate. "Every statute is to be considered in the light of the Constitution, and with a view to its intent." State v. Emery, 224 N.C. 581, 585, 31 S.E. 2d 858 (1944). Articles 32A and 32B are similar in that they both substantially limit the State's regulatory authority over nonpubhc schools. Article 32A deals specifically with "private church schools and schools of religious charter," while article 32B addresses all "qualified nonpubhc schools." In substance, the regulatory scheme is the same for schools falling under either Article 32A or 32B. The word "school" is not defined in either of these Articles. The authors of the legislation set forth in Article 32B, however, did hst the types of schools which shall qualify as "nonpublic schools". "The provisions of this Article shall apply to nonpublic schools which: (a) shall be accredited by the State Board of Education; or (b) shall be accredited by the Southern Association of Colleges and Schools; or (c) shall be an active member of the North CaroUna Association of Independent Schools; or (d) receives no funding from the State of North Carolina." N.C.G.S. 115-257.8. -10- It may be inferred from the list set forth that the legislature intended only established educational institutions, whether religious or secular, to fall within this article. All schools which would be included in subsections (a), (b), or (c) are institutions consisting of several teachers, classes of children of varying ages, a recognized and accountable administration, and a regular place for meeting. Subsection (d) is a general term, following a list of specific ones. I "In the construction of statutes, the ejusdem generis rule is that jwhere general words follow a designation of particular subjects or things, the meaning of the general words will ordinarily be presumed to be and construed as, restricted by the particular designations and as including only things of the same kind, character and nature as jthose specifically enumerated." State v. Fenner, 263 N.C. 694, 697, |140 S.E. 2d 349 (1965). Accordingly, we believe the references to ischools in subsection (d) to include only estabhshed educational iinstitutions. Sit was then apparently the intent of the legisture in enacting these [Articles to include only estabhshed and identifiable institutions within the operation of these deregulatory Articles. The intent of the legislature is, of course, controlhng in the interpretation of a statute. State v. Hunt, 287 N.C. 76, 213 S.E. 2d 291 (1975). We are of the opinion that home instruction of a child cannot reasonably be interpreted as instruction in an estabhshed and identifiable educational institution as contemplated in Articles 32A and 32B. This opinion is buttressed by the failure of the legislature to specifically include home instruction in these Articles, a failure we deem of particular significance given the constitutional duty of the legislature to "guard and maintain" the right of the people "to the privilege of an education." In addition to evaluating the impact of Articles 32A and 32B upon our earlier opinion that home instruction did not suffice to meet the requirements of the Compulsory Attendance Law, we have reexamined the statutory and decisional law which formed the basis of that opinion. G.S. 115-166, the statute upon which the earlier opinion was based, has not been amended since 1969 and there has been no court decision in North Carolina or any other jurisdiction which would cause us to change our earlier opinion. Accordingly, it is and remains the opinion of this Office that a parent does not neet the requirements of the Compulsory Attendance Law by providing liis child with instruction in the home. -11- Rufus L. Edmisten, Attorney General Edwin M. Speas, Jr. Special Deputy Attorney General 13 August 1979 Subject: Requested by: Question: Conclusion: Health; Imposition of Fee for Issuance of a Permit Thomas R, Dundon Health Director Forsyth County May a local board of health impose a fee pursuant to G.S. 130-1 7(e) for the issuance of a permit pursuant to authority delegated by the Department of Human Resources? No. The Commission for Health Services is created by G.S. 143B-142 and is granted certain powers and duties to promulgate rules concerning the pubhc health. The Commission is authorized to adopt rules governing food and lodging establishments, sewage disposal, public water systems, solid waste management, mass gatherings and numerous other matters affecting the public health. The Department of Human Resources is charged with the responsibility of enforcing the State health laws and rules by G.S. 130-11(1). Additionally, the Department may obtain assistance from local health departments in enforcing the health laws and rules. G.S. 143B-142(4) provides in part that "When directed by the Department of Human Resources, local health departments shall enforce Commission for Health Services' rules and regulations under the supervision of the Department of Human Resources." The Department, pursuant to authority contained in G.S. 130-l(d), has authorized individual sanitarians employed by local health departments to enforce State health laws and rules. The individual sanitarians are issued identification cards pursuant to G.S. 128-14. -12- Local boards of health are also authorized to make rules and regulations as are necessary to protect the public health. Such rules and regulations may be more stringent than State rules where there is an emergency or "pecuUar local condition or circumstance." Otherwise, where there is conflict, the State rules prevail over the local rules and regulations. An exception is provided by G.S. ;1 30-1 60(b) wherein the local health boards' rules and regulations 'governing sewage disposal may be approved by the Commission for Health Services and thereafter enforced by the local health departments instead of the State sewage disposal rules. The question presented herein arises because G.S. 130-1 7(e) provides {a procedure whereby the local health departments may impose fees for services rendered. A fee plan must be recommended by the local health director and then approved by the local health board and the appropriate board or boards of county commissioners. The fee is hmited to "services voluntarily rendered and voluntarily received, but shall not apply where the charging of a fee for a particular service is specfically prohibited by statute, regulation or ordinance." An example of a prohibitory statute is G.S. 130-88, as rewritten by Chapter 56, 1979 Session Laws, which provides in part that "The local health department shall administer the required immunizations without charge." Interpretation of the first phrase "voluntarily rendered and voluntarily received" is assisted by examination of Chapter 508, 1973 Session Laws, which substituted the present language "but shall not apply where..." for the prior language "and shall not apply to services required by statute, regulation, or ordinance to be rendered or received." Under the prior language, the local health departments were not authorized to charge a fee for issuance of a permit, for example, for installing a septic tank system because local health regulations required that the site be inspected and permit be issued before the septic tank installed. Under the present language, charging a fee is authorized because, although the permit is still required, charging of a fee is not specifically prohibited. Therefore, in order to give effect to the 1973 amendment, voluntariness cannot be negated merely because inspection and issuance of a permit is required before one undertakes a certain activity. Rather, voluntariness means that one freely applies for a service from the local health department such as the issuance of a permit for a septic tank system. -13- Although a local health department may impose a fee for services rendered, the question remains whether the department may impose a fee for inspections performed and permits issued at the direction of the Department of Human Resources. Chapter 130 of the General Statutes, which contains most of the public health laws, specifically authorizes the collection of fees by the Department of Human Resources for certain services but is silent concerning the remaining services. For example, G.S. 130-166.55, enacted by Chapter 788, 1979 Session Laws, imposes certain fees for analysis of water samples; G.S. 130-243 requires a one hundred dollar fee to accompany an application for a mass gathering permit; G.S. 130-177 imposes a permit fee on bedding manufacturers; and G.S . 130-166 authorizes the collection of fees for the issuance of certified copies of birth and death certificates. On the other hand, no fee is authorized for solid waste disposal regulation (G.S. 130-166.16 et seq.), for sewage disposal regulation (G.S. 130-160) or food and lodging establishment inspections (G.S. 72-46 et seq.). Furthermore, there is no general authority equivalent to G.S. 130-1 7(c) for the Department of Human Resources to impose a fee for services rendered. In fact. Chapter 559, 1979 Session Laws, effective May 1, 1981, states that "the legislative grant of authority to an agency to make and promulgate rules shall not be construed as a grant of authority to the agency to establish by rule a fee or a charge for the rendering of any service or fulfilling of any duty to the public, unless the statute expressly provides for the grant of authority to establish a fee or charge for that specific authority." "Agency" is defined to include every State department, institution or agency but to exclude counties and cities. Construing the foregoing Laws, it is the opinion of this Office that the authority of the Department of Human Resources to impose fees in matters pertaining to the public health is hmited to those matters which are expressly authorized by statute. In enforcing State health laws and rules, the local health departments are acting at the direction of the Department of Human Resources, and the local sanitarians are acting as the authorized agents of the Department. Therefore, when local health departments are enforcing State health laws and rules, they are subject to the same hmitations as the Department of Human Resources and may only collect fees specifically authorized by statute. When local health departments ^ enforce local rules and regulations, they may collect fees authorized -14- by the local board of health pursuant to G.S. 130-1 7(e). j Rufus L. Edmisten, Attorney General ! Robert R. Reilly "- Assistant Attorney General 13 August 1979 Subject: {Requested by: Question: Conclusion : Security Guards; Concealed Weapons Mr. Haywood R. Starling, Director N. C. State Bureau of Investigations Is it lawful for a registered security guard to carry a concealed weapon while performing his contractual duties within the confines of a building which is not owned by either the security guard or the contracting security company by which he is employed? No. ^. registered security guard is not permitted to carry a concealed tveapon. "§14-269. Carrying concealed weapons. - If anyone, except when on his own premises, shall willfully and intentionally carry concealed about his person any bowie knife, dirk, dagger, sling shot, loaded cane, brass, iron or metallic knuckles, razor, pistol, gun or other deadly weapon of Hke-kind, he shall be guilty of misdemeanor punishable by a fine not to exceed five hundred dollars ($500.00), imprisonment for not more than six months, or both. This section shah not apply to the following persons: Officers and enlisted personnel of the armed forces of the United States when in discharge of their official duties as such and acting under orders requiring to carry arms or 15- weapons, civil officers of the United States while in discharge of their official duties, officers and soldiers of the militia and the State guard when called into actual service, officers of the State, or of any county, city, or town, charged with the execution of the laws of the State, when acting in the discharge of their official duties, provided, however, full-time sworn law enforcement officers may carry a concealed weapon when off-duty in jurisdiction where assigned if so authorized by written regulations of the law enforcement unit, which must be filed with the clerk of court in the county where the law enforcement unit is located, provided further, that no such regulation shall permit the carrying of a concealed weapon while the officer is consuming or under the influence of intoxicating liquor." The registered security guard is not in a class specifically exempted f in G.S. §14-269 from the statutory prohibition against carrying a concealed weapon off ones own premises. The right to carry a concealed weapon off ones own premises is limited to officers of the military and the various governments in the discharge of their official duties and only with special permission and limitations when off duty. G.S. §14-269. The business of furnishing protection for private premises has expanded rapidly in recent years. Employees of companies contracted to provide security have generally replaced the company night watchman. The security guard on duty often has no direct contact with the owners or possessors of the premises. He simply patrols whichever premises he is directed to by the company. These security guards have no interest nor dominion over the land but are mere employees furnishing security. The General Assembly in the 1979 Session (Chapter 818) rewrote the 1973 Private Protective Services Act as Chapter 74 C. of the General Statutes, This act requires the hcensing of all persons, firms, associations and corporations in any manner working in private protective services. A security guard or night watchman is clearly within the scope of the act. G.S. §74C-3. This act establishes a Private Protective Services Board to set educational and training -16- requirements for all those in the private protective services business and to administer the licensing of those complying. The act sets requirements for the registration of all armed security guards which includes the completion of a basic training course on legal Umitations on the use of hand guns and on the powers and authority of an armed private security officer. G.S. §74C- 13(h)(1)(a). The registration permit authorizes the armed security officer, "while in the performance of his duties or traveling directly to and from work, to carry a standard .38 calibur or .32 caUbur revolver or any other firearm approved by the board and not otherwise prohibited by law." G.S. §74C-1 3(b)(1). The contention that a man driving in his own car on a public highway is on his own premises as to G.S. §14-269 has been specifically rejected. State v. Gainey, 273 N.C. 620 (1968). This section nor any other section in the act allows a private security officer to carry a concealed weapon while on business, traveling to and from business, or at any other time. In passing the Private Protective Services Act, the legislature puts strict requirements and regulation procedures on the business of private protective services. The act clearly spells out the firearms rights secured through a registration permit. While this statute in no way affects the right of citizens to openly bear arms, it does put restrictions on those furnishing private protective services. The statute does not authorize a security agent to exceed the statutory limitations on the carrying of concealed weapons. Rufus L. Edmisten, Attorney General William W. Melvin Deputy Attorney General 28 August 1979 Subject: Criminal Law and Procedure; Youthful Offenders; Expungement; Records and Recording Laws. 17- Requested by: The Honorable Russell G. Walker, Jr. District Attorney Nineteenth-B Prosecutorial District Question: Where a person under the age of 18 years, ^ • who has not previously or subsequently been convicted of any offense, is charged with several misdemeanor offenses, the charges are consolidated for trial and judgment, and the sentence imposed is within the statutory limit for conviction of a single offense, may the court order if expungement of the record pursuant to ] G.S. 15-223? Ij Conclusion: ; Yes. The clerks of superior court of the State are required by law to ;j maintain certain records, including records of criminal actions and \ juvenile actions, G.S. 7A-180. These records are open to public i inspection, G.S. 7A-109; 132-1, et seq., and are the property oft the people of the State. State v. West, 293 N.C. 18, 235 S.E.2d j 150 (1977). While courts have the inherent power and duty to take \ such action as is necessary to make their records speak the truth, i State V. Old, 271 N.C. 341, 156 S.E.2d 756 (1967); Mallard,^ "Inherent Power of the Courts of North Carolina," 10 Wake Forest j L. Rev. 1, 22 (1974), they are without authority to annul or expunge an accurate record, or the records of another agency of government, absent the authority of statute. State v. Bellar, 16 N.C.App. 339, | 192 S.E.2d 86 (1972). In this State, a person arrested, though in error, has no right to have the fact of his arrest removed from his criminal record except as authorized by statute, see Session Laws f' 1979, Chapter 6\, compare Code of South Carolina of 1976 17-1-40, though there may be, in some jurisdictions, a right to restrict access • to or use which may be made of such erroneous arrest record, see \' generally, 28 C.F.R., Part 20; Anno., "Right of Exonerated arrestee i to Have Fingerprints, Photographs, or Other Criminal Identification \ or Arrest Records Expunged or Restricted," 46 A.L.R.3d 900 (1972). Court records are protected by law from wrongful disposition or destruction, G.S. 14-76; 132-3,-9. Thus, statutes such as G.S. 15-223, 15-223.1, 90-96 and 90-113.14 are an exception -18- to the general prohibition of expungement or alteration of records which speak the truth. G.S. 15-223 provides: "§15-223. Expunction of records for first offenders under the age of 18 at the time of conviction of misdemeanor.~(a) Whenever any person who has not yet attained the age of 1 8 years and has not previously been convicted of any felony, or misdemeanor other than a traffic violation, under the laws of the United States, the laws of this State or any other state, pleads guilty to or is guilty of a misdemeanor other than a traffic violation, he may file a petition in the court where he was convicted for expunction of the misdemeanor from his criminal record. The petition cannot be filed earlier than two years after the date of the conviction or any period of probation, whichever occurs later, and the petition shall contain, but not be limited to, the following: 1 . An affidavit by the petitioner that he has been of good behavior for the two-year period since the date of conviction of the misdemeanor in question and has not been convicted of any felony, or misdemeanor other than a traffic violation, under the laws of the United States or the laws of this State or any other state. 2. Verified affidavits of two persons who are not related to the petitioner or to each other by blood or marriage, that they know the character and reputation of the petitioner in the community in which he lives and that his character and reputation are good. 3. A statement that the petition is a motion - in the cause in the case wherein the petitioner was convicted. -19- 4. Affidavits of the clerk of superior court, chief of police, where appropriate, and sheriff of the county in which the i petitioner was convicted and, if different, j the county of which the petitioner is a|l resident, showing that the petitioner has I not been convicted of a felony or' misdemeanor other than a traffic violation ! under the laws of this State at any time prior to the conviction for the misdemeanor in question or during the two-year period following that conviction, j The petition shall be served upon the district attorney of the court wherein the case was tried resulting in conviction. The district attorney shall have 10 days thereafter in which to file any objection thereto and shall be duly notified as to the date of the hearing of the petition. The judge to whom the petition is presented is authorized to call upon a probation officer for any; additional investigation or verification of the petitioner's conduct during the two-year period thatji he deems desirable. (b) If the court, after hearing, finds that the petitioner had remained of good behavior and been free of conviction of any felony or misdemeanor, otherj than a traffic violation, for two years from the date of the conviction of the misdemeanor in question, and petitioner was not 18 years old at the time of the| conviction in question, it shall order that such personj be restored, in the contemplation of the law, to the| status he occupied before such arrest or indictmentj or information. No person as to whom such order hasj been entered shall be held thereafter under anys provision of any laws to be guilty of perjury oi otherwise giving a false statement by reason of his failure to recite or acknowledge such arrest, oi indictment, information, or trial, or response to any inquiry made of him for any purpose. | -20- (c) The court shall also order that the said misdemeanor conviction be expunged from the records of the court, and direct all law enforcement agencies bearing record of the same to expunge their records of the conviction. The clerk shall forward a certified copy of the order to the sheriff, chief of police, or other arresting agency. The sheriff, chief or head of such other arresting agency shall then transmit the I copy of the order with a form supplied by the State I Bureau of Investigation to the State Bureau of I Investigation, and the State Bureau of Investigation shall forward the order to the Federal Bureau of Investigation. The cost of expunging such records shall be taxed against the petitioner. (d) The clerk of superior court in each county in North Carolina shall, as soon as practicable after each term of court in his county, file with the Administrative Office of the Courts, the names of those persons granted a discharge under the provisions of this section, and the Administrative Office of the Courts shall maintain a confidential file containing the names of persons granted conditional discharges. The information contained in such file shall be disclosed only to judges of the General Court of Justice of North CaroUna for the purpose of ascertaining whether any person charged with an offense has been previously granted a discharge. (1973, c. 47, s. 2; c. 748; 1975, c. 650, s. 5; 1977, c. 642, s. 1; c. 699, ss. 1, 2; 1979, c. 431, ss. 1, 2.)" ^'his statute, under State v. Bellar, supra., gives the court the equisite authority to expunge records of the arrest and conviction if persons who meet the requirements thereof. Since the statute •perates as an exception to general principles concerning the Iteration of accurate judicial records, it would appear, under the •rdinary principles of statutory contruction, that the statute should -e strictly construed, see generally , 12 Strong's North CaroHna Index d, Statutes 5, 5.2 (1978). The statute is phrased throughout in Ingular terms. If the statute is to be strictly construed, the rule -21- of G.S. 12-3(1) which allows the singular to import the plural could not be appUed. The intention of the General Assembly as ascertained from the language of the session law, Wright v. Casualty & Fidelity Company, 270 N.C. 577, 155 S.E.2d 100 (1967), is controlling, 12 Strong's , North Carolina Index 3d, Statutes 5.1 (1978). In Session Laws 1973, i Chapter 748, 1, which is the basic act from which current G.S. , 15-223 is derived, we find the following aid to interpretation of the section: "Purpose of Act. The purpose of this act is to protect the future of youthful offenders of the law. Once a criminal record is created by conviction of a person, said criminal record remains a part of his past for so long as he may live. Many youths have only one small encounter with the law. They go on to be excellent citizens, raise good families, but are always hindered by having a criminal conviction on their record. This bill is not intended to excuse those who repeat their wrongdoing, but to somehow pardon a youthful oversight in an isolated occurrence." The General Assembly's statement of purpose further articulates legislative intent as evident from the section. The statute denies the remedy to a person who has been convicted prior or subsequent) to the conviction he desires to have expunged. To that end, we| think that G.S. 15-223 would be characterized by our courts as being remedial in character, and thus subject to a rule of liberal rather than strict construction and interpretation, 3 Sutherland Statutory Construction, Chapter 60, (Sands ed., 4th ed. 1974). Furthermore, the statute provides a benefit to a juvenile offender, which some courts have held to be remedial and subject to rules | of hberal construction. In re Aline D., 14 Cal.3d 557, 121 Cal. Rptr. j 816, 536 P.2d 65 (1975); Briones v. Juvenile Court for City and} County of Denver, 534 P.2d 624 (Colo. 1975). Further evidence of the remedial intent of the General Assembly may be inferred from its enactment in the 1 979 session of Chapter 61. Chapter 61 of the 1979 Session Laws 1 (effective 20 February 1979) establishes a new section to be codified as G.S. 15-223.1. -22- Under that section, a person has not yet attained the age of 18 years, and who has not previously been convicted of any offense other than a traffic violation may have expunged the record of his arrest for any felony or misdemeanor offense if the charge is dismissed or if he is acquitted. UnUke G.S. 15-223, there is no limitation on the availability of the remedy under the new statute to a single use. The General Assembly's mercy for the youthful offender is therefore apparent. The rules governing the disposition of multiple charges in a single sentence are well established, see generally 4 Strong's North Carolina Index 3d, Criminal Law 92, et seq. (1976). The joinder of offenses for trial or disposition is addressed to the sound discretion of the court, State v. Slade, 291 N.C. 275, 229 S.E.2d 92 (1976); State V. Anderson, 281 N.C. 261, 188 S.E.2d 336 (1972). The verdict or plea of guilty to consoUdated charges authorizes the imposition of separate sentences on each charge, 4 Strong's North Carolina Index 3d, Criminal Law 137.1 (1976), but the sentence cannot exceed the maximum authorized by statute. Id. Where multiple charges are consoUdated for sentence, a sentence in excess of the maximum authorized for a single offense will not be sustained on the theory of an intent to impose consecutive sentences, State v. Austin, 241 N.C. 548, 85 S.E.2d 924 (1955). Therefore, if multiple misdemeanor charges against a youthful offender are consolidated for judgment and sentence, the sentence imposed cannot exceed the authorized sentence for conviction of a single offense. The sentencing judge, by consolidating the charges for judgment has indicated his intent to treat the charges as a single offense for the ipurpose of sentencing, even though the judgment may recite pleas of guilty to or conviction of more than a single offense. Your inquiry is directed to a case in which three charges were consoUdated for disposition and the sentence imposed within the statutory Umit for a single offense. In those circumstances and in the Ught of the purposes of G.S. 15-223, we think the convictions should be treated as a single misdemeanor for the purpose of expungment. It would be ironic and unjust that one youthful defendant could plead guilty to a single charge, have two other :jharges dismissed, receive sentence and be entitled to expungement while a second youthful offender who pleads guilty to three charges and receives an identical sentence would be ineligible for the remedy. -23- The State Bureau of Investigation's Identification and Records Sections receive many orders to expunge their records, as provided for by the statute. We are, therefore, aware that many judges of the State do order expungement in the circumstances which you describe. In our opinion, the discretionary nature of consohdation and the fact that the remedy of expungement is available only once to a youthful offender neither previously nor subsequently convicted provide adequate safeguards against abuse. We offer this interpretation in the hope that practice may be more uniform throughout the State and that the General Assembly's remedial purpose may be carried out. Rufus L. Edmisten, Attorney General David S. Crump Special Deputy Attorney General Special Assistant to the Attorney General 28 August 1979 Subject: Reciprocal Enforcement of Support i Action; Child Support; Registration of! Foreign Support Orders Requested by: Question : Mr. Larry T. Black District Court Judge 26 Judicial District Do the registration provisions of the North i Carohna Uniform Reciprocal Enforcements of Support Act (G.S. 52A-25 through 30))' apply so as to allow enforcement in North t Carolina of foreign state support orders entered prior to October 1, 1975? Conclusion: Yes. G.S. Chapter 52A, the Uniform Reciprocal Enforcement of Support Act (hereinafter URESA) was first enacted in North Carolina la# in 1951. In 1975 the act was rewritten in its entirety to substantially -24- conform to the 1968 revisions of URESA by the National Conference of Commissioners on Uniform State Laws which include a new procedure for the registration and enforcement of foreign support orders. Pinner v. Pinner, 33 N.C. App. 204, 234 S.E.2d 633 (1977). The new registration provisions are codified as G.S. 52A-25 through 30. The URESA, including the registration procedure established thereunder, creates no new substantive rights between the party seeking support and the party from whom support is being sought. The act merely sets up new procedural mechanisms whereby through substantially uniform legislation establishing reciprocity states have i created a new and more efficient way of enforcing support lobhgations. 2 Lee, N.C. Family Law 3d §169 (1963). By enacting substantially similar Uniform Reciprocal Enforcement of Support Acts, all fifty states have sought to avoid support enforcement problems previously experienced because of the inapplicability of the full faith and credit clause of Article IV, Section 1 of the United States Constitution to foreign state support orders deemed to be ijnon-final. Brockelbank and Infausto, Interstate Enforcement of Wamily Support, pp. 77-90 (2d ed. 1971). The bill (Senate Bill 357) passed in 1975 revising the Uniform Reciprocal Enforcement of Support Act is entitled: "AN ACT TO REWRITE CHAPTER 52A OF THE GENERAL STATUTES ENTITLED 'UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT ACT'." N.C. Sess. Laws 1975 -c. 656, s.l. After completely rewriting the text of the Uniform Reciprocal Enforcement of Support Act in Section 1 of the bill, the General Assembly went on in Section 2 of the bill to state as follows: "This act shall not apply to pending litigation including proceedings which have been initiated in a state other than North Carolina." N.C. Sess. Laws 1975 c. 656 S.2. 3! pThe foregoing statement by the General Assembly in Section 2 of jfhe bill relating to the applicability of the rewritten URESA raises -25- I the present issue as to whether the newly estabHshed registration provisions may be used to obtain interstate enforcement of a support order of another state predating the effective date (October 1 , 1 975) of Senate Bill 357. In an analogous case the North Carolina Supreme Court has addressed the effect of applicability language virtually identical to the language used in Section 2 of Senate Bill 357. Spencer v. McDowell Motor Company, 236 N.C. 239, 72 S.E.2d 598 (1952). In the Spencer case the defendant Motor Company was contesting the effect of the General Assembly's enactment of an evidentiary statute after the point in time when the plaintiff's cause of action arose. In addressing the defendant's allegation that the statute should not be retroactively applied because of language of non-applicability to "pending litigation", the court in relevant part states: "While appellant motor company does not contend that the Legislature is without authority to change the rules of evidence ..., it contends that under rules of interpretation the Act should not be given retroactive effect, that is, as to existing causes of act, ... It seems clear, however, from the language of the Act that the Legislature intended that on and after 1 July 1951, the only hmitation upon the applicability of the Act is that it shall not apply to pending litigation, that is, litigation then pending. It is so expressly provided. An action is pending from the time it is commenced until its final determination. And a civil action is commenced by the issuance of a summons. ... Moreover, the maxim expressio unius est exclusio alterius, that is, that the expression of one thing is the exclusion of another applies. From the fact that the Legislature expressly provided that the provisions of the Act shall not apply to pending Htigation, it may be imphed that it should apply in all other cases. ...(L)aw5 which change the rules of evidence relate to I the remedy only, and are at all times subject to \ modification and control by the Legislature, and ... \ -26- changes thus made may be made applicable to existing causes of action. ... Retrospective laws would certainly be in violation of the spirit of the Constitution if they destroyed or impaired vested right, but ... one can have no vested right in a rule of evidence when he could have no such right in the remedy, and ... there is no such thing as a vested right in any particular remedy. " Spencer v. McDowell Motor Company, supra, 236 N.C. at 246. (quotations and citations omitted) (emphasis supplied) I Similarly, the Act in question, N.C. Sess. Laws 1975 c. 656, and j specifically the registration provisions codified as G.S. 52A-26 ithrough 30 are purely remedies. Referring to the URESA as a whole G.S. 52A-4 reads: "These remedies herein are in addition to and not a substitution for any other remedies." :In addition to the foregoing provision concerning remedies, the section of the Act immediately preceding the registration provisions states: "If the duty of support is based on a foreign support order, the obligee has the additional remedies provided in the following sections". G.S. 52A-25. (emphasis supplied) Accordingly, the URESA as rewritten in 1975 does not affect any vested right of a potential defendant from whom support is sought. A defendant has no vested right in limiting an obligee to pre-URESA remedies for interstate enforcement of support duties, to wit: following a defendant obligor into a foreign state forum for purposes of lawsuit de novo there or after reducing any preexisting initiating state support order to final judgment, pursuing the defendant obligor to a foreign state for suit on the final judgment obtained under the doctrine of full faith and credit. A plaintiff's cause of action for failure to support, including that under the URESA, is based on attempted enforcement of a duty of support. Under the URESA this term is defined as follows: -27- i '"Duty of Support' means a duty of support whether imposed or imposable by law or by order, decree, or judgment of any court whether interlocutory or final or whether incidental to an action for divorce, separation, separate maintenance, or otherwise and includes the duty to pay arrearages of support past due and unpaid". G.S. 52A-3(2). (emphc^is supplied) Oftentimes, the obligee in an interstate support case has previously obtained a support order in a state from which an obligor has fled. Under the terminology of the URESA, when the registration remedy ^ (52A-25 through 30) is attempted to be invoked, the state in which the order was initially obtained would be termed the "rendering state". G.S. 52A-3(11). Whenever a support order is outstanding in the state from which; the obligor has fled, the obligee could in the alternative choose to use the traditional URESA remedy. (G.S. 52A-1 through 52A-24). 2 Lee N.C. Family Law 3d §169 nn. 264-5(1963); Brockelbank and Infausto, Interstate Enforcement of Family Support, p. 80 nn.; 189-190 (2nd ed. 1971). When proceeding under the traditional URESA remedy, the state in which a support order was originally obtained is termed the "initiating state". G.S. 52A-3(4). Whenever there is a preexisting support order in a "rendering state" or "initiating state", it may be argued there exists "pending litigation" or "proceedings which have been initiated in a state other, than North CaroUna" as the terms are used in N.C. Sess. Laws 1975 c. 656 S.2. In support matters htigation is always pending for the cause of action remains in the continuing jurisdiction of the court! and motions may always be made therein. Barber v. Barber, 216 N.C. 232, 4 S.E.2d 447 (1939). Nevertheless, a preexisting order in another state cannot be logicallyj interpreted to be "pending litigation" or "proceedings initiated in, another state" so as to bar use of the registration procedures for foreign state support orders obtained prior to October 1, 1975, the. effective date of the legislation. Because Section 2 of Senate Bill 357 says "(t)his act shall not apply to pending litigation including proceedings which have been instituted in a state other than Northi -28- ! Carolina", such an interpretation would arguably make the totally rewritten URESA mechanism, be it the traditional method or the new registration method, unavailable to any obligee having, as is often the case, a support order outstanding in an "initiating state" or "rendering state" predating October 1, 1975. A statutory construction of this nature would operate to defeat the objects of the URESA and "must be avoided if that can be reasonably done without violence to the legislative language". 12 N.C. Index 3d, Statutes §5.9. The URESA contains two sections relating to the objects of this Legislative Act which state: "The purposes of this Chapter are to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto." G.S. 52A-2; and "This Chapter shall be so interpreted and construed and as to effectuate its general purpose to make uniform the law of those states having a substantially similar act." G.S. 52A-32. Consequently, it would be an illogical construction of Section 2 of Sentate Bill 357, rewriting the URESA in its entirety, for the words "pending litigation" or "proceedings initiated in another state" to include a preexisting order of another state used as a basis to estabHsh the duty of support under G.S. 52A-3(2) and a concomitant basis for invoking either- the traditional or registration remedies of the Act. If the construction was otherwise, all URESA remedies would arguably be barred for all cases involving a pre-October 1, 1975, order entered in a state other than North Carolina while URESA cases for the same time frame but based on the mere existence of a legal relationship hke parent/child would be proper. This alternative construction steadfastly holding to a literal interpretation of the statute would lead to an anomalous, absurd result both unintended by the General Assembly and properly avoidable. In general see 12 N.C. Index 3d Statutes § 5.9 (1978). Moreover, there is yet another reason why the language in question was not intended to encompass preexisting orders of other states; -29- that is, the North Carohna "act" as rewritten obviously could not "apply" to pure orders of foreign states. With the exception of proceedings or pending litigation instituted under a foreign URESA with a view towards obtaining a support order in North Carohna through the procedures established under the North Carolina URESA, pending foreign proceedings or litigation are beyond the jurisdiction of our legislative enactments. Therefore, the words in question must logicahy refer to "pending URESA Htigation" or URESA proceedings which have been initiated in a state other than North Carohna." i For these reasons it is the opinion of this Office that the existence of foreign state orders for support predating October 1, 1975, do not bar the use of the URESA registration procedures (G.S. 52A-26 through 30) for purposes of registering and seeking enforcement of such preexisting orders. Rufus L. Edmisten, Attorney General R. James Lore Associate Attorney 29 August 1979 Subject: Requested by: Retirement; Local Disabihty Retirement ! Plan; Longevity Pay Considered in Computation. Robert J. Robinson, City Attorney Asheville Question : Conclusion: Should longevity pay be taken into j consideration in computing disability | payments to policemen retiring pursuant to \ provisions of the Asheville Pohcemen'sj Pension and Disability Fund? j Yes. Asheville policemen are members of the Asheville Policemen's Pension and Disability Fund, pursuant to Chapter 188 of the 1977 -30- Session Laws, amended by Chapter 429 of the 1 979 Session Laws. The question has arisen whether longevity pay should be taken into account in computing disability payments for policemen suffering disability in the line of duty. Section 3(a) requires the deduction of "five percent (5%) of the monthly salary of every member of the policemen's fund" as a mandatory contribution to the Asheville Pohcemen's Pension and Disability Fund. The term "monthly salary" is not defined anywhere in the Act. Service retirement benefits and benefits for disability not incurred in the line of duty are computed according to a formula based upon the member's total earnings in the last twenty years of service for service retirement or since beginning service with the i Asheville Police Department for Disabihty not incurred in the hne j of duty. A member who is disabled while acting in the line of duty or as a result of the performance of duties as a member of the Asheville Police Department is entitled to "receive monthly a sum equal to seventy percent (70%) of his monthly salary as then paid by the City of Asheville ... ." Secfion 9(a), Chapter 188, 1977 payments shall be taken into consideration in computing seventy percent (70%) of the monthly salary, or what constitutes the police officer's monthly salary for purposes of computing the seventy percent (70%) for disability retirement benefits. I'Employees of the City of Asheville who have completed five or more years of service are ehgible for longevity pay bonuses, at a graduated rate according to the number of years of service. Longevity pay bonuses are paid annually, during the second pay period during the month of December. The "Longevity Pay Plan Administration Guidehnes for Fiscal Year 1978-79" included a statement that longevity pay bonuses are classified by the Internal Revenue Service as part of an employee's normal income for the current calendar year and that, as such, the bonuses were subject to the normal deductions, including federal and state income tax, .social security, and appHcable retirement and pension plans. In other words, contributions to the Asheville Pohcemen's Pension and Disability Fund have been deducted from these annual longevity payments. The Guidehnes for administration of the longevity pay plan for the fiscal year 1 978-79 include methods for computing the bonus on a pro-rata basis for each month of service for employees ion leave without pay during part of the fiscal year and for employees -31- who retired during the fiscal year. However, it appears that contributions to the Asheville PoUcemen's Pension and Disabihty Fund have not been deducted for longevity pay bonuses paid on a pro-rata basis to employees who have retired or applied for disability retirement on the basis of a disability incurred in the line of duty or as a result of the performance of their duties even though these pro-rata longevity pay bonuses have been paid for the period during which these pohcemen were in active service. Given all the facts and circumstances, it appears that a portion of the longevity bonuses which represent one month's employment should be included in the member's monthly salary" in order to compute seventy percent (70%) of the monthly salary of a policeman retiring on disability incurred in the line of duty or as a result of performance of duties. Although contributions to the Asheville Policemen's Pension and Disability Fund are not deducted from longevity pay bonuses made after the employee ceases to work because of disability, normally pension fund contributions are deducted from longevity pay bonuses. It does not appear reasonable to conclude that "monthly salary" includes longevity pay bonuses for purposes of determining deductions from one's salary, but not for purposes of computing seventy percent (70%) of the salary for benefits. Barring specific statutory provisions to the contrary, funds from which disabihty and pension fund contributions are deducted should be included in the basis for computing a disability and pension fund benefit. Therefore, it is our opinion that longevity pay bonuses should be taken into consideration in computing seventy percent (70%) of an Asheville policeman's salary for purposes of determining monthly benefits for a pohce officer who becomes disabled in the hne of duty or as a result of the performance of duties as an Asheville pohce officer. The same conclusion would not necessarily hold true for persons retiring from the Asheville Pohcemen 's Pension and Disability Fund i on a line of duty disabihty basis when the provisions as amended in 1979 control. The 1979 amendments, in Chapter 429 of the Session Laws, provide for a line of duty disability in the amount of seventy percent (70%) of the member's "basic monthly salary rate as then paid by the City of Asheville." The change in language for hne of duty disabihty, with no change in the language directing the deduction of five percent (5%) from the member's "monthly -32- salary," requires the conclusion that the basis upon which the line of duty disability is figured will differ from the compensation from which the mandatory five percent (5%) employee contribution is deducted. Rufus L. Edmisten, Attorney General Norma S. Harrell Assistant Attorney General 29 August 1979 Subject: Requested by: Question : Railroad Company; North Carolina Railroad Company; Atlantic and North Carohna Railroad Company; Acquisitions and Dispositions of Real Property; Governor and Council of State. Mr. Joseph W. Grimsley, Secretary Department of Administration Do future land acquisitions or dispositions planned by the North Carohna Railroad Company and the Atlantic and North Carolina Railroad Company require the prior approval of the Governor and Council of State? Future dispositions of real property by these companies must be approved by the Governor and Council of State. Acquisitions of real property by these companies are not subject to the approval of the Governor and Council of State unless the acquisition constitutes an encumbrance on the property of the Railroad. The North Carolina Railroad Company was incorporated by the General Assembly of North Carohna as a private corporation in -33- Conclusion: II 1849. Session Laws of North Carolina, 1849, Chapter 83. The Atlantic and North Carolina Railroad Company was incorporated by the General Assembly of North Carohna as a private corporation in 1852. Session Laws of North Carohna, 1852, Chapter 136. The State of North Carolina is the majority stockholder in each of the corporations. The State owns 75.8 percent of the stock in the North Carolina Railroad Company. It owns 73.5 percent of the stock in the atlantic and North Carolina Railroad Company. G.S. 124-5 reads as follows: "no corporation or company in which the State has or owns any stock or any interest shall sell, lease mortgage, or otherwise encumber its franchise, right-of-way, or other property, except by and with the approval and consent of the Governor and Council of State." This statute, if given its full Uteral affect, would apply to a disposition of real property by any corporation in which the State owns a single share of stock. Such a construction might give rise to a question of constitutionality. However, it is unnecessary to address that question at this time. The State of North Carolina is the majority stockholder in each of the Railroad companies. There is a presumption in favor of the constitutionahty of a statute. Strong's N. C. Index 3d, Statutes, §4.1. We are of the opinion that this statute would be constitutional as applied to the North Carolina Railroad Company and the Atlantic and North Carohna Railroad Company. Therefore, we conclude that future dispositions of real property by these companies require the approval of the Governor and Council of State. G.S. 124-5 appUes only to dispositions of property. It does not apply to acquisitions of property except when the acquisition would constitute an encumbrance on the property of the Railroad. We are unable to find any other statutory provision which requires approval by the Governor and Council of State for acquisition of property by these companies. Since these companies are private corporations, the provisions of Chapter 146 of the General Statutes relating to acquisitions of real property by State agencies would not apply. -34- 4 September 1979 Subject: Requested by: Questions: Conclusion: Rufus L. Edmisten, Attorney General Roy A. Giles, Jr. Assistant Attorney General Courts; Costs; Witnesses; Worthless Checks; G.S. 7A-314; G.S. 14-107(5) as Enacted by Chapter 837, Session Laws of 1979. Honorable John S. Gardner Chief District Court Judge 704 W. 27th St. Lumberton, N. C. 28358 1. In a worthless check prosecution pursuant to G.S. 14-107 where the defendant pays the worthless check and court costs to the magistrate before the date of trial, and the prosecuting witness is not present before the magistrate, should the prosecuting witness be paid the witness fee under G.S. 14-107(5)? Should the fee be included in the bill of cost? 2. If on the date of trial, the defendant pleads guilty, and the prosecuting witness is not present in court and does not testify, would the prosecuting witness be entitled to the witness fee under G.S. 14-107(5) and should it be taxed as costs? 1 No. No. In its strict legal sense, the word "witness" means one who gives evidence in a cause before the court. 97 CJS 350. -35- The right of a witness to compensation is purely statutory, and the court's power to tax costs is entirely dependent upon statutory authorization. State v. Johnston, 282 N.C. 1. The right to tax costs did not exist at common law. Costs are penal in nature and statutes relating to costs are strictly construed. City of Charlotte v. McNeely, 281 N.C. 692. In McNeely, supra, the Court held that a party who testified for himself was not entitled to a witness fee. The general rule seems to be that a witness must be in actual attendance on the Court to be entitled to compensation, but he need not be called to testify. Likewise, the rule is that in order to tax the other party for plaintiff's witness fees, the plaintiff's witnesses must be under subpoena, and must be examined or tendered. Johnson, supra. G.S. 7A-314 provides that a witness under subpoena, bound over or recognized to testify shall be entitled to receive $5.00 per day or fraction thereof, during his attendance. (Emphasis added) Chapter 837, Session Laws of 1979, amended G.S. 14-107 by adding subsection (5) to read: "(5) In deciding to impose any sentence other than an active prison sentence, the sentencing judge may require, in accordance with the provisions of G.S. 15A-1343, restitution to the victim for the amount of the check or draft and each prosecuting witness (whether or not under subpoena) shall be entitled to a witness fee as provided by G.S. 7A-314, which shall be taxed as part of the cost and assessed to the defendant." Thus, we conclude that in those cases where the prosecuting witness is entitled to a witness fee, the prosecuting witness must be in attendance upon the Court before the witness fee can be taxed as part of the costs. -36- G.S. 14-107(5) is an exception to the requirement that the witness must be under subpoena, but actual attendance on the Court is required. The compensation to a witness is not to pay him for testifying, but simply to provide partial reimbursement for the time and expense incurred from being in attendance upon the Court. Under the facts presented, the prosecuting witness was not in attendance upon the court and witness fee authorized by G.S. 14-107(5) should not be taxed as costs. Rufus L. Edmisten, Attorney General James F. Bullock Senior Deputy Attorney General 13 September 1979 Subject : Requested by: Question: Conclusion: Constitution; U.S. Constitution; First Amendment Right to Association; Municipal Employees; Unions; Supervisory Personnel Membership in Union Representing Employees. E. Murray Tate, Jr., Esquire City Attorney Hickory, North Carolina May a city terminate the employment of a Fire Department Officer with supervisory duties solely on account of his membership in a labor union which counts non-supervisory fire department personnel among its members? A city has a legitimate interest in maintaining a disciplined and efficient fire department. That interest is significantly compromised by the conflicting loyalties -37- which unavoidably arise when fire \ department supervisors join unions which ^ represent fire department employees. Therefore, the city may legally prohibit i supervisory personnel from joining unions i which include in their membership non-supervisory fire department ! employees. ' It has long since been decided that the freedom of association attendant to and protected by the First and Fourteenth i Amendments of the United States Constitution encompasses i economic associations such as labor unions, Thomas v. Collins, 323 i U.S. 516 (1945); Atkins v. City of Charlotte, 296 F. Supp. 1078 (W.D.N.C. 1969). Moreover, one may no longer seriously question whether public employees have the same associational rights as their privately employed counterparts, Elrod v. Bums, 427 U.S. 347 (1976); McLaughlin v. Tilendis 398 F.2d 287 (7 Cir. 1968); AFSCME V. Woodward, 406 F.2d 137 (8 Cir. 1969). Nevertheless, a public employee's First Amendment rights are not without Hmit. See Civil Service Commission v. National Association of Letter \ Carriers, 413 U.S. 548 (1973); Broadrick v. Oklahoma, 413 U.S. 601 (1973); Elk Grove Fire Fighters Local No. 2340 v. Willis, 400 I F. Supp. 1097 (N.D. 111. 1975), affirmed, 539 F.2d 714 (7 Cir. 1976); York County Fire Fighters Association, Local 2498 v. York , County, 589 F.2d 775 (4 Cir. 1978). i Contemporary First Amendment analysis requires that the constitutionality of a state action be determined only after the public interest which the state's action purports to protect is balanced against the individual interests of the person or persons i affected by the action. Following this analysis, the United States Supreme Court has held that a state may not limit First Amendment \ freedoms unless it first estabhshes: (1) the existence of a substantial, j legitimate state interest; (2) a direct relationship between that i interest to be served and the proposed state action; and (3) the | action is the least drastic restriction of constitutional rights which \ will accomplish the state's purpose, Shelton v. Tucker, 364 U.S. i 479 (1960). Several federal courts have recently had an occasion to apply this three-prong test to state laws which prohibit publicly employed -38- supervisors from joining unions which include in their membership employees under those supervisors' authority. In three cases deaUng specifically with fire department personnel, these courts have upheld a state's right to impose this limit upon their supervisors' union membership. In Elk Grove Fire Fighters Local Na 2340 v. Willis, supra. Local 2263, International Association of Fire Fighters v. City of Tupelo, Mississippi, 439 F. Supp. 1224 (N.D. Miss., Ed 1977), and York County Fire Fighters v. Yorktown, supra, federal courts were asked to determine whether a municipahty might constitutionally prohibit fire department supervisory personnel from joining unions which counted non-supervisory fire department employees among its members. Following the analysis and guidelines established by the { United States Supreme Court, these courts first found that the state has a legitimate and substantial interest in the efficiency of its fire departments. I'The courts next found supervisor membership in unions to be inimical to fire department efficiency, Elk Grove, supra, at 1100. In reaching this conclusion, the judges reHed heavily upon the congressional judgment embodied in Section 14(a) of the Labor Management Relations Act (29 U.S.C. §169 (a)). That section of the Taft-Hartley Amendments freed employers to discharge supervisors who joined unions and reflected a legislative determination that management, like labor, must be assured a contingent of loyal agents. See Beasley v. Food Fair of North Carolina, 416 U.S. 653 (1974). Though noting that the NLRA is limited to private employers, the courts pointed out the parallels between the private and public sector which make that determination equally applicable to government employers. Legislation aside, the courts found support for their holding in the adversarial labor-managemetn relation. In times of labor unrest (strikes, picketing, slowdowns) unionized supervisors' loyalties would naturally be divided. Moreover, a more pervasive and potentially more disruptive conflict of interest would necessarily arise out of the cities' use of unionized officers to implement municipal policies [which the union might oppose. - -- -39- "Practically the only circumstance in which a conflict of interest would fail to arise would be if there were no conflict between (city) officials and the firefighters union over any aspect of working conditions, a rather unlikely eventuality." Elk Grove, supra at 1103. Thus the courts found that supervisor membership in unions would retard department efficiency and interfere with a substantial state interest. Finally, the courts found the regulations in question to be the least restrictive means of accomplishing the state's objectives. They emphasized that the regulations did not prohibit supervisors from joining any union, but only enjoined their membership in unions which counted fire department employees among their members. The courts held such a limitation to be clearly and precisely drawn to achieve the state's legitimate objectives while avoiding undue restriction of the supervisors' rights. In sum it has been determined that the state's interest in maintaining \ an effective fire fighting force outweighs the supervisors' limited 1 interest in belonging to a union which represents their subordinates. Therefore, a city may constitutionally prohibit a fire department I officer from joining a labor union which includes non-supervisory \ fire department employees among its members. Rufus L. Edmisten, Attorney General I Thomas J. Ziko ' Associate Attorney 14 September 1979 Subject : Requested by: Licenses and Licensing; Occupational Licensing Board; Travel Expense of Members; Payment of Actual Travel Expenses Henry L. Bridges State Auditor ^0- Question: Does G.S. 138-7 authorize the payment of actual travel expenses to members of occupational licensing boards, over and above the amounts provided in the schedule in G.S. 138-6(a)(3) for officers and employees of State departments? Conclusion: No. G.S. 138-7 does not authorize the reimbursement of excess travel expenses of members of occupational licensing boards, by reason of: (1) the express limitation of G.S. 93B-5(b) restricting reimbursement of occupational licensing board members to amounts "not to exceed that authorized under G.S. 138-6(a) (1)(2) and (3)" for State employees; (2) the express restriction of G.S. 93B-5(d) which provides that "except as provided herein, board members shall not be paid a salary or receive any compensation for services rendered as members of the board"; and (3) the absence of any express exception in G.S. 138-7 to G.S. 93B-5 as was made to G.S. 138-5 and G.S. 138-6. iG.S. 93B-5 provides for compensation exclusively for members of occupational licensing boards. Subsection (b) provides for reimbursement of travel expenses "in an amount not to exceed that authorized under G.S. 138-6(a)(l)(2) and (3) for officers and employees of State departments". Subsection (d) provides: "except as provided herein board members shall not be paid a salary or receive any additional compensation for services rendered as members of the board. " |G.S. 138-6(a) provides for travel allowances for State officers and employees of State departments, institutions and agencies which operate from funds deposited with the State Treasurer. Subsection (3) provides for "in lieu of actual expenses incurred for subsistence, payment of $31.00 per day when traveling in State or $39.00 per day when traveling out-of-state." It further provides for proration of subsistence payment when travel involves less than a 24 hour -41- period in accordance with regulations promulgated by the Director of the Budget. G.S. 138-7 as rewritten by the 1979 General Assembly provides that "expenditures in excess of the maximum amount set forth in G.S. 138-5 and G.S. 138-6 for travel and subsistence may be reimbursed if the prior approval of the department head is obtained." The Budget Director is required to establish and promulgate regulations under which "actual expense in excess of travel and subsistence allowance and convention registration fees as prescribed in G.S. 138-5 and G.S. 138-6 may be authorized by department heads for hotel, meals and registration." (Chapter 838, Section 17, 1979 Session Laws). G.S. 138-5 provides for compensation for all boards and commissions, (excluding occupational licensing boards), which operate from funds deposited with the State Treasurer. Subsection (2) provides for the payment of subsistence while traveling at the rate of $15.00 per day or $35.00 per day when away over-night. The language of G.S. 93B-5 is clear and does not require interpretation. G.S. 93B-5 deals exclusively with the compensation of occupational Hcensing board members and controls over any other statutes having general application. The language used expressly Umits subsistence of occupational licensing board members to amounts not to exceed that authorized by G.S. 138-6(a)(3). By reference, an express limitation of $31.00 per day for in-state travel and $39.00 per day out-of-state is placed on the amount of ) subsistence to be reimbursed, subject to proration according to regulation promulgated by the director of the budget for periods j of travel less than a twenty-four hour period. G.S. 93B-5 further i prohibits the payment of any additional compensation for services except as provided by G.S. 93B-5. G.S. 138-7 expressly provides for exceptions to G.S. 138-5 and G.S. 138-6 and authorizes reimbursement for actual expenses in excess of travel and subsistence as "prescribed by G.S. 138-5 and G.S. 138-6." G.S. 138-5 and G.S. 138-6 prescribe compensation for members of State boards and commissions excluding occupational licensing boards and for officers and employees of State agencies, which operate from funds deposited with the State Treasurer. G.S. -42- 138-7 does not provide an exception to the statute authorizing compensation to occupational licensing board members (G.S. 93B-5) as it does to other statutes authorizing compensation for members of boards and commissions excluding occupational Ucensing boards I (G.S. 138-5) and to State officers and employees (G.S. 138-6). Where I express exceptions are made, the legal presumption is that the Legislature did not intend to save other cases from the operation lof the statute. 50 Am. Jur. Statutes §434. A review of the history of the statutes providing for reimbursement for travel expenses supports the conclusion that G.S. 138-7 has no ! appHcation to the reimbursement of travel expenses for occupational 'licensing board members. The statute (G.S. 93B-5) dealing exclusively with occupational licensing boards was passed and i codified in 1957. In 1961, the General Assembly enacted and codified G.S. 138-5, G.S. 138-6 and G.S. 138-7 (Chapter 833, Sections 5, 6 and 6.1). The provisions were basically the same as had been previously provided in the 1957 and 1959 Budget Appropriations Acts with two exceptions. G.S. 138-5 and G.S. 138-6 as now codified only apply to boards and commissions and State departments and agencies "which operate from funds deposited with the State Treasurer". The other exception is that previously no excess payments had been authorized and a specific provision was made for reimbursement for excess travel expenses incurred over the amounts in the schedule which was codified as G.S. 138-7. i G.S. 138-7 expressly provides exceptions to G.S. 138-5 and G.S. 138-6" and requires the Director of the Budget to promulgate regulations under which actual expenses in excess of those ''prescribed by G.S. 138-5 and G.S. 138-6 may be reimbursed. We have considered the 1979 amendment. The 1979 amendment to G.S. 138-7: (1) reversed the sequence of the two sentences in that section; (2) eliminated the requirement for approval of the Advisory Budget Commission for the promulgation of the rules and regulations; and (3) provided for prior approval of the department head for reimbursement of travel and subsistence in heu of the prior approval of the Director of the Budget. We do not find that the rewrite of G.S. 138-7 by the 1979 General Assembly extended the exceptions to the statute providing compensation to occupational licensing board members or to agencies which operate from funds iwhich are not deposited with the State Treasurer. -43- For the foregoing reasons, this Office is of the opinion that G.S. 138-7 does not authorize the reimbursement of occupational licensing board members for subsistence expenses incurred in connection with travel in excess of the rates specified in G.S. 138-6(a)(3). Rufus L. Edmisten, Attorney General Eugene A. Smith Special Deputy Attorney General 17 September 1979 Subject: Requested by: Questions: Lotteries; Bingo; Raffles; High School Booster's Club; Five-Hundred Dollars t ($500) Limitation; Merchandise Mr. R. Michael Jones Lucas, Rand, Rose, Meyer, Jones & Orcutt, P.A. Counsel for the Wilson County School System 1. May the local high school booster's club legally sponsor a raffle which offers merchandise as a prize or must any prize be in the form of cash? 2. If an exempt organization may offer merchandise as well as cash prizes in the conduct of a raffle, does the five hundred dollars ($500) limitation apply to prizes in the form of merchandise? Conclusions: 1. Yes. An exempt organization may legally sponsor a raffle which offers merchandise as a prize; the prize need not be in the form of cash. 2. No. Only a cash prize is limited in the amount of five hundred dollars ($500). -44- Subsection (g) of G.S. 14-292.1 deals with the limitations on the amount of cash prizes and the value of merchandise prizes to be offered or paid in bingo games and raffles. Subsection (g) reads as follows: "(g) The maximum prize in cash or merchandise that may be offered or paid for any one game of bingo is five hundred dollars ($500.00). The maximum aggregate amount of prizes, in cash andIor merchandise, that may be offered or paid at any one session of bingo is one thousand five hundred dollars ($1,500). Provided, however, that if an exempt organization holds only one session of bingo during a calendar week, the maximum aggregate amount of prizes, in cash andlor merchandise, that may be offered or paid at any one session is two thousand five hundred dollars ($2,500). The maximum cash prize that may be offered or paid for any one raffle is five hundred dollars ($500.00)." (Emphasis added) Each of the above limitations on prizes for both raffles and bingo games are very specific. These specific limitations are hmitations on the general exemption from North CaroHna lottery laws (Article 37 I of Chapter 14 of the General Statutes) for exempt organizations 'to operate and sponsor bingo games and raffles. The clear and definite use of the terms "cash" and "merchandise" in the three sentences in subsection (g) relating to bingo games and the term "cash" in the last sentence of subsection (g) relating to raffles leads jto the conclusion that the legislature- clearly intended to make no ispecific limitation in regards to merchandise prizes for raffles. i ITherefore, provided the exempt organization meets all other requirements of G.S. 14-292.1, merchandise may be offered or paid as prizes for a raffle and there is no limitation as to the value of [such merchandise prizes. Rufus L. Edmisten, Attorney General ! Acie L. Ward Assistant Attorney General -45- 3 October 1979 Subject: Motor Vehicles; Size of Vehicles and Loads Requested by: Mr. Randy Jones North Carohna Department of Natural Resources & Community Development Division of Environmental Management Question: Does G.S. 20-1 16(g) apply to a basically "unloaded" truck that is depositing material on the road? Conclusion: Yes. G.S. 20-1 16(g) reads in relevant part: "(g) No vehicle shall be driven or moved on any highway unless such vehicles is so constructed or loaded as to prevent any of its load from dropping, sifting, leaking, or otherwise escaping therefrom, except that sand may be dropped for the purpose of securing traction, or water or other substance may be sprinkled on a roadway in cleaning or maintaining such roadway. ..." Any part of a load or what may remain as a prior load dropping, , sifting, leaking, or otherwise escaping from a vehicle other than sand being dropped for the purpose of securing traction or water or other substance being sprinkled on the roadway for the purpose of maintaining the roadway would constitute a violation of this section. The provision appearing in the last unnumbered paragraph of this section relative to the transportation of poultry, livestock, silage or other feed grain should be noted. Rufus L. Edmisten, Attorney General William W. Melvin Deputy Attorney General -46- 3 October 1979 Subject: Courts; Costs Allowed for Service of Civil Process. Requested by: Larry J. McGlothlin Cumberland County Sheriff's Attorney Question: Does G.S. 7A-3 11(a)(1) require civil process fees to be assessed, collected and remitted when the law enforcement officer serves or attempts to serve civil process? Conclusion: Yes. Chapter 310, Session Laws of 1965, enacted G.S. 7A-311 and provided the fee to be assessed and collected for each item of civil |)rocess served or attempted to be served. Iphapter 417, Session Laws of 1973 amended G.S. 7A-311(a)(r) by jieleting the phrase "or attempted to be served". { Iphapter 1139, Session Laws of 1973 (2d Session) amended G.S. i7A-311 (a)(1) by adding a new sentence: "If the process is served, [t)r attempted to be served by the sheriff, the fee shall be remitted (o the city rather than the county." Chapter 801, Session Laws of 1979 rewrote G.S. 7A-31 1(a)(1) and livided it into subsections (a) and (b). The first deals with the imount of the fee to be assessed and (b) contains the language that the process is served, or attempted to be served, the fee shall e paid to the city if by a policeman and to the county if by the heriff. t appears clear from the history and language of G.S. 7A-31 1(a)(1), hat the fee is paid when the process is served, or attempted to )e served, by the law enforcement officer. Rufus L. Edmisten, Attorney General James F. Bullock "^ Senior Deputy Attorney General -47- 3 October 1979 Subject: Register of Deeds; Mortgages and Deeds of Trust-Cancellation Requested by: W. W. Speight Pitt County Attorney Question: Is the beneficiary of a deed of trust who is also the payee or holder of the note entitled to have the deed of trust cancelled of record? Conclusion: Yes. G.S. §45-37(2) provides that a deed of trust may be cancelled of record if the deed of trust and note or other instrument secured thereby are exhibited to the Register of Deeds, with the endorsement of payment and satisfaction by i (a) The obligee (b) The mortagee (c) The trustee (d) An assignee of the obhgee, mortgagee, or trustee, or (e) Any chartered banking institution. As pointed out in a previous opinion, the beneficiary of a deed of trust, as such, is not one of the persons authorized by the statute to obtain cancellation. 48 N.C.A.G. 50 (1978). There was no indication in the question upon which that opinion was based that the beneficiary was an obligee, a bank or assignee thereof. Id, at[ p. 51. : The question presented here clearly states that the beneficiary of; the deed of trust is also the payee or holder of the underlying indebtedness. In this case, the beneficiary is an obligee. See,, BLACK'S LAW DICT. 1226 (Rev. 4th Ed. 1968). Therefore, thei beneficiary, in his capacity as obligee may make the required endorsements and obtain cancellation of record of the deed of trust, i -48- Rufus L. Edmisten, Attorney General Lucien Capone, III Associate Attorney General October 1979 Subject : Requested by: I j buestion: Weapons; Carrying Concealed Weapons; Railroad Police Lawton Eure, Training Evaluator Criminal Justice Training & Standards Council Can Railroad police carry concealed weapons anywhere in the State when in the performance of their official duties? iConclusion: Yes. I [n relevent part, G.S. 14-269 reads as follows: §14-269. Carrying concealed weapons -If anyone, except when on his own premises, shall willfully and intentionally carry concealed about his person any bowie knife, dirk, dagger, sling shot, loaded cane, brass, iron or metallic knuckles, razor, pistol, gun or other deadly weapon of hke kind, he shall be guilty of a misdemeanor punishable by a fine not to exceed five hundred dollars ($500.00), imprisonment for not more than six months, or both. This section shall not apply to the following persons: ... officers of the State, or of any county, city, or town, charged with the execution of the laws of the State when acting in the discharge of their official duties, ..." -, .S. 74A-2, in relevant part, reads as follows: "§74A-2. Oath, powers, and bond of company police; exceptions as to railroad police.-(a.) Every poUceman -49- so appointed shall, before entering upon the duties of | his office, take and subscribe the usual oath. ' (b) Such pohcemen, while in the performance of the i | duties of their employment, shall severally possess all I the powers of municipal and county police officers to make arrests for both felonies and misdemeanors: [ (1) Upon property owned by or in the | possession and control of their respective employers; or ^ (2) Upon property owned by or in the i possession and control of any person or persons ' who shall have contracted with their employer ( or employers to provide security for protective | services for such property; or (3) Upon any other premises while in hot pursuit of any person or persons for any offense committed upon property vested in subdivisions (1) and (2) above. (d) The limitations on the power to make arrests contained in subdivision (1), (2) (and) (3) of subsection (b) shall not be applicable to pohcemen appointed for any railroad company. Policemen appointed for railroad companies shall be required to post a bond in the sum of five hundred dollars ($500.00) in lieu of the bond required by subsection (c)." G.S. 74A-3 reads: "74A-3. Company police to wear badges-Such policemen shall, when on duty, severally wear a shield with the words 'Railway PoHce' or 'Company Pohce' and the name of the corporation for which appointed inscribed thereon, and this shield shall always be worn -50- 'i in plain view except when such police are employed as detectives." G.S. 74C-3(8)(b)(6) reads: "Private protective services shall not mean: (6) Company poHce or railroad police as defined in Chapter 74A of the General Statutes of North Carolina; ..." In Tate v. R.R., 205 N.C. 51 (1933), the Court held: "The weight of authority maintains the position that special officers appointed by the State for poHce duty at the expense of a railway company or other corporation are prima facie public officers, ..." In Assoc, of Licensed Detectives v. Morgan, Attorney General, 17 N.C. App. 701 (1973) the Court said: "Private or special police are public officers, Tate v. R.R., 205 N.C. 51, 169 S.E. 816 (1933), and therefore, a proper subject of regulation by the State in exercise of its police power." It would appear that railroad pohce fall into one of two categories; i.e., those hired for the purpose of security of railroad property, and those who serve in the capacity of detectives. Those who serve in the general capacity of security of property should comply with the provisions of G.S. 74A-3 relative to the wearing of a shield with the words "Railway Police" and the name of the company or ; corporation for which they are appointed. Therefore, if a weapon is needed, concealment would serve no purpose, however, such does not appear to be prohibited while on the railway's property. Railway police employed as detectives are not required to wear a shield as they are exempt from the requirements of G.S. 74A-3. Further, I being a pubUc officer, they are also exempt from the provisions I of G.S. 14-269 while on duty. As to whether a railway detective is on duty is simply a question of fact. -51- Rufus L. Edmisten, Attorney General William W. Melvin Deputy Attorney General 9 October 1979 Subject: Requested by: Question: Conclusion: Counties, Municipalities, Garnishment, Child Welfare, Garnishment for Enforcement of Child Support, N.C.G.S. 110-136. Rufus C. Boutwell, Jr. Assistant City Attorney City of Durham Does a city have immunity fromi [ garnishment proceedings brought for child support under N.C.G.S. 110-136? No. The legislative intent of Article 9, Chapter 110 of the General Statutes is to provide financial support for dependent | children and to provide an enforcement' procedure against the parent responsible; for providing support to such children.! Thus, limited to the narrow area of child' support under Article 9, it is the opinion of this Office that the General Assembly: did not intend to provide a remedy ofi support for all children except those whosei parents are employed by a governmental! entity. Therefore, the city may be ai garnishee for this hmited purpose. | We find no North Carolina case dealing with the specific question in the area of child support or construing G.S. 110-136 where a governmental entity was the garnishee. The general rule in this State, and apparently the majority rule, is that the State, or poUtical subdivisions and agencies thereof, cannot be summoned as garnishees -52- in any action without statutory authority. Various reasons have been given by the courts, including the reason that public pohcy demands the exemption of the government and its agencies from Hability as garnishees. In Swepson v. Turner, 16 N.C. 115, the North Carolina Supreme Court adopted the pubhc policy view. So far as can be ascertained, however, this case has not been cited or reHed upon in this State since the opinion was written in 1877. We do not depart from the general rule stated above, but we do construe the language of G.S. 110-136, and the purpose set forth in G.S. 110-128 as revealing a legislative intent to provide child support for all dependent children and not to discriminate against those children whose parents happen to be employed by the State ] or any of its agencies or poHtical subdivisions thereof. I The pertinent statute, G.S, 110-136, providing for garnishment for enforcement of child-support obhgation, commences with the words i "(n)otwithstanding any other provision of the law". These words generally mean in spite of other provisions and that the statute operates without obstruction from other statutes. This has been held ; to carry over to decisional law. Dover v. Dover, 15 C.A. 3d 675, 93 Cal. Rptr. 384; Words and Phrases, Vol. 28A. Further, the garnishment statute under inquiry provides, in part, that "(t)he garnishee is the person, firm, association, or corporation i by whom the responsible parent is employed." G.S. 1 10-1 36(a). G.S. 12-3(b) defines the word "person" as extending to and applied i to bodies politic and corporate, as well as individuals, unless the * context clearly shows otherwise. A body politic is a State, county, or municipal corporation. Student Baf Asso. v. Byrd, 293 N.C. at !600. Thus, we construe the word "person" as used in G.S. 110-136 as embracing the State, a county or municipality. The welfare of children has always been a paramount concern of the courts and the State. The General Assembly, in recent years, has expressed its concern in this area by the enactment of various (legislation. It does not seem reasonable to think that it intended i'to deny a valuable remedy for enforcement of the support obligation ito some children simply because the responsible parent is an employee of the State, county, city or other governmental entity. -53- We hold, therefore, that, by reason of the legislative intent and pubhc policy expressed in G.S. 110-136, the statute is applicable to the State, counties and municipal corporations, and they are not immune from garnishment proceedings brought thereunder. Rufus L. Edmisten, Attorney General William F. Briley Assistant Attorney General 10 October 1979 Subject: Requested by: Question: Conclusion: Social Services; Medicaid; Mental Health; Hospitals Dr. Sarah T. Morrow, Secretary North Carohna Department of Human Resources Under the 1979 Appropriations Act, may mental and specialty hospitals in North Carohna be reimbursed by the Medicaid \ program for an unUmited number of administrative days? Yes. Under Section 23 of the 1979 Appropriations Act for the State | of North Carohna (Chapter 838 of the 1979 Session Laws), the;, Medicaid program will pay on behalf of its recipients allowable costs for all hospital in-patient care rendered, subject to the exception that payment for administrative days shall be limited to a maximum of three days for any period of hospitalization. It is our understanding that administrative days are days during which alternative placement of a patient is planned and effected and for which there is no medical necessity for hospital in-patient care. In essence, these days constitute a grace period for the orderly placement of a Medicaid patient into a lesser level of care or home setting. The apparent intent of the General Assembly in enacting the provision relating to administrative days was to provide a -54- financial disincentive to allowing Medicaid patients to linger in hospitals when the medical necessity for hospitalization had expired. By imposing the aforementioned limitation on Medicaid payment for administrative days, it appears that it was the expectation of the General Assembly that hospitals would act in their own best financial interest by providing for the timely and appropriate discharge of Medicaid patients who no longer require hospitaUzation. iOn the other hand, the Medicaid payment basis for mental and specialty hospital services under Section 23 of the 1979 Appropriations Act is not subject to any limitation on allowable costs. Hence, the indisputable answer to the question posed is that (under the 1 979 Appropriations Act for the State of North Carolina mental and specialty hospitals may be reimbursed by the Medicaid program for an unlimited number of administrative days. The absence of any Umitation on Medicaid payment for administrative days with respect to mental and specialty hospitals is probably {founded on the rather substantial difficulty in making alternative placement arrangements for mentally and physically handicapped patients. It should be noted that this Opinion addresses a narrow question relating exclusively to the State Appropriations Act. We have neither JDeen asked for nor offer our opinion on whether the difference in payment basis between regular hospital in-patient care and mental ;ind specialty hospital care may conflict with federal law or regulations or constitutional mandates. Rufus L. Edmisten, Attorney General William Woodward Webb Special Deputy Attorney General 10 October 1979 subject: Mental Health, Area Mental Health, Mental Retardation and Substance Abuse Authorities; marking of motor vehicles _ owned by area authorities. -55- Requested by: Question: Conclusion: Sarah T. Morrow, M.D., M.P.H. Secretary Department of Human Resources Does G.S. 14-250 requiring certain publicly owned vehicles to be marked apply to vehicles owned by an area mental health, mental retardation and substance abuse authority? No. ' As pertaining to this inquiry, G.S. 14-250 provides as follows: "It shall be the duty of the executive head of every department of the State government, and of any county, or of any institution or agency of the State, to have painted on every motor vehicle owned by the State, or by any county, or by any institution or agency of the State, a statement that such car belongs to the State or to some county, or institution or agency of the State." By statutory definition, an area mental health, mental retardationi and substance abuse authority is a local political subdivision of the State. (G.S. 122-35.36(1)). Title to the type of personal property described in the present query is held by the area authority. (G.S. 122-35.53). Prior opinions of the Attorney General have been consonant with these statutory provisions (or their predecessors) and have been based upon the premise that an area authority is a separate entity from the State and from the county. See, 47 N.C.A.G. 8 (1977); 44 N.C.A.G. 185 (1975); 45 N.C.A.G. 120 (1975); 42 N.C.A.G.! 120 (1972); 45 N.C.A.G. 70 (1975). As a result, an area mental health, mental retardation and substance abuse authority does not fall within the provisions of G.S. 14-250. Rufus L. Edmisten, Attorney General William F. O'Connell Special Deputy Attorney General -56- 10 October 1979 Subject: Requested by: Questions: Conclusions: Social Services; Mental Health; Conflict of Interest; Payment of Public Assistance to Persons in Rest Homes W. W. Speight County Attorney for Pitt County 1 . May payment of public assistance be made for the care of a person in a home for the aged, family care home, or other domicihary facihty which is owned or operated in whole or in part by an employee of a State Alcoholic Rehabilitation Center? 2. May payment of pubhc assistance be made for the care of a person in a home for the aged, family care home, or other domiciliary facility which is owned or operated in whole or in part by a corporation of which an employee of a State Alcoholic Rehabilitation Center is an officer or a shareholder? 3. May payment of pubhc assistance be made for the care of a person in a home for the aged; family care home, or other domiciliary facility which is rented from an employee of an area mental health, mental retardation and substance abuse authority? 1. 2. No. No. Yes. IG.S. 108-65.2, as amended by 1979 Session Laws, Chapter 702, effective May 30, 1979, provides as follows: -57- "108-65.2. Limitations on payments-No payment of public assistance under this Part shall be made for the care of any person in a home for the aged, family care home, or other domiciliary facility which is owned or operated in whole or in part by any of the following: 1. a member of the Social Services Commission, of any county board of social services, or of any board of county commissioners; 2. an official or employee of the Department of Human Resources or of any county department of social services; 3. a spouse of a person designated in subdivisions (1) and (2)." The State Alcohohc RehabiUtation Centers are set up by the Department of Human Resources and are an integral part of thatj department. See G.S. 122-7.1. Since the chnical director is an employee of the Department of Human Resources, the proscriptions: of G.S. 108-65.2 apply to any home of the type described therein i which is owned by that employee. Similarly, these prohibitions! would also seem to apply to situations wherein an employee of an Alcohohc Rehabilitation Center is an officer or a shareholder of a corporation which owns or operates, in whole or in part, one of these types of homes. That conclusion has been reached with regard to the interpretation of the language of G.S. 14-234 and no distinction can logically be made here. For prior opinions of this Office in comparable situations, see 44 N.C.A.G. 128 1974), 42 N.C.A.G. 180 (1973); 42 N.C.A.G. 9 (1972); 40 N.C.A.G. 565 (1970); 40 N.C.A.G. 561 (1969). On the other hand, an area mental health, mental retardation and substance abuse authority is a local political subdivision of the State. See G.S. 122-35.36(1)). As a result an employee of an area mentalj health, mental retardation and substance abuse authority is not an employee or an official of the State or of any county. See G.S. 122-35.45(b); 47 N.C.A.G. 8 (1977); 45 N.C.A.G. 70 (1975). Thus the provisions of G.S. 180-65.2 would be inapphcable to such an employee. -58- 12 October 1979 Subject: Requested by: Questions: Ll Conclusions: Rufus L. Edmisten, Attorney General William F. O'Connell Special Deputy Attorney General Mental Health; Mental Hospitals; Requiring Residents to Participate in Fire Drills Sarah T. Morrow, M.D., M.P.H. Secretary Department of Human Resources 1. In a fire-drill situation at a State mental hospital is the staff authorized to physically remove a non-consenting patient from his ward? 2. In such a situation would it make any difference if the patient were on voluntary or involuntary status? 3. If the answer to question (1) is yes, what degree of force should be utiHzed in removing the patient? 1 Yes. No. 3. Only a reasonable degree of force under existing circumstances should be utilized in removing the patient. jit appears that the Life-Safety Code and accreditation standards vital ' 'to the operation and funding of State mental hospitals require that internal disaster, fire and evacuation drills shall be held at least quarterly for each work shift of program personnel in each separate -59- patient-occupied building. These questions are prompted by the refusal, on occasion, of some patients to get out of bed and leave the ward during such a drill. The patients involved include some who are involuntarily committed to the hospital by court order, others who are voluntarily admitted upon their own request, and juveniles or other incompetents who are voluntarily admitted with court ordered approval. In all of these situations, the State occupies the position of parens patriae regarding these residents; as a result, the State is responsible for the patient's safety, health and welfare. Certainly the evacuation of all residents, including those reluctant to participate would be necessary in order to truly evaluate the adequacy of evacuation procedures. Thus, the ability to require participation in the basic drills described is a fundamental necessity in order to enable the fulfillment of the State's responsibilities-for the short range purpose of immediate protection of the residents involved as well as for the long range purpose of insuring the continued operation of the hospitals in order? \ to care for present and future mentally ill persons. No distinctionj; should be made on this score as to the right to refuse to participate by the voluntarily admitted patient or those patients present! pursuant to a court order. In other words, the remedy available] to a purely voluntary competent patient, should he so desire, would-be a request for discharge within the time hmitations levied by G.S. 122-56.3, not absolution from compliance with reasonable requirements of the hospital. In order to secure evacuation, reasonable force may be utilized. As. an addendum, though, it would seem that the employees securing! compliance should be persons trained in the handling of mentally' ill patients who have performed similar functions in insuring' compliance with other reasonable hospital directives. On aj cautionary note, it should be recognized that any foreseeable injuryj to the patients which is caused by undue force could well leavej the hospital, the State and the individual employee vulnerable tcl litigation seeking damages. ' Rufus L. Edmisten, Attorney General WilHam F. O'Connell Special Deputy Attorney General -60- 23 October 1979 Subject: i Requested by: Social Services; Confidentiality of Public Assistance Records; G.S. 108-45 Dr. Sarah T. Morrow, Secretary North Carolina Department of Human Resources iQuestion: bonclusion : Is it lawful, under applicable State and federal laws and regulations, for a county department of social services to disclose names and other information concerning persons receiving public assistance to the Evaluation Section of the North Carolina Department of Human Resources or its contractual agent in order that an evaluation and report on the expenditure of State funds for the homemaker/chore services program may be done? Yes. It is our understanding that the General Assembly of North Carolina specifically requested an evaluation and report by the Department of Human Resources on the expenditure of State funds for the homemaker/chore services program provided under Title XX of the Social Security Act. The responsibility for making this evaluation and report has been assigned to the Evaluation Section of the Department of Human Resources. In order to discharge this iresponsibihty, the Evaluation Section will require access to the records of Title XX public assistance recipients within the county departments of social services. Pursuant to the provisions set forth in Section 2003(d)(1)(B) of the Social Security Act (42 U.S.C. § 1397b(d)(l)(B)), the federal regulations found at 45 C.F.R. 205.50, and G.S. 108^5(a), public assistance records generally (and Title XX records in particular) are enveloped with confidentiahty except for purposes directly :onnected with the administration of the various programs of public assistance. It is our interpretation of these provisions that county -61- departments of social services may legally release names and other i information concerning persons receiving Title XX public assistance that are contained in the records of the department since the purpose ' for acquiring this information is without a doubt directly connected | with the administration of a program of public assistance (i.e., Title XX). Moreover, in view of our conclusion, there is no need for the county department of social services to obtain the consent of the 3 recipient prior to the release of the information sought. | We reach the same conclusion should the Evaluation Section decide to contract with another agency outside the Department of Human Resources to conduct the actual evaluation provided the contract j contains a provision prohibiting disclosure of the information * gathered to third parties. The purpose in collecting the information remains the same irrespective of who does the collecting, j Additionally, with the contractual prohibition against disclosure, the agency conducting the evaluation is subject to standards of t, confidentiality comparable to those governing the county j departments of social services. Accordingly, under the authority of] the federal regulation found at 45 C.F.R. §205.50(a)(2)(ii), it would j be lawful for the county departments of social services to release Ij to the contractor information concerning individuals receiving Title 1^ XX public assistance. 24 October 1979 Subject: Requested by: Rufus L. Edmisten, Attorney General William Woodward Webb Special Deputy Attorney General Administrative Px rio»^c.e.»dsuuruievso ^Avc^tv;, ^ Department of Administration; Office of the Governor; Division of State Budget and Management; Budget Manuel Administrative Rules Review Committee of the General Assembly -62- Questions: 1. Is the budget manual of the Division of State Budget and Management required I to be filed with the Attorney General? 2. Is the budget manual of the Division of State Budget and Management subject to the adoption and amendment procedural requirements of the Administrative Procedures Act? Conclusion: 1. Yes, except for those parts already I -' filed or which are not rules. i 2. Yes, except for those parts already filed or which are not rules. |. G.S. 150A-58, in relevant part, reads as follows: (b) As used in this Article, "rule" means every rule, regulation, ordinance, standard, and amendment thereto adopted by any agency and shall include rules and regulations regarding substantive matters, standards for products, procedural rules for complying with statutory or regulatory authority or requirements and executive orders of the Governor. r.S. 150A-59, in relevant part, reads as follows: Rules adopted by any agency on or after February 1 , 1976, shall be filed with the Attorney General. All rules shall become effective 30 days after fiHng, unless the agency shall certify the existence of good cause for, and shall specify, an earlier or later effective date. An eariier effective date shall not precede the date of filing. I North Carohna Administrative Code 2A .0103 reads as ?"ollows: ll The budget manual sets forth policies and procedures to be followed by state agencies in preparing, -63- monitoring and executing the state's budget. Copies of the budget manual shall be provided to the various departments of state government and are available for public inspection at the division office. History Note: Statutory Authority G.S. Chapter 143, Article 1 ; Eff. February 1, 1976; Readopted Eff. February 27, 1979. G.S. 150A-63, in relevant part, reads as follows: (c) If the Attorney General determines that pubUcation of any rule would be impracticable, he shall substitute a summary with specific reference to the official rule on file in his office. Chapter 150A, the Administrative Procedures Act, has two separate and distinct definitions of "rule." The definition in Article 5. Publication of Administrative Rules, is more inclusive than the rule making definition in Article 2, Rule Making, Regulations exempt from the rule making article are not exempt from the pubhcation article unless the regulation is exempted by G.S. 150A-58(b)(l^). G.S. 150A-59 states no rule, as defined in G.S. 150A-58, may j become effective any eariier than the date of filing with the Attorney General. The budget manual is a compilation of rules and regulations developed by the Division of State Budget and Management which sets forth pohcies and procedures state agencies must follow in preparing, monitoring and executing the state's budget. An examination of the contents of the manual discloses that it consists of (1) reprints of General Statutes, (2) reprints of other sections of the Administrative Code, and (3) regulations not contained in other sections of the code. This last category includes regulations developed by the Division of State Budget and Management which are necessary to provide more specific procedures for complying with the requirements of the General Statutes and the Executive Orders of the Governor. The last category also contains the portions of the budget manual which have not been filed with the Attorney -64- , General. The rule on file, 1 N.C.A.C. 2A .0103, describes the budget i manual and states it may be inspected in the division office. G.S. 1 150A-63(c) allows for a summary rule if the publication of a rule 'would be impracticable, but it requires the official rule must be on file in the Attorney General's Office. Those portions of the budget manual which are rules within the the meaning of G.S. i 150A-58 and which have not previously been filed with the Attorney i General must be filed with the Attorney General to be effective. (2) In relevant part, G.S. 150A-9, reads as follows: It is the intent of this Article to establish basic minimum procedural requirements for the adoption, amendment, or repeal of administrative rules ... No rule hereafter adopted is vahd unless adopted in substantial comphance with this article. G.S. 150A-10, in relevant part, reads as follows: As used in this Article, "rule" means each agency regulation, standard or statement of general applicabihty that implements or prescribes law or poHcy, or describes the organization, procedure, or practice requirements of any agency. The term includes the amendment or repeal of a prior rule but does not include the following: (1) Statements concerning " only the internal management of an agency and not affecting private rights or procedures available to the pubhc; (6) Interpretative rules and general statements of policy of the agency. G.S. 150A-12, in relevant part, reads as follows: (f) No rule making hearing is required for the adoption, amendment or repeal of a rule which solely describes the organization of the agency or describes forms or instructions used by an agency. -65- G.S. 150A-14, in relevant part, reads as follows: An agency may adopt, by reference in its rules and without publishing the adopted matter in full, all or any part of a code, standard or regulation which has been adopted by any other agency of this State or any agency of the United States or by a generally recognized organization or association. G.S. 150A-2, in relevant part, reads as follows: (1) "Agency" means every ... department, division, council, member of Council of State, or officer of the State Government of the State of North Carolina... ' ! Article 2, Rule Making has a definition of "rule" which varies substantially from that of Article 5. The definition in G.S. ISOA-IO! determines which regulations are subject to the procedural requirements of Article 2, which include notice of hearing and public^ hearing prior to adoption. The two exemptions cited above, G.S. 150A-10(1) and (6), may include some of the unfiled portions of!; the budget manual. In applying the definition of "rule," the exemption created by G.S. 150A-10(1) should be limited to those regulations concerning the internal management of the Division of State Budget and Management. Some guidance on the exemption created by G.S. 150A-10(6) is provided by Professor Charles E.; Daye in his 1975 article entitled "North Carolina's New Administrative Procedures Act: An Interpretive Analysis," 53 N.C. Law Review 833-923, (1975). At page 853, it states: "Generally speaking, interpretative rules carry no sanction, and if a sanction is involved, it is seen as emanating from the statute ... It should be emphasized that careful scrutiny of the substance of the rule in question is critical, since the interpretive rule exclusion, if not confined to proper boundaries, could well subsume the rulemaking provisions." Finally, two separate statutory sections may exempt certain of thai regulations of the budget manual from rulemaking or publication in full. G.S. 150A-12(f) exempts any regulations which describe -66- "forms or instructions used by an agency." G.S. 150A-14 exempts Tom publication in full any regulations adopted by another agency bf the State which are adopted by reference. It should be noted any regulations so adopted must be amended any time the promulgating agency alters a regulation for the adopting agency to maintain the same regulations or the promulgating agency. 'Each regulation in the budget manual must be individually examined to determine (1) whether it is a rule within the meaning of G.S. 150A-10; (2) whether, although it is rule, it is exempted from the rule making requirements by G.S. 150A-12(f); and (3) whether it was adopted by reference and thereby exempt from pubhcation. When the manual was developed, the Division of State Budget and Management was a part of the Department of Administration. By Executive Order 38, that division was transferred to the Office of the Governor on September 10, 1979. Both the Governor's Office and the Department of Administration are agencies within the statutory definitions of "agency" m G.S. 150A-2(1) and G.S. ;150A-58(c) and are required to comply with Article 2, Rule Making, and Article 5, Publication of Administrative Rules, to the same extent as are other agencies not specifically exempted. Rufus L. Edmisten, Attorney General Daniel F. McLawhom Assistant Attorney General 25 October 1979 Subject: Requested by: Mental Health, Area Mental Health, Mental Retardation and Substance Abuse Authorities; Use of proxy votes at Area Mental Health, Mental Retardation and substance abuse Board Meetings. Mr. Mansfi |
OCLC Number-Original | 2640733 |