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THE LIBRARY OF THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL THE COLLECTION OF NORTH CAROLINIANA C3U0 N87a V.U7 1977/78 UNIVERSITY OF N.C. AT CHAPEL HILL 00033947365 ^•-**-« FOR USE ONLY IN I THE NORTH CAROLINA COLLECTION 1 Digitized by tine Internet Arciiive in 2011 witii funding from Ensuring Democracy tiirougii Digital Access (NC-LSTA) http://www.archive.org/details/northcarolinaatt19771978 47 N.C.A.G. No. 1 Pages 1 through 145 NORTH CAROLINA ATTORNEY GENERAL REPORTS Opinions of the Attorney General July 1, 1977 through December 30, 1977 MAILING ADDRESS: Post Office Box 629 Raleigh, North Carolina 27602 RUFUS L. EDMISTEN Attorney General /W7a. James F. Bullock Senior Deputy Attorney General Andrew A. Vanore, Jr. Senior Deputy Attorney General Robert Bruce White, Jr. Senior Deputy Attorney General Jean A. Benoy Deputy Attorney General William W. Melvin Deputy Attorney General Millard R. Rich, Jr. Deputy Attorney General Charles H. Smith Administrative Deputy Attorney General Howard A. Kramer Deputy Attorney General for Legal Affairs John A. Elmore, II Special Assistant to the Attorney General Myron C. Banks James L. Blackburn Jesse C. Brake Lester V. Chalmers, Jr. T. Buie Costen David S. Crump Ann Reed Dunn Sidney S. Eagles, Jr. Robert P. Gruber Herbert Lamson, Jr. John R. B. Matthis William F. O'Connell William A. Raney, Jr. James B. Richmond Jacob L. Safron John M. Silverstein, Jr. Eugene A. Smith Edwin M. Speas, Jr. Special Deputy Attorneys General Archie W.-^Anders George W. Boylan William F. Briley Elisha Harry Bunting, Jr. Elizabeth C. Bunting H. Al Cole, Jr. John C. Daniel, Jr. Amos C. Dawson, III Roy A. Giles, Jr. Richard L. Griffin Zoro J. Guice Guy A. Hamlin Claude W. Harris Ralf F. Haskell Charles M. Hensey Alan S. Hirsh I. B. Hudson, Jr. Sandra M. King Richard N. League James E. Magner, Jr. Charles J. Murray Daniel C. Oakley George J. Oliver George J. Poe, Jr. WilHam B. Ray Robert R. Reilly, Jr. Jo Ann S. Routh Alfred N. Salley James L. Stuart James M. Wallace, Jr. Acie L. Ward Robert G. Webb W. Woodward Webb Thomas B. Wood Assistant Attorneys General Sylvia X. Allen Rudolph A. Ashton, III Isaac T. Avery, III Rebecca R. Bevacqua David Blackwell William H. Boone Jean Boyles Christopher P. Brewer Henry H. Burgwyn Joan H. Byers Lucien Capone, III James M. Carpenter Christopher S. Crosby Thomas H. Davis, Jr. Sarah L. Fuerst Edward H. Galloway Donald W. Grimes Claudette C. Hardaway Norma S. Harrell Risa L. Harris Patricia B. Hodulik Ben G. Iron, II Douglas A. Johnston George W. Lennon R. James Lore Nonnie F. Midgette Thomas F. Moffitt Mary I. Murrill Robert W. Newson, III J. Chris Prather Wilton E. Ragland, Jr. Marilyn Y. Rich James E. Scarborough Gloria Mamite Shuford James P. Smith Jane R. Thompson Thomas M. Todd Patricia H. Wagner John R. Wallace Kaye R. Webb Cynthia Zeliff Associate Attorneys LIST OF ATTORNEYS GENERAL SINCE 1776 Term of Office Waightsill Avery 1776-1779 James Irdell 1779-1782 Alfred Moore 1782-1790 J. John Haywood 1791-1794 Blake Baker 1794-1803 Henry Seawell 1803-1808 Oliver Pitts 1808-1810 William MOler 1810-1810 Hutchins G. Burton 1810-1816 William Drew 1816-1825 James F. Taylor - 1825-1828 Robert H. Jones 1828-1828 Romulus M. Saunders 1828-1834 John R. J. Daniel 1834-1840 Hugh McQueen 1840-1842 Spier Whitaker 1842-1846 Edward Stanly 1846-1848 Bartholomew F. Moore 1848-1851 William Eaton 1851-1852 Matt W. Ransom 1852-1855 Joseph B. Batchelor 1855-1856 William H. Bailey 1856-1856 William A. Jenkins 1856-1862 Sion H. Rogers 1862-1868 William M. Coleman 1868-1869 Lewis P. Olds 1869-1870 William M. Shipp 1870-1872 Tazewell L. Hargrove 1872-1876 Thomas S. Kenan - 1876-1884 Theodore F. Davidson 1884-1892 Frank I. Osborne 1892-1896 Zeb V. Walser 1896-1900 Robert D. Douglas 1900-1901 Robert D. Gilmer 1901-1908 T. W. Bickett 1909-1916 James S. Manning 1917-1925 Dennis G. Brummitt 1925-1935 A. A. F. Seawell 1935-1938 Harry McMuUan 1938-1955 William B. Rodman, Jr. 1955-1956 George B. Patton 1956-1958 Malcolm B. Seawell 1958-1960 Thomas W. Bruton . 1960-1969 Robert Morgan 1969-1974 James H. Carson, Jr. 1974-1974 Rufus Ligh Edmisten 1974- 15 July 1977 Subject : Requested by: Questions: Mental Health; Criminal Law and Procedure; Physicians and Doctors; Capacity to Stand Trial; Furnishing Psychiatric Evaluation to District Attorney Bob Rollins, M. D. Chief, Forensic Services Dorothea Dix Hospital (1) Do the General Statutes of North CaroUna preclude the Forensic Unit at Dorothea Dix Hospital from forwarding a copy of the full capacity to proceed report of a defendant in a criminal action to the appropriate district attorney upon the latter's request or upon the Unit's own initiative? (2) In order to authorize this action, is it necessary that the judge's order directing the psychiatric evaluation provide that the district attorney shall receive a copy of this report? (1) Yes, except for the covering statement for the report. (2) In order to permit this action it must be authorized in such order or in a subsequent order by the judge. What is basically involved here is the question of the confidentiahty of a medical report and the appHcabihty of the physician-patient privilege. It should be noted that the physician-patient privilege was not recognized by common law. It is strictly a creature of statute. 44 ALR3d 24, 45. Traditionally, this privilege has not been held to appertain to court ordered psychiatric evaluations designed for use in the criminal prosecution of a defendant. See State v. Case, 253 N.C. 130, 116 S.E.2d 429 (1960), cert denied 365 U.S. 830, 5 L.ed.2d 707, 81 S.Ct. 717. -1- Conclusions: The language of G.S. 122-8.1 is consonant with that tradition. That statute deals with the disclosure of information or records by physician, psychiatrists, etc., at institutions operated by the North Carolina Department of Human Resources. After restrictive language regarding the disclosure of information or records of patients in normal situations, the following language is found therein: "Provided that where a person or persons are defendants in criminal cases and a mental examination of such defendants has been ordered by the court, the Department of Human Resources through its agents and officers may transmit the results of the report of such mental examination to the clerk of said court and to the district attorney or prosecuting officer and to the attorney or attorneys of record for the defendant or defendants." G.S. 15A-1002 contains provisions deahng with the procedures to be taken when the question arises as to the mental capacity of a defendant to proceed with trial in a criminal case. As pertinent here, that statute provides as follows: "(b) When the capacity of the defendant to proceed is questioned, the court: (2) May commit the defendant to a State mental health facility for observation and treatment for the period necessary to determine the defendant's capacity to proceed. In no event may the period exceed 60 days. The superintendant of the facihty must direct his report on defendant's condition to the defense attorney and to the clerk of superior court, who must bring it to the attention of the court. The report is admissible at the hearing. (d) Any report made to the court pursuant to this section shall be forwarded to the clerk of superior -2- court in a sealed envelope addressed to the attention of a presiding judge, with a covering statement to the clerk of the fact of the examination of the defendant and any conclusion as to whether the defendant has or lacks capacity to proceed. A copy of the full report shall be forwarded to defense counsel, or to the defendant if he is not represented by consel. A copy of the covering statement shall be forwarded to the district attorney. Until such report becomes a public record, the full report to the court shall be kept under such conditions as are directed by the court, and its contents shall not be revealed except as directed by the court. Any report made to the court pursuant to this section shall not be a pubhc record unless introduced into evidence." Subsection (d) is entirely new language added by the 1977 session of the General Assembly; it became effective on July 1, 1977. In view of the specific language of this later enacted statute, any conflict between it and G.S. 122-8.1 must be resolved in its favor. Thus, absent an order from the judge, only a copy of the covering statement, with contents as described, may be forwarded by the Forensic Unit to the district attorney until such time as the report has been introduced into evidence. No doubt, however, the General Assembly recognized that earlier release of the full report to the district attorney will quite often serve the desirable end of providing speedy trials to defendants in fair, efficient proceedings conducted by informed, well-prepared counsel having timely access to all available material, relevant and competent evidence. Therefore, the language of G.S. 15A- 1002(d) clearly permits the court, using its discretion in an individual case, to direct that a copy of the full report be- given to the district attorney prior to the time it has become a public record. Rufus L. Edmisten, Attorney General William F. O'Connell Special Deputy Attorney General 20 July 1977 Subject: Requested by: Question: Conclusion: Elections; Corrupt Practices Act; Statutory Construction; Political Activities of Corporations; Insurance Companies; G.S. 163-269; G.S. 163-220. Alex K. Brock, Director State Board of Elections Does G.S. 163-269 and 163-270 prohibit corporations and insurance companies from making contributions and expenditures for any political purpose including bond elections, tax levies, local option elections and any election where issues are submitted to the people such as beer and wine elections, and Statewide referenda? Yes. The intent of G.S. 163-269 and 163-270 is to prohibit corporations and insurance companies from using their financial resources, directly or indirectly, for any poHtical purpose whatsoever. G.S. 163-269 provides: "It shall be unlawful for any corporation doing business in this State, either under domestic or foreign charter, directly or indirectly to make any contribution or expenditure in aid or in behalf of any candidate or campaign committee in any primary or election held in this State, or for any political purpose whatsoever, or for the reimbursement or indemnification of any person for money or property so used, or for any contribution or expenditure so made; or for any officer, director, stockholder, attorney or agent of any corporation to aid, abet, advise or consent to any such contribution or expenditure, or for any person to solicit or knowingly receive any such contribution or expenditure. G.S. 163-270 contains similar prohibitions as to insurance companies or associations. The question has been raised as to whether the words "or for any poUtical purpose whatsoever" appearing in G.S. 163-269 and G.S. -4- 163-270 prohibits corporations from making contributions and expenditures in elections where issues are submitted to the people as opposed to elections where candidates are on the ballot. The intent of the Legislature controls the interpretation of a statute and the language of a statute will be construed contextually to ascertain the legislative intent. Strong's N.C. Index 2d, Statutes, Sec. 5. -- Chapter 348, Pubhc Laws of 1931, was "an act to make more effective the control of the State over corrupt practices in primaries and elections." Sec. 9 of this act Hsted 1 6 things which were prohibited if committed in connection with any primary or election in this State. These covered acts by individuals, election officials and corporations, and were not confined to contributions or expenditures relating to elections where candidates were to be chosen. Included in this Usting is Item (15), which now appears as G.S. 163-269. What is the meaning of the words "or for any political purpose whatsoever" appearing in G.S. 163-269 and G.S. 163-270? Must they be construed to mean acts and things of the same kind and nature as contributions or expenditures in behalf of any candidate or campaign committee in any primary or election? In the construction of statutes, the ejusdem generis rule is that where general words follow a designation of particular subjects or things, the meaning of the general words wiU 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 those specifically enumerated. The rule does not necessarily require such limitation in scope of the general words. It is but a rule of construction to aid in ascertaining and giving effect to the legislative intent where there is uncertainty. The rule does not apply to restrict the operation of a general expression where the specific things enumerated have no common characteristic, and differ greatly from one another. It does not warrant the Court subverting or defeating the legislative will. State v. Fenner, 263 NC 698; 50 Am. Jur., Statutes, Sec. 249, 250, Black's Law Dictionary, 4th Ed. (1951) "Moreover, where the particular words embrace all the persons or objects of the class mentioned, and thereby exhaust the class or genus, there can be nothing ejusdem generis left for the rule to operate on, and meaning must be given to the general words different from that indicated by the specific words, or there can be ascribed to them no meaning at all." 50 Am. Jur. Statutes, Sec. 250. In accordance with the rule, such terms as "other", "other thing", "other person", "others", "otherwise", or "any other", when preceded by a specific enumeration, are commonly given a restricted meaning, and the word "other" commonly occurs in a general expression, following specific designations where the ejusdem generis rule is applied. State v. Fenner, supra. In Commonwealth v. McCarthy, 183 NE 495, the collection by a city official of money to influence people on adoption of a proposed city charter, was held to be for a "political purpose" within the meaning of a statute which prohibited any person holding office to solicit or receive contributions, gifts, etc., for a political campaign purpose, or for any political purpose whatsoever. The ejusdem generis rule was not applied. In our opinion, the ejusdem generis rule does not apply to G.S. 163-269 or G.S. 163-270. Those statutes list several things which an insurance company or a corporation cannot do. The first is the prohibition against making contributions or expenditures in aid or in behalf of a candidate or campaign committee in any primary or election. The second is "or for any political purpose whatsoever", then follows four other enumerated things. The word "other" does not appear in the term "or for any political purpose whatsoever". The first specific term relating to contributions or expenditures for a candidate or campaign committee exhausts the class or genus. The term "any political purpose whatsoever" does not follow all the enumerated prohibitions, but is inserted between them, and is a coordinate term, and must be given effect. Having concluded that the ejusdem generis maxim is not applicable, we must determine whether the words "or any political purpose whatsoever" embraces elections involving issues rather than candidates. The word "political" is defined as, or pertaining to, polity, politics, or conduct of government, referring, in widest application, to judicial, executive, and legislative branches, of or pertaining to, incidental to exercise of functions vested in conduct of government, relating to the affairs of the State. "Political" means, of or pertaining to the exercise of the rights and privileges or the influence by which the individuals of a state seek to determine or control its pubhc policy. Lockheed Aircraft Corp. V. Superior Court of Los Angeles County, 171 P. 2d 211; 166 ALR 701; Words and Phrases, Vol. 32A, p. 502. "PoHtical purpose" includes any purpose to be attained at an election, whether the voters are asked to vote or work for a candidate or an issue. State, et rel Green v. City of Cleveland, 33 NE 2d 35. A poHtical cause may be non-partisan in nature, such as a charter amendment, bond issue, tax levy, etc. Heidtman v. City of Shaker Heights, 119 NE 2d 644. In State v. Gandy, 158 NW 195, the Court, in construing the words "political principle or measure", held that it embraced a liquor local option election. In Commonwealth v. McCarthy, supra, the statute prohibited any person holding public office from soHciting or receiving contributions, etc., for political campaign purposes, or for any political purpose whatsoever. The Court held the essential significance in the proper and ordinary use of the words includes anything pertaining to the establishment of a form of government, a purpose to influence the exercise of a political right is a political purpose and the statute covered an election to change the city charter. A contextual construction of G.S. 163-269 and G.S. 163-270, reveals the legislative intent. Corporations are prohibited, directly or indirectly, from using their financial resources to influence the public poUcy of the state by making contributions or expenditures in aid of, or in behalf of, any candidate or campaign committee, or to make any contributions or expenditures in aid of or in behalf of any political purpose whatsoever. Thus we conclude that the words "or for any political purpose whatsoever" prohibits a corporation or insurance company or association from using its financial resources in any election where the voters are asked to vote on a candidate or issue. We direct your attention to Article 22A of Chapter 163 of the General Statutes, which regulates contributions and expenditures in political campaigns. The term "election" is defined therein and does not include any local or statewide referendum or bond election unless the act authorizing such election specifically states that Article 22A shall be apphcable thereto. Thus we conclude that Article 22A, standing alone, is not apphcable to any local or statewide referendum or bond election. The term "pohtical purpose" is defined in G.S. 163-278.6(16) to mean any purpose in aid of or seeking to influence an election or a political party or candidate. In summary, Article 22A deals only with elections involving candidates or parties. However, G.S. 163-269 and G.S. 163-270 would prohibit corporations, insurance companies, or associations, including fraternal beneficiary associations, from making any contribution or expenditure for any political purpose, including elections involving issues or questions submitted to the people in any local or statewide referendum. \ I Rufus L. Edmisten, Attorney General James F. Bullock Senior Deputy Attorney General 25 July 1977 ' Subject: Mental Health; Area Mental Health Programs; Authority to Submit Employee Pay Plan -8- Requested by: R. J. Bickel Deputy Director for Administration Division of Mental Health Services Question: Under the terms of G.S. 122-35.46, effective July 1, 1977, is the approval of the board (single-county area) or boards (multi-county area) of county commissioners, as the case may be, necessary prior to the submission of the salary plan for employees of an area mental health authority to the State Personnel Office, if the salary plan is within the specified statutory limitations? Conclusion: No, this submission is not required if the salary plan is within the specified statutory hmitations. The 1977 General Assembly completely rewrote the North Carolina statutes deaUng with area mental health programs. The new statute provides for the creation of area mental health authorities, defined as follows: "The governing unit authorized by the Commission for Mental Health Services and delegated the authority to serve as the comprehensive planning, budgeting, implementing, and monitoring group for community-based mental health, mental retardation, and substance abuse programs. An area mental health authority is a local political subdivision of the State except that a single-county area mental health authority shall be considered a department of the county in which it is located for the purposes of Chapter 159 of the General Statutes." (G.S. 122-35.36(1)) The governing body of each authority is an area mental health board. (G.S. 122-35.36(2)). Members of a single-county area mental health board are appointed directly by the board of county commissioners. (G.S. 122-35. 39(b)). For a multiple-county authority, each board -9- of county commissioners appoints one commissioner as a mental health board member and these appointed members select the additional mental health board members. (G.S. 122-35. 39(c)). The new G.S. 122-3 5. 45(b) provides the following illuminating information as to the statutus of area mental health authority employees: "Area mental health authority employees. Employees under the direct supervision of the area mental health authority are employees of the area mental health authority and for the purpose of personnel administration, Chapter 126 of the General Statutes shall apply unless otherwise provided in this Article." On the specific point of salary plans, the new statutes contain the following language: ^^ "§122-35.46. Salary Plans for area mental health employees.-The salary plan for area mental health employees shall be set by the area mental health authority. Such salary plan shall be established in conformity with G.S. Chapter 126. In a multiple-county area, such salary plan shall not exceed the highest paying salary plan of any county in that area. In a single-county area, such salary plan shall not exceed the county's salary plan. The salary plan limitations set forth in this section may be exceeded only if the area mental health authority and the board or boards of county commissioners, as the case may be, jointly agree to exceed these limitations." Collective analysis of all of these statutes reveals several significant changes and/or clarifications of prior statutes dealing with the subject of area mental health programs. Additionally, prior opinions of the Attorney General dealing with this subject must be reexamined in view of the new statutes; any conflict between this opinion and such prior opinions should be resolved in favor of this later opinion. Among the points that appear to be clear from the new statutes are the following: -10- (1) a single-county area mental health authority is not a pubUc authority for purposes of Chapter 159 but apparently a multiple-county authority wOl be such public authority. (Compare 44 NCAG 185 (1974). (2) a single-county area mental health authority apparently does not have to designate a budget and fiscal officer but can be served by the county personnel. (Compare 45 NCAG 120 (1975). (3) area mental health authorities will be considered as local poUtical subdivisions so as to constitute an entity capable of conducting normal business, within the limitations of the new G.S. 122-35.53. (Compare 42 NCAG 120 (1972). (4) Employees of an area mental health authority are not "county employees" but they are governed by the provisions of Chapter 126 unless the new statutes provide otherwise. (Compare 45 NCAG 70 (1975). Finally, the language of G.S. 122-35.46 would seem to unequivocally stipulate that the salary plan for area mental health employees shall be set by the area mental health authority, except where the salary plan limitations are exceeded. This provision of that statute appears to apply equally to both single and multiple-county authorities, despite the fact that the former are now considered a part of the county for Chapter 159 purposes. Rufus L. Edmisten, Attorney General WiUiam F. O'Connell Special Deputy Attorney General 25 July 1977 Subject: Civil Preparedness ResponsibiUty of Local Elected Officials •11- Requested by: Questions; Conclusions: Mr. Richard B. Martin, Jr. Assistant Plans and Programs Officer Division of Civil Preparedness Department of Crime Control and Public Safety ( 1 ) Are Local government elected officials responsible to make civil preparedness plans to cover their jurisdictions in time of emergency? (2) Is the Division of Civil Preparedness responsible for civil preparedness planning and testing for local governmental jurisdictions wherein local elected government officials elect not to? (1) No, local government officials are not responsible or required by Chapter 166 of the North Carolina General Statutes to make civil preparedness plans to cover their jurisdictions in time of emergency. (2) Yes, the Division of Civil Preparedness is responsible under G.S. 166-8 and G.S. 166-5(a) for planning and testing for local governmental jurisdictions wherein local elected government officials elect not to. However, G.S. 166-11 authorizes the Governor to utilize local government facilities and services and requires cooperation by local government officials upon request by the Governor. General Statute 166-8(a) authorizes, but does not require local governments to establish a preparedness plan and program, but authorizes the Governor to establish a local civil preparedness agency at his discretion, and states: "Each political subdivision of this State is hereby authorized to establish a civil preparedness agency in -]i- accordance with the State civil preparedness plan and program; and it is further provided that in the event that any poHtical subdivision of the State fails to establish such a civil preparedness agency, and the Governor, in his discretion, determines that a need exists for such a civil preparedness agency, then the Governor is hereby empowered to establish, or to estabhsh through the Secretary of Mihtary, and Veterans Affairs, a civil preparedness agency within said political subdivision." G.S. 166-8(a), G.S. 166-5(a) and G.S. 166-5(b)(2) read together indicate that the ultimate responsibility for civil preparedness rests with the Governor, thus with the Division of Civil Preparedness. G.S. 166-8(a) - See above paragraph. G.S. 166-5(a) "The Governor shall have general direction and control of the Civil Preparedness Agency and shall be responsible for the carrying out of the provisions of this Chapter and, in the event of disaster or the threat of disaster beyond local control or when requested by the governing body of any county, city or town in the State, may assume direct operational control over all or any part of the civil preparedness functions within this State." G.S. 166-5(b)(2) "(b) In performing his duties under this Chapter and to effect its policy and purpose, the Governor is authorized and empowered: (2) To prepare a comprehensive plan and program for the civil preparedness of this State, such plan and program to be integrated into and coordinated with the civil preparedness plans of the federal government and of other states to the fullest possible extent, and to coordinate the preparations of plans and programs for civil preparedness by the political subdivisions of this -13- State, such plans to be integrated into and coordinated with the civil preparedness plan and program of this State to the fullest possible extent, within the provisions of this Chapter." G.S. 166-11 places existing services and facilities of local governments at the disposal of the Governor upon request and in effect, would seem to permit the Governor to establish a local civil preparedness agency utilizing resources of the local government, and reads: ''Utilization of existing services and facilities .-\n carrying out the provisions of this Chapter, the Governor is authorized to utihze the services, equipment, supphes and facilities of existing departments, offices, and agencies of the State and of the pohtical subdivisions thereof, and the governing bodies of the pohtical subdivisions of the State are authorized to utilize the services, equipment, supphes and facilities of their respective subdivisions, to the maximum extent practicable, and the officers and personnel of all such departments, offices and agencies are required to cooperate with and extend such services and facihties to the Governor and to the civil preparedness agencies of the State upon request. This authority shall extend to all disasters and for civil preparedness training purposes." , Rufus L. Edmisten, Attorney General /' William W. Melvin " Deputy Attorney General 25 July 1977 Subject: Streets and highways; municipal ordinances; setting weight limits on non-system city streets. 14- Requested by: Mr. Michael B. Brough Town Attorney Town of Carrboro Question: Conclusion: May a city or town by ordinance set weight limits on non-system city streets? Yes. G.S. 160A-296 grants cities and towns the authority to exercise control over all public streets, sidewalks, alleys, bridges and other ways of public passage by ordinance within its corporate limits except to the extent that authority and control over certain streets and bridges is vested in the Board of Transportation. G.S. 160A-300 grants cities and towns authority to control traffic upon the pubhc streets, sidewalks, alleys and bridges within its corporate hmits by ordinance. The general grant of authority set forth in G.S. 160A-296 and 160A-300 is subject to the provisions of G.S. 20-115, 20-116 and 20-121 only where there has been action by the State preempting the city or town. From our search of the statutes we find nothing which would preclude cities and towns from imposing weiglit limitations on non-system city streets if done by ordinance and properly signed. However, when the city finds it necessary to restrict weight on its streets, it should make provisions for the issuance of overweight permits pursuant to G.S. 20-119. Ordinances setting weight limits on non-system city streets would be enforceable under G.S. 14-4. Rufus L. Edmisten, Attorney General William W. Melvin Deputy Attorney General 25 July 1977 Subject: State Departments, Institutions and Agencies; Wildhfe Resources Commission; -15- Requested by: Questions: State Banking Commission; Department of Administration; Authority of Department of Administration to Charge Self-Supporting Agencies For Space in State-Owned Buildings. J. K. Sherron, Jr., Director State Property Office (1) Pursuant to Section 15.5, Chapter 802 of the 1977 Session Laws, is the North Carolina Wildlife Resources Commission, a self-supporting State agency, required to pay rental for the State-owned office space it will occupy in the Archdale Building? (2) In the event the Wildlife Resources Commission is required to pay rental for such space, is the Department of Administration required to give the Commission a credit against such charges for a $200,000 payment it made to the Department prior to occupancy of space in the Albemarle Building? (3) May the Department of Administration furnish State-owned office space at no charge to the State Banking Commission, a self-supporting State agency, in accordance with a formal letter of allocation signed by the Secretary of Administration prior to the effective date of Section 15.5, Chapter 802, 1977 Session Laws? (1) Yes (2) No. (3) No. Conclusions: The North Carolina Wildlife Resources Commission and the State \ Banking Commission are self-supporting State agencies. -16- Section 15.5, Chapter 802 of the 1977 Session Laws reads as follows: "Sec. 15.5. The Department of Administration is directed to determine equitable fees for the use of State-owned and operated office space, and to assess 'self-supporting' agencies for payment of these fees. The payments shall be made to the Department of Administration." The facts relevant to the first two questions are as follows: In 1955, the Legislature appropriated the sum of $200,000 from the Wildlife Resources Fund to partially finance construction of the Motor Vehicles Building to house the Department of Motor Vehicles, the Wildlife Commission, the State Banking Commission and other departments and agencies. The building was constructed and the Wildlife Commission occupied the fourth fioor from 1956 through 1971. Due to an increased need in office space by the Department of Motor Vehicles, the 1967 General Assembly appropriated S200,000 to the Department to "Purchase Fourth Floor Motor Vehicles Building from Wildlife Commission". Chapter 1108, 1967 Session Law. Plans were then made for the Commission to occupy space in the Albemarle Building to be constructed by the State. Upon receipt of the $200,000 appropriated to the Department of Motor Vehicles, the Wildlife Commission paid said sum to the Department of Administration prior to occupany of space in the Albemarle Building. This sum was added to the capital improvement appropriation for the construction of this building. This Office is unable to find any statutory provision authorizing or directing the payment of these funds to the Department of Administration. The funds have been expended. This Office is of the opinion that the Wildlife Commission, a self-supporting State agency, would be required to pay rental for the State-owned office space it occupies after the effective date of Section 15.5, Chapter 802, 1977 Session Law. This statute applies to all "self-supporting" State agencies without exception. We find -17- no other statutory provision which would exempt the Commission from the coverage of this statute. Although there are statutes which prohibit the diversion of funds from the Wildlife Resources Fund, we are of the opinion that Wildlife funds may be used to pay rentals pursuant to Section 15.5, Chapter 802 of the 1977 Session Laws, inasmuch as the occupation of State-owned office space is essential | in order for the Commission to perform its statutory duties. As to Question 2, we find no statute which authorized or directed I the payment of $200,000 to the Department of Administration. At the time this payment was made, there was no statutory authorization for the Department of Administration to charge self-supporting State agencies rental for space in State-owned buildings. > . G.S. 143-244 provides that the "Board of Public Buildings and Grounds" shall provide the WildHfe Commission with offices in the City of Raleigh. This statute was in effect at the time the $200,000 payment was made. The statute contains no provision for the payment of rent. Although this Board did not exist at the time of this payment, its duties had been absorbed by the Department of Administration. Just as we find no legislative authority for payment of the $200,000 to the Department of Administration, we find no legislative authority for a credit against rent or a repayment at this time. The facts relevant to the last question are: Under the provisions of the 1955 Session Laws, the State Banking Commission also participated in the construction of the Motor Vehicles Building in the sum of $60,000 collected from fees assessed pursuant to G.S. 153-122. In October of 1976, then Secretary of Administration Bruce A. Lentz allocated space in the State Office Building Number 2, then under construction, now known as the Dobbs Building, to the State Banking Commission. The letter of allocation states that because of prior investment in the Motor Vehicles Building by the Banking Commission, the Department of Administration "proposes to permanently provide sufficient State-owned office space at no! charge to the North Carolina Banking Commission, to replace that space being vacated". j 18- Section 15.5, Chapter 802 of the 1977 Session Laws, specifically directs the Department of Administration to assess "self-supporting" agencies equitable fees for the use of State-owned office space. This statutory provision would nullify the letter of allocation insofar as it purports to allocate the space in question "at no charge". Althougli the question has not been specifically raised, we are of the opinion that the Banking Commission would not be entitled to any credit for the 560,000 of its funds used for construction of the Motor Vehicles Building. The General Assembly specifically appropriated the funds for this purpose. There has been no legislative authorization for a return of those funds to the Commission. Rufus L. Edmisten, Attorney General T. Buie Costen Special Deputy Attorney General 13 August 1977 Subject: Requested By: Question: nc Conclusion: Taxation; Income Tax; Income; Interest; Government National Mortgage Association; Mortgage Backed Certificates; G.S. 105-228.24; G.S. 105-130.5(b)(l) G.S. 105-130.3; W. L. Cole Administrator, Savings and Loan Division North Carolina Department of Commerce Is interest paid by an issuer to the holder of a "Mortgage Backed Certificate Guaranteed by Government National Mortgage Association" subject to the excise tax on savings and loan associations? Yes You have inquired whether interest paid by an issuer to the holder of a "Mortgage Backed Certificate Guaranteed by Government -19- National Mortgage Association" is subjec to the excise tax on savings and loan associations. These certificates may be either "straight pass through" or fully-modified pass through" certificates. Each is described in pertinent Revenue Rulings, the former in Rev. Rul. 70-544, the latter in Rev. Rul. 70-545. In each instance, neither the issuer nor the holder is the United States or any of its agencies or instrumentahties, including GNMA. In each, however, GNMA guarantees timely payment of the amounts required to be paid by the issuer of the certificate, in the case of default stating that "the full faith and credit of the United States is pledged to the payment" thereof. An undated opinion of William H. Rehnquist, then Assistant Attorney General, to George Romney, then Secretary of Housing and Urban Development concludes that GNMA "is authorized to make the proposed guaranties and that they would constitute general obhgations of the United States backed by its full faith and credit." (Emphasis added.) G.S. 105-228.24 imposes an excise tax on each savings and loan association at the rate of 7 1/2% of its "net taxable income", which is the same as "net income" for corporate income tax purposes. Such "net income" is the same as federal "taxable income", plus or minus certain adjustments. G.S. 105-130.3. The aforesaid revenue ruhngs require interest to be included for federal income tax purposes and such interest is thus required to be included for North CaroHna corporate income tax purposes (and hkewise, for purposes of the excise tax imposed by G.S. 105-228.24) unless, it is covered in one of the adjustments referred to above. G.S. 105-1 30.5(b) sets out the adjustments which must be made, in the form of deductions from federal taxable income, in order to determine State net income. The only one which appears pertinent is in subsection (1), which permits deduction of "interest upon the obhgations of the United States. ..to the extent included in federal taxable income," and, since neither the United States nor its creature, GNMA, issues the certificates in question, the certificates are not federal obligations and that deduction appears to be inapphcable. Note, too, that the opinion of the United States Assistant Attorney General is careful to limit its description of "general obligations of the United States" to "the proposed guaranties", not to the certificate itself. We conclude, therefore, that interest received from a "Mortgage Backed Certificate Guaranteed -20- « By Government National Mortgage Association" is subject to the excise tax imposed by G.S. 105-228.24. See our memorandum of 4 August 1976 to W. L. Cole, Acting Administrator, to the same effect. Any opinion of this office to the contrary, oral or written, is modified to conform to the opinion herein expressed. We also note that the subject was discussed with Mr. Carl Lindstrom, Assistant Director of the Mortgage Backed Securities Program of GNMA by telephone on 28 July 1976. Mr. Lindstrom expressed the same view re taxability of interest received from these certificates as has been expressed above. No opinion is expressed herein upon the question of taxabihty of interest paid by GNMA pursuant to its guaranty. Rufus L. Edmisten, Attorney General Myron C. Banks Special Deputy Attorney General 13 August 1977 'Subject: Motor Vehicles; G.S. 20-37.6; Handicapped Persons; Parking Privileges Requested by: Ms. Mary Claire McNaught Winston-Salem Public Safety Attorney Questions: (1) May a municipal parking ticket be issued for a violation of G.S. 20-37. 6(d) or must an offender of this provision be personally served with a citation? (2) If a parking ticket may be issued, what should be the amount of a fine assessed against a violation of G.S. 20-37.6(d)? Conclusions: (1) Yes, a parking ticket may be issued. (2) One Dollar ($ 1 .00) if the prima facie rule of evidence is used pursuant to the -21- provisions of G.S. 20-37.6(2) (d) and G.S. 20-162.1 and not more than Ten Dollars ($10.00) if litigated and the violator identified. As to Conclusion (1), city police officers are charged with the enforcement of the motor vehicle laws under the provisions of G.S. 20-183, which reads: "§ 20-183. Duties and powers of law-enforcement officers; warning by local officers before stopping another vehicle on highway; warning tickets.-ia) It shall be the duty of the law-enforcement officers of the State and of each county, city, or other municipality to see that the provisions of this Article are enforced within their respective jurisdictions, and any such officer shall have the power to arrest on sight or upon warrant any person found violating the provisions of this Article. Such officers within their respective jurisdictions shall have the power to stop any motor vehicle upon the highways of the State for the purpose of determining whether the same is being operated in violation of any of the provisions of this Article. Provided, that when any county, city, or other municipal law-enforcement officer operating a motor vehicle over-takes another vehicle on the highways of the State, outside of the corporate limits of cities and towns, for the purpose of stopping the same or apprehending the driver thereof, for a violation of any ' of the provisions of this Article, he shall, before stopping such other vehicle, sound a siren or activate a special Ught, bell, horn, or exhaust whistle approved for law-enforcement vehicles under the provisions of G.S. 20-125(b). (b) In addition to other duties and powers heretofore existing, all law-enforcement officers charged with the duty of enforcing the motor vehicle laws are authorized to issue warning tickets to motorists for conduct constituting a potential hazard to the mortoring public which does not amount to -22- a definite, clear-cut, substantial violation of the motor vehicle laws. Each warning ticket issued shall be prenumbered and shall contain information necessary to identify the offender, and shall be signed by the issuing officer. A copy of each warning ticket issued shall be deUvered to such offender and a copy thereof forwarded by the issuing officer forthwith to the Driver License Section of the Division of Motor Vehicles but shall not be filed with or in any manner become a part of the offender's driving record. Warning tickets issued as well as the fact of issuance shall be privileged information and available only to authorized personnel of the Division for statistical and analytical purposes." Though G.S. 20-183 refers to the provisions of this Article, the language of Chapter 340 of the 1977 Session Laws of North Carohna clearly indicates that the intent of the General Assembly was for the apphcable sections of Chapter 20 of the General Statutes to apply for the purpose of implementing this chapter. This position is bolstered by the references in Chapter 340 to various sections of Chapter 20 throughout the chapter and particularly to the specific provisions of G.S. 20-37.6(2) (d) (Section 2, Chapter 340 of the 1977 Session Laws), wherein the provisions of G.S. 20-162.1 is made applicable to violations of the handicapped parking privileges. G.S. 20-162.1 reads as follows: "§ 20-162.1. Prima facie rule of evidence for enforcement of parking regulations.-'WhenQYer evidence shall be presented in any court of the fact that any automobile, truck, or other vehicle was found upon any street, alley or other pubhc place contrary to and in violation of provisions of any Statute or of any municipal ordinance limiting the time during which any such vehicle may be parked or prohibiting or otherwise regulating the parking of any such vehicle, it shall be prima facie evidence in any court in the State of North Carohna that such vehicle was parked and left upon such street, alley or public way or place by the person, firm or corporation in whose name such vehicle is then registered and hcensed according to the -23- records of the department or agency of the State of North Carohna, by whatever name designated, which is empowered to register such vehicles and to issue hcenses for their operation upon the streets and highways of this State; provided, that no evidence tendered or presented under the authorization^ contained in this section shall be admissible or competent in any respect in any court or tribunal, except in cases concerned solely with violation of statutes or ordinances limiting, prohibiting or otherwise regulating the parking of automobiles or other vehicles upon public streets, highways, or other pubHc places. Any person convicted pursuant to this section shall be subject to a penalty of one dollar ($1.00)." Ordinarily, words of a statute will be given their natural, approved and recognized meaning and when construing an ambiguous statute, its language must be read contextually and with reference to the matters dealt with the objects and purposes sought to be accompUshed. Related statutes should be construed so as to give full force and effect to each of them if they can be reconciled and harmonized by reasonable interpretation. Cab Co. v. Charlotte, 234 N.C. 572; Cox v. Brown, 218 N.C. 350. The language of the statute will be interpreted to avoid absurd consequences. Person v. Garrett, Commr. of Motor Vehicles, 280 N.C. 163. The clear intent of Chapter 340 of the 1977 Session Laws of North Carolina is to insure that parking spaces provided for handicapped persons are available for their use. To properly implement the statute, the police must be permitted to use the customary tools of their trade including the "ticket" and uniform citation. As to Conclusion (2), the prima facie rule (G.S. 20-162.1, supra), being specifically made apphcable (G.S. 20-37. 6(2)(d)) to violations of this chapter, the obvious intent would be for enforcement purposes. Therefore, if the prima facie rule is used, the fine would be limited to one dollar ($1.00). However, if the rule is not applied and the operator is identified in a litigated case, the fine may not i be more than ten dollars ($10.00). G.S. 20-37. 6(2)(d), as amended). | -24- i Rufus L. Edmisten, Attorney General William W. Melvin Deputy Attorney General 22 August 1977 Subject: Requested by: State Departments, Institutions and Agencies; Public Officers and Employees; State Personnel Act; Employee Grievances Mr. Harold H. Webb Director Office of State Personnel Question: Where a State employee was discharged, suspended, or reduced in pay or position prior to July 1, 1977, is such employee entitled to treatment of his grievance under Chapter 126 of the General Statutes as it existed prior to July 1, 1977. Conclusion: Yes. The employee is entitled to treatment of his grievance under Chapter 126 of the General Statutes as it existed prior to July 1, 1977. Chapter 126 of the General Statutes establishes and provides for the administration of the State Personnel System. Effective February 1, 1976, to July 1, 1977, this Act provided that "No permanent employee subject to the State Personnel Act shall be ' discharged, suspended, or reduced in pay or position, except for just cause." G.S. 126-35. The 1977 General Assembly amended Chapter 126 to provide that, except for certain sections not at issue, it should not apply to employees with less than five continous years of service. The question is whether an employee who was discharged, ; suspended, or reduced in pay or position prior to July 1, 1977, ; but who had not yet filed an appeal with the State Personnel t Commission or whose grievance had not yet been heard by the State Personnel Commission, is entitled to the benefit of the provisions -25- of the State Personnel Act as they existed prior to July 1, 1977. This opinion is not intended to delineate the exact circumstances under which a hearing may be available. If other legal principles and provisions are involved, as in the case of an employee dismissed because the General Assembly abolished a position and terminated all funding for that position, the legal principles relevant to such circumstances may dictate a result different from the one that would be required if only Chapter 126 of the General Statutes were taken into account. This opinion is only concerned with whether an employee dismissed, suspended, or reduced in pay or position prior to July 1, 1977, and who would be entitled to a hearing under the provisions of the Personnel Act as it existed prior to July 1, 1977, is still entitled to a hearing after July 1 even thougli he or she would not be entitled to a hearing under Chapter 126 as^^ re-written by the 1977 General Assembly. Without the benefit of the provisions of Chapter 126 not to be dismissed, suspended, or reduced in pay or position without just cause, there is no general statute or other law protecting the employee's right to his job or position. Thus, an employee dismissed, suspended, reduced in pay or position after July 1, 1977, who does not have five continuous years of service as a state employee subject to the State Personnel Act, will not ordinarily have any right to his job or position or to a hearing as to the appropriateness or vahdity of the discharge. See, e.q., Bishop v. Wood, 426 U.S. 341, i 96 S.Ct. 2074, 48 L.E. 2d 684 (1976). ( [ The general rule in North Carolina and in most other jurisdictions 2 is that statutes are not generally construed to be retrospective. Only f if the General Assembly clearly indicates an intent for a statute 3: to be applied retrospectively will it be interpreted to operate retrospectively, if there is any doubt, the doubt should be resolved against retrospective operation. In re Mitchell, 285 N.C. 77, 203 S.E. 2d 48 (1974); Smith v. Mercer, 276 N.C. 329, 172 S.E. 2d 489 (1970); Wilson v. Anderson, 232 N.C. 212, 59 S.E. 2d 836, 18 ALR 2d 951, Reh. Den. 232 N.C. 521, 168 S.E. 2d 672 (1969). "It is especially true that the statute or amendment will be regarded as operating prospectively only where it is in derogation of a common-law right, or where -26- the effect of giving it a retroactive operation would be to interfere with an existing contract, destroy a vested right, or create a new liability in connection with a past transaction, invalidate a defense which was good when the statute was passed, or, in general, render the statute or amendment unconstitutional. " Smith V. Mercer, 276 N.C. 329, 172 S.E. 2d 489 (1970). An employee who was discharged, suspended, or reduced in pay or position before July 1, 1977, had, at the time the action in question was taken, a riglit not to be so discharged, suspended, or reduced in pay or position except for just cause. He or she also had a right to have the question of just cause determined by the State Personnel Commission and to be restored to the prior position, I pay, or employment with back pay and attorneys' fees in appropriate cases. Clearly, the amendment denying this right to persons with less than five continuous years of State employment takes away a right or a defense from such employees and cannot operate retroactively unless that intent was clearly expressed by the General Assembly or unless it is required by necessary implication from the amendments enacted. No such clear intent or necessary implication appears. Therefore, an employee who was discharged, suspended, or reduced in pay or position prior to July 1, 1977, is entitled to the benefits of the provisions of Chapter 126 requiring just cause for such actions and a determination by the State Personnel Commission of the existence of just cause, with restoration to the prior job, position or pay, and back pay and attorneys' fees in appropriate cases. Such grievances should be heard by the State Personnel Commission pursuant to the provisions of Chapter 126 as it existed prior to the 1977 amendments. Rufus L. Edmisten, Attorney General Norma S. Harrell Associate Attorney 22 August 1977 (Subject Taxation; Real Estate Excise Stamp Tax; Consideration; Encumbrances; G.S. 105-228.30 -27- Requested by: Mr. Fred H. Israel Register of Deeds Transylvania County Question: Where a deed of trust executed by a seller of real property is recorded simultaneously with the deed conveying the property from seller to purchaser, is the amount of the deed of trust deducted from the total consideration for purposes of computing the amount of the stamp excise tax? Conclusion: No. The controlling statute, G.S. 105-228.30, provides that the excise \ stamp tax on conveyances is computed on "the consideration or value of the interest or property conveyed (exclusive of the value of any hen or encumbrance remaining thereon at the time of sale)." The deed in question recites that "as a portion of the consideration of the purchase price," the purchasers agree "to assume and pay off the balance due on that certain deed of trust" executed by the sellers and recorded on the same date on which the deed was made and recorded. Since the deed and deed of trust became effective simultaneously, the deed of trust could not qualify as an encumbrance remaining at the time of sale. Only a pre-existing deed of trust could constitute a "hen or encumbrance remaining thereon at the time of sale." This conclusion is supported by I.R.C. Reg. §47.4361-1, which construed the federal documentary stamp tax statute, I.R.C. 1954 §4361, now repealed. The language of the federal statute with respect to encumbrances was identical to that now found in G.S. 105-228.30. The regulation provided as follows: "In determining the amount of the net consideration for, or net value of, the realty conveyed, only the amount of the Hens and encumbrances on the property existing before the sale and not removed thereby may be deducted. Thus, for example, taxes or assessments which are liens on the property before the sale and are not paid at the time of sale are deductible. No -28- deduction shall be made on account of any lien or encumbrance placed upon the property in connection with the sale, or by reason of deferred payments of the purchase price whether represented by notes or otherwise." It is apparent from the reference to the deed of trust in the deed and from the fact that both instruments were made and recorded simultaneously that the deed of trust is an encumbrance "placed upon the property in connection with the sale." Therefore, the amount of the deed of trust may not be deducted from the consideration of value of the property in computing the amount of the excise stamp tax. Rufus L. Edmisten, Attorney General Marilyn R. Rich Associate Attorney General 22 August 1977 Subject: Requested by: Question: Conclusion: Corporate Income Tax; Net Economic Loss; Insurance Proceeds; Income Not Taxable; G.S. 105-130.8. Wiley A. Warren, Jr., Assistant Director Corporate Income and Franchise Tax Division North Carohna Department of Revenue Do hfe insurance proceeds constitute "income not taxable" for purposes of computing the net economic loss deduction under G.S. 105-130.8? Yes. G.S. 105-130.8(2) defines net economic loss as the amount by which a corporation's allowable deductions in a given year exceed its total income, including "income not taxable". G.S. 105-130.8(3) provides -29- that net economic loss may be carried forward and claimed as a deduction in a subsequent year to the extent that it exceeds the corporation's "income not taxable" in the later year. Thus, if a corporation insures the life of an employee and receives insurance proceeds by reason of the death of the employee, such proceeds must be used to offset a prior year's net economic loss if they constitute "income not taxable". The term "income not taxable" is not defined by statute. However, its meaning can be inferred from the statutes delineating what income is taxable. According to G.S. 105-130.3, corporations doing business in North Carolina are taxed on their net income, which is identical to taxable income as it was defined in the Internal Revenue Code on January 1, 1975. The Internal Revenue Code, in turn, defines taxable income by reference to gross income. I.R.C. 1954 §63. Gross income, as defined in §61 of the Code, includes all income except for certain specific exclusions. Once such exclusion is found on § 101 , which provides that, subject to certain limitations, gross income does not include proceeds of hfe insurance contracts payable by reason of the death of the insured. If life insurance proceeds are excluded from gross income for federal tax purposes, then they are necessarily excluded from taxable income and also from North Carolina net income. Therefore, such j proceeds constitute "income not taxable" within the meaning of I G.S. 105-130.3, and they must be used to offset net economic loss; in computing the deduction. I Rufus L. Edmisten, Attorney General j /• - Marilyn R. Rich Associate Attorney General 22 August 1977 Subject: Requested by: ::s^ Mental Health; Courts; Involuntary Commitment to Private Hospitals Mr. Ben Sauber Director of Advocate Program Dorothea Dix Hospital -30- ik Question: May a district court judge acting under Article 5A, Chapter 122, involuntary commit an individual to a private hospital for the mentally ill? Conclusion: Yes, if that hospital has been designated or hcensed by the Department of Human Resources. On February 15, 1974, this Office responded to a similar question and arrived at a contrary conclusion. See 43 N.C.A.G. 342 (1974). However, Chapter 1408, 1973 Session Laws (Second Session), ratified on April 13, 1974, effective sixty days thereafter, was a complete rewriting of the involuntary commitment statutes (Article 5 A, Chapter 122). Additionally, Ratified Chapter 739, enacted by the 1977 General Assembly, contains further clarifying language on this subject. As a result, the present G.S. 122-58. 8(b), effective July 1, 1977, provides as follows: "(b) If the court finds by clear, cogent, and convincing evidence that the respondent is mentally ill or inebriate, and is imminently dangerous to himself or others, it may order treatment, inpatient or outpatient, for a period not in excess of 90 days, at a mental health facility, public or private, designated or licensed by the Department of Human Resources. Treatment at a private facility shall be at the expense of the respondent to the extent that such charges are not disposed of by contract between the county and the private facihty." This statute in its present form makes it very clear that direct commitment to a properly licensed or designated private hospital is permissible and the prior conclusion in the 1974 opinion should I be disregarded. It is noted that Article 10, Chapter 122 still contains sections dealing with the placemtnt of persons in private hospitals for the mentally -31- disordered. In view of the specific language in the present Article 5A, it would appear that this later enacted statute would be controlling of the area of involuntary commitment. Since there is a direct conflict between Article 5A and G.S. 122-75, G.S. 122-77, G.S. 122-78, and G.S. 122-79 (all last amended in 1963), it may safely be said that Article 5A supersedes these statutes. Further, involuntary placement of individuals in these private hospitals in accordance with the proceedings described in these four statutes contained in Article 10 does not comport with constitutional requirements. See French v. Blackburn (DC MDNC), decided March 31, 1977. Therein, a three judge federal court analyzed the basic requirements for due process in involuntary commitment proceedings and characterized Article 5 as follows: "The Court is of the general opinion that the North Carohna General Assembly has enacted an excellent legislative scheme which adequately protects the interests of all who may be involved in an involuntary ^ commitment proceeding. We perceive no reason to hold the statutory provisions unconstitutional. There is no doubt that the liberty interest of a person subjected to such proceedings is great and is an interest which has long been protected and to which the state and this Court are obligated to give great deference. However, we are presented with the concept of 'fundamental fairness.' It is the opinion of this Court that that concept is fully realized by the statutory procedure involved. There are two humanitarian purposes of the involuntary commitment proceedings. Fundamentally, the state is attempting to temporarily withdraw from society those persons whose mental state is such that their presence may pose a danger to society or to themselves. Secondly, the state is providing treatment to those individuals who may not otherwise have the wisdom or the wherewithal to seek it themselves. We are, therefore, examining a hybrid proceeding which although (sic) involves a deprivation of liberty, the very purpose of that deprivation is not solely to protect society but also has as a purpose the protection, treatment, and aid of an individual who -32- cannot or will not protect himself. We find that in balancing these interests, the North Carolina statutes for involuntary commitment strike a fair and equitable balance and do not offend the constitutional standards of due process of the law." These comments certainly could not be made regarding the involuntary commitment proceedures prescribed in Article 10 of Chapter 122. Rufus L. Edmisten, Attorney General William F. O'Connell Special Deputy Attorney General 24 August 1977 Subject: Taxation; Income Tax; Exemptions; Tax Credits; Energy Conservation; Insulation and Storm Windows; G.S. 105-151.3 Requested by: Question: B. W. Brown, Director Individual Income Tax Division North Carohna Department of Revenue (1) Where a statute, effective for taxable years beginning on and after 1 January 1977, provides for "a credit" against income tax for any person who installs insulation in an existing building "during the period from January 1, 1977, through December 31, 1978", can the credit be available in each of the two taxable years, or is only one credit available, to be taken in one, but not both, of such years? (2) If the credit is available in each of two years, may the taxpayer install insulation in one year, but pay for it in both years and thus obtain two credits? -33- (3) Is the credit available only with respect to taxable years 1977 and 1978, or, installing insulation in 1977 or 1978 but deferring payment until 1979, may he extend the availability of the credit by one more year? (4) Is the credit limited to 25% of the cost of installation, or to 25% of the amount actually paid for installation, during the taxable year? Conclusion: (1) The credit may be available in each of two taxable years. (2) No. (3) No. (4) The credit is Hmited to 25% of the cost of installation, but may not exceed the lesser of $100 or the amount acutally paid in the tax year for which the credit is claimed. G.S. 105-151.3, enacted as section 5 of Chapter 792, S.L. 1977, makes the following provisions for a credit against personal income tax for home insulation, storm windows and storm doors: "(a) During the period from January 1, 1977, through December 31, 1978, any person (to include partnerships) who installs new or additional insulation, storm windows or storm doors (to include thermal pane windows and doors) in any building located in North Carolina which was constructed and occupied prior to January 1, 1977, shall be allowed as a credit against the taxes imposed by this division, an amount equal to twenty-five percent (25%) of the cost of such insulation, storm windows or storm doors; provided, that credit allowed under this section shall not exceed -34- 1 one hundred dollars ($100.00) on any single building or for each family dwelling unit of a multi- dwelling building; provided further, that in order to secure the credit allowed by this section the taxpayer must be liable for payment of such insulation, storm windows or storm doors and such payment must be made by the taxpayer during the tax year for which the credit is claimed." Section 5 of the chapter became effective upon ratification (29 June 1977) for income years beginning on and after 1 January 1977. Its provisions may perhaps be analyzed more clearly if put in outline form: (a) during the period 1 January 1977 31 December 1978 (b) any person who installs insulation (for brevity, references to storm windows and storm doors will be omitted hereafter) (c) in a building built and occupied before 1 January 1977 (d) shall be allowed as a credit against his income tax (e) an amount equal to 25% to the cost of such insulation BUT (f) the credit shall not exceed $100 for each single building or each family dweUing unit in a multi-dwelling unit AND (g) the taxpayer must be liable "for payment of such insulation" and -35- (h) "such payment" must be made by the taxpayer during the tax year for which the credit is claimed. A number of questions have arisen with respect to the appHcation of the new statute to specific factual situations: "(1) Since the section states that the amount is limited to $100 on any single building, does this mean that only one credit of $100 will be allowed, or may a credit of up to $100 be claimed for each tax year?" We recognize that the reference to "a credit" can be taken to mean a single, one-time credit, particularly if we apply the famihar rule that deductions and exemptions (a credit being in the nature of an exemption) are strictly construed against the taxpayer, but we do not beheve that the construction necessarily follows, for at least two reasons: (1) G.S. 105-1 5 1(a) provides for "a credit" to individuals who are residents of the State who pay income tax to another state, yet the State recognizes that such credit is available for as many years as the individual pays income tax to a foreign state, and no more rigid construction should apply to a similar credit statute; and (2) C. 792 declares it to be the policy of the State "to encourage and promote conservation of energy", which would seem to require that a strict construction of the statute be amehorated somewhat in order to promote that expressed policy. Moreover, we believe that the introductory phrase "during the period from January 1, 1977 through December 31, 1978" has reference to the time during which insulation may be installed rather than the time in which a single credit may be obtained. In our view, "a credit" may be obtained in each taxable year, just as other credits, exemptions and deductions may be, where, for example, a taxpayer installs insulation and pays for it in 1977, and installs and pays for storm doors in 1978. "(2) If the taxpayer may claim credit for the same building in each of two separate years, may he receive the maximum credit in one year and an additional credit in the following year if he pays for a single installation in two years?" For example, "a cash basis taxpayer adds insulation to his house in 1977, at a cost of $800. If he pays $400 in 1977 and $400 in 1978, may he claim a $100 credit in each year? -36- I Referring to the provisions of G.S. 105-1 5 1.3(a), a taxpayer who installs insulation may claim as a tax credit "an amount equal to twenty-five percent (25%) of the cost of such insulation" . (Emphasis added.) The cost of "such insulation" in the example is $800, 25% of which is $200. However, the credit is subject to three important limitations: (1) the taxpayer must be liable for payment of "such insulation"; (2) "such payment" (i.e., payment for "such insulation") must be made during the tax year for which the credit is claimed; and (3) the credit shall not exceed $100. It is apparent, therefore, that the total credit available from the installation of insulation in the example given will be only $100. Since the taxpayer has paid $400 in 1977, he has used up the $100 credit which he claimed in that year. There being no balance of the credit remaining, he may not claim any amount in 1978, even though he again pays $400 in that year. Moreover, the statute clearly implies that only one credit is available per installation, which may be taken in one year but not in two. Having taken "the credit" in "the tax year for which the credit is claimed", no other credit for the same installation may be taken in another tax year. "(3) Is the insulation, storm window, and storm door credit available only for the tax years 1977 and 1978?" For example, "if a taxpayer adds $400 of insulation to his house in 1978 and pays for it in 1979, is he denied the credit, or may he claim the credit in tax year 1979?" G.S. 105- 15 1.3(a) begins by providing that "during the period from January 1, 1977, through December 31, 1978, any person . . . who installs . . . insulation . . . shall be allowed ... a credit ..." The meaning of the phrase "during the period from January 1, 1977, through December 31, 1977" is obscure at best. It may (1) limit only the period of installation; or (2) hmit the availability of the credit to that period; or (3) limit the availabihty of the credit to each of the two tax years in the period; or (4) limit both the installation and the credit to the period or tax years involved. Taking the Act as a whole, we feel that the intention of the General Assembly was two-fold: to require that any qualifying installation be made between 1 January 1977 and 31 December 1978, and, to the extent indicated in the discussion of question (1) above, to permit a credit in each of the two tax years. -37- Despite the fact that G.S. 105-151.3 provides that "payment must be made by the taxpayer during the tax year for which the credit is claimed^' we do not believe that the Legislature intended that payment could be made in years after 31 December 1978 and claimed as a credit in years after that date. We conclude that the credit is available only for the tax years 1977 and 1978, and, in the example given, the taxpayer who adds insulation in 1978 and pays for it in 1979 may not claim the credit in tax year 1979. "(4) Is the credit allowable for a tax year limited to the amount paid during that year, or is it limited to 25% of the amount paid?" For example, "if a taxpayer installs $600 of insulation during 1977 and pays $100 of his bill during that year, may he claim $100 credit for 1977, or only $25?" For example, "if a taxpayer installs $600 of insulation during 1977 and pays $ 1 00 of his bill during that year, may he claim $ 1 00 credit for 1977, or only $25?" G.S. 105-1 5 1.3(a) limits the credit to "an amount equal to twenty-five percent (25%) of the cost of such insulation", but further provides that the credit "shall not exceed one hundred dollars ($100.00) ..." Thus the total credit obtainable by the taxpayer for a particular installation may never exceed $100. Two additional requirements are also set out: (1) "the taxpayer must be liable for such insulation", and (2) "such payment be made by the taxpayer during the tax year for which the credit is claimed." (Emphasis added.) Assuming the existence of the taxpayer's Hability, and noting that the statute clearly impUes that only one credit per installation may be claimed, we believe that he may claim $100 for 1977 in the example given, but may claim nothing in 1978, both because the $100 credit has been entirely used up and because only one credit per installation is permissible, and that credit was used in 1977. Finally we beheve that common sense dictates that the credit may not in any case exceed the amount actually paid in the tax year for which the credit is claimed. In the example given, if instead of paying $100, the taxpayer had paid $1.00, he would be entitled -38- to a $1.00 credit, not a credit of $100. The reference to "such payment" seems clearly to relate to "the credit (which) is claimed." Rufus L. Edmisten, Attorney General Myron C. Banks Special Deputy Attorney General 25 August 1977 Subject: Requested by: Question: Conclusion: State Departments, Institutions, and Agencies; Public Officers and Employees, State Personnel Act; Attorney's Fees Mr. Harold H. Webb Director Office of State Personnel In determining whether attorney's fees may be awarded in a proceeding before the State Personnel Commission brought by an employee, a former employee, or an appUcant for employment, should the Commission allow attorney's fees permitted by changes in the State Personnel Act according to the date the cause of action arose, the date proceedings were instituted before the Commission, or the date of the Commission's decision? In determining whether attorney's fees are allowable in a proceeding brought by an employee, a former employee, or an apphcant for employment, the State Personnel Commission should apply statutory changes in circumstances in which attorney's fees may be awarded according to the date the cause of action arose. -39- Chapter 126 of the General Statutes establishes and provides for the administration of the State Personnel System. Effective February 1, 1976, to July 1, 1977, this Act permitted the State Personnel Commission to award attorney's fees in "cases where the Commission finds discrimination or orders reinstatement." S.S. 126^(11) The 1977 General Assembly amended this provision to provide for the award of attorney's fees in "cases where the Commission finds discrimination or orders reinstatement or back pay whether (i) heard by the Commission or (ii) appealed for limited review after settlement or (iii) resolved at the agency level." G.S. 126-4(12) It can be seen that the amended provision allows attorney's fees in cases in which back pay is awarded even though there is no finding of discrimination or order of reinstatement and also permits the award of attorney's fees in cases which were resolved as to all other aspects without a decision by the Commission. This amendment was made effective July 1, 1977. The question is what stage of a grievance by an employee, a former employee, or an appUcant for employment determines whether the amended provisions for attorney's fees effective July 1, 1977, are applicable to a particular grievance. The general rule in North CaroUna and in most other jurisdictions is that statutes are not generally construed to be retrospective or retroactive. Only if the General Assembly clearly indicates an intent for a statute to be applied retrospectively will it be interpreted to operate retrospectively. If there is any doubt, the doubt should be resolved against retrospective operation. In re Mitchell, 285 N.C. 77, 203 S.E. 2d 48 (1974); Smith v. Mercer, 276 N.C. 329, 172 S.E. 2d 489 (1970); Wilson v. Anderson, 232 N.C. 212, 59 S.E. 2d 836, 18 ALR 2d 951, Reh. Den. 232 N.C. 521, 168 S.E. 2d 672 (1950). "'Ordinarily, an intention to give a statute a retroactive operation will not be inferred. If it is doubtful whether the statute or amendment was intended to operate retrospectively, the doubt should be resolved against such operation. It is especially true that the statute or amendment will be regarded as operating prospectively only, where it is in derogation of a common-law right, or where the effect of giving it a retroactive operation would be to interfere with an existing contract, destroy a vested right, or create a -40- new liability in connection with a past transaction, invalidate a defense which was good when the statute was passed, or, in general, render the statue or amendment unconstitutional. ' {Our) 50 Am. Jur. Statutes §478. Accord: 82 CJS Statutes %A\3;Ashley V. Brown, 198 N.C. 369, 372, 151 S.E. 725, 727; Waddill V. Hasten, 111 N.C. 582, 584, 90 S.E. 694, 695; Hicks v. Kearney, 189 N.C. 316, 319, 127 S.E. 205, 207." Smith V. Mercer, 276 N.C. 329, 172 S.E. 2d 489 (1970). In Smith v. Mercer, supra, the question was whether the revised North CaroHna Wrongful Death Act was available to persons who brought suit after the effective date of the Act upon a wrongful death which occurred before the effective date of the Act. The Court noted that the revised Act allowed suit for and recovery of greater and different types of damages from the damages recoverable under the previous version of the Act. The Court discussed cases from other jurisdictions which had held that, where a statute increased the amount of damages recoverable under a wrongful death act, a new cause of action was created for the additional damages allowable. The Court held in Smith v. Mercer, supra, that a new cause of action was created for the additional amounts and kinds of damages available under the amended wrongful death act. Allowing attorney's fees in cases in which they were not recoverable previously in effect creates a new cause of action for the attorney's fees. If the cause of action arose before July 1, 1977, attorney's fees were not available at the time the cause of action arose. Just as in cases where the amounts or kinds of damages available have been increased, a provision for attorney's fees increases the Habihty of the employer in grievance proceedings before the State Personnel Commission. Therefore, under the well-settled principles of construing statutes against retroactivity and avoiding the creation of new habihties for past transactions, the provisions in Chapter 126 for attorney's fees should be applied only to causes of action which arose on or after the effective date of the particular provision for attorney's fees. -41- Rufus L. Edmisten, Attorney General Norma S. Harrell Associate Attorney 25 August 1977 Subject: Requested by: Social Services; Title IV-D of the Social Security Act; Child Support Enforcement; Standing to make application for nonsupport warrants. Miss Willie C. Sutton Pamlico County Director of Social Services Mr. Grady Simpson PamHco County IV-D Worker Child Support Question: Is a designated representative (IV-D agent) working for the North Carolina Child Support Enforcement Program a proper person to demand support and then swear out a warrant for nonsupport of children (legitimate and illegitimate) when the mother or the custodian of the child refuses to do so? Conclusion: Yes, if the child is, or is likely to become, a public charge. Willful neglect or refusal to provide adequate support for an illegitimate child is a violation of N.C. Gen. Stat. 49-2. In order to satisfy the "willfulness" element of this statute, there must be a prior notification of birth and demand for support before the issuance of a warrant. State v. Ingle, 20 N.C.App. 50, 200 S.E.2d 427 (1973). Standing to make the necessary demand and obtain issuance of a warrant for this offense hes, if the child is, or is likely to become, a pubUc charge, in "... the director of social services or such person as by law performs the duties of such official in -42- said county where the mother resides or the child is found." N.C. Gen. Stat. 49-5. This right to make such demand to have the warrants issued in pubHc charge cases overrides objections of the mother or a custodian. State v. Dixon, 257 N.C. 653, 127 S.E.2d 246 (1962). In Dixon, the Court states as follows: "In all likehhood the mother will continue to be its custodian. She may neither need nor desire any assistance or support from the father. The statute is so worded that she may decide whether to call upon the father for assistance. In the event she elects not to make the demand, her election will be respected unless the child is likely to become a public charge; then the Director of Public Welfare may proceed. " State V. Dixon, 257 N.C. at 655, 127 S.E. 2d at 247. (Emphasis supplied.) This statement by the Court is a reflection of its opinion that Chapter 49, as it relates to criminal bastardy proceedings, is purely social legislation. Specifically, its purpose is to prevent illegitimates from becoming public charges and any benefits accruing to a child are incidental. Allen v. Hunnicutt, 230 N.C. 49, 52 S.E. 2d 18 (1949). The phrase "...or such person as by law performs the duties of such official in said county..." found in N.C. Gen. Stat. 49-5 clearly allows for someone other than the Director of Social Services to have standing to institute proceedings of this nature. Logically, this alternative person to the County Director of Social Services is the same as the "designated representative" for the North Carolina Child Support Enforcement Program recognized in N.C. Gen. Stat. 1 10-130 whose duties under that statute include the right to institute analogous civil proceedings. These "designated representatives" are commonly called "IV-D agents". (They are so called because the enabUng legislation for the Child Support Enforcement Program, P. L. 93-647 (42 U.S.C. §§ 651-660), was an amendment to Title IV, Part D of the Social Security Act.) These ''IV-D agents" may be county or State employees depending on whether the Child Support Enforcement Program in the particular county in question is county or State operated. (Alternative arrangements making "IV-D agents" State employees in some counties are authorized by N.C. Gen. Stat. 110-141.) -43- The analogous nonsupport statutes covering legitimate children, as opposed to illegitimate children, of responsible parents are listed in Chapter 14, Article 40 of the North Carolina General Statutes. Like cases brought under N.C. Gen. Stat. 49-2, issuance of warrants for nonsupport under these statutes must be preceded by a demand for support on the responsible parent. State v. Hall, 251 N.C. 211, 110 S.E.2d 868 (1959). Unlike cases involving nonsupport of illegitimate children, there is no statute specifically enumerating who is an appropriate person to make appUcation for arrest warrants for nonsupport of legitimate children. As a general rule most statutes do not specifically list those persons who would have standing to so apply; rather, this determination is left to a case by case basis. Theoretically, anyone supplying the requisite probable cause may prompt, by virtue of N.C. Gen. Stat. 15A-304, a judicial official to issue a nonsupport warrant. Even the most conservative view of the standing issue for cases involving legitimate children does not warrant restricting the class of persons having standing to fewer than those designated by statute (N.C. Gen. Stat. 49-5) for illegitimate children. The same circumstances and policies discussed above that justify institution of criminal actions by the "designated representative" under Article 1 , Chapter 49 of the General Statutes prevail for instituting action for nonsupport of legitimate children under Article 40, Chapter 14. Since these statutes deal with the same subject matter, nonsupport of children, they should be construed in pari materia and harmonized, if possible, to give effect to each. 7 N.C. Index 2d, Statutes §5. Accordingly, the "designated representative" is an appropriate person, in public charge cases, to supply the probable cause necessary for issuance of a warrant under Article 40, Chapter 14 of the North Carolina General Statutes. Rufus L. Edmisten, Attorney General R. James Lore Associate Attorney General -44- 25 August 1977 Subject: \ Requested by: Question: Conclusion: Social Services; Title IV-D of the Social Security Act; Child Support Enforcement; Standing to intervene in criminal nonsupport actions. Jean Prewitt Bost, Supervisor Mecklenburg-Union Counties Child Support Enforcement Unit May a designated representative (IV-D agent) of the North Carolina Child Support Enforcement Program, institute a criminal nonsupport action or take up and move to modify an existing criminal order for nonsupport of children, for the purpose of collecting monies now due and owing the State as a result of the payee's acceptance of pubhc assistance? Yes. N.C. Gen. Stat. 110, Article 9 provides a statutory basis for the j North Carolina Child Support Enforcement Program. Among other features, this section of the law provides that the payment of public assistance creates both a debt due and owing the State, and an assignment by operation of law of the right to child support. N. C. Gen. Stat. 110-128. It is clear, under N. C. Gen. Stat. 110-130, that a designated representative (IV-D agent) of the Child Support Enforcement Program may bring a civil action for nonsupport. The analogous, operative criminal statutes are found in Article 40 of Chapter 14 and in Article 1 of Chapter 49 of the General Statutes, making it a misdemeanor or a felony, in certain cases, to fail to adequately support one's children. These statutes as a practical matter indirectly lead to the collection of child support through the judge's use of the sentencing procedure. The procedure allows a judge to condition suspension of a sentence upon support of one's dependents. N. C. Gen. Stat. 15-199 (11); 15-200 N.C. Gen. Stat. 110-128, 110-135, and 110-137 arguably stand for the proposition that all support rights are by operation of law assigned to the State -45- by a recipient of public assistance, criminal as well as civil. The first sentence of N. C. Gen. Stat. 1 10-137 states generally as follows: "By accepting public assistance for or on behalf of a dependent child or children, the recipient shall be deemed to have made an assignment to the county from which such assistance was received of the right to any child support owed...." The second sentence reads more narrowly: "The county shall be subrogated to the right of the child or children or the person having custody to initiate a support action under this Article.... " (Emphasis supplied.) The underlined quoted language from this sentence authorizes subrogation to civil actions mentioned in N. C. Gen. Stat. 110-130. Nevertheless, there is no indication that subrogation to the custodial parent's standing to institute a criminal action elsewhere authorized is inappropriate. Turning to other statutes, we can glean authority for the proposition that the IV-D Program has standing to criminally intervene in cases involving pubhc assistance. N. C. Gen. Stat. 50-13.7 states: "An order of a court of this State for.. .support. ..of ' a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.^' (Emphasis supphed.) Once welfare is paid out, "anyone interested" clearly includes the State as represented by the IV-D agent. Also, this addition of a newly interested party and the resultant need to change the payee in such a court order points out the "changed circumstances" as required by the statute. This statute lends credence to the proposition that it is appropriate for a IV-D agent to take up an existing criminal nonsupport action, and, as is commonly done, move for enforcement or change of payee (e.g., from the custodian to the Department of Human Resources). -46- Moreover, N. C. Gen. Stat. 108-22, which deals with the duties and responsibilities of special county attorneys in social service matters, clearly envisions participation by the State in criminal nonsupport actions. The county attorney is "To assist the district court prosecutor or superior court district attorney with the preparation and prosecution of criminal cases under Article 40 of Chapter 14 of the General Statutes, entitled 'Protection of the Family'. ..(and) proceedings authorized by Chapter 49 of the General Statutes, entitled "Bastardy."' One could only assume that the General Assembly, in passing this statute, intended that the county and State, as providers of pubHc assistance, should directly participate in criminal as well as civil nonsupport actions. Furthermore, an examination of N. C. Gen. Stat. 15-199 reveals a broad possible interpretation of the criminal sentencing laws, making intervention by the IV-D program allowable: ''Conditions of probation.-The court shall determine and may impose, by order duly entered, and may at any time modify the conditions of probation and may include among them the following, or any other: that the petitioner.. .(1 1) Support his dependents." This broad language does not limit a criminal order in any fashion. Typical conditions of probation and suspension are enumerated, but "any other" is within the power of the judge. And even the enumerated condition "Support his dependents" is broad enough to include reimbursement of the State, where the State is already supporting a defendant's children. In short, the State can properly be made a payee under N. C. Gen. Stat. 15-199, and as such gains clearer standing to enforce criminal rights. Finally, as a matter of Department of Human Resources policy, written assignments of rights are secured from recipients of public assistance at the time of their initial ehgibihty apphcation, clearly allowing the State to step into a chent's shoes in all instances regarding child support. Provided that routine was followed in an individual case, the question of whether criminal standing has been assigned to the State by operation of law would appear to be rendered moot. -47- Rufus L. Edmisten, Attorney General Edward H. Galloway Associate Attorney General 29 August 1977 Subject: Requested by: Questions: Conclusions: Special Assessments; Release of Assessment, Penalty or Interest by City Council; G.S. 160A-231; G.S. 105-380 Robert C. Cogswell, Jr. Fayetteville City Attorney (1) Whats authority, if any, does a city council have to reheve a taxpayer of a special assessment, interest or penalty on said special assessment? (2) If authority exists for a city council to relieve a special assessment, interest or penalty thereon, upon what basis can they do the same? (3) If a city council improvidently reheves a taxpayer of a special assessment, interest or penalty thereon, to what liability, if any, are they subject either as a body or individually? (4) If the city council improvidently relieves a taxpayer of a special assessment, interest or penalty thereon, what action, if any, should they take to remedy the situation? (1) Its authority 160A-231. is found in G.S. (2) The basis for its authority is the -48- existence of some "irregularity, omission, error or lack of jurisdiction." (3) They may be liable individually pursuant to G.S. 105-380 (with reservations). (4) The council may rescind its action and return the lien to its status quo ante. The following factual situation has been presented: "Pursuant to a petition of the property owners, the City Council passed a resolution to pave a certain street in the City of Fayetteville. In accordance with North CaroHna General Statute 160A-224 and 160A-227, the proper notices were sent to the property owners as relates to the preliminary resolution and the preliminary assessment roll. The letter of notification pursuant to 160A-227 advised the property owners that the letter was not a bill and that one would be forthcoming setting forth the actual rate of assessment and any penalties. After the assessment roll was confirmed and published in the newspaper, the Tax Collector sent out bills. One of the property owners had moved in the meantime, and therefore when the bill was sent to the last known address, it was returned to the Tax Collector with no forwarding address. No effort was made by personnel in the Tax Office at that time to ascertain the new address and it was over a year later when the property owner was finally made aware of the actual interest charge although as previously stated, all statutory requirements concerning notice and pubhcation had been met. It should also be pointed out that the maihng address at which the particular property owner received the first two notices was not an address on the street paved. The property owner moved from that address to an address on the street that was paved in which the assessment was placed. In other words, during the period of time that the public hearings were -49- conducted, the assessment roll confirmed, and all statutory notice requirements were met, the aggrieved property owner did not hve on the street that was paved. The property owner requested that the Council relieve the interest and penalty thereon because an actual bill setting forth the same was never received. For this reason and this reason alone, the City Council unanimously passed a motion to reheve the particular taxpayer of the interest and penalty on the assessment." Based upon the foregoing facts, an opinion has been requested upon four questions. Because of their similarity the first two questions will be considered together: "(1) What authority, if any, does a city council have to relieve a taxpayer of a special assessment, interest or penalty on said special assessment?" "(2) If authority exists for a city council to reheve a special assessment, interest or penalty thereon, upon what basis can they do the same?" There are a number of notice requirements which must be met in connection with special assessments: after a city council adopts a prehminary resolution with respect to a project, a notice of hearing on the resolution must be published, and a copy of the resolution must be mailed to each affected property owner "as shown on the county tax records." G.S. 160A-224. After the hearing, and if an assessment resolution is adopted, the project proceeds. When it has been completed, the council determines the total cost and prepares a prehminary assessment roll, apportioning the total cost among the property owners. At this point, notices of the availabihty of the roll for pubhc inspection, and of a hearing on the preliminary assessment roll, must be published. A similar notice of hearing,! stating the amount of his proposed assessment, must also be mailed to each property owner. G.S. 160A-227. At the hearing, the council hears any objections to the roll which interested persons may have,, and may approve or modify the assessments and may confirm the roll as it then is. G.S. 160A-228. After twenty days elapse, the city tax collector must publish one further notice, that the roll has! . , . -50- been confirmed and that assessments may be paid, without interest, during the ensuing thirty days, but that payments made later will include interest. No notice by mail to property owners is required at this point. G.S. 160A-229. If an assessment is "not paid within this time, all installments thereof shall bear interest as provided in G.S. 160A-233." G.S. 160A-229. Interest is at the rate of 8% per annum. G.S. 160A-233. The statement of facts indicates that "all statutory requirements concerning notice and publication had been met", and our opinion is based upon that premise. The questions must therefore be approached from the direction that no bilhng was required, and the unrequired bill that was sent was made in the same fashion to each owner, i.e., to his last known address. Moreover, the other mailed ! and published notices, as well as the actual work in progress, on the ground, provided ample notice that work was in progress, that i assessments would be made, and that property owners would have ; to pay them. While it is regrettable in the extreme that the bill * did not find its way into the property owner's hands, the owner i could have ascertained the amount of his charge merely by inquiring and not having done so, had the use of his money during the interim, as did other owners who consciously chose to delay payment. Payment of interest would have been no greater for him than for them. In this hght, G.S. 160A-231 delineates the council's authority to make adjustments. Its statutory predecessor read: "The governing body may correct, cancel or remit any assessment for a local improvement, and may remit, cancel or adjust the interest -or penalties on any such assessment. The governing body has the power, when in its judgment there is any irregularity, omission, error or lack of jurisdiction in any of the proceedings relating thereto, to set aside the whole of the local assessment made by it, and thereupon to make a reassessment." G.S. 160-90. !!The first sentence seems to grant broad discretionary authority to J adjust assessments, penalties and interest, but the sentence was ,. interpreted differently in McClester v. China Grove (1928) 196 N.C. -51- 301. There the cost of assessments was underestimated and dissatisfied property owners prevailed upon the town board to reduce their assessments by 25%. However the Supreme Court found the adjustments to be improper, even after considering the above-quoted language: "Here, the total amount of cost, required of the municipality, was assessed against the lots and parcels of land abutting directly on said improvement, in response to the request of the petition and in accordance with the provisions of the statute, hence we think the new board of aldermen was without authority to grant a reduction or rebate of 25 per cent of the original assessment roll, there being no suggestion of any irregularity in the proceedings. Gallimore v. Thomasville , (1926) 191 N.C., 648, 132 .. S.E., 657. True, it is provided by C.S., 2715 and 3 C.S., 2806(0 that the governing body of a municipahty may correct, cancel or remit any assessment made for local improvement, including interest or penalties thereon, and shall have the power, when in its judgment there is any irregularity, omission, error or lack of jurisdiction in any of the proceedings relating thereto, to set aside the whole of the local assessment, make a reassessment, etc., but these statutes, we apprehend, have no application to a fact situation similar to the one now under consideration. Gallimore v. Thomasville, supra. " Thus the Supreme Court held that some irregularity must exist before the quoted language could come into play. Since no irregularity appears from the facts stated (i.e., no failure to do an act required by law), China Grove supports the conclusion that the Council was without authority to adjust the property owner's assessment, penalties or interest. In addition, it is most significant that in recodifying G.S. 160-90' as G.S. 160A-231, the General Assembly omitted the former first sentence altogether. The present section begins with what was . ^ -52- essentially the second sentence of G.S. 160-90: "The council shall have the power, when in its judgment any irregularity, omission, error or lack of jurisdiction in any of the proceedings related thereto, has occurred, to set aside the whole of any special assessment made by it and thereupon to make a reassessment." Thus, to answer the first two questions specifically, the authority of a city council to reheve a property owner of some part of a special asssessment is found in G.S. 160A-231, and the basis of that authority is grounded upon the existence of some "irregularity, omission, error or lack of jurisdiction." Where none exists, the Council lacks authority to make any adjustment. "(3) If a city council improvidently reheves a taxpayer of a special assessment, interest or penalty - thereon, to what habihty, if any, are they subject either as a body or individually?" While we are satisfied that special assessments are not, standing alone, property taxes and are not, as property taxes, subject to the Machinery Act, nonetheless G.S. 160A-228 does provide that "from and after the time of confirmation, the assessments shall be a Uen on the property assessed of the same nature and to the same extent as the lien for county and city property taxes. ..^^ (Emphasis added.) It further provides that "after the assessment roll is confirmed, a copy of it shall be delivered to the city tax collector for collection in the same manner as property taxes, except as herein provided." (Emphasis added. )If the assessment hen is "of the same nature" and "to the same extent" as the property tax hen, presumably it is subject to the same rules and restrictions, including the following provisions of G.S. 105-380(c): "(c) Any tax that has been released, refunded, or compromised in violation of this section may be recovered from any member or members of the governing body who voted for the release, refund, or compromise by civil action instituted by any resident of the taxing unit, and when collected, the recovered -53- tax shall be paid to the treasurer of the taxing unit. The costs of bringing the action, including reasonable attorneys' fees, shall be allowed the plaintiff in the event the tax is recovered." (The word "tax" includes penalties and interest. G.S 105-273(15).) We have found no case construing this question in the hght of G.S. 160A-228 and G.S. 105-380, and it is, of course, by no means certain that a court would find the members of the council Uable. "(4) If the city council improvidently reheves a taxpayer of a special assessment, interest or penalty thereon, what action, if any, should they take to remedy the situation?" We beheve that the council can adopt a resolution rescinding its former action, returning the claim and lien to its status quo ante. In an analogous situation, a taxpayer had asked to be relieved of any assessment of tax on property he owned, representing that it had already been listed by another, who paid the tax. The Commissioners, acting on the representation, ordered that the property be released from taxation. Later, after it appeared that the taxpayer had made an erroneous representation, the Board rescinded its previous order. On review the question was whether the Board could recind its action. The Supreme Court held: "In strictness the only point presented is the legal capacity of the commissioners to reverse and annual their own former erroneous action, not in reforming the tax list, but in the attempted exoneration of the intestate from a part of the taxes for which he is liable thereon, and thus to put out of the way an impediment and hindrance to their collection. It certainly requires neither reference nor argument to sustain so self-evident a proposition as the right (and we may add the duty) of the board, when the error is discovered, and more especially, when committed by the intestate's own representation, to correct it and avert its consequences, and as little . -54- \ objection lies to the fair and deliberate manner in which the board retraced its steps." Lemly v. Commissioners of Forsyth (1881) 85 NC 379. Rufus L. Edmisten, Attorney General Myron C. Banks Special Deputy Attorney General 31 August 1977 Subject: Requested by: Questions: Conclusions: Infants and Incompetents; Health Services; Physicians; Rendering Family Planning Services to Minors Margie Rose, M.P.H., Branch Head, Family Planning Branch, Division of Health Services (1) Is the consent of a minor sufficient to authorize a physician hcensed in North Carolina to render family planning services to that minor w^ithout obtaining consent from the parent, guardian, or person standing in loco parentis? (2) Under these circumstances is the physician immune from hability from civil and criminal liability for rendering these services? (1) Yes. (2) Yes. The 1977 Session of the North Carolina General Assembly ratified Chapter 582 entitled "AN ACT TO AUTHORIZE HEALTH SERVICES FOR MINORS." That Chapter rewrote G.S. 90-21.5 to read as follows: 55- "Minor's consent sufficient for certain medical health services.-(a) Any minor may give effective consent to a physician licensed to practice medicine in North Carolina for medical health services for the prevention, diagnosis and treatment of (i)veneral disease and other diseases reportable under G.S. 130-81, (ii) pregnancy, (iii) abuse of controlled substances or alcohol, and (iv) emotional disturbance. This section does not authorize the inducing of an abortion, performance of a sterilization operation, or commitment to a mental institution or hospital for confinement or treatment of a mental condition. , (b) Any minor who is emancipated may consent to any medical treatment, dental and health services for himself or for his child." Clearly the "...prevention. ..of.. .pregnancy" includes the rendering of family planning services, exclusive of the exceptions Hsted in this statute. Further, the statute is directed to any minor so that it is applicable to members of both sexes. Finally, G.S. 90-2 1.4(a), as also rewritten by Chapter 582, provides that any physician rendering services of this nature to a minor under these circumstances "...shall not be held Hable in any civil or criminal action for providing such services without having obtained permission from the minor's parent, legal guardian, or persons standing in loco parentis/' As a cautionary note, though, the new statutes specifically do not provide immunity to a physician for negligence on his part in diagnosis or treatment. In view of the changes in these statutes by the 1977 General Assembly, any conflict between this opinion and the prior opinion of the Attorney General reported at 43 N.C.A.G. 380 (1974) should be resolved in favor of this opinion. ' Rufus L. Edmisten, Attorney General William F. O'Connell Special Deputy Attorney General -56- 31 August 1977 Subject: Requested by: Question: Conclusion: State Departments, Institutions and Agencies; The University of North Carolina at Chapel Hill; Endowment Fund; Sale of Real Property; Disposition of Proceeds. Grace W. Wagoner University Property Officer Can the University of North Carolina at Chapel Hill sell real property which was acquired by deed of gift and turn the proceeds from the sale over to the endowment fund of the institution? No. However, with the approval of the Governor and Council of State as provided in Chapter 146 of the General Statutes, title to the lands in question could be conveyed to the trustees of the endowment fund. The trustees could sell the property and retain the proceeds from the sale. In December of 1973, certain lands were conveyed to the University of North Carolina at Chapel Hill by deed of gift. The University desires to sell this land and turn the proceeds over to the endowment fund of the University. An opinion has been requested with regard to whether the net proceeds from such a sale could be retained by the University for its use or if the funds, would go into the General Fund pursuant to G.S. 146-30. All sales of real property by the Board of Governors of the University of North Carohna are subject to the provisions of Chapter 146 of the General Statutes. G.S. 116-13. Under G.S. 146-30 as amended the proceeds of a sale of real property by the University would go into the General Fund. 46 N.C.A.G. 40; 46 N.C.A.G. 51. However, there appears to be one method by which the endowment fund could receive the proceeds from a disposition of this property. G.S. 116-36, which relates to endownment funds, was rewritten by Chapter 506 of the 1977 Session Laws. G.S. 116-36(d) specifically -57- authorizes the trustees of the endowment fund of each constituent institution of the University of North Carolina to receive and administer as part of the endowment fund property that may come to them from the Board of Governors. There are certain exceptions to this provision but they are not apphcable to the present inquiry, G.S. 116-36(g) authorizes the trustees of the endowment funds to buy, sell, lend, exchange, lease, transfer or otherwise dispose of or acquire property, real or personal, and in so doing they are not subject to the provisions of Chapter 143 and 146 of the General Statutes. Thus, the lands in question could be conveyed to the trustees of | the endowment fund. Such a conveyance would be subject to the approval of the Governor and Council of State as provided in Chapter 146 of the General Statutes, and the deed of conveyance would have to be executed in the manner provided therein. See G.S. 116-13. Once title to the property is vested in the trustees of the endowment fund, the provisions of G.S. 146-30 would not be apphcable to a sale of the property. G.S. 116-36(g). It should be noted that the above opinion applies only to lands donated to the University prior to June 8, 1977. G.S. 116-360), which became effective on that date provides: "G) Any gift, devise, or bequest of real or personal property to a constituent institution of the University of North Carolina or to the University of North Carolina or to the University of North Carolina Press shall be presumed, nothing to the contrary appearing, a gift, devise, or bequest, as the case may be, to the endowment fund of the respective institution or agency." j I Nothing else appearing, this statute would automatically transfer title ( to lands acquired by gift, devise or bequest by a constituent [ institution, the University, or the University Press to the endowment fund of that institution or agency by operation of law. The disposition of such properties would be governed by G.S. 116-36 rather than Chapter 146 of the General Statutes. We are of the opinion that the provisions of G.S. 116-36G) would not apply to properties donated, devised or bequeathed to the; -58- ! University prior to June 8, 1977. There is nothing in this statute to indicate that the Legislative intent was for the statute to operate retroactively. Ordinarily, a statute will be given prospective effect only and will not be construed to have retroactive effect unless such intent is clearly expressed or arises by necessary implication from its terms. Housing Authority of Durham v. Thorpe, 271 N.C. 468, 157 S.E. 2d 147 (1967). Ordinarily, an intention to give a statute a retroactive operation will not be inferred. Smith v. Mercer, 276 N.C. 329, 172 S.E. 2d 489 (1970). Rufus L. Edmisten, Attorney General Roy A. Giles, Jr. i Assistant Attorney General 6 September 1977 Subject: Motor Vehicles; Drivers License Records; Public Records Requested by: Zeb Hocutt, Jr. Director, Driver License Section Division of Motor Vehicles Question: Is the Division of Motor Vehicles required or permitted under the statutes to sell or furnish selective listings (i.e., by age, sex, etc.) in bulk or on computer tapes from the driver's license files for commercial purposes? Conclusion: No. The information furnished the Division of Motor Vehicles as a prerequisite to obtaining a North Carolina motor vehicle operator's 3r chauffeur's license is obtained by operation of law with possible sanctions being imposed if false information is given. G.S. 20-7 - 3.S. 20-15. The information as to age, sex, physical condition, etc., ;hough personal in nature, is necessary and proper to the relative icensing process due to the danger involved to one's self and to -59- others when operating a motor vehicle. However, such information should not be indiscriminately disseminated for a fee by the Division of Motor Vehicles as the right to privacy is a personal and fundamental right protected by the Constitution of the United States. It should be noted that the Division, under G.S. 20-26(b), is only required to furnish copies of the records required to be kept under subsection (a) of this section, which reads: " §20-26. Records; copies furnished.-{di) The Department shall keep a record of proceedings and orders pertaining to all operator's and chauffeur's licenses granted, refused, suspended or revoked. The Department shall keep records of convictions as defined in G.S. 20-24(c) occurring outside North Carolina only for the offenses of exceeding a stated speed hmit of 55 miles per hour or more by more than 1 5 miles per hour, driving while license suspended or revoked, careless and reckless driving, engaging in prearranged speed competition, engaging willfully in speed competition, hit-and-run driving resulting in damage to property, unlawfully passing a stopped school bus, illegal transportation of intoxicating liquors, and the offenses included in G.S. 20-17." The information required upon the application for a chauffeur's or opertor's hcense is only available for inspection at "any reasonable time during office hours" (G.S. 20-27), and the information as to age and description is required to be shown only on the actual operator's and chaufferur's Ucense under G.S. 20-7(n). Though the operator's and chauffeur's Hcense has become a universal means of identification, such is by practice and not by operation of law, for the only times an operator's or chauffeur's license is required to be shown by the holder thereof is when requested by a law enforcement officer who has observed the holder thereof operating a motor vehicle upon the highways or upon proper order of the court or the Division of Motor Vehicles. When sections of Article 2 of Chapter 20 of the General Statutes are construed in pari materia, it is clearly evident that the personal r -60- information required by the Division of Motor Vehicles on the application for operator's or chauffeur's license as a Hcensing agency was not meant by the Legislature to be indiscriminately disseminated in the nature of bulk Hstings on computer tapes for a fee, but only open to inspection at reasonable times during office hours to assure that the Division of Motor Vehicles was properly carrying out its duty. We are cognizant of the provisions of Chapter 132 of the General Statutes and the provisions thereof have been duly considered. It is a well estabhshed rule of statutory construction that specific enactments take precedence over general enactments dealing with the same subject matter. Therefore, there being specific legislative enactments relative to the availability of the records required pursuant to Article 2 of Chapter 20, such would take precedence over the provisions of Chapter 132 except as to those records held by said division not specifically covered under aforesaid Article 2. In our opinion records of the Drivers License Section should not be furnished in the nature of selective Hstings based on age, sex, etc., absent an order of a court of competent jurisdiction. Further, due to the nature of the information contained in the Drivers License files, strict compliance with the statutes is essential for the protection of the rights of those of whom the information is required as prerequisite to obtaining an operator's or chauffeur's hcense. Rufus L. Edmisten, Attorney General William W. Melvin Deputy Attorney General 7 September 1977 Subject: State Departments, Institutions, and Agencies; PubHc Officers and Employees; State Personnel Act; Exemption of Confidential Secretaries Requested by: Mr. Harold H. Webb Director Office of State Personnel -61- Question: Does G.S. 126-5(d) confidential secretaries exempt pursuant to G.S. may they automatically require that be designated 126-5(d)(4) or by exempted Conclusion: pursuant to G.S. 126-5 (d)(3)? Confidential secretaries named in G.S. 126-5(d)(3) are automatically exempt while confidential secretaries to other persons designated as exempt because they are in policy-making positions must also be designated exempt pursuant to G.S. 126-5(d)(4) in order to be exempt. Chapter 126 of the General Statutes, the State Personnel Act, provided from February 1, 1976, to July 1, 1977, in G.S. 126-5(b) (2) that a "confidential assistant and two confidential secretaries for each elected or appointed department head and one confidential secretary for each chief deputy or chief administrative assistant" should be exempt from the State Personnel Act except as to salaries. That statute also provides in G.S. 126-5(b)(3) that other persons who serve in poHcy-making positions could be made exempt from | the State Personnel Act except as to salaries by appropriate written^ designation. Chapter 126 was amended effective July 1, 1977, to provide in G.S 126-5(d)(3) that a "confidential assistant and two confidential] secretaries for each elected or appointed department head and one confidential secretary for each chief deputy or chief administrative assistant" should be exempt from the State Personnel Act except as to certain designated provisions. The 1977 amendment also provided in G.S. 126-5(d)(4) that not only persons serving in poHcy-making positions, but also "any confidential secretary ori confidential assistant to any such deputy, administrative assistant, division or agency head or employee" designated as policy-making could also be designated as exempt. The question is whether a confidential secretary to a designated policy-maker must be designated as exempt or is automatically exempt. i G.S, 126-5(d)(3) as the State Personnel Act was amended effective July 1, 1977, and G.S. 126-5(b)(2) as the State Personnel Act -62- I existed prior to the 1977 amendment, both provide that two confidential secretaries for each department head and one confidential secretary for each chief deputy or chief administrative ' assistant should be exempt from the State Personnel Act for most purposes. That provision provides that such secretaries are exempt and does not require or provide for any designation of such ; secretaries as exempt. Therefore, secretaries meeting the description j of those provisions are automatically exempt and need not be ' designated as such in order to be exempt except to the extent that it is necessary to do so to identify such persons. Prior to the 1977 amendments. Chapter 126 provided that "one confidential secretary to each position designated under the provisions of G.S. 126-5(b)(3)" would be exempt from the State , Personnel Act except as to salaries. G.S. 126-5(b)(4). Therefore, I under the pre-July 1, 1977, version of the State Personnel Act, a ' confidential secretary to each person designated as exempt because jof being in a policy-making position was also exempt, and no 1 designation of such confidential secretary was required except to the extent necessary to identify the secretary. The 1977 amendment provides for the designation of a confidential secretary or confidential assistant to any person designated as exempt because of being in a policy-making position. The new version of the State Personnel Act does not provide that a confidential secretary to each person designated as exempt because of being in a policy-making position is automatically exempt. Therefore, in the future, a confidential secretary to a person designated as being exempt because of being in a policy-making position will have to be designated as such pursuant to G.S. 126-5 (b)(4) in order for the confidential secretary to be exempt. However, confidential |secretaries who were automatically exempt under the pre-July 1, !1977, version of the State Personnel Act because they were confidential secretaries to persons designated as being in ipohcy-making positions will continue to be exempt automatically. Such person automatically became exempt on or before May 1, 1977, when the persons for whom they acted as confidential secretaries were properly designated as exempt. The amendments in the statute will not take away their exempt status. -63- Rufus L. Edmisten, Attorney General Norma S. Harrell Associate Attorney 14 September 1977 Subject: Requested by: Questions: Conclusions: Courts; Infants; Juveniles; Authority of District Court Judge and Division of Youth Services to Commit a DeUnquent Juvenile. Mike Cayton Assistant Director for Management and Planning Division of Youth Services Department of Human Resources (1) Does the District Court have authority to commit a delinquent child to the Department of Human Resources for a fixed term? (2) Can the Department of Human Resources extend the commitment of a child, who has not reached his eighteenth birthday, past the time specified by the District Court in its commitment order? (3) Can the Department of Human Resources release a child prior to the expiration of a commitment order? (4) Does the District Court have the authority to commit a delinquent child to a specific program or institution? (1) Yes, provided the fixed term does not extend beyond the child's eighteenth birthday. -64- (2) No. (3) Yes, but not without involving the court. (4) No, except with agreement of the Department. A juvenile hearing is a two-step process. The Court must determine if a child is delinquent, dependent, neglected, or undiscipUned. G.S. 7A-278. If a child is adjudged to fall within any of these conditions, then "(a)t the conclusion of the adjudicatory part of the hearing, the court may proceed to the disposition part of the hearing, or the court may continue the case for disposition after the juvenile probation officer or family counselor or other personnel available to the court has secured such social, medical, psychiatric, psychological or other information as may be needed for the court to develop a disposition related to the needs of the child or in the best interest of the State. The disposition part of the hearing may be informal, and the court may consider written reports or other evidence concerning the needs of the child. In all cases, the court order shall be in writing and shall contain appropriate findings of fact and conclusions of law...." G.S. 7A-285 The District Court, having adjudged a child delinquent, has the authority to commit the child to the Department of Human Resources for "a definite or an indefinite term, not to exceed beyond the eighteenth birthday of the child, as the Department or its administrative personnel may find to be in the best interest of the child." G.S. 7A-286(5). The authority of the District Court is not totally discretionary. The General Assembly intended that the Department of Human Resources would be consulted in arriving at the length of the commitment. While the District Court does have -65- the authority to commit for a definite period of time, it would seem the best practice for a child who is to be sent to a training school is for him to be committed to the Department of Human Resources for an indefinite period of time not to exceed the child's eighteenth birthday or until released by the Department of Human Resources. The Department has not only the authority but the duty to release the child when the needs of the child or the best interest of the State indicate a need for such a release. G.S. 134A-30. Second, when a child is committed for a definite period of time and the time of the commitment expires, there seems to be no authority for the Department to extend the commitment. Although it is true that the Department has the duty to know when a child is ready for release, G.S. 134A-30, and release of the child when the needs of the child and the best interest of the State so dictate, G.S. 134A-32, this duty does not grant the Department the authority to extend a commitment beyond the time specified in the District Court Order. Such an extension would amount to a deprivation of Uberty and would require a Due Process Hearing prior to any deprivation. Cf. State v. Dobbins, 111 N.C. 484, 178 S.E. 2d 449 (1971). Once a judgment against an adult criminal defendant has been imposed, an adult cannot be validly imprisoned beyond the time specified in the judgment. State v. Hoover, 252 N.C. 133, 113 S.E. 2d 281 (1960). There seems to be no reason not to apply this rule to the juvenile courts. The basic requirements of due process must be met in a Juvenile Court Proceeding. In re Burrus, 275 N.C. 517, 169 S.E. 2d 879 (1969) aff'd., 403 U.S. 528, 91 S.Ct. 1976, (1971). Such requirements include notice and a hearing prior to deprivation of any Uberty. Id. at 530. There does not seem to be any provision for holding a subsequent hearing by the Department. The committing Judge has "exhausted his immediate authority" and therefore cannot extend the commitment without a new petition being filed. Id. at 536. The time to have the proper commitment imposed is at the conclusion of the disposition phase of the juvenile process. After that time, an extension of the commitment would not seem to be allowed. The Department of Human Resources has the authority pursuant to G.S. 134A-30, 134A-31, and 134A-32 to release a committed child at any time that the Department determines that the needs of the child and the best interest of the State would be served by -66- such release. Prior to release, the Department shall initiate pre-release planning with the parents of the child and the committing court. If this pre-release planning is begun prior to the expiration of a fixed commitment, the Department should seek an amendment to the order of the committing court prior to release of a child. The Department and the District Court seem to have concurrent authority over the commitment of a child. The final authority to release the child is, however, vested in the Department. The Department would be wi
Object Description
Description
Title | North Carolina Attorney General reports |
Contributor | North Carolina. Department of Justice. |
Date | 1977; 1978 |
Subjects |
Attorneys general's opinions--North Carolina Automobiles--Transportation--Law and legislation Criminal law Election law 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 | 13402 KB; 312 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_biennialreportattorneygeneral19771978.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 V.U7 1977/78 UNIVERSITY OF N.C. AT CHAPEL HILL 00033947365 ^•-**-« FOR USE ONLY IN I THE NORTH CAROLINA COLLECTION 1 Digitized by tine Internet Arciiive in 2011 witii funding from Ensuring Democracy tiirougii Digital Access (NC-LSTA) http://www.archive.org/details/northcarolinaatt19771978 47 N.C.A.G. No. 1 Pages 1 through 145 NORTH CAROLINA ATTORNEY GENERAL REPORTS Opinions of the Attorney General July 1, 1977 through December 30, 1977 MAILING ADDRESS: Post Office Box 629 Raleigh, North Carolina 27602 RUFUS L. EDMISTEN Attorney General /W7a. James F. Bullock Senior Deputy Attorney General Andrew A. Vanore, Jr. Senior Deputy Attorney General Robert Bruce White, Jr. Senior Deputy Attorney General Jean A. Benoy Deputy Attorney General William W. Melvin Deputy Attorney General Millard R. Rich, Jr. Deputy Attorney General Charles H. Smith Administrative Deputy Attorney General Howard A. Kramer Deputy Attorney General for Legal Affairs John A. Elmore, II Special Assistant to the Attorney General Myron C. Banks James L. Blackburn Jesse C. Brake Lester V. Chalmers, Jr. T. Buie Costen David S. Crump Ann Reed Dunn Sidney S. Eagles, Jr. Robert P. Gruber Herbert Lamson, Jr. John R. B. Matthis William F. O'Connell William A. Raney, Jr. James B. Richmond Jacob L. Safron John M. Silverstein, Jr. Eugene A. Smith Edwin M. Speas, Jr. Special Deputy Attorneys General Archie W.-^Anders George W. Boylan William F. Briley Elisha Harry Bunting, Jr. Elizabeth C. Bunting H. Al Cole, Jr. John C. Daniel, Jr. Amos C. Dawson, III Roy A. Giles, Jr. Richard L. Griffin Zoro J. Guice Guy A. Hamlin Claude W. Harris Ralf F. Haskell Charles M. Hensey Alan S. Hirsh I. B. Hudson, Jr. Sandra M. King Richard N. League James E. Magner, Jr. Charles J. Murray Daniel C. Oakley George J. Oliver George J. Poe, Jr. WilHam B. Ray Robert R. Reilly, Jr. Jo Ann S. Routh Alfred N. Salley James L. Stuart James M. Wallace, Jr. Acie L. Ward Robert G. Webb W. Woodward Webb Thomas B. Wood Assistant Attorneys General Sylvia X. Allen Rudolph A. Ashton, III Isaac T. Avery, III Rebecca R. Bevacqua David Blackwell William H. Boone Jean Boyles Christopher P. Brewer Henry H. Burgwyn Joan H. Byers Lucien Capone, III James M. Carpenter Christopher S. Crosby Thomas H. Davis, Jr. Sarah L. Fuerst Edward H. Galloway Donald W. Grimes Claudette C. Hardaway Norma S. Harrell Risa L. Harris Patricia B. Hodulik Ben G. Iron, II Douglas A. Johnston George W. Lennon R. James Lore Nonnie F. Midgette Thomas F. Moffitt Mary I. Murrill Robert W. Newson, III J. Chris Prather Wilton E. Ragland, Jr. Marilyn Y. Rich James E. Scarborough Gloria Mamite Shuford James P. Smith Jane R. Thompson Thomas M. Todd Patricia H. Wagner John R. Wallace Kaye R. Webb Cynthia Zeliff Associate Attorneys LIST OF ATTORNEYS GENERAL SINCE 1776 Term of Office Waightsill Avery 1776-1779 James Irdell 1779-1782 Alfred Moore 1782-1790 J. John Haywood 1791-1794 Blake Baker 1794-1803 Henry Seawell 1803-1808 Oliver Pitts 1808-1810 William MOler 1810-1810 Hutchins G. Burton 1810-1816 William Drew 1816-1825 James F. Taylor - 1825-1828 Robert H. Jones 1828-1828 Romulus M. Saunders 1828-1834 John R. J. Daniel 1834-1840 Hugh McQueen 1840-1842 Spier Whitaker 1842-1846 Edward Stanly 1846-1848 Bartholomew F. Moore 1848-1851 William Eaton 1851-1852 Matt W. Ransom 1852-1855 Joseph B. Batchelor 1855-1856 William H. Bailey 1856-1856 William A. Jenkins 1856-1862 Sion H. Rogers 1862-1868 William M. Coleman 1868-1869 Lewis P. Olds 1869-1870 William M. Shipp 1870-1872 Tazewell L. Hargrove 1872-1876 Thomas S. Kenan - 1876-1884 Theodore F. Davidson 1884-1892 Frank I. Osborne 1892-1896 Zeb V. Walser 1896-1900 Robert D. Douglas 1900-1901 Robert D. Gilmer 1901-1908 T. W. Bickett 1909-1916 James S. Manning 1917-1925 Dennis G. Brummitt 1925-1935 A. A. F. Seawell 1935-1938 Harry McMuUan 1938-1955 William B. Rodman, Jr. 1955-1956 George B. Patton 1956-1958 Malcolm B. Seawell 1958-1960 Thomas W. Bruton . 1960-1969 Robert Morgan 1969-1974 James H. Carson, Jr. 1974-1974 Rufus Ligh Edmisten 1974- 15 July 1977 Subject : Requested by: Questions: Mental Health; Criminal Law and Procedure; Physicians and Doctors; Capacity to Stand Trial; Furnishing Psychiatric Evaluation to District Attorney Bob Rollins, M. D. Chief, Forensic Services Dorothea Dix Hospital (1) Do the General Statutes of North CaroUna preclude the Forensic Unit at Dorothea Dix Hospital from forwarding a copy of the full capacity to proceed report of a defendant in a criminal action to the appropriate district attorney upon the latter's request or upon the Unit's own initiative? (2) In order to authorize this action, is it necessary that the judge's order directing the psychiatric evaluation provide that the district attorney shall receive a copy of this report? (1) Yes, except for the covering statement for the report. (2) In order to permit this action it must be authorized in such order or in a subsequent order by the judge. What is basically involved here is the question of the confidentiahty of a medical report and the appHcabihty of the physician-patient privilege. It should be noted that the physician-patient privilege was not recognized by common law. It is strictly a creature of statute. 44 ALR3d 24, 45. Traditionally, this privilege has not been held to appertain to court ordered psychiatric evaluations designed for use in the criminal prosecution of a defendant. See State v. Case, 253 N.C. 130, 116 S.E.2d 429 (1960), cert denied 365 U.S. 830, 5 L.ed.2d 707, 81 S.Ct. 717. -1- Conclusions: The language of G.S. 122-8.1 is consonant with that tradition. That statute deals with the disclosure of information or records by physician, psychiatrists, etc., at institutions operated by the North Carolina Department of Human Resources. After restrictive language regarding the disclosure of information or records of patients in normal situations, the following language is found therein: "Provided that where a person or persons are defendants in criminal cases and a mental examination of such defendants has been ordered by the court, the Department of Human Resources through its agents and officers may transmit the results of the report of such mental examination to the clerk of said court and to the district attorney or prosecuting officer and to the attorney or attorneys of record for the defendant or defendants." G.S. 15A-1002 contains provisions deahng with the procedures to be taken when the question arises as to the mental capacity of a defendant to proceed with trial in a criminal case. As pertinent here, that statute provides as follows: "(b) When the capacity of the defendant to proceed is questioned, the court: (2) May commit the defendant to a State mental health facility for observation and treatment for the period necessary to determine the defendant's capacity to proceed. In no event may the period exceed 60 days. The superintendant of the facihty must direct his report on defendant's condition to the defense attorney and to the clerk of superior court, who must bring it to the attention of the court. The report is admissible at the hearing. (d) Any report made to the court pursuant to this section shall be forwarded to the clerk of superior -2- court in a sealed envelope addressed to the attention of a presiding judge, with a covering statement to the clerk of the fact of the examination of the defendant and any conclusion as to whether the defendant has or lacks capacity to proceed. A copy of the full report shall be forwarded to defense counsel, or to the defendant if he is not represented by consel. A copy of the covering statement shall be forwarded to the district attorney. Until such report becomes a public record, the full report to the court shall be kept under such conditions as are directed by the court, and its contents shall not be revealed except as directed by the court. Any report made to the court pursuant to this section shall not be a pubhc record unless introduced into evidence." Subsection (d) is entirely new language added by the 1977 session of the General Assembly; it became effective on July 1, 1977. In view of the specific language of this later enacted statute, any conflict between it and G.S. 122-8.1 must be resolved in its favor. Thus, absent an order from the judge, only a copy of the covering statement, with contents as described, may be forwarded by the Forensic Unit to the district attorney until such time as the report has been introduced into evidence. No doubt, however, the General Assembly recognized that earlier release of the full report to the district attorney will quite often serve the desirable end of providing speedy trials to defendants in fair, efficient proceedings conducted by informed, well-prepared counsel having timely access to all available material, relevant and competent evidence. Therefore, the language of G.S. 15A- 1002(d) clearly permits the court, using its discretion in an individual case, to direct that a copy of the full report be- given to the district attorney prior to the time it has become a public record. Rufus L. Edmisten, Attorney General William F. O'Connell Special Deputy Attorney General 20 July 1977 Subject: Requested by: Question: Conclusion: Elections; Corrupt Practices Act; Statutory Construction; Political Activities of Corporations; Insurance Companies; G.S. 163-269; G.S. 163-220. Alex K. Brock, Director State Board of Elections Does G.S. 163-269 and 163-270 prohibit corporations and insurance companies from making contributions and expenditures for any political purpose including bond elections, tax levies, local option elections and any election where issues are submitted to the people such as beer and wine elections, and Statewide referenda? Yes. The intent of G.S. 163-269 and 163-270 is to prohibit corporations and insurance companies from using their financial resources, directly or indirectly, for any poHtical purpose whatsoever. G.S. 163-269 provides: "It shall be unlawful for any corporation doing business in this State, either under domestic or foreign charter, directly or indirectly to make any contribution or expenditure in aid or in behalf of any candidate or campaign committee in any primary or election held in this State, or for any political purpose whatsoever, or for the reimbursement or indemnification of any person for money or property so used, or for any contribution or expenditure so made; or for any officer, director, stockholder, attorney or agent of any corporation to aid, abet, advise or consent to any such contribution or expenditure, or for any person to solicit or knowingly receive any such contribution or expenditure. G.S. 163-270 contains similar prohibitions as to insurance companies or associations. The question has been raised as to whether the words "or for any poUtical purpose whatsoever" appearing in G.S. 163-269 and G.S. -4- 163-270 prohibits corporations from making contributions and expenditures in elections where issues are submitted to the people as opposed to elections where candidates are on the ballot. The intent of the Legislature controls the interpretation of a statute and the language of a statute will be construed contextually to ascertain the legislative intent. Strong's N.C. Index 2d, Statutes, Sec. 5. -- Chapter 348, Pubhc Laws of 1931, was "an act to make more effective the control of the State over corrupt practices in primaries and elections." Sec. 9 of this act Hsted 1 6 things which were prohibited if committed in connection with any primary or election in this State. These covered acts by individuals, election officials and corporations, and were not confined to contributions or expenditures relating to elections where candidates were to be chosen. Included in this Usting is Item (15), which now appears as G.S. 163-269. What is the meaning of the words "or for any political purpose whatsoever" appearing in G.S. 163-269 and G.S. 163-270? Must they be construed to mean acts and things of the same kind and nature as contributions or expenditures in behalf of any candidate or campaign committee in any primary or election? In the construction of statutes, the ejusdem generis rule is that where general words follow a designation of particular subjects or things, the meaning of the general words wiU 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 those specifically enumerated. The rule does not necessarily require such limitation in scope of the general words. It is but a rule of construction to aid in ascertaining and giving effect to the legislative intent where there is uncertainty. The rule does not apply to restrict the operation of a general expression where the specific things enumerated have no common characteristic, and differ greatly from one another. It does not warrant the Court subverting or defeating the legislative will. State v. Fenner, 263 NC 698; 50 Am. Jur., Statutes, Sec. 249, 250, Black's Law Dictionary, 4th Ed. (1951) "Moreover, where the particular words embrace all the persons or objects of the class mentioned, and thereby exhaust the class or genus, there can be nothing ejusdem generis left for the rule to operate on, and meaning must be given to the general words different from that indicated by the specific words, or there can be ascribed to them no meaning at all." 50 Am. Jur. Statutes, Sec. 250. In accordance with the rule, such terms as "other", "other thing", "other person", "others", "otherwise", or "any other", when preceded by a specific enumeration, are commonly given a restricted meaning, and the word "other" commonly occurs in a general expression, following specific designations where the ejusdem generis rule is applied. State v. Fenner, supra. In Commonwealth v. McCarthy, 183 NE 495, the collection by a city official of money to influence people on adoption of a proposed city charter, was held to be for a "political purpose" within the meaning of a statute which prohibited any person holding office to solicit or receive contributions, gifts, etc., for a political campaign purpose, or for any political purpose whatsoever. The ejusdem generis rule was not applied. In our opinion, the ejusdem generis rule does not apply to G.S. 163-269 or G.S. 163-270. Those statutes list several things which an insurance company or a corporation cannot do. The first is the prohibition against making contributions or expenditures in aid or in behalf of a candidate or campaign committee in any primary or election. The second is "or for any political purpose whatsoever", then follows four other enumerated things. The word "other" does not appear in the term "or for any political purpose whatsoever". The first specific term relating to contributions or expenditures for a candidate or campaign committee exhausts the class or genus. The term "any political purpose whatsoever" does not follow all the enumerated prohibitions, but is inserted between them, and is a coordinate term, and must be given effect. Having concluded that the ejusdem generis maxim is not applicable, we must determine whether the words "or any political purpose whatsoever" embraces elections involving issues rather than candidates. The word "political" is defined as, or pertaining to, polity, politics, or conduct of government, referring, in widest application, to judicial, executive, and legislative branches, of or pertaining to, incidental to exercise of functions vested in conduct of government, relating to the affairs of the State. "Political" means, of or pertaining to the exercise of the rights and privileges or the influence by which the individuals of a state seek to determine or control its pubhc policy. Lockheed Aircraft Corp. V. Superior Court of Los Angeles County, 171 P. 2d 211; 166 ALR 701; Words and Phrases, Vol. 32A, p. 502. "PoHtical purpose" includes any purpose to be attained at an election, whether the voters are asked to vote or work for a candidate or an issue. State, et rel Green v. City of Cleveland, 33 NE 2d 35. A poHtical cause may be non-partisan in nature, such as a charter amendment, bond issue, tax levy, etc. Heidtman v. City of Shaker Heights, 119 NE 2d 644. In State v. Gandy, 158 NW 195, the Court, in construing the words "political principle or measure", held that it embraced a liquor local option election. In Commonwealth v. McCarthy, supra, the statute prohibited any person holding public office from soHciting or receiving contributions, etc., for political campaign purposes, or for any political purpose whatsoever. The Court held the essential significance in the proper and ordinary use of the words includes anything pertaining to the establishment of a form of government, a purpose to influence the exercise of a political right is a political purpose and the statute covered an election to change the city charter. A contextual construction of G.S. 163-269 and G.S. 163-270, reveals the legislative intent. Corporations are prohibited, directly or indirectly, from using their financial resources to influence the public poUcy of the state by making contributions or expenditures in aid of, or in behalf of, any candidate or campaign committee, or to make any contributions or expenditures in aid of or in behalf of any political purpose whatsoever. Thus we conclude that the words "or for any political purpose whatsoever" prohibits a corporation or insurance company or association from using its financial resources in any election where the voters are asked to vote on a candidate or issue. We direct your attention to Article 22A of Chapter 163 of the General Statutes, which regulates contributions and expenditures in political campaigns. The term "election" is defined therein and does not include any local or statewide referendum or bond election unless the act authorizing such election specifically states that Article 22A shall be apphcable thereto. Thus we conclude that Article 22A, standing alone, is not apphcable to any local or statewide referendum or bond election. The term "pohtical purpose" is defined in G.S. 163-278.6(16) to mean any purpose in aid of or seeking to influence an election or a political party or candidate. In summary, Article 22A deals only with elections involving candidates or parties. However, G.S. 163-269 and G.S. 163-270 would prohibit corporations, insurance companies, or associations, including fraternal beneficiary associations, from making any contribution or expenditure for any political purpose, including elections involving issues or questions submitted to the people in any local or statewide referendum. \ I Rufus L. Edmisten, Attorney General James F. Bullock Senior Deputy Attorney General 25 July 1977 ' Subject: Mental Health; Area Mental Health Programs; Authority to Submit Employee Pay Plan -8- Requested by: R. J. Bickel Deputy Director for Administration Division of Mental Health Services Question: Under the terms of G.S. 122-35.46, effective July 1, 1977, is the approval of the board (single-county area) or boards (multi-county area) of county commissioners, as the case may be, necessary prior to the submission of the salary plan for employees of an area mental health authority to the State Personnel Office, if the salary plan is within the specified statutory limitations? Conclusion: No, this submission is not required if the salary plan is within the specified statutory hmitations. The 1977 General Assembly completely rewrote the North Carolina statutes deaUng with area mental health programs. The new statute provides for the creation of area mental health authorities, defined as follows: "The governing unit authorized by the Commission for Mental Health Services and delegated the authority to serve as the comprehensive planning, budgeting, implementing, and monitoring group for community-based mental health, mental retardation, and substance abuse programs. An area mental health authority is a local political subdivision of the State except that a single-county area mental health authority shall be considered a department of the county in which it is located for the purposes of Chapter 159 of the General Statutes." (G.S. 122-35.36(1)) The governing body of each authority is an area mental health board. (G.S. 122-35.36(2)). Members of a single-county area mental health board are appointed directly by the board of county commissioners. (G.S. 122-35. 39(b)). For a multiple-county authority, each board -9- of county commissioners appoints one commissioner as a mental health board member and these appointed members select the additional mental health board members. (G.S. 122-35. 39(c)). The new G.S. 122-3 5. 45(b) provides the following illuminating information as to the statutus of area mental health authority employees: "Area mental health authority employees. Employees under the direct supervision of the area mental health authority are employees of the area mental health authority and for the purpose of personnel administration, Chapter 126 of the General Statutes shall apply unless otherwise provided in this Article." On the specific point of salary plans, the new statutes contain the following language: ^^ "§122-35.46. Salary Plans for area mental health employees.-The salary plan for area mental health employees shall be set by the area mental health authority. Such salary plan shall be established in conformity with G.S. Chapter 126. In a multiple-county area, such salary plan shall not exceed the highest paying salary plan of any county in that area. In a single-county area, such salary plan shall not exceed the county's salary plan. The salary plan limitations set forth in this section may be exceeded only if the area mental health authority and the board or boards of county commissioners, as the case may be, jointly agree to exceed these limitations." Collective analysis of all of these statutes reveals several significant changes and/or clarifications of prior statutes dealing with the subject of area mental health programs. Additionally, prior opinions of the Attorney General dealing with this subject must be reexamined in view of the new statutes; any conflict between this opinion and such prior opinions should be resolved in favor of this later opinion. Among the points that appear to be clear from the new statutes are the following: -10- (1) a single-county area mental health authority is not a pubUc authority for purposes of Chapter 159 but apparently a multiple-county authority wOl be such public authority. (Compare 44 NCAG 185 (1974). (2) a single-county area mental health authority apparently does not have to designate a budget and fiscal officer but can be served by the county personnel. (Compare 45 NCAG 120 (1975). (3) area mental health authorities will be considered as local poUtical subdivisions so as to constitute an entity capable of conducting normal business, within the limitations of the new G.S. 122-35.53. (Compare 42 NCAG 120 (1972). (4) Employees of an area mental health authority are not "county employees" but they are governed by the provisions of Chapter 126 unless the new statutes provide otherwise. (Compare 45 NCAG 70 (1975). Finally, the language of G.S. 122-35.46 would seem to unequivocally stipulate that the salary plan for area mental health employees shall be set by the area mental health authority, except where the salary plan limitations are exceeded. This provision of that statute appears to apply equally to both single and multiple-county authorities, despite the fact that the former are now considered a part of the county for Chapter 159 purposes. Rufus L. Edmisten, Attorney General WiUiam F. O'Connell Special Deputy Attorney General 25 July 1977 Subject: Civil Preparedness ResponsibiUty of Local Elected Officials •11- Requested by: Questions; Conclusions: Mr. Richard B. Martin, Jr. Assistant Plans and Programs Officer Division of Civil Preparedness Department of Crime Control and Public Safety ( 1 ) Are Local government elected officials responsible to make civil preparedness plans to cover their jurisdictions in time of emergency? (2) Is the Division of Civil Preparedness responsible for civil preparedness planning and testing for local governmental jurisdictions wherein local elected government officials elect not to? (1) No, local government officials are not responsible or required by Chapter 166 of the North Carolina General Statutes to make civil preparedness plans to cover their jurisdictions in time of emergency. (2) Yes, the Division of Civil Preparedness is responsible under G.S. 166-8 and G.S. 166-5(a) for planning and testing for local governmental jurisdictions wherein local elected government officials elect not to. However, G.S. 166-11 authorizes the Governor to utilize local government facilities and services and requires cooperation by local government officials upon request by the Governor. General Statute 166-8(a) authorizes, but does not require local governments to establish a preparedness plan and program, but authorizes the Governor to establish a local civil preparedness agency at his discretion, and states: "Each political subdivision of this State is hereby authorized to establish a civil preparedness agency in -]i- accordance with the State civil preparedness plan and program; and it is further provided that in the event that any poHtical subdivision of the State fails to establish such a civil preparedness agency, and the Governor, in his discretion, determines that a need exists for such a civil preparedness agency, then the Governor is hereby empowered to establish, or to estabhsh through the Secretary of Mihtary, and Veterans Affairs, a civil preparedness agency within said political subdivision." G.S. 166-8(a), G.S. 166-5(a) and G.S. 166-5(b)(2) read together indicate that the ultimate responsibility for civil preparedness rests with the Governor, thus with the Division of Civil Preparedness. G.S. 166-8(a) - See above paragraph. G.S. 166-5(a) "The Governor shall have general direction and control of the Civil Preparedness Agency and shall be responsible for the carrying out of the provisions of this Chapter and, in the event of disaster or the threat of disaster beyond local control or when requested by the governing body of any county, city or town in the State, may assume direct operational control over all or any part of the civil preparedness functions within this State." G.S. 166-5(b)(2) "(b) In performing his duties under this Chapter and to effect its policy and purpose, the Governor is authorized and empowered: (2) To prepare a comprehensive plan and program for the civil preparedness of this State, such plan and program to be integrated into and coordinated with the civil preparedness plans of the federal government and of other states to the fullest possible extent, and to coordinate the preparations of plans and programs for civil preparedness by the political subdivisions of this -13- State, such plans to be integrated into and coordinated with the civil preparedness plan and program of this State to the fullest possible extent, within the provisions of this Chapter." G.S. 166-11 places existing services and facilities of local governments at the disposal of the Governor upon request and in effect, would seem to permit the Governor to establish a local civil preparedness agency utilizing resources of the local government, and reads: ''Utilization of existing services and facilities .-\n carrying out the provisions of this Chapter, the Governor is authorized to utihze the services, equipment, supphes and facilities of existing departments, offices, and agencies of the State and of the pohtical subdivisions thereof, and the governing bodies of the pohtical subdivisions of the State are authorized to utilize the services, equipment, supphes and facilities of their respective subdivisions, to the maximum extent practicable, and the officers and personnel of all such departments, offices and agencies are required to cooperate with and extend such services and facihties to the Governor and to the civil preparedness agencies of the State upon request. This authority shall extend to all disasters and for civil preparedness training purposes." , Rufus L. Edmisten, Attorney General /' William W. Melvin " Deputy Attorney General 25 July 1977 Subject: Streets and highways; municipal ordinances; setting weight limits on non-system city streets. 14- Requested by: Mr. Michael B. Brough Town Attorney Town of Carrboro Question: Conclusion: May a city or town by ordinance set weight limits on non-system city streets? Yes. G.S. 160A-296 grants cities and towns the authority to exercise control over all public streets, sidewalks, alleys, bridges and other ways of public passage by ordinance within its corporate limits except to the extent that authority and control over certain streets and bridges is vested in the Board of Transportation. G.S. 160A-300 grants cities and towns authority to control traffic upon the pubhc streets, sidewalks, alleys and bridges within its corporate hmits by ordinance. The general grant of authority set forth in G.S. 160A-296 and 160A-300 is subject to the provisions of G.S. 20-115, 20-116 and 20-121 only where there has been action by the State preempting the city or town. From our search of the statutes we find nothing which would preclude cities and towns from imposing weiglit limitations on non-system city streets if done by ordinance and properly signed. However, when the city finds it necessary to restrict weight on its streets, it should make provisions for the issuance of overweight permits pursuant to G.S. 20-119. Ordinances setting weight limits on non-system city streets would be enforceable under G.S. 14-4. Rufus L. Edmisten, Attorney General William W. Melvin Deputy Attorney General 25 July 1977 Subject: State Departments, Institutions and Agencies; Wildhfe Resources Commission; -15- Requested by: Questions: State Banking Commission; Department of Administration; Authority of Department of Administration to Charge Self-Supporting Agencies For Space in State-Owned Buildings. J. K. Sherron, Jr., Director State Property Office (1) Pursuant to Section 15.5, Chapter 802 of the 1977 Session Laws, is the North Carolina Wildlife Resources Commission, a self-supporting State agency, required to pay rental for the State-owned office space it will occupy in the Archdale Building? (2) In the event the Wildlife Resources Commission is required to pay rental for such space, is the Department of Administration required to give the Commission a credit against such charges for a $200,000 payment it made to the Department prior to occupancy of space in the Albemarle Building? (3) May the Department of Administration furnish State-owned office space at no charge to the State Banking Commission, a self-supporting State agency, in accordance with a formal letter of allocation signed by the Secretary of Administration prior to the effective date of Section 15.5, Chapter 802, 1977 Session Laws? (1) Yes (2) No. (3) No. Conclusions: The North Carolina Wildlife Resources Commission and the State \ Banking Commission are self-supporting State agencies. -16- Section 15.5, Chapter 802 of the 1977 Session Laws reads as follows: "Sec. 15.5. The Department of Administration is directed to determine equitable fees for the use of State-owned and operated office space, and to assess 'self-supporting' agencies for payment of these fees. The payments shall be made to the Department of Administration." The facts relevant to the first two questions are as follows: In 1955, the Legislature appropriated the sum of $200,000 from the Wildlife Resources Fund to partially finance construction of the Motor Vehicles Building to house the Department of Motor Vehicles, the Wildlife Commission, the State Banking Commission and other departments and agencies. The building was constructed and the Wildlife Commission occupied the fourth fioor from 1956 through 1971. Due to an increased need in office space by the Department of Motor Vehicles, the 1967 General Assembly appropriated S200,000 to the Department to "Purchase Fourth Floor Motor Vehicles Building from Wildlife Commission". Chapter 1108, 1967 Session Law. Plans were then made for the Commission to occupy space in the Albemarle Building to be constructed by the State. Upon receipt of the $200,000 appropriated to the Department of Motor Vehicles, the Wildlife Commission paid said sum to the Department of Administration prior to occupany of space in the Albemarle Building. This sum was added to the capital improvement appropriation for the construction of this building. This Office is unable to find any statutory provision authorizing or directing the payment of these funds to the Department of Administration. The funds have been expended. This Office is of the opinion that the Wildlife Commission, a self-supporting State agency, would be required to pay rental for the State-owned office space it occupies after the effective date of Section 15.5, Chapter 802, 1977 Session Law. This statute applies to all "self-supporting" State agencies without exception. We find -17- no other statutory provision which would exempt the Commission from the coverage of this statute. Although there are statutes which prohibit the diversion of funds from the Wildlife Resources Fund, we are of the opinion that Wildlife funds may be used to pay rentals pursuant to Section 15.5, Chapter 802 of the 1977 Session Laws, inasmuch as the occupation of State-owned office space is essential | in order for the Commission to perform its statutory duties. As to Question 2, we find no statute which authorized or directed I the payment of $200,000 to the Department of Administration. At the time this payment was made, there was no statutory authorization for the Department of Administration to charge self-supporting State agencies rental for space in State-owned buildings. > . G.S. 143-244 provides that the "Board of Public Buildings and Grounds" shall provide the WildHfe Commission with offices in the City of Raleigh. This statute was in effect at the time the $200,000 payment was made. The statute contains no provision for the payment of rent. Although this Board did not exist at the time of this payment, its duties had been absorbed by the Department of Administration. Just as we find no legislative authority for payment of the $200,000 to the Department of Administration, we find no legislative authority for a credit against rent or a repayment at this time. The facts relevant to the last question are: Under the provisions of the 1955 Session Laws, the State Banking Commission also participated in the construction of the Motor Vehicles Building in the sum of $60,000 collected from fees assessed pursuant to G.S. 153-122. In October of 1976, then Secretary of Administration Bruce A. Lentz allocated space in the State Office Building Number 2, then under construction, now known as the Dobbs Building, to the State Banking Commission. The letter of allocation states that because of prior investment in the Motor Vehicles Building by the Banking Commission, the Department of Administration "proposes to permanently provide sufficient State-owned office space at no! charge to the North Carolina Banking Commission, to replace that space being vacated". j 18- Section 15.5, Chapter 802 of the 1977 Session Laws, specifically directs the Department of Administration to assess "self-supporting" agencies equitable fees for the use of State-owned office space. This statutory provision would nullify the letter of allocation insofar as it purports to allocate the space in question "at no charge". Althougli the question has not been specifically raised, we are of the opinion that the Banking Commission would not be entitled to any credit for the 560,000 of its funds used for construction of the Motor Vehicles Building. The General Assembly specifically appropriated the funds for this purpose. There has been no legislative authorization for a return of those funds to the Commission. Rufus L. Edmisten, Attorney General T. Buie Costen Special Deputy Attorney General 13 August 1977 Subject: Requested By: Question: nc Conclusion: Taxation; Income Tax; Income; Interest; Government National Mortgage Association; Mortgage Backed Certificates; G.S. 105-228.24; G.S. 105-130.5(b)(l) G.S. 105-130.3; W. L. Cole Administrator, Savings and Loan Division North Carolina Department of Commerce Is interest paid by an issuer to the holder of a "Mortgage Backed Certificate Guaranteed by Government National Mortgage Association" subject to the excise tax on savings and loan associations? Yes You have inquired whether interest paid by an issuer to the holder of a "Mortgage Backed Certificate Guaranteed by Government -19- National Mortgage Association" is subjec to the excise tax on savings and loan associations. These certificates may be either "straight pass through" or fully-modified pass through" certificates. Each is described in pertinent Revenue Rulings, the former in Rev. Rul. 70-544, the latter in Rev. Rul. 70-545. In each instance, neither the issuer nor the holder is the United States or any of its agencies or instrumentahties, including GNMA. In each, however, GNMA guarantees timely payment of the amounts required to be paid by the issuer of the certificate, in the case of default stating that "the full faith and credit of the United States is pledged to the payment" thereof. An undated opinion of William H. Rehnquist, then Assistant Attorney General, to George Romney, then Secretary of Housing and Urban Development concludes that GNMA "is authorized to make the proposed guaranties and that they would constitute general obhgations of the United States backed by its full faith and credit." (Emphasis added.) G.S. 105-228.24 imposes an excise tax on each savings and loan association at the rate of 7 1/2% of its "net taxable income", which is the same as "net income" for corporate income tax purposes. Such "net income" is the same as federal "taxable income", plus or minus certain adjustments. G.S. 105-130.3. The aforesaid revenue ruhngs require interest to be included for federal income tax purposes and such interest is thus required to be included for North CaroHna corporate income tax purposes (and hkewise, for purposes of the excise tax imposed by G.S. 105-228.24) unless, it is covered in one of the adjustments referred to above. G.S. 105-1 30.5(b) sets out the adjustments which must be made, in the form of deductions from federal taxable income, in order to determine State net income. The only one which appears pertinent is in subsection (1), which permits deduction of "interest upon the obhgations of the United States. ..to the extent included in federal taxable income," and, since neither the United States nor its creature, GNMA, issues the certificates in question, the certificates are not federal obligations and that deduction appears to be inapphcable. Note, too, that the opinion of the United States Assistant Attorney General is careful to limit its description of "general obligations of the United States" to "the proposed guaranties", not to the certificate itself. We conclude, therefore, that interest received from a "Mortgage Backed Certificate Guaranteed -20- « By Government National Mortgage Association" is subject to the excise tax imposed by G.S. 105-228.24. See our memorandum of 4 August 1976 to W. L. Cole, Acting Administrator, to the same effect. Any opinion of this office to the contrary, oral or written, is modified to conform to the opinion herein expressed. We also note that the subject was discussed with Mr. Carl Lindstrom, Assistant Director of the Mortgage Backed Securities Program of GNMA by telephone on 28 July 1976. Mr. Lindstrom expressed the same view re taxability of interest received from these certificates as has been expressed above. No opinion is expressed herein upon the question of taxabihty of interest paid by GNMA pursuant to its guaranty. Rufus L. Edmisten, Attorney General Myron C. Banks Special Deputy Attorney General 13 August 1977 'Subject: Motor Vehicles; G.S. 20-37.6; Handicapped Persons; Parking Privileges Requested by: Ms. Mary Claire McNaught Winston-Salem Public Safety Attorney Questions: (1) May a municipal parking ticket be issued for a violation of G.S. 20-37. 6(d) or must an offender of this provision be personally served with a citation? (2) If a parking ticket may be issued, what should be the amount of a fine assessed against a violation of G.S. 20-37.6(d)? Conclusions: (1) Yes, a parking ticket may be issued. (2) One Dollar ($ 1 .00) if the prima facie rule of evidence is used pursuant to the -21- provisions of G.S. 20-37.6(2) (d) and G.S. 20-162.1 and not more than Ten Dollars ($10.00) if litigated and the violator identified. As to Conclusion (1), city police officers are charged with the enforcement of the motor vehicle laws under the provisions of G.S. 20-183, which reads: "§ 20-183. Duties and powers of law-enforcement officers; warning by local officers before stopping another vehicle on highway; warning tickets.-ia) It shall be the duty of the law-enforcement officers of the State and of each county, city, or other municipality to see that the provisions of this Article are enforced within their respective jurisdictions, and any such officer shall have the power to arrest on sight or upon warrant any person found violating the provisions of this Article. Such officers within their respective jurisdictions shall have the power to stop any motor vehicle upon the highways of the State for the purpose of determining whether the same is being operated in violation of any of the provisions of this Article. Provided, that when any county, city, or other municipal law-enforcement officer operating a motor vehicle over-takes another vehicle on the highways of the State, outside of the corporate limits of cities and towns, for the purpose of stopping the same or apprehending the driver thereof, for a violation of any ' of the provisions of this Article, he shall, before stopping such other vehicle, sound a siren or activate a special Ught, bell, horn, or exhaust whistle approved for law-enforcement vehicles under the provisions of G.S. 20-125(b). (b) In addition to other duties and powers heretofore existing, all law-enforcement officers charged with the duty of enforcing the motor vehicle laws are authorized to issue warning tickets to motorists for conduct constituting a potential hazard to the mortoring public which does not amount to -22- a definite, clear-cut, substantial violation of the motor vehicle laws. Each warning ticket issued shall be prenumbered and shall contain information necessary to identify the offender, and shall be signed by the issuing officer. A copy of each warning ticket issued shall be deUvered to such offender and a copy thereof forwarded by the issuing officer forthwith to the Driver License Section of the Division of Motor Vehicles but shall not be filed with or in any manner become a part of the offender's driving record. Warning tickets issued as well as the fact of issuance shall be privileged information and available only to authorized personnel of the Division for statistical and analytical purposes." Though G.S. 20-183 refers to the provisions of this Article, the language of Chapter 340 of the 1977 Session Laws of North Carohna clearly indicates that the intent of the General Assembly was for the apphcable sections of Chapter 20 of the General Statutes to apply for the purpose of implementing this chapter. This position is bolstered by the references in Chapter 340 to various sections of Chapter 20 throughout the chapter and particularly to the specific provisions of G.S. 20-37.6(2) (d) (Section 2, Chapter 340 of the 1977 Session Laws), wherein the provisions of G.S. 20-162.1 is made applicable to violations of the handicapped parking privileges. G.S. 20-162.1 reads as follows: "§ 20-162.1. Prima facie rule of evidence for enforcement of parking regulations.-'WhenQYer evidence shall be presented in any court of the fact that any automobile, truck, or other vehicle was found upon any street, alley or other pubhc place contrary to and in violation of provisions of any Statute or of any municipal ordinance limiting the time during which any such vehicle may be parked or prohibiting or otherwise regulating the parking of any such vehicle, it shall be prima facie evidence in any court in the State of North Carohna that such vehicle was parked and left upon such street, alley or public way or place by the person, firm or corporation in whose name such vehicle is then registered and hcensed according to the -23- records of the department or agency of the State of North Carohna, by whatever name designated, which is empowered to register such vehicles and to issue hcenses for their operation upon the streets and highways of this State; provided, that no evidence tendered or presented under the authorization^ contained in this section shall be admissible or competent in any respect in any court or tribunal, except in cases concerned solely with violation of statutes or ordinances limiting, prohibiting or otherwise regulating the parking of automobiles or other vehicles upon public streets, highways, or other pubHc places. Any person convicted pursuant to this section shall be subject to a penalty of one dollar ($1.00)." Ordinarily, words of a statute will be given their natural, approved and recognized meaning and when construing an ambiguous statute, its language must be read contextually and with reference to the matters dealt with the objects and purposes sought to be accompUshed. Related statutes should be construed so as to give full force and effect to each of them if they can be reconciled and harmonized by reasonable interpretation. Cab Co. v. Charlotte, 234 N.C. 572; Cox v. Brown, 218 N.C. 350. The language of the statute will be interpreted to avoid absurd consequences. Person v. Garrett, Commr. of Motor Vehicles, 280 N.C. 163. The clear intent of Chapter 340 of the 1977 Session Laws of North Carolina is to insure that parking spaces provided for handicapped persons are available for their use. To properly implement the statute, the police must be permitted to use the customary tools of their trade including the "ticket" and uniform citation. As to Conclusion (2), the prima facie rule (G.S. 20-162.1, supra), being specifically made apphcable (G.S. 20-37. 6(2)(d)) to violations of this chapter, the obvious intent would be for enforcement purposes. Therefore, if the prima facie rule is used, the fine would be limited to one dollar ($1.00). However, if the rule is not applied and the operator is identified in a litigated case, the fine may not i be more than ten dollars ($10.00). G.S. 20-37. 6(2)(d), as amended). | -24- i Rufus L. Edmisten, Attorney General William W. Melvin Deputy Attorney General 22 August 1977 Subject: Requested by: State Departments, Institutions and Agencies; Public Officers and Employees; State Personnel Act; Employee Grievances Mr. Harold H. Webb Director Office of State Personnel Question: Where a State employee was discharged, suspended, or reduced in pay or position prior to July 1, 1977, is such employee entitled to treatment of his grievance under Chapter 126 of the General Statutes as it existed prior to July 1, 1977. Conclusion: Yes. The employee is entitled to treatment of his grievance under Chapter 126 of the General Statutes as it existed prior to July 1, 1977. Chapter 126 of the General Statutes establishes and provides for the administration of the State Personnel System. Effective February 1, 1976, to July 1, 1977, this Act provided that "No permanent employee subject to the State Personnel Act shall be ' discharged, suspended, or reduced in pay or position, except for just cause." G.S. 126-35. The 1977 General Assembly amended Chapter 126 to provide that, except for certain sections not at issue, it should not apply to employees with less than five continous years of service. The question is whether an employee who was discharged, ; suspended, or reduced in pay or position prior to July 1, 1977, ; but who had not yet filed an appeal with the State Personnel t Commission or whose grievance had not yet been heard by the State Personnel Commission, is entitled to the benefit of the provisions -25- of the State Personnel Act as they existed prior to July 1, 1977. This opinion is not intended to delineate the exact circumstances under which a hearing may be available. If other legal principles and provisions are involved, as in the case of an employee dismissed because the General Assembly abolished a position and terminated all funding for that position, the legal principles relevant to such circumstances may dictate a result different from the one that would be required if only Chapter 126 of the General Statutes were taken into account. This opinion is only concerned with whether an employee dismissed, suspended, or reduced in pay or position prior to July 1, 1977, and who would be entitled to a hearing under the provisions of the Personnel Act as it existed prior to July 1, 1977, is still entitled to a hearing after July 1 even thougli he or she would not be entitled to a hearing under Chapter 126 as^^ re-written by the 1977 General Assembly. Without the benefit of the provisions of Chapter 126 not to be dismissed, suspended, or reduced in pay or position without just cause, there is no general statute or other law protecting the employee's right to his job or position. Thus, an employee dismissed, suspended, reduced in pay or position after July 1, 1977, who does not have five continuous years of service as a state employee subject to the State Personnel Act, will not ordinarily have any right to his job or position or to a hearing as to the appropriateness or vahdity of the discharge. See, e.q., Bishop v. Wood, 426 U.S. 341, i 96 S.Ct. 2074, 48 L.E. 2d 684 (1976). ( [ The general rule in North Carolina and in most other jurisdictions 2 is that statutes are not generally construed to be retrospective. Only f if the General Assembly clearly indicates an intent for a statute 3: to be applied retrospectively will it be interpreted to operate retrospectively, if there is any doubt, the doubt should be resolved against retrospective operation. In re Mitchell, 285 N.C. 77, 203 S.E. 2d 48 (1974); Smith v. Mercer, 276 N.C. 329, 172 S.E. 2d 489 (1970); Wilson v. Anderson, 232 N.C. 212, 59 S.E. 2d 836, 18 ALR 2d 951, Reh. Den. 232 N.C. 521, 168 S.E. 2d 672 (1969). "It is especially true that the statute or amendment will be regarded as operating prospectively only where it is in derogation of a common-law right, or where -26- the effect of giving it a retroactive operation would be to interfere with an existing contract, destroy a vested right, or create a new liability in connection with a past transaction, invalidate a defense which was good when the statute was passed, or, in general, render the statute or amendment unconstitutional. " Smith V. Mercer, 276 N.C. 329, 172 S.E. 2d 489 (1970). An employee who was discharged, suspended, or reduced in pay or position before July 1, 1977, had, at the time the action in question was taken, a riglit not to be so discharged, suspended, or reduced in pay or position except for just cause. He or she also had a right to have the question of just cause determined by the State Personnel Commission and to be restored to the prior position, I pay, or employment with back pay and attorneys' fees in appropriate cases. Clearly, the amendment denying this right to persons with less than five continuous years of State employment takes away a right or a defense from such employees and cannot operate retroactively unless that intent was clearly expressed by the General Assembly or unless it is required by necessary implication from the amendments enacted. No such clear intent or necessary implication appears. Therefore, an employee who was discharged, suspended, or reduced in pay or position prior to July 1, 1977, is entitled to the benefits of the provisions of Chapter 126 requiring just cause for such actions and a determination by the State Personnel Commission of the existence of just cause, with restoration to the prior job, position or pay, and back pay and attorneys' fees in appropriate cases. Such grievances should be heard by the State Personnel Commission pursuant to the provisions of Chapter 126 as it existed prior to the 1977 amendments. Rufus L. Edmisten, Attorney General Norma S. Harrell Associate Attorney 22 August 1977 (Subject Taxation; Real Estate Excise Stamp Tax; Consideration; Encumbrances; G.S. 105-228.30 -27- Requested by: Mr. Fred H. Israel Register of Deeds Transylvania County Question: Where a deed of trust executed by a seller of real property is recorded simultaneously with the deed conveying the property from seller to purchaser, is the amount of the deed of trust deducted from the total consideration for purposes of computing the amount of the stamp excise tax? Conclusion: No. The controlling statute, G.S. 105-228.30, provides that the excise \ stamp tax on conveyances is computed on "the consideration or value of the interest or property conveyed (exclusive of the value of any hen or encumbrance remaining thereon at the time of sale)." The deed in question recites that "as a portion of the consideration of the purchase price," the purchasers agree "to assume and pay off the balance due on that certain deed of trust" executed by the sellers and recorded on the same date on which the deed was made and recorded. Since the deed and deed of trust became effective simultaneously, the deed of trust could not qualify as an encumbrance remaining at the time of sale. Only a pre-existing deed of trust could constitute a "hen or encumbrance remaining thereon at the time of sale." This conclusion is supported by I.R.C. Reg. §47.4361-1, which construed the federal documentary stamp tax statute, I.R.C. 1954 §4361, now repealed. The language of the federal statute with respect to encumbrances was identical to that now found in G.S. 105-228.30. The regulation provided as follows: "In determining the amount of the net consideration for, or net value of, the realty conveyed, only the amount of the Hens and encumbrances on the property existing before the sale and not removed thereby may be deducted. Thus, for example, taxes or assessments which are liens on the property before the sale and are not paid at the time of sale are deductible. No -28- deduction shall be made on account of any lien or encumbrance placed upon the property in connection with the sale, or by reason of deferred payments of the purchase price whether represented by notes or otherwise." It is apparent from the reference to the deed of trust in the deed and from the fact that both instruments were made and recorded simultaneously that the deed of trust is an encumbrance "placed upon the property in connection with the sale." Therefore, the amount of the deed of trust may not be deducted from the consideration of value of the property in computing the amount of the excise stamp tax. Rufus L. Edmisten, Attorney General Marilyn R. Rich Associate Attorney General 22 August 1977 Subject: Requested by: Question: Conclusion: Corporate Income Tax; Net Economic Loss; Insurance Proceeds; Income Not Taxable; G.S. 105-130.8. Wiley A. Warren, Jr., Assistant Director Corporate Income and Franchise Tax Division North Carohna Department of Revenue Do hfe insurance proceeds constitute "income not taxable" for purposes of computing the net economic loss deduction under G.S. 105-130.8? Yes. G.S. 105-130.8(2) defines net economic loss as the amount by which a corporation's allowable deductions in a given year exceed its total income, including "income not taxable". G.S. 105-130.8(3) provides -29- that net economic loss may be carried forward and claimed as a deduction in a subsequent year to the extent that it exceeds the corporation's "income not taxable" in the later year. Thus, if a corporation insures the life of an employee and receives insurance proceeds by reason of the death of the employee, such proceeds must be used to offset a prior year's net economic loss if they constitute "income not taxable". The term "income not taxable" is not defined by statute. However, its meaning can be inferred from the statutes delineating what income is taxable. According to G.S. 105-130.3, corporations doing business in North Carolina are taxed on their net income, which is identical to taxable income as it was defined in the Internal Revenue Code on January 1, 1975. The Internal Revenue Code, in turn, defines taxable income by reference to gross income. I.R.C. 1954 §63. Gross income, as defined in §61 of the Code, includes all income except for certain specific exclusions. Once such exclusion is found on § 101 , which provides that, subject to certain limitations, gross income does not include proceeds of hfe insurance contracts payable by reason of the death of the insured. If life insurance proceeds are excluded from gross income for federal tax purposes, then they are necessarily excluded from taxable income and also from North Carolina net income. Therefore, such j proceeds constitute "income not taxable" within the meaning of I G.S. 105-130.3, and they must be used to offset net economic loss; in computing the deduction. I Rufus L. Edmisten, Attorney General j /• - Marilyn R. Rich Associate Attorney General 22 August 1977 Subject: Requested by: ::s^ Mental Health; Courts; Involuntary Commitment to Private Hospitals Mr. Ben Sauber Director of Advocate Program Dorothea Dix Hospital -30- ik Question: May a district court judge acting under Article 5A, Chapter 122, involuntary commit an individual to a private hospital for the mentally ill? Conclusion: Yes, if that hospital has been designated or hcensed by the Department of Human Resources. On February 15, 1974, this Office responded to a similar question and arrived at a contrary conclusion. See 43 N.C.A.G. 342 (1974). However, Chapter 1408, 1973 Session Laws (Second Session), ratified on April 13, 1974, effective sixty days thereafter, was a complete rewriting of the involuntary commitment statutes (Article 5 A, Chapter 122). Additionally, Ratified Chapter 739, enacted by the 1977 General Assembly, contains further clarifying language on this subject. As a result, the present G.S. 122-58. 8(b), effective July 1, 1977, provides as follows: "(b) If the court finds by clear, cogent, and convincing evidence that the respondent is mentally ill or inebriate, and is imminently dangerous to himself or others, it may order treatment, inpatient or outpatient, for a period not in excess of 90 days, at a mental health facility, public or private, designated or licensed by the Department of Human Resources. Treatment at a private facility shall be at the expense of the respondent to the extent that such charges are not disposed of by contract between the county and the private facihty." This statute in its present form makes it very clear that direct commitment to a properly licensed or designated private hospital is permissible and the prior conclusion in the 1974 opinion should I be disregarded. It is noted that Article 10, Chapter 122 still contains sections dealing with the placemtnt of persons in private hospitals for the mentally -31- disordered. In view of the specific language in the present Article 5A, it would appear that this later enacted statute would be controlling of the area of involuntary commitment. Since there is a direct conflict between Article 5A and G.S. 122-75, G.S. 122-77, G.S. 122-78, and G.S. 122-79 (all last amended in 1963), it may safely be said that Article 5A supersedes these statutes. Further, involuntary placement of individuals in these private hospitals in accordance with the proceedings described in these four statutes contained in Article 10 does not comport with constitutional requirements. See French v. Blackburn (DC MDNC), decided March 31, 1977. Therein, a three judge federal court analyzed the basic requirements for due process in involuntary commitment proceedings and characterized Article 5 as follows: "The Court is of the general opinion that the North Carohna General Assembly has enacted an excellent legislative scheme which adequately protects the interests of all who may be involved in an involuntary ^ commitment proceeding. We perceive no reason to hold the statutory provisions unconstitutional. There is no doubt that the liberty interest of a person subjected to such proceedings is great and is an interest which has long been protected and to which the state and this Court are obligated to give great deference. However, we are presented with the concept of 'fundamental fairness.' It is the opinion of this Court that that concept is fully realized by the statutory procedure involved. There are two humanitarian purposes of the involuntary commitment proceedings. Fundamentally, the state is attempting to temporarily withdraw from society those persons whose mental state is such that their presence may pose a danger to society or to themselves. Secondly, the state is providing treatment to those individuals who may not otherwise have the wisdom or the wherewithal to seek it themselves. We are, therefore, examining a hybrid proceeding which although (sic) involves a deprivation of liberty, the very purpose of that deprivation is not solely to protect society but also has as a purpose the protection, treatment, and aid of an individual who -32- cannot or will not protect himself. We find that in balancing these interests, the North Carolina statutes for involuntary commitment strike a fair and equitable balance and do not offend the constitutional standards of due process of the law." These comments certainly could not be made regarding the involuntary commitment proceedures prescribed in Article 10 of Chapter 122. Rufus L. Edmisten, Attorney General William F. O'Connell Special Deputy Attorney General 24 August 1977 Subject: Taxation; Income Tax; Exemptions; Tax Credits; Energy Conservation; Insulation and Storm Windows; G.S. 105-151.3 Requested by: Question: B. W. Brown, Director Individual Income Tax Division North Carohna Department of Revenue (1) Where a statute, effective for taxable years beginning on and after 1 January 1977, provides for "a credit" against income tax for any person who installs insulation in an existing building "during the period from January 1, 1977, through December 31, 1978", can the credit be available in each of the two taxable years, or is only one credit available, to be taken in one, but not both, of such years? (2) If the credit is available in each of two years, may the taxpayer install insulation in one year, but pay for it in both years and thus obtain two credits? -33- (3) Is the credit available only with respect to taxable years 1977 and 1978, or, installing insulation in 1977 or 1978 but deferring payment until 1979, may he extend the availability of the credit by one more year? (4) Is the credit limited to 25% of the cost of installation, or to 25% of the amount actually paid for installation, during the taxable year? Conclusion: (1) The credit may be available in each of two taxable years. (2) No. (3) No. (4) The credit is Hmited to 25% of the cost of installation, but may not exceed the lesser of $100 or the amount acutally paid in the tax year for which the credit is claimed. G.S. 105-151.3, enacted as section 5 of Chapter 792, S.L. 1977, makes the following provisions for a credit against personal income tax for home insulation, storm windows and storm doors: "(a) During the period from January 1, 1977, through December 31, 1978, any person (to include partnerships) who installs new or additional insulation, storm windows or storm doors (to include thermal pane windows and doors) in any building located in North Carolina which was constructed and occupied prior to January 1, 1977, shall be allowed as a credit against the taxes imposed by this division, an amount equal to twenty-five percent (25%) of the cost of such insulation, storm windows or storm doors; provided, that credit allowed under this section shall not exceed -34- 1 one hundred dollars ($100.00) on any single building or for each family dwelling unit of a multi- dwelling building; provided further, that in order to secure the credit allowed by this section the taxpayer must be liable for payment of such insulation, storm windows or storm doors and such payment must be made by the taxpayer during the tax year for which the credit is claimed." Section 5 of the chapter became effective upon ratification (29 June 1977) for income years beginning on and after 1 January 1977. Its provisions may perhaps be analyzed more clearly if put in outline form: (a) during the period 1 January 1977 31 December 1978 (b) any person who installs insulation (for brevity, references to storm windows and storm doors will be omitted hereafter) (c) in a building built and occupied before 1 January 1977 (d) shall be allowed as a credit against his income tax (e) an amount equal to 25% to the cost of such insulation BUT (f) the credit shall not exceed $100 for each single building or each family dweUing unit in a multi-dwelling unit AND (g) the taxpayer must be liable "for payment of such insulation" and -35- (h) "such payment" must be made by the taxpayer during the tax year for which the credit is claimed. A number of questions have arisen with respect to the appHcation of the new statute to specific factual situations: "(1) Since the section states that the amount is limited to $100 on any single building, does this mean that only one credit of $100 will be allowed, or may a credit of up to $100 be claimed for each tax year?" We recognize that the reference to "a credit" can be taken to mean a single, one-time credit, particularly if we apply the famihar rule that deductions and exemptions (a credit being in the nature of an exemption) are strictly construed against the taxpayer, but we do not beheve that the construction necessarily follows, for at least two reasons: (1) G.S. 105-1 5 1(a) provides for "a credit" to individuals who are residents of the State who pay income tax to another state, yet the State recognizes that such credit is available for as many years as the individual pays income tax to a foreign state, and no more rigid construction should apply to a similar credit statute; and (2) C. 792 declares it to be the policy of the State "to encourage and promote conservation of energy", which would seem to require that a strict construction of the statute be amehorated somewhat in order to promote that expressed policy. Moreover, we believe that the introductory phrase "during the period from January 1, 1977 through December 31, 1978" has reference to the time during which insulation may be installed rather than the time in which a single credit may be obtained. In our view, "a credit" may be obtained in each taxable year, just as other credits, exemptions and deductions may be, where, for example, a taxpayer installs insulation and pays for it in 1977, and installs and pays for storm doors in 1978. "(2) If the taxpayer may claim credit for the same building in each of two separate years, may he receive the maximum credit in one year and an additional credit in the following year if he pays for a single installation in two years?" For example, "a cash basis taxpayer adds insulation to his house in 1977, at a cost of $800. If he pays $400 in 1977 and $400 in 1978, may he claim a $100 credit in each year? -36- I Referring to the provisions of G.S. 105-1 5 1.3(a), a taxpayer who installs insulation may claim as a tax credit "an amount equal to twenty-five percent (25%) of the cost of such insulation" . (Emphasis added.) The cost of "such insulation" in the example is $800, 25% of which is $200. However, the credit is subject to three important limitations: (1) the taxpayer must be liable for payment of "such insulation"; (2) "such payment" (i.e., payment for "such insulation") must be made during the tax year for which the credit is claimed; and (3) the credit shall not exceed $100. It is apparent, therefore, that the total credit available from the installation of insulation in the example given will be only $100. Since the taxpayer has paid $400 in 1977, he has used up the $100 credit which he claimed in that year. There being no balance of the credit remaining, he may not claim any amount in 1978, even though he again pays $400 in that year. Moreover, the statute clearly implies that only one credit is available per installation, which may be taken in one year but not in two. Having taken "the credit" in "the tax year for which the credit is claimed", no other credit for the same installation may be taken in another tax year. "(3) Is the insulation, storm window, and storm door credit available only for the tax years 1977 and 1978?" For example, "if a taxpayer adds $400 of insulation to his house in 1978 and pays for it in 1979, is he denied the credit, or may he claim the credit in tax year 1979?" G.S. 105- 15 1.3(a) begins by providing that "during the period from January 1, 1977, through December 31, 1978, any person . . . who installs . . . insulation . . . shall be allowed ... a credit ..." The meaning of the phrase "during the period from January 1, 1977, through December 31, 1977" is obscure at best. It may (1) limit only the period of installation; or (2) hmit the availability of the credit to that period; or (3) limit the availabihty of the credit to each of the two tax years in the period; or (4) limit both the installation and the credit to the period or tax years involved. Taking the Act as a whole, we feel that the intention of the General Assembly was two-fold: to require that any qualifying installation be made between 1 January 1977 and 31 December 1978, and, to the extent indicated in the discussion of question (1) above, to permit a credit in each of the two tax years. -37- Despite the fact that G.S. 105-151.3 provides that "payment must be made by the taxpayer during the tax year for which the credit is claimed^' we do not believe that the Legislature intended that payment could be made in years after 31 December 1978 and claimed as a credit in years after that date. We conclude that the credit is available only for the tax years 1977 and 1978, and, in the example given, the taxpayer who adds insulation in 1978 and pays for it in 1979 may not claim the credit in tax year 1979. "(4) Is the credit allowable for a tax year limited to the amount paid during that year, or is it limited to 25% of the amount paid?" For example, "if a taxpayer installs $600 of insulation during 1977 and pays $100 of his bill during that year, may he claim $100 credit for 1977, or only $25?" For example, "if a taxpayer installs $600 of insulation during 1977 and pays $ 1 00 of his bill during that year, may he claim $ 1 00 credit for 1977, or only $25?" G.S. 105-1 5 1.3(a) limits the credit to "an amount equal to twenty-five percent (25%) of the cost of such insulation", but further provides that the credit "shall not exceed one hundred dollars ($100.00) ..." Thus the total credit obtainable by the taxpayer for a particular installation may never exceed $100. Two additional requirements are also set out: (1) "the taxpayer must be liable for such insulation", and (2) "such payment be made by the taxpayer during the tax year for which the credit is claimed." (Emphasis added.) Assuming the existence of the taxpayer's Hability, and noting that the statute clearly impUes that only one credit per installation may be claimed, we believe that he may claim $100 for 1977 in the example given, but may claim nothing in 1978, both because the $100 credit has been entirely used up and because only one credit per installation is permissible, and that credit was used in 1977. Finally we beheve that common sense dictates that the credit may not in any case exceed the amount actually paid in the tax year for which the credit is claimed. In the example given, if instead of paying $100, the taxpayer had paid $1.00, he would be entitled -38- to a $1.00 credit, not a credit of $100. The reference to "such payment" seems clearly to relate to "the credit (which) is claimed." Rufus L. Edmisten, Attorney General Myron C. Banks Special Deputy Attorney General 25 August 1977 Subject: Requested by: Question: Conclusion: State Departments, Institutions, and Agencies; Public Officers and Employees, State Personnel Act; Attorney's Fees Mr. Harold H. Webb Director Office of State Personnel In determining whether attorney's fees may be awarded in a proceeding before the State Personnel Commission brought by an employee, a former employee, or an appUcant for employment, should the Commission allow attorney's fees permitted by changes in the State Personnel Act according to the date the cause of action arose, the date proceedings were instituted before the Commission, or the date of the Commission's decision? In determining whether attorney's fees are allowable in a proceeding brought by an employee, a former employee, or an apphcant for employment, the State Personnel Commission should apply statutory changes in circumstances in which attorney's fees may be awarded according to the date the cause of action arose. -39- Chapter 126 of the General Statutes establishes and provides for the administration of the State Personnel System. Effective February 1, 1976, to July 1, 1977, this Act permitted the State Personnel Commission to award attorney's fees in "cases where the Commission finds discrimination or orders reinstatement." S.S. 126^(11) The 1977 General Assembly amended this provision to provide for the award of attorney's fees in "cases where the Commission finds discrimination or orders reinstatement or back pay whether (i) heard by the Commission or (ii) appealed for limited review after settlement or (iii) resolved at the agency level." G.S. 126-4(12) It can be seen that the amended provision allows attorney's fees in cases in which back pay is awarded even though there is no finding of discrimination or order of reinstatement and also permits the award of attorney's fees in cases which were resolved as to all other aspects without a decision by the Commission. This amendment was made effective July 1, 1977. The question is what stage of a grievance by an employee, a former employee, or an appUcant for employment determines whether the amended provisions for attorney's fees effective July 1, 1977, are applicable to a particular grievance. The general rule in North CaroUna and in most other jurisdictions is that statutes are not generally construed to be retrospective or retroactive. Only if the General Assembly clearly indicates an intent for a statute to be applied retrospectively will it be interpreted to operate retrospectively. If there is any doubt, the doubt should be resolved against retrospective operation. In re Mitchell, 285 N.C. 77, 203 S.E. 2d 48 (1974); Smith v. Mercer, 276 N.C. 329, 172 S.E. 2d 489 (1970); Wilson v. Anderson, 232 N.C. 212, 59 S.E. 2d 836, 18 ALR 2d 951, Reh. Den. 232 N.C. 521, 168 S.E. 2d 672 (1950). "'Ordinarily, an intention to give a statute a retroactive operation will not be inferred. If it is doubtful whether the statute or amendment was intended to operate retrospectively, the doubt should be resolved against such operation. It is especially true that the statute or amendment will be regarded as operating prospectively only, where it is in derogation of a common-law right, or where the effect of giving it a retroactive operation would be to interfere with an existing contract, destroy a vested right, or create a -40- new liability in connection with a past transaction, invalidate a defense which was good when the statute was passed, or, in general, render the statue or amendment unconstitutional. ' {Our) 50 Am. Jur. Statutes §478. Accord: 82 CJS Statutes %A\3;Ashley V. Brown, 198 N.C. 369, 372, 151 S.E. 725, 727; Waddill V. Hasten, 111 N.C. 582, 584, 90 S.E. 694, 695; Hicks v. Kearney, 189 N.C. 316, 319, 127 S.E. 205, 207." Smith V. Mercer, 276 N.C. 329, 172 S.E. 2d 489 (1970). In Smith v. Mercer, supra, the question was whether the revised North CaroHna Wrongful Death Act was available to persons who brought suit after the effective date of the Act upon a wrongful death which occurred before the effective date of the Act. The Court noted that the revised Act allowed suit for and recovery of greater and different types of damages from the damages recoverable under the previous version of the Act. The Court discussed cases from other jurisdictions which had held that, where a statute increased the amount of damages recoverable under a wrongful death act, a new cause of action was created for the additional damages allowable. The Court held in Smith v. Mercer, supra, that a new cause of action was created for the additional amounts and kinds of damages available under the amended wrongful death act. Allowing attorney's fees in cases in which they were not recoverable previously in effect creates a new cause of action for the attorney's fees. If the cause of action arose before July 1, 1977, attorney's fees were not available at the time the cause of action arose. Just as in cases where the amounts or kinds of damages available have been increased, a provision for attorney's fees increases the Habihty of the employer in grievance proceedings before the State Personnel Commission. Therefore, under the well-settled principles of construing statutes against retroactivity and avoiding the creation of new habihties for past transactions, the provisions in Chapter 126 for attorney's fees should be applied only to causes of action which arose on or after the effective date of the particular provision for attorney's fees. -41- Rufus L. Edmisten, Attorney General Norma S. Harrell Associate Attorney 25 August 1977 Subject: Requested by: Social Services; Title IV-D of the Social Security Act; Child Support Enforcement; Standing to make application for nonsupport warrants. Miss Willie C. Sutton Pamlico County Director of Social Services Mr. Grady Simpson PamHco County IV-D Worker Child Support Question: Is a designated representative (IV-D agent) working for the North Carolina Child Support Enforcement Program a proper person to demand support and then swear out a warrant for nonsupport of children (legitimate and illegitimate) when the mother or the custodian of the child refuses to do so? Conclusion: Yes, if the child is, or is likely to become, a public charge. Willful neglect or refusal to provide adequate support for an illegitimate child is a violation of N.C. Gen. Stat. 49-2. In order to satisfy the "willfulness" element of this statute, there must be a prior notification of birth and demand for support before the issuance of a warrant. State v. Ingle, 20 N.C.App. 50, 200 S.E.2d 427 (1973). Standing to make the necessary demand and obtain issuance of a warrant for this offense hes, if the child is, or is likely to become, a pubUc charge, in "... the director of social services or such person as by law performs the duties of such official in -42- said county where the mother resides or the child is found." N.C. Gen. Stat. 49-5. This right to make such demand to have the warrants issued in pubHc charge cases overrides objections of the mother or a custodian. State v. Dixon, 257 N.C. 653, 127 S.E.2d 246 (1962). In Dixon, the Court states as follows: "In all likehhood the mother will continue to be its custodian. She may neither need nor desire any assistance or support from the father. The statute is so worded that she may decide whether to call upon the father for assistance. In the event she elects not to make the demand, her election will be respected unless the child is likely to become a public charge; then the Director of Public Welfare may proceed. " State V. Dixon, 257 N.C. at 655, 127 S.E. 2d at 247. (Emphasis supplied.) This statement by the Court is a reflection of its opinion that Chapter 49, as it relates to criminal bastardy proceedings, is purely social legislation. Specifically, its purpose is to prevent illegitimates from becoming public charges and any benefits accruing to a child are incidental. Allen v. Hunnicutt, 230 N.C. 49, 52 S.E. 2d 18 (1949). The phrase "...or such person as by law performs the duties of such official in said county..." found in N.C. Gen. Stat. 49-5 clearly allows for someone other than the Director of Social Services to have standing to institute proceedings of this nature. Logically, this alternative person to the County Director of Social Services is the same as the "designated representative" for the North Carolina Child Support Enforcement Program recognized in N.C. Gen. Stat. 1 10-130 whose duties under that statute include the right to institute analogous civil proceedings. These "designated representatives" are commonly called "IV-D agents". (They are so called because the enabUng legislation for the Child Support Enforcement Program, P. L. 93-647 (42 U.S.C. §§ 651-660), was an amendment to Title IV, Part D of the Social Security Act.) These ''IV-D agents" may be county or State employees depending on whether the Child Support Enforcement Program in the particular county in question is county or State operated. (Alternative arrangements making "IV-D agents" State employees in some counties are authorized by N.C. Gen. Stat. 110-141.) -43- The analogous nonsupport statutes covering legitimate children, as opposed to illegitimate children, of responsible parents are listed in Chapter 14, Article 40 of the North Carolina General Statutes. Like cases brought under N.C. Gen. Stat. 49-2, issuance of warrants for nonsupport under these statutes must be preceded by a demand for support on the responsible parent. State v. Hall, 251 N.C. 211, 110 S.E.2d 868 (1959). Unlike cases involving nonsupport of illegitimate children, there is no statute specifically enumerating who is an appropriate person to make appUcation for arrest warrants for nonsupport of legitimate children. As a general rule most statutes do not specifically list those persons who would have standing to so apply; rather, this determination is left to a case by case basis. Theoretically, anyone supplying the requisite probable cause may prompt, by virtue of N.C. Gen. Stat. 15A-304, a judicial official to issue a nonsupport warrant. Even the most conservative view of the standing issue for cases involving legitimate children does not warrant restricting the class of persons having standing to fewer than those designated by statute (N.C. Gen. Stat. 49-5) for illegitimate children. The same circumstances and policies discussed above that justify institution of criminal actions by the "designated representative" under Article 1 , Chapter 49 of the General Statutes prevail for instituting action for nonsupport of legitimate children under Article 40, Chapter 14. Since these statutes deal with the same subject matter, nonsupport of children, they should be construed in pari materia and harmonized, if possible, to give effect to each. 7 N.C. Index 2d, Statutes §5. Accordingly, the "designated representative" is an appropriate person, in public charge cases, to supply the probable cause necessary for issuance of a warrant under Article 40, Chapter 14 of the North Carolina General Statutes. Rufus L. Edmisten, Attorney General R. James Lore Associate Attorney General -44- 25 August 1977 Subject: \ Requested by: Question: Conclusion: Social Services; Title IV-D of the Social Security Act; Child Support Enforcement; Standing to intervene in criminal nonsupport actions. Jean Prewitt Bost, Supervisor Mecklenburg-Union Counties Child Support Enforcement Unit May a designated representative (IV-D agent) of the North Carolina Child Support Enforcement Program, institute a criminal nonsupport action or take up and move to modify an existing criminal order for nonsupport of children, for the purpose of collecting monies now due and owing the State as a result of the payee's acceptance of pubhc assistance? Yes. N.C. Gen. Stat. 110, Article 9 provides a statutory basis for the j North Carolina Child Support Enforcement Program. Among other features, this section of the law provides that the payment of public assistance creates both a debt due and owing the State, and an assignment by operation of law of the right to child support. N. C. Gen. Stat. 110-128. It is clear, under N. C. Gen. Stat. 110-130, that a designated representative (IV-D agent) of the Child Support Enforcement Program may bring a civil action for nonsupport. The analogous, operative criminal statutes are found in Article 40 of Chapter 14 and in Article 1 of Chapter 49 of the General Statutes, making it a misdemeanor or a felony, in certain cases, to fail to adequately support one's children. These statutes as a practical matter indirectly lead to the collection of child support through the judge's use of the sentencing procedure. The procedure allows a judge to condition suspension of a sentence upon support of one's dependents. N. C. Gen. Stat. 15-199 (11); 15-200 N.C. Gen. Stat. 110-128, 110-135, and 110-137 arguably stand for the proposition that all support rights are by operation of law assigned to the State -45- by a recipient of public assistance, criminal as well as civil. The first sentence of N. C. Gen. Stat. 1 10-137 states generally as follows: "By accepting public assistance for or on behalf of a dependent child or children, the recipient shall be deemed to have made an assignment to the county from which such assistance was received of the right to any child support owed...." The second sentence reads more narrowly: "The county shall be subrogated to the right of the child or children or the person having custody to initiate a support action under this Article.... " (Emphasis supplied.) The underlined quoted language from this sentence authorizes subrogation to civil actions mentioned in N. C. Gen. Stat. 110-130. Nevertheless, there is no indication that subrogation to the custodial parent's standing to institute a criminal action elsewhere authorized is inappropriate. Turning to other statutes, we can glean authority for the proposition that the IV-D Program has standing to criminally intervene in cases involving pubhc assistance. N. C. Gen. Stat. 50-13.7 states: "An order of a court of this State for.. .support. ..of ' a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.^' (Emphasis supphed.) Once welfare is paid out, "anyone interested" clearly includes the State as represented by the IV-D agent. Also, this addition of a newly interested party and the resultant need to change the payee in such a court order points out the "changed circumstances" as required by the statute. This statute lends credence to the proposition that it is appropriate for a IV-D agent to take up an existing criminal nonsupport action, and, as is commonly done, move for enforcement or change of payee (e.g., from the custodian to the Department of Human Resources). -46- Moreover, N. C. Gen. Stat. 108-22, which deals with the duties and responsibilities of special county attorneys in social service matters, clearly envisions participation by the State in criminal nonsupport actions. The county attorney is "To assist the district court prosecutor or superior court district attorney with the preparation and prosecution of criminal cases under Article 40 of Chapter 14 of the General Statutes, entitled 'Protection of the Family'. ..(and) proceedings authorized by Chapter 49 of the General Statutes, entitled "Bastardy."' One could only assume that the General Assembly, in passing this statute, intended that the county and State, as providers of pubHc assistance, should directly participate in criminal as well as civil nonsupport actions. Furthermore, an examination of N. C. Gen. Stat. 15-199 reveals a broad possible interpretation of the criminal sentencing laws, making intervention by the IV-D program allowable: ''Conditions of probation.-The court shall determine and may impose, by order duly entered, and may at any time modify the conditions of probation and may include among them the following, or any other: that the petitioner.. .(1 1) Support his dependents." This broad language does not limit a criminal order in any fashion. Typical conditions of probation and suspension are enumerated, but "any other" is within the power of the judge. And even the enumerated condition "Support his dependents" is broad enough to include reimbursement of the State, where the State is already supporting a defendant's children. In short, the State can properly be made a payee under N. C. Gen. Stat. 15-199, and as such gains clearer standing to enforce criminal rights. Finally, as a matter of Department of Human Resources policy, written assignments of rights are secured from recipients of public assistance at the time of their initial ehgibihty apphcation, clearly allowing the State to step into a chent's shoes in all instances regarding child support. Provided that routine was followed in an individual case, the question of whether criminal standing has been assigned to the State by operation of law would appear to be rendered moot. -47- Rufus L. Edmisten, Attorney General Edward H. Galloway Associate Attorney General 29 August 1977 Subject: Requested by: Questions: Conclusions: Special Assessments; Release of Assessment, Penalty or Interest by City Council; G.S. 160A-231; G.S. 105-380 Robert C. Cogswell, Jr. Fayetteville City Attorney (1) Whats authority, if any, does a city council have to reheve a taxpayer of a special assessment, interest or penalty on said special assessment? (2) If authority exists for a city council to relieve a special assessment, interest or penalty thereon, upon what basis can they do the same? (3) If a city council improvidently reheves a taxpayer of a special assessment, interest or penalty thereon, to what liability, if any, are they subject either as a body or individually? (4) If the city council improvidently relieves a taxpayer of a special assessment, interest or penalty thereon, what action, if any, should they take to remedy the situation? (1) Its authority 160A-231. is found in G.S. (2) The basis for its authority is the -48- existence of some "irregularity, omission, error or lack of jurisdiction." (3) They may be liable individually pursuant to G.S. 105-380 (with reservations). (4) The council may rescind its action and return the lien to its status quo ante. The following factual situation has been presented: "Pursuant to a petition of the property owners, the City Council passed a resolution to pave a certain street in the City of Fayetteville. In accordance with North CaroHna General Statute 160A-224 and 160A-227, the proper notices were sent to the property owners as relates to the preliminary resolution and the preliminary assessment roll. The letter of notification pursuant to 160A-227 advised the property owners that the letter was not a bill and that one would be forthcoming setting forth the actual rate of assessment and any penalties. After the assessment roll was confirmed and published in the newspaper, the Tax Collector sent out bills. One of the property owners had moved in the meantime, and therefore when the bill was sent to the last known address, it was returned to the Tax Collector with no forwarding address. No effort was made by personnel in the Tax Office at that time to ascertain the new address and it was over a year later when the property owner was finally made aware of the actual interest charge although as previously stated, all statutory requirements concerning notice and pubhcation had been met. It should also be pointed out that the maihng address at which the particular property owner received the first two notices was not an address on the street paved. The property owner moved from that address to an address on the street that was paved in which the assessment was placed. In other words, during the period of time that the public hearings were -49- conducted, the assessment roll confirmed, and all statutory notice requirements were met, the aggrieved property owner did not hve on the street that was paved. The property owner requested that the Council relieve the interest and penalty thereon because an actual bill setting forth the same was never received. For this reason and this reason alone, the City Council unanimously passed a motion to reheve the particular taxpayer of the interest and penalty on the assessment." Based upon the foregoing facts, an opinion has been requested upon four questions. Because of their similarity the first two questions will be considered together: "(1) What authority, if any, does a city council have to relieve a taxpayer of a special assessment, interest or penalty on said special assessment?" "(2) If authority exists for a city council to reheve a special assessment, interest or penalty thereon, upon what basis can they do the same?" There are a number of notice requirements which must be met in connection with special assessments: after a city council adopts a prehminary resolution with respect to a project, a notice of hearing on the resolution must be published, and a copy of the resolution must be mailed to each affected property owner "as shown on the county tax records." G.S. 160A-224. After the hearing, and if an assessment resolution is adopted, the project proceeds. When it has been completed, the council determines the total cost and prepares a prehminary assessment roll, apportioning the total cost among the property owners. At this point, notices of the availabihty of the roll for pubhc inspection, and of a hearing on the preliminary assessment roll, must be published. A similar notice of hearing,! stating the amount of his proposed assessment, must also be mailed to each property owner. G.S. 160A-227. At the hearing, the council hears any objections to the roll which interested persons may have,, and may approve or modify the assessments and may confirm the roll as it then is. G.S. 160A-228. After twenty days elapse, the city tax collector must publish one further notice, that the roll has! . , . -50- been confirmed and that assessments may be paid, without interest, during the ensuing thirty days, but that payments made later will include interest. No notice by mail to property owners is required at this point. G.S. 160A-229. If an assessment is "not paid within this time, all installments thereof shall bear interest as provided in G.S. 160A-233." G.S. 160A-229. Interest is at the rate of 8% per annum. G.S. 160A-233. The statement of facts indicates that "all statutory requirements concerning notice and publication had been met", and our opinion is based upon that premise. The questions must therefore be approached from the direction that no bilhng was required, and the unrequired bill that was sent was made in the same fashion to each owner, i.e., to his last known address. Moreover, the other mailed ! and published notices, as well as the actual work in progress, on the ground, provided ample notice that work was in progress, that i assessments would be made, and that property owners would have ; to pay them. While it is regrettable in the extreme that the bill * did not find its way into the property owner's hands, the owner i could have ascertained the amount of his charge merely by inquiring and not having done so, had the use of his money during the interim, as did other owners who consciously chose to delay payment. Payment of interest would have been no greater for him than for them. In this hght, G.S. 160A-231 delineates the council's authority to make adjustments. Its statutory predecessor read: "The governing body may correct, cancel or remit any assessment for a local improvement, and may remit, cancel or adjust the interest -or penalties on any such assessment. The governing body has the power, when in its judgment there is any irregularity, omission, error or lack of jurisdiction in any of the proceedings relating thereto, to set aside the whole of the local assessment made by it, and thereupon to make a reassessment." G.S. 160-90. !!The first sentence seems to grant broad discretionary authority to J adjust assessments, penalties and interest, but the sentence was ,. interpreted differently in McClester v. China Grove (1928) 196 N.C. -51- 301. There the cost of assessments was underestimated and dissatisfied property owners prevailed upon the town board to reduce their assessments by 25%. However the Supreme Court found the adjustments to be improper, even after considering the above-quoted language: "Here, the total amount of cost, required of the municipality, was assessed against the lots and parcels of land abutting directly on said improvement, in response to the request of the petition and in accordance with the provisions of the statute, hence we think the new board of aldermen was without authority to grant a reduction or rebate of 25 per cent of the original assessment roll, there being no suggestion of any irregularity in the proceedings. Gallimore v. Thomasville , (1926) 191 N.C., 648, 132 .. S.E., 657. True, it is provided by C.S., 2715 and 3 C.S., 2806(0 that the governing body of a municipahty may correct, cancel or remit any assessment made for local improvement, including interest or penalties thereon, and shall have the power, when in its judgment there is any irregularity, omission, error or lack of jurisdiction in any of the proceedings relating thereto, to set aside the whole of the local assessment, make a reassessment, etc., but these statutes, we apprehend, have no application to a fact situation similar to the one now under consideration. Gallimore v. Thomasville, supra. " Thus the Supreme Court held that some irregularity must exist before the quoted language could come into play. Since no irregularity appears from the facts stated (i.e., no failure to do an act required by law), China Grove supports the conclusion that the Council was without authority to adjust the property owner's assessment, penalties or interest. In addition, it is most significant that in recodifying G.S. 160-90' as G.S. 160A-231, the General Assembly omitted the former first sentence altogether. The present section begins with what was . ^ -52- essentially the second sentence of G.S. 160-90: "The council shall have the power, when in its judgment any irregularity, omission, error or lack of jurisdiction in any of the proceedings related thereto, has occurred, to set aside the whole of any special assessment made by it and thereupon to make a reassessment." Thus, to answer the first two questions specifically, the authority of a city council to reheve a property owner of some part of a special asssessment is found in G.S. 160A-231, and the basis of that authority is grounded upon the existence of some "irregularity, omission, error or lack of jurisdiction." Where none exists, the Council lacks authority to make any adjustment. "(3) If a city council improvidently reheves a taxpayer of a special assessment, interest or penalty - thereon, to what habihty, if any, are they subject either as a body or individually?" While we are satisfied that special assessments are not, standing alone, property taxes and are not, as property taxes, subject to the Machinery Act, nonetheless G.S. 160A-228 does provide that "from and after the time of confirmation, the assessments shall be a Uen on the property assessed of the same nature and to the same extent as the lien for county and city property taxes. ..^^ (Emphasis added.) It further provides that "after the assessment roll is confirmed, a copy of it shall be delivered to the city tax collector for collection in the same manner as property taxes, except as herein provided." (Emphasis added. )If the assessment hen is "of the same nature" and "to the same extent" as the property tax hen, presumably it is subject to the same rules and restrictions, including the following provisions of G.S. 105-380(c): "(c) Any tax that has been released, refunded, or compromised in violation of this section may be recovered from any member or members of the governing body who voted for the release, refund, or compromise by civil action instituted by any resident of the taxing unit, and when collected, the recovered -53- tax shall be paid to the treasurer of the taxing unit. The costs of bringing the action, including reasonable attorneys' fees, shall be allowed the plaintiff in the event the tax is recovered." (The word "tax" includes penalties and interest. G.S 105-273(15).) We have found no case construing this question in the hght of G.S. 160A-228 and G.S. 105-380, and it is, of course, by no means certain that a court would find the members of the council Uable. "(4) If the city council improvidently reheves a taxpayer of a special assessment, interest or penalty thereon, what action, if any, should they take to remedy the situation?" We beheve that the council can adopt a resolution rescinding its former action, returning the claim and lien to its status quo ante. In an analogous situation, a taxpayer had asked to be relieved of any assessment of tax on property he owned, representing that it had already been listed by another, who paid the tax. The Commissioners, acting on the representation, ordered that the property be released from taxation. Later, after it appeared that the taxpayer had made an erroneous representation, the Board rescinded its previous order. On review the question was whether the Board could recind its action. The Supreme Court held: "In strictness the only point presented is the legal capacity of the commissioners to reverse and annual their own former erroneous action, not in reforming the tax list, but in the attempted exoneration of the intestate from a part of the taxes for which he is liable thereon, and thus to put out of the way an impediment and hindrance to their collection. It certainly requires neither reference nor argument to sustain so self-evident a proposition as the right (and we may add the duty) of the board, when the error is discovered, and more especially, when committed by the intestate's own representation, to correct it and avert its consequences, and as little . -54- \ objection lies to the fair and deliberate manner in which the board retraced its steps." Lemly v. Commissioners of Forsyth (1881) 85 NC 379. Rufus L. Edmisten, Attorney General Myron C. Banks Special Deputy Attorney General 31 August 1977 Subject: Requested by: Questions: Conclusions: Infants and Incompetents; Health Services; Physicians; Rendering Family Planning Services to Minors Margie Rose, M.P.H., Branch Head, Family Planning Branch, Division of Health Services (1) Is the consent of a minor sufficient to authorize a physician hcensed in North Carolina to render family planning services to that minor w^ithout obtaining consent from the parent, guardian, or person standing in loco parentis? (2) Under these circumstances is the physician immune from hability from civil and criminal liability for rendering these services? (1) Yes. (2) Yes. The 1977 Session of the North Carolina General Assembly ratified Chapter 582 entitled "AN ACT TO AUTHORIZE HEALTH SERVICES FOR MINORS." That Chapter rewrote G.S. 90-21.5 to read as follows: 55- "Minor's consent sufficient for certain medical health services.-(a) Any minor may give effective consent to a physician licensed to practice medicine in North Carolina for medical health services for the prevention, diagnosis and treatment of (i)veneral disease and other diseases reportable under G.S. 130-81, (ii) pregnancy, (iii) abuse of controlled substances or alcohol, and (iv) emotional disturbance. This section does not authorize the inducing of an abortion, performance of a sterilization operation, or commitment to a mental institution or hospital for confinement or treatment of a mental condition. , (b) Any minor who is emancipated may consent to any medical treatment, dental and health services for himself or for his child." Clearly the "...prevention. ..of.. .pregnancy" includes the rendering of family planning services, exclusive of the exceptions Hsted in this statute. Further, the statute is directed to any minor so that it is applicable to members of both sexes. Finally, G.S. 90-2 1.4(a), as also rewritten by Chapter 582, provides that any physician rendering services of this nature to a minor under these circumstances "...shall not be held Hable in any civil or criminal action for providing such services without having obtained permission from the minor's parent, legal guardian, or persons standing in loco parentis/' As a cautionary note, though, the new statutes specifically do not provide immunity to a physician for negligence on his part in diagnosis or treatment. In view of the changes in these statutes by the 1977 General Assembly, any conflict between this opinion and the prior opinion of the Attorney General reported at 43 N.C.A.G. 380 (1974) should be resolved in favor of this opinion. ' Rufus L. Edmisten, Attorney General William F. O'Connell Special Deputy Attorney General -56- 31 August 1977 Subject: Requested by: Question: Conclusion: State Departments, Institutions and Agencies; The University of North Carolina at Chapel Hill; Endowment Fund; Sale of Real Property; Disposition of Proceeds. Grace W. Wagoner University Property Officer Can the University of North Carolina at Chapel Hill sell real property which was acquired by deed of gift and turn the proceeds from the sale over to the endowment fund of the institution? No. However, with the approval of the Governor and Council of State as provided in Chapter 146 of the General Statutes, title to the lands in question could be conveyed to the trustees of the endowment fund. The trustees could sell the property and retain the proceeds from the sale. In December of 1973, certain lands were conveyed to the University of North Carolina at Chapel Hill by deed of gift. The University desires to sell this land and turn the proceeds over to the endowment fund of the University. An opinion has been requested with regard to whether the net proceeds from such a sale could be retained by the University for its use or if the funds, would go into the General Fund pursuant to G.S. 146-30. All sales of real property by the Board of Governors of the University of North Carohna are subject to the provisions of Chapter 146 of the General Statutes. G.S. 116-13. Under G.S. 146-30 as amended the proceeds of a sale of real property by the University would go into the General Fund. 46 N.C.A.G. 40; 46 N.C.A.G. 51. However, there appears to be one method by which the endowment fund could receive the proceeds from a disposition of this property. G.S. 116-36, which relates to endownment funds, was rewritten by Chapter 506 of the 1977 Session Laws. G.S. 116-36(d) specifically -57- authorizes the trustees of the endowment fund of each constituent institution of the University of North Carolina to receive and administer as part of the endowment fund property that may come to them from the Board of Governors. There are certain exceptions to this provision but they are not apphcable to the present inquiry, G.S. 116-36(g) authorizes the trustees of the endowment funds to buy, sell, lend, exchange, lease, transfer or otherwise dispose of or acquire property, real or personal, and in so doing they are not subject to the provisions of Chapter 143 and 146 of the General Statutes. Thus, the lands in question could be conveyed to the trustees of | the endowment fund. Such a conveyance would be subject to the approval of the Governor and Council of State as provided in Chapter 146 of the General Statutes, and the deed of conveyance would have to be executed in the manner provided therein. See G.S. 116-13. Once title to the property is vested in the trustees of the endowment fund, the provisions of G.S. 146-30 would not be apphcable to a sale of the property. G.S. 116-36(g). It should be noted that the above opinion applies only to lands donated to the University prior to June 8, 1977. G.S. 116-360), which became effective on that date provides: "G) Any gift, devise, or bequest of real or personal property to a constituent institution of the University of North Carolina or to the University of North Carolina or to the University of North Carolina Press shall be presumed, nothing to the contrary appearing, a gift, devise, or bequest, as the case may be, to the endowment fund of the respective institution or agency." j I Nothing else appearing, this statute would automatically transfer title ( to lands acquired by gift, devise or bequest by a constituent [ institution, the University, or the University Press to the endowment fund of that institution or agency by operation of law. The disposition of such properties would be governed by G.S. 116-36 rather than Chapter 146 of the General Statutes. We are of the opinion that the provisions of G.S. 116-36G) would not apply to properties donated, devised or bequeathed to the; -58- ! University prior to June 8, 1977. There is nothing in this statute to indicate that the Legislative intent was for the statute to operate retroactively. Ordinarily, a statute will be given prospective effect only and will not be construed to have retroactive effect unless such intent is clearly expressed or arises by necessary implication from its terms. Housing Authority of Durham v. Thorpe, 271 N.C. 468, 157 S.E. 2d 147 (1967). Ordinarily, an intention to give a statute a retroactive operation will not be inferred. Smith v. Mercer, 276 N.C. 329, 172 S.E. 2d 489 (1970). Rufus L. Edmisten, Attorney General Roy A. Giles, Jr. i Assistant Attorney General 6 September 1977 Subject: Motor Vehicles; Drivers License Records; Public Records Requested by: Zeb Hocutt, Jr. Director, Driver License Section Division of Motor Vehicles Question: Is the Division of Motor Vehicles required or permitted under the statutes to sell or furnish selective listings (i.e., by age, sex, etc.) in bulk or on computer tapes from the driver's license files for commercial purposes? Conclusion: No. The information furnished the Division of Motor Vehicles as a prerequisite to obtaining a North Carolina motor vehicle operator's 3r chauffeur's license is obtained by operation of law with possible sanctions being imposed if false information is given. G.S. 20-7 - 3.S. 20-15. The information as to age, sex, physical condition, etc., ;hough personal in nature, is necessary and proper to the relative icensing process due to the danger involved to one's self and to -59- others when operating a motor vehicle. However, such information should not be indiscriminately disseminated for a fee by the Division of Motor Vehicles as the right to privacy is a personal and fundamental right protected by the Constitution of the United States. It should be noted that the Division, under G.S. 20-26(b), is only required to furnish copies of the records required to be kept under subsection (a) of this section, which reads: " §20-26. Records; copies furnished.-{di) The Department shall keep a record of proceedings and orders pertaining to all operator's and chauffeur's licenses granted, refused, suspended or revoked. The Department shall keep records of convictions as defined in G.S. 20-24(c) occurring outside North Carolina only for the offenses of exceeding a stated speed hmit of 55 miles per hour or more by more than 1 5 miles per hour, driving while license suspended or revoked, careless and reckless driving, engaging in prearranged speed competition, engaging willfully in speed competition, hit-and-run driving resulting in damage to property, unlawfully passing a stopped school bus, illegal transportation of intoxicating liquors, and the offenses included in G.S. 20-17." The information required upon the application for a chauffeur's or opertor's hcense is only available for inspection at "any reasonable time during office hours" (G.S. 20-27), and the information as to age and description is required to be shown only on the actual operator's and chaufferur's Ucense under G.S. 20-7(n). Though the operator's and chauffeur's Hcense has become a universal means of identification, such is by practice and not by operation of law, for the only times an operator's or chauffeur's license is required to be shown by the holder thereof is when requested by a law enforcement officer who has observed the holder thereof operating a motor vehicle upon the highways or upon proper order of the court or the Division of Motor Vehicles. When sections of Article 2 of Chapter 20 of the General Statutes are construed in pari materia, it is clearly evident that the personal r -60- information required by the Division of Motor Vehicles on the application for operator's or chauffeur's license as a Hcensing agency was not meant by the Legislature to be indiscriminately disseminated in the nature of bulk Hstings on computer tapes for a fee, but only open to inspection at reasonable times during office hours to assure that the Division of Motor Vehicles was properly carrying out its duty. We are cognizant of the provisions of Chapter 132 of the General Statutes and the provisions thereof have been duly considered. It is a well estabhshed rule of statutory construction that specific enactments take precedence over general enactments dealing with the same subject matter. Therefore, there being specific legislative enactments relative to the availability of the records required pursuant to Article 2 of Chapter 20, such would take precedence over the provisions of Chapter 132 except as to those records held by said division not specifically covered under aforesaid Article 2. In our opinion records of the Drivers License Section should not be furnished in the nature of selective Hstings based on age, sex, etc., absent an order of a court of competent jurisdiction. Further, due to the nature of the information contained in the Drivers License files, strict compliance with the statutes is essential for the protection of the rights of those of whom the information is required as prerequisite to obtaining an operator's or chauffeur's hcense. Rufus L. Edmisten, Attorney General William W. Melvin Deputy Attorney General 7 September 1977 Subject: State Departments, Institutions, and Agencies; PubHc Officers and Employees; State Personnel Act; Exemption of Confidential Secretaries Requested by: Mr. Harold H. Webb Director Office of State Personnel -61- Question: Does G.S. 126-5(d) confidential secretaries exempt pursuant to G.S. may they automatically require that be designated 126-5(d)(4) or by exempted Conclusion: pursuant to G.S. 126-5 (d)(3)? Confidential secretaries named in G.S. 126-5(d)(3) are automatically exempt while confidential secretaries to other persons designated as exempt because they are in policy-making positions must also be designated exempt pursuant to G.S. 126-5(d)(4) in order to be exempt. Chapter 126 of the General Statutes, the State Personnel Act, provided from February 1, 1976, to July 1, 1977, in G.S. 126-5(b) (2) that a "confidential assistant and two confidential secretaries for each elected or appointed department head and one confidential secretary for each chief deputy or chief administrative assistant" should be exempt from the State Personnel Act except as to salaries. That statute also provides in G.S. 126-5(b)(3) that other persons who serve in poHcy-making positions could be made exempt from | the State Personnel Act except as to salaries by appropriate written^ designation. Chapter 126 was amended effective July 1, 1977, to provide in G.S 126-5(d)(3) that a "confidential assistant and two confidential] secretaries for each elected or appointed department head and one confidential secretary for each chief deputy or chief administrative assistant" should be exempt from the State Personnel Act except as to certain designated provisions. The 1977 amendment also provided in G.S. 126-5(d)(4) that not only persons serving in poHcy-making positions, but also "any confidential secretary ori confidential assistant to any such deputy, administrative assistant, division or agency head or employee" designated as policy-making could also be designated as exempt. The question is whether a confidential secretary to a designated policy-maker must be designated as exempt or is automatically exempt. i G.S, 126-5(d)(3) as the State Personnel Act was amended effective July 1, 1977, and G.S. 126-5(b)(2) as the State Personnel Act -62- I existed prior to the 1977 amendment, both provide that two confidential secretaries for each department head and one confidential secretary for each chief deputy or chief administrative ' assistant should be exempt from the State Personnel Act for most purposes. That provision provides that such secretaries are exempt and does not require or provide for any designation of such ; secretaries as exempt. Therefore, secretaries meeting the description j of those provisions are automatically exempt and need not be ' designated as such in order to be exempt except to the extent that it is necessary to do so to identify such persons. Prior to the 1977 amendments. Chapter 126 provided that "one confidential secretary to each position designated under the provisions of G.S. 126-5(b)(3)" would be exempt from the State , Personnel Act except as to salaries. G.S. 126-5(b)(4). Therefore, I under the pre-July 1, 1977, version of the State Personnel Act, a ' confidential secretary to each person designated as exempt because jof being in a policy-making position was also exempt, and no 1 designation of such confidential secretary was required except to the extent necessary to identify the secretary. The 1977 amendment provides for the designation of a confidential secretary or confidential assistant to any person designated as exempt because of being in a policy-making position. The new version of the State Personnel Act does not provide that a confidential secretary to each person designated as exempt because of being in a policy-making position is automatically exempt. Therefore, in the future, a confidential secretary to a person designated as being exempt because of being in a policy-making position will have to be designated as such pursuant to G.S. 126-5 (b)(4) in order for the confidential secretary to be exempt. However, confidential |secretaries who were automatically exempt under the pre-July 1, !1977, version of the State Personnel Act because they were confidential secretaries to persons designated as being in ipohcy-making positions will continue to be exempt automatically. Such person automatically became exempt on or before May 1, 1977, when the persons for whom they acted as confidential secretaries were properly designated as exempt. The amendments in the statute will not take away their exempt status. -63- Rufus L. Edmisten, Attorney General Norma S. Harrell Associate Attorney 14 September 1977 Subject: Requested by: Questions: Conclusions: Courts; Infants; Juveniles; Authority of District Court Judge and Division of Youth Services to Commit a DeUnquent Juvenile. Mike Cayton Assistant Director for Management and Planning Division of Youth Services Department of Human Resources (1) Does the District Court have authority to commit a delinquent child to the Department of Human Resources for a fixed term? (2) Can the Department of Human Resources extend the commitment of a child, who has not reached his eighteenth birthday, past the time specified by the District Court in its commitment order? (3) Can the Department of Human Resources release a child prior to the expiration of a commitment order? (4) Does the District Court have the authority to commit a delinquent child to a specific program or institution? (1) Yes, provided the fixed term does not extend beyond the child's eighteenth birthday. -64- (2) No. (3) Yes, but not without involving the court. (4) No, except with agreement of the Department. A juvenile hearing is a two-step process. The Court must determine if a child is delinquent, dependent, neglected, or undiscipUned. G.S. 7A-278. If a child is adjudged to fall within any of these conditions, then "(a)t the conclusion of the adjudicatory part of the hearing, the court may proceed to the disposition part of the hearing, or the court may continue the case for disposition after the juvenile probation officer or family counselor or other personnel available to the court has secured such social, medical, psychiatric, psychological or other information as may be needed for the court to develop a disposition related to the needs of the child or in the best interest of the State. The disposition part of the hearing may be informal, and the court may consider written reports or other evidence concerning the needs of the child. In all cases, the court order shall be in writing and shall contain appropriate findings of fact and conclusions of law...." G.S. 7A-285 The District Court, having adjudged a child delinquent, has the authority to commit the child to the Department of Human Resources for "a definite or an indefinite term, not to exceed beyond the eighteenth birthday of the child, as the Department or its administrative personnel may find to be in the best interest of the child." G.S. 7A-286(5). The authority of the District Court is not totally discretionary. The General Assembly intended that the Department of Human Resources would be consulted in arriving at the length of the commitment. While the District Court does have -65- the authority to commit for a definite period of time, it would seem the best practice for a child who is to be sent to a training school is for him to be committed to the Department of Human Resources for an indefinite period of time not to exceed the child's eighteenth birthday or until released by the Department of Human Resources. The Department has not only the authority but the duty to release the child when the needs of the child or the best interest of the State indicate a need for such a release. G.S. 134A-30. Second, when a child is committed for a definite period of time and the time of the commitment expires, there seems to be no authority for the Department to extend the commitment. Although it is true that the Department has the duty to know when a child is ready for release, G.S. 134A-30, and release of the child when the needs of the child and the best interest of the State so dictate, G.S. 134A-32, this duty does not grant the Department the authority to extend a commitment beyond the time specified in the District Court Order. Such an extension would amount to a deprivation of Uberty and would require a Due Process Hearing prior to any deprivation. Cf. State v. Dobbins, 111 N.C. 484, 178 S.E. 2d 449 (1971). Once a judgment against an adult criminal defendant has been imposed, an adult cannot be validly imprisoned beyond the time specified in the judgment. State v. Hoover, 252 N.C. 133, 113 S.E. 2d 281 (1960). There seems to be no reason not to apply this rule to the juvenile courts. The basic requirements of due process must be met in a Juvenile Court Proceeding. In re Burrus, 275 N.C. 517, 169 S.E. 2d 879 (1969) aff'd., 403 U.S. 528, 91 S.Ct. 1976, (1971). Such requirements include notice and a hearing prior to deprivation of any Uberty. Id. at 530. There does not seem to be any provision for holding a subsequent hearing by the Department. The committing Judge has "exhausted his immediate authority" and therefore cannot extend the commitment without a new petition being filed. Id. at 536. The time to have the proper commitment imposed is at the conclusion of the disposition phase of the juvenile process. After that time, an extension of the commitment would not seem to be allowed. The Department of Human Resources has the authority pursuant to G.S. 134A-30, 134A-31, and 134A-32 to release a committed child at any time that the Department determines that the needs of the child and the best interest of the State would be served by -66- such release. Prior to release, the Department shall initiate pre-release planning with the parents of the child and the committing court. If this pre-release planning is begun prior to the expiration of a fixed commitment, the Department should seek an amendment to the order of the committing court prior to release of a child. The Department and the District Court seem to have concurrent authority over the commitment of a child. The final authority to release the child is, however, vested in the Department. The Department would be wi |
OCLC Number-Original | 2640733 |