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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
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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