North Carolina Attorney General reports

              THE LIBRARY OF THE
UNIVERSITY OF
NORTH CAROLINA
THE COLLECTION OF
NORTH CAROLINLVNA
C340
N87a
1974-75
p^
UNWEBSITY OF N CAT CHAPEL Hia
00033947285
FOR USE ONLY IN
THE NORTH CAROLINA COLLECTION
44 N.C.A.G. No. 1 Pages 1 through 200
NORTH CAROLINA
ATTORNEY GENERAL
REPORTS
Opinions of the Attorney General
July 1, 1974 through December 31, 1974 <
MAILING ADDRESS:
Post Office Box 629
Raleigh, North CaroUna 27602
RUFUS L. EDMISTEN
Attorney General
Harry W. McGalliard
Chief Deputy Attorney General
J979/7,
Jean A. Benoy
James F. Bullock
I. Beverly Lake, Jr.
Andrew A. Vanore, Jr.
Robert Bruce White, Jr.
Deputy Attorneys 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 Banks
James L. Blackburn
George W. Boylan
William F. Briley
Lester V. Chalmers, Jr.
H. Al Cole, Jr.
T. Buie Costen
Donald A. Davis
Sidney S. Eagles, Jr.
Roy A. Giles, Jr.
Guy A. Hamlin
Claude W. Harris
Ralf F. Haskell
Charles R. Hassell, Jr.
Charles M. Hensey
1. B. Hudson, Jr.
Parks H. Icenhour
Keith L. Jarvis
Rafford E. Jones
Richard N. League
James E. Magner, Jr.
John R. B. Matthis
William W. Melvin
William F. O'Connell
Conrad O. Pearson
William B. Ray
M. Ann Reed
Millard R. Rich, Jr.
James B. Richmond
Walter E. Ricks, III
Jacob L. Safron
Alfred N. Salley
John M. Silverstein
Norman L. Sloan
Eugene A. Smith
Edwin M. Speas, Jr.
Robert G. Webb
Wm. Woodward Webb
Thomas B. Wood
Assistant Attorneys General
John W. McDevitt, Consultant
Herbert Lamson, Jr., Claims Attorney
Charles J, Murray, Revisor of Statutes
Noel L. Allen
Archie W. Anders
Jesse C. Brake
E. H. Bunting, Jr.
David S. Crump
Robert P. Gruber
Zoro J. Guice
Charles D. Heidgerd
Alan S. Hirsch
Richard F. Kane
Robert W. Kaylor
Sandra M. King
Wilton E. Ragland, Jr.
William A. Raney, Jr.
Robert R. Reilly
Thomas M. Ringer, Jr.
Jerry J. Rutledge
James M. Wallace, Jr.
Raymond L. Yasser
Associate Attorneys
10 July 1974
Subject:
Requested by:
Question:
Conclusion:
State Departments, Institutions and
Agencies; Department of Correction;
Amendment of Sentence
Mr. James P. Smith
Senior Administrative Assistant
Department of Social Rehabilitation &
Control
Is the Department of Correction required
to reduce an inmate's prison sentence as
the result of post term court orders?
No.
Neither the statutory nor the common law of the State of North
Carolina contains any provision for post sentence hearings on
reduction of sentence and once a term of court comes to an end,
the judge is without authority to vacate or modify the judgment.
In State v. Lewis, 226 N.C. 249, 37 S.E. 2d 691 (1946), the Supreme
Court of North Carolina stated:
"After a defendant has begun the service of his term,
or at least when that takes place after the adjournment
of the court, it is beyond the jurisdiction of the judge
to alter it or to interfere with it in any way." (at
251)
More recently, in State v. Lawrence, 264 N.C. 220, 141 S.E. 2d
246 (1956), the Supreme Court reaffirmed this holding by stating
that:
". . .After the term ended the judge was without
authority to vacate or modify the judgment ..." (at
223)
See. also. State v. Godwin, 210 N.C. 447, 187 S.E 2d 560 (1936).
Regarding the District Courts, the Court stated in State v. Lawrence,
supra:
"Where the length of the term of an inferior court is not
expressly stated by statute other than it shall continue until
the .business before it is disposed of, the term cannot last
beyond the time fixed for the next succeeding term, unless
perhaps a trial in actual progress should extend it . . .
."
(at 223)
Furthermore, once the term of court comes to an end, only the
Governor of this State may grant reprieves, commutations and
pardons. In State v. Lewis, supra, the Supreme Court directly spoke
to this issue by stating:
"The power of pardon, parole or discharge during the
term of imprisonment is by the Constitution the
exclusive prerogative of the Governor." (at 251)
Although State v. Lewis, supra, refers to Article III, Sec. 6 of the
North CaroUna Constitution of 1868, its holding is equally apphcable
to Article III, Sec. 5(6) of the North Carolina Constitution of 1970.
Although the power to parole contained in the 1868 Constitution
has now been given by the General Assembly to the North Carolina
Board of Paroles (see Article 4, Chapter 148 of the General Statutes),
the 1970 Constitution provides that:
"The Governor may grant reprieves, commutations,
and pardons ..."
In view of the foregoing, it is our opinion that after a defendant
has begun the service of his term, or at least when that takes place
after the adjournment of the court, it is beyond the jurisdiction
of the judge to alter it or to interfere with it in any way, as the
power of reprieve, commutation and pardon during the term of
imprisonment is by the Constitution of North Carolina the exclusive
prerogative of the Governor. Cf. In Re Powell, 241 N.C. 288,
84 S.E. 2d 906 (1954).
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Robert Morgan, Attorney General
Jacob L. Safron
Assistant Attorney General
10 July 1974
Subject:
Requested by:
Questions:
Conclusions:
Mental Health; Infants and Incompetents;
Rights of Minor Patients in Treatment
Facilities
Dr. Lenore Behar, Chief
Children and Youth Services
Division of Mental Health Services
(1) Do the provisions of G.S. 122-55.13
terminate the parental-child relationship
between a minor patient in a North
Carolina treatment facility and his parent
or parents?
(2) Is it a violation of the rights of a minor
patient in a North Carolina treatment
facility to notify his parent or parents: (a)
of his presence there when he is a runaway
from home? (b) of the fact he has been
or is being treated for venereal disease? or
(c) of the fact that he has attempted to
commit suicide?
(1) The provisions of G.S. 122-55. 1 3 do not
terminate the parental-child relationship
between a minor patient in a North
Carolina treatment facility and his parent
or parents.
(2) It is not a violation of the rights of
a minor patient in a North Carolina
treatment facility to notify his parent or
parents: (a) of his presence there when he
is a runaway from home; (b) of the fact
that he has been or is being treated for
venereal disease; or (c) of the fact that he
has attempted to commit suicide.
The 1973 Session (2nd Session 1974) of the General Assembly of
North Carolina singled out minor patients in North Carolina
treatment facihties for special consideration. As a result. Part 3 of
Article 3, Chapter 122 is devoted to the rights of minor patients
and is tailored to meet their particular requirements. G.S. 122-55.13
declares an intention to protect the minor patients' riglats to
"dignity, humane care, and proper adult supervision and guidance".
This section clearly provides:
"In view of the physical, emotional, and intellectual
immaturity of the minor, the treatment facility shall
stand in loco parentis to the minor when he is in
residence."
It would appear that this placement of responsibility upon the
treatment facility has raised the question as to the exact status of
the parent of a minor patient during the period of time that the
minor is in a treatment facility. Examination of Part 3 of Article 3,
in its entirety, however, dispels any illusions that the General
Assembly had intended to tamper with the relationship between
minor patients and their parents. It is clear that what was intended
was to create a status of authority on the part of the facility to
safeguard the welfare of minor patients on an around-the-clock basis
and to permit the facility to perform functions which the parents
normally would perform were they not geographically separated
from the minor. That there was no intention to interrupt the normal
parental relationship is manifested by the provisions of
G.S. 122-55.14 which specifically guarantee the minor patients' rights
to communicate with individuals having legal custody of them and
to consult with private mental health mental retardation specialists
chosen by their legal custodians.
This State has long adhered to the principle that "... the law
seeks to work in harmony with nature, and to continue those ties
which bind man to his own flesh . . ." See James r. Pretlow,
242 N.C. 102, 105 (1955). Any termination of the parent-child
relationship predicated solely upon a minor's patient status in a
treatment facility would do unwarranted violence to this basic
principle.
In view of this continuation of the normal parental relationship,
it becomes obvious that there is no abrogation of any right of a
minor patient in communicating to his parent or parents information
dealing with his location, his physical or mental condition, or his
actions. Imphcit in the language of G.S. 90-21.1 through
G.S. 90-21.5 is a recognition by the General Assembly of the nature
of such a relationship. By these statutes, treatment of minors by
qualified physicians acting without the consent of parents was
legitimized in certain emergency situtations. The language
throughout these statutes clearly conveys the underlying theme that
leaving the parents out of the picture will be the exception rather
than the norm. Further, it is difficult to visualize how the responsible
adult could determine the advisability of procuring the assistance
of private mental health mental retardation specialists (as guaranteed
by G.S. 122-55. 14)if he is not afforded the benefit of all information
pertinent to the condition and treatment of the minor. Further
indication of the intent of the Legislature on this score is found
in the provisions of G.S. 122-56.5 providing that a parent, inter
alia, shall act for a minor who has been voluntarily admitted to
a treatment facility in consenting to medical treatment; again, any
such consent should clearly be an enhghtened one.
One specific comment is in order with regard to information that
a minor is being treated for venereal disease. G.S. 90-21.5
specifically addresses the subject of venereal disease and authorizes,
in this hmited area, treatment based upon the minor's consent.
Nevertheless, this excusable of the need for a before the fact consent
by a responsible adult does not preclude an after the fact report
of this or any other pertinent aspect of the patient's condition to
such responsible adult.
Robert Morgan, Attorney General
William F. O'Connell
Assistant Attorney General
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10 July 1974
Subject:
Requested by:
Question:
Conclusion:
Mental Health; Infants and Incompetents;
Voluntary Admission of Runaway Minors
to Treatment Facilities
Dr. Lenore Behar, Chief
Children and Youth Services
Division of Mental Health Services
In an emergency situation may a runaway
minor may be voluntarily admitted to a
North Carolina treatment facility under the
provisions of Article 4, Chapter 122, upon
his request but without an appHcation for
admission being submitted by his parent,
parents, or other person having legal
custody of him?
In an emergency situation a runaway minor
may be voluntarily admitted to a North
Carolina treatment facility under the
provisions of Article 4, Chapter 122, upon
his request without application for
admission by his parent, parents, or person
having legal custody of him.
This question has arisen because of the provisions of G.S.
as follows:
122-56.5,
"§122-56.5. Representation of minors and persons
adjudicated non compos mentis. In applying for
admission to a treatment facility, in consenting to
medical treatment when consent is required, in giving
or receiving any legal notice, and in any other legal
procedure under this Article, a parent, person standing
in loco parentis, or guardian shall act for a minor, and
a guardian or trustee shall act for a person adjudicated
non compos mentis."
The phraseology of this Section, standing alone, and interpreted
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literally, would appear to mandate the presentation of an application
for admission by a responsible adult as an absolute prerequisite to
admission of a minor to a treatment facility. Further, although
G.S. 122-55.13 provides that "... the treatment facility shall
stand in loco parentis to the minor when he is in residence", no
such provision is made for the period prior to his becoming a resident
of the facility.
However, elsewhere in the General Statutes the legislators have
provided for situations wherein treatment of minors is required on
an emergency basis. G.S. 90-21.1 authorizes a medical doctor to
render treatment to any minor without consent of the parents, etc.,
where: (1) The responsible adult cannot be located or contacted
with reasonable diligence in time to meet the minor's needs for
treatment; or (2) where the identity of the minor is unknown or
the necessity for immediate treatment is so apparent that delaying
treatment in an effort to secure approval would endanger the minor's
life; or (3) where an effort to contact the responsible adult would
result in delay that would seriously worsen the minor's condition.
G.S. 90-21.2 defines the word "treatment" as "
. . . any medical
procedure or treatment, including X-rays, the administration of
drugs, blood transfusions, use of anesthetics, and laboratory or other
diagnostic procedures employed by or ordered by a physician
licensed to practice medicine in the State of North Carolina that
is used, employed, or ordered to be used or employed commensurate
with the exercise of reasonable care and equal to the standards of
medical practice normally employed in the community where said
physician administers treatment to said minor."
It is clear that the treatment required by a minor suffering from
mental illness would fall within this definition. It is equally clear
that admission of the minor patient to the facility wherein he is
to receive this treatment is an integral and vital part of the treatment
itself. Therefore, when the situation is of an emergency nature of
a type as described by G.S. 90-21.1, a minor may be admitted to
a North Carolina treatment facility without the application for
admission being presented by a responsible adult.
Robert Morgan, Attorney General
William F. O'Connell
Assistant Attorney General
10 July 1974
Subject:
Requested by:
Question
:
Conclusion:
Mental Health; Involuntary Commitment;
Return of Respondent to Mental Health
Facility for Treatment Pending
Commitment Hearing
Dr. N. P. Zarzar, Director
Division of Mental Health Services
Department of Human Resources
Is it necessary to initiate a new affidavit
as the basis for securing the involuntary
readmission to a mental health facility of
a patient who has been released therefrom
pending his hearing in district court but
whose condition has changed so as to
require prehearing inpatient treatment?
It is necessary to initiate a new affidavit
as the basis for securing the involuntary
readmission to a mental health facility of
a patient who has been released therefrom
pending his hearing in district court but
whose condition has changed so as to
require prehearing inpatient treatment.
G.S. 122-58.6 deals with prehearing disposition of a respondent in
an involuntary commitment case. This Section requires an
examination of a respondent by a qualified physician within 24
hours of his arrival at the facility and the results of this examination
determine his prehearing status. If the qualified physician finds that
the respondent is mentally ill or an inebriate and is imminently
dangerous to himself or others, the respondent is held at the facility
pending the hearing. Conversely, if the quahfied physician finds that
the respondent is not mentally ill or inebriate or is not imminently
dangerous to himself or others, he releases the respondent pending
his district court hearing and notifies the clerk of superior court
to that effect.
No specific directives are contained in G.S. 122-58.6 relative to the
individual who has been initially released from the facility pending
his commitment hearing but whose changed condition apparently
indicates the advisability of prehearing involuntary inpatient
treatment. However, the underlying theme running through the
present involuntary commitment statutes is a prohibition of any
semblance of arbitrary, capricious, questionable, or unnecessary
restraints upon an individual processed thereunder. Indicative of the
legislative feeling relative to appropriate documentation are the
provisions found in G.S. 122-58.6 dealing with a respondent who
has been released prior to his hearing but who then improperly fails
to appear for his hearing. Even in that aggravated situation, an order
of the responsible judge is required in order to take the respondent
into custody and return him to the mental health facility.
In the situation described in the question, some form of reliable
information must be available in order to justify altering the earlier
professional determination of the qualified physician regarding the
need for holding the respondent prior to his hearing. The initiation
of action designed to involuntarily commit a mentally ill or inebriate
person is required to be based upon an affidavit of a person having
knowledge of the facts and the entire situation. See G.S. 122-58.3
and G.S. 122-58.18. Similarly, the spirit of the involuntary
commitment statutes ~ as well as efficient, effective and just
practices and procedures ~ requires documentation in the form of
a new affidavit in order to warrant reversal of the preliminary
decision that restraint of the respondent is not necessary prior to
his hearing.
Robert Morgan, Attorney General
William F. O'Connell
Assistant Attorney General
10 July 1974
Subject: State Departments, Institutions and
Agencies; Department of Natural and
Economic Resources; Sedimentation
Control Commission; Chairman
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Requested by: Mr. James E. Harrington, Secretary
Department of Natural and Economic
Resources
Question:
Conclusion :
Under the provisions contained in Chapter
1262, Sections 40 and 41, 1974 Session
Laws, reorganizing the Department of
Natural and Economic Resources, and
under those contained in Chapter 1417,
Section 2, 1974 Session Laws, amending
the Sedimentation Pollution Control Act of
1973, did the Secretary of the Department
of Natural and Economic Resources again
become the Chairman of the Sedimentation
Control Commission on 1 July 1974?
No, Chapter 1417, Section 2, not only
amends G.S. 1 13A-53, but also amends by
implication Chapter 1262, Section 40, so
as to provide that the Governor shall
designate a member of the Commission to
serve as Chairman.
On 13 April 1974, Chapter 1417, 1974 Session Laws, amending the
Sedimentation Pollution Control Act of 1973, was ratified by the
Legislature. It removed the Secretary of the Department of Natural
and Economic Resources (DNER) from membership on the
Sedimentation Control Commission, where he had been Chairman
as so provided in G.S. 1 13A-53(a)(l). This Chapter became effective
upon its ratification on April 13.
On 1 1 April 1 974, two days earlier, the Legislature had ratified
Chapter 1262, 1974 Session Laws, reorganizing DNER. The effective
date of this law was 1 July 1974. Section 40 of this Chapter simply
copied G.S. 113A-53, as it existed before Chapter 1417 amended
it, and Section 41 repealed G.S. 113A-53 on 1 July, the effective
date. Therefore, on 1 July 1974 when G.S. 113A-53 was repealed,
the authorizing provision for the Commission then became Section
40 of Chapter 1262.
10-
If literal effect were to be given to these two enactments, the result
would be that on April 13, the date on which Chapter 1417 became
effective, the Secretary of DNER was removed from membership
on the Commission and was replaced as Chairman by a member
of the Cominission designated by the Governor. Then, on July 1,
the effective date of Chapter 1262, the Secretary of DNER again
became a member of the Commission and its Chairman.
This gives rise to the question of whether or not the Secretary of
DNER did, indeed, again become the Chairman of the Sedimentation
Control Commission on July 1. In the opinion of this Office, the
answer is "no".
It is well established that the intent of the Legislature controls the
interpretation of the statute. Person v. Garrett, 280 N.C. 163, 165,
184 SE 2d 873 (1971); State Highway Commission v. Hemphill,
269 N.C. 535, 538, 153 SE 2d 22 (1967); Shiie v. Scheldt,
252 N.C. 561, 564, 114 SE 2d 237 (1960). G.S. 143B-14(b)
prohibits the Secretary of DNER from serving as Chairman of the
Sedimentation Control Commission. Consequently, G.S. 113A-53
was amended by Chapter 1417, Section 2, 1974 Session Laws, in
order to make it conform with the statutory requirements of
G.S. 143B-14(b).
However, Chapter 1262, 1974 Session Laws, which was ratified two
days before Chapter 1417, but did not become effective until two
and one-half months after it, simply copied verbatim G.S. 1 13A-53,
as it existed before Chapter 1417 amended it. Since legislative intent
controls the interpretation of the statute, it is our opinion that
Chapter 1417, Section 2, has the effect of amending, by implication,
Chapter 1262, Section 40, so as to permanently remove the
Secretary of DNER from his position as Chairman of the
Sedimentation Control Commission.
Furthermore, if possible, the language of the statute will be
interpreted to avoid absurd consequences. Person v. Garrett, supra
at 166; Hobbs v. Moore County, 267 N.C. 665, 671, 149 SE 2d 1
(1966). In the matter currently under consideration, since the
purpose of Chapter 1417, Section 2, was to remove the Secretary
of DNER as Chairman of the Sedimentation Control Commission
in order to conform to the requirements of G.S. 143B- 14(b), it
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would be an absurd consequence to rename him as a member of
the Commission and as Chairman on July 2, in derogation once
more of G.S. 143B-14(b), the very ill which Chapter 1417, Section
2, was enacted to cure.
An amendment or repeal of statutes by implication is not favored
in this jurisdiction. Person v. Garrett, supra, at 165; State v.
Hockaday, 265 N.C. 688, 691, 144 SE 2d 867 (1965); In re
Halifax Paper Company, Inc., 259 N.C. 589, 594, 131 SE 2d 441
(1963). A later statute will not amend or repeal a former statute
unless the two are in irreconcilable conflict, and amendment or
repeal by implication is necessary. Person v. Garrett, supra; In re
Halifax Paper Company, Inc., supra; Ivey v. North Carolina Prison
Department, 252 N.C. 615, 619, 114 SE 2d 812 (1960); 7 North
Carolina Index 2d, Statutes §11, at 84-85. However, where two
statutes relating to the same subject are passed at the same or
different sessions of the Legislature, and they are in irreconcilable
conflict, the statute first enacted must give way to the latter to
the extent of the conflict, the latest expression of the legislative
will or intent being the law. Bland v. Wilmington, 278 N.C. 657,
661, 180 SE 2d 813 (1971); Victory Cab Company v. Charlotte,
234 N.C. 572, 577, 68 SE 2d 433 (1951); Guilford County v.
Estates Administration, Inc., 212 N.C. 653, 655, 194 SE 2d 433
(1937); Road Commissioners v. County Commissioners,
186 N.C. 202, 204-205, 119 SE 206 {1923); North Carolina Index
2d, supra.
Thus, Chapter 1417, Section 2, being the latter statute enacted,
thereby is deemed to evidence the latest expression of the legislative
intent or will, and has the legal effect of amending, by impUcation,
Chapter 1 262, Section 40, so as to remove the Secretary of DNER
from his position as Chairman of the Sedimentation Control
Commission. This is so even though Chapter 1417 was ratified only
two days after Chapter 1 262 and even though Chapter 1 262 did
not become effective until two and one-half months after
Chapter 1417. We believe that this latter fact is inconsequential,
carrying no legal impHcations.
Therefore, since the legislative intent was to remove the Secretary
of DNER from his position as Chairman of the Sedimentation
Control Commission and since an absurd result would be reached
-12-
if he were allowed to become the Chairman again on July 1 and
since Chapter 1417 was the latter bill enacted, thus evidencing the
latest expression of the legislative will, although it became effective
before Chapter 1262, it is the opinion of this Office that
Chapter 1417, Section 2, has the effect of amending, by implication.
Chapter 1262, Section 40, thus removing the Secretary of DNER
from his position as Chairman of the Sedimentation Control
Commission in conformity with G.S. 143B-14(b). Consequently, on
July 1, he was not reinstated as Chairman.
Robert Morgan, Attorney General
Kenneth B. Oettinger
Associate Attorney
10 July 1974
Subject: Mental Health; Involuntary Commitment;
Supervision and Treatment of a
Respondent Detained in a Community
Mental Health Center or Regional Mental
Health Facility
Requested by: Dr. N. P. Zarzar, Director
Division of Mental Health Services
Department of Human Resources
Questions: (1) During the detention of a respondent
at a community mental health center or a
regional mental health facility prior to his
involuntary commitment hearing, is
appropriate supervision over him the
responsibility of such facihty or center?
(2) May respondent who is in detention in
a community mental health center or a
regional mental health facility prior to his
involuntary commitment hearing be given
medication or other treatment for his
mental illness or inebriety?
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Conclusions: (1) A community mental health center or
regional mental health faciUty is
responsible for the appropriate supervision
of a respondent detained there prior to his
involuntary commitment hearing.
(2) While detained in a community mental
health center or a regional mental health
facility prior to his involuntary
commitment hearing a respondent may be
given reasonable and appropriate
medication and treatment consistent with
accepted medical standards if such is given
under the direction of the attending
qualified physician.
Article 5A of Chapter 122 vests considerable responsibility in the
law enforcement officer with regard to taking a respondent into
custody during the initial stages of an involuntary commitment
proceeding and taking him to the appropriate facihty or place for
examination. Provisions are also made for the law enforcement
officer to secure such detention of the respondent as is necessary
to process the case. Further, the Article is clear that the law
enforcement officer is responsible for getting the respondent to the
right place for detention and/or examination. However, there is
nothing in Article 5A which would impose any duty on the law
enforcement officer to personally exercise supervision over the
respondent while he is being detained at a community mental health
center or a regional mental health facility. Quite to the contrary,
the Article provides that the quahfied physician at the center or
facihty "shall hold the respondent at the facility" or "shall release
the respondent" based upon his determinations. See G.S. 122-58.6.
Certain other functions such as later transporting a respondent or
taking him into custody and returning him to the hospital devolve
upon the law enforcement officer. Nevertheless, the whole tenor
of Article 5A is indicative of the fact that the supervisory
responsibihty over the respondent while he is actually detained at
a center or facility is that of the qualified personnel at such center
or facility. Further exemplification of this legislative intent to make
-14-
the center or facility responsible for the respondent's welfare is
found in the provisions of G.S. 122-58. 6(c) as follows:
"(c) Pending the district court hearing, the qualified
physician attending the respondent is authorized to
administer to the respondent reasonable and
appropriate medication and treatment that is
consistent with accepted medical standards."
Robert Morgan, Attorney General
William F. O'Connell
Assistant Attorney General
10 July 1974
Subject:
Requested by:
Questions:
Conclusions:
Mental Health; Involuntary Commitment;
Determination of Place of Detention Prior
to Commitment Hearing
Dr. N. P. Zarzar, Director
Division of Mental Health Services
Department of Human Resources
(1) How can a law enforcement officer
determine the proper place for and cause
detention of a respondent prior to an
involuntary commitment hearing?
(2) During the preliminary stages of an
involuntary commitment proceeding, may
a magistrate or clerk, acting under
G.S. 122-58.4, designate a temporary
overnight place of custody with provision
for subsequent removal to a regional
facility for examination?
( 1 ) The prehearing detention authorized by
G.S. 122-58.4 should be effected in
accordance with the custody order of the
magistrate or clerk; if the custody order
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lacks specificity, the provisions of
G.S. 122-58.4 and the local plan
formulated for the use of mental health
facilities will control.
(2) A magistrate or clerk may designate a
temporary overnight place of detention
with provision for subsequent removal to
a regional mental health facility for
examination in the case of a respondent
being processed for involuntary
commitment when this course of action is
rendered necessary by existing
circumstances and will not result in the
exceeding of time hmitations for the
examination as prescribed by
G.S. 122-58.4.
G.S. 122-58.4 requires prompt examination of a respondent who
is being processed under the involuntary commitment statutes. Rigid
time requirements are imposed so that the respondent must be taken
into custody within 24 hours of the execution of the custody order
by the magistrate or clerk, and he must be transported to a proper
place for examination immediately, but, in any event, within 48
hours after custody has been assumed. The law enforcement officer
receiving the custody order is the individual who is responsible for
getting the respondent to the right place within the prescribed time;
apparently, some question has arisen as to where this law
enforcement officer can look for guidance when a physician is not
immediately available.
The statute requires use of a community mental health facility as
the place of detention if such is available. Otherwise, the law
enforcement officer ". . . may cause the detention of the respondent,
under appropriate supervision, in the respondent's home, in a general
hospital or in a regional mental health facihty, but not in a jail
or other penal facility." If the magistrate or clerk has specifically
directed a place of detention, that order should be followed if
possible; if, due to unexpected developments or unknown factors
arising after the issuance of the order, the place specified appears
inappropriate to the law enforcement officer, then he should so
-16-
apprise the magistrate or clerk and secure additional instructions.
Where, due to insufficient information at the time of issuing the
custody order or for other reasons, no specific place is specified
in the custody order, the local plan deahng with mental health
facilities should be looked to for guidance as to the proper place
of detention. G.S. 122-58.16 requires the formulation of such a plan
by community mental health facilities and area mental health
programs. These plans are arrived at "
. . .after consultation with
local court officials and the local medical society" and approval
thereof by the Division of Mental Health Services is required. Since
the statute makes it very clear that the desired place of detention,
where available, is a community mental health center, provision for
alternate courses of action, absent a community health center,
should be included in the local plan for the guidance of judicial
and law enforcement personnel. In view of the requirement for
consideration by all involved parties prior to formulation of the local
plan, the provisions therein should conform to the requirements of
G.S. 122-58.4 but be tailored to meet the needs of the local mental
health personnel, the judiciary and the law enforcement officers.
As to Conclusion No. 2, prompt examination of the respondent is
required and the time Umits for the required actions leading up to
the examination are absolute mandates. However, clearly there may
be situations where, due to prevailing circumstances, the appropriate
course of action will be local overnight detention, under authorized
conditions, despite the fact that a satisfactory examination may not
be obtained locally. In these situations, so long as the mandatory
time Umit for examination of the respondent can still be met, it
would appear that the magistrate or clerk is vested with discretion
to enter an order directing local temporary custody and late transfer
to a regional mental health facility.
Robert Morgan, Attorney General
William F. O'Connell
Assistant Attorney General
-17-
17 July 1974
Subject:
Requested by:
Question:
Health; Regulation of Sewage Disposal in
Foodhandling and Lodging Establishments;
Construction of G.S. 72-46, G.S. 130-160
and G.S. 143-215
Mr. Stacy Covil, Assistant Head
Sanitation Branch
Sanitary Engineering Section
Division of Health Services
Department of Human Resources
In light of the authority of the
Environmental Management Commission to
promulgate regulations and standards
concerning sewage disposal systems and
discharge therefrom under G.S. 130-160
and G.S. 143-215, may the Commission
for Health Services also promulgate
regulations concerning sewage disposal in
foodhandling and lodging facilities under
G.S. 72-46?
The Commission for Health Services may
prepare and the Department of Human
Resources may enforce more stringent
regulations concerning sewage disposal in
foodhandling and lodging facilities where
such regulations are deemed necessary to
protect the pubhc health.
G.S. 130-160 provides in substance that any person owning or
controlling a residence, place of business or place of public assembly
shall provide an approved sewage disposal system. A system with
less than three thousand gallon capacity and not discharging into
the surface waters is subject to approval according to regulations
promulgated by the Commission for Health Services; a system with
more than three thousand gallon capacity is subject to approval
according to regulations promulgated by the Environmental
Management Commission. The Environmental Management
Conclusion:
Commission is authorized under G.S. 143-215 to adopt effluent
standards and limitations concerning discharge into all surface
waters.
G.S. 72-46 provides in substance that the Commission for Health
Services shall promulgate regulations concerning the sanitation of
foodhandUng and lodging establishments. The section provides that
a permit must be obtained from the Department of Human
Resources before any establishment may operate and that the permit
may only be issued upon compliance with the regulations prepared
by the Commission. A minimum grade of C is required for operation.
The section sets forth certain items, including waste disposal, which
shall be covered in the Commission's regulations. Section 6, Item 6,
of the Rules and Regulations Governing the Sanitation of
Restaurants and Other Foodhandling Establishments provides in part
that "All toilet wastes shall be disposed of in a public sewer system,
or in absence of a public sewer system, by a private sewage disposal
system approved by the Commission for Health Services."
Applying established rules of statutory construction that statutes
pertaining to similar matters are to be harmonized and that implied
repeal of statutory provisions is not favored, it is the opinion of
this Office that the authority of the Environmental Management
Commission to adopt regulations and standards under G.S. 130-160
and G.S. 143-215 does not diminish the authority and the
responsibility of the Commission for Health Services to adopt and
the Department of Human Resources to enforce regulations designed
for the protection of the public health in regard to sewage disposal
systems in foodhandling and lodging establishments. Due to the
importance of proper sanitation in such establishments, the
Legislature has authorized and directed the Commission for Health
Services to consider and regulate all aspects of proper sanitation.
This specific authority and responsibiUty in insuring proper
sanitation must be construed as a supplemental safeguard for
protecting the public health in foodhandling and lodging
establishments in addition to the regulations of the Environmental
Management Commission under G.S. 130-160 and G.S. 143-215.
In light of possible concurrent jurisdiction of the Environmental
Management Commission and the Commission for Health Services
in promulgating regulations concerning sewage disposal systems in
-19-
foodhandling and lodging facilities, the Department of Human
Resources, in enforcing the regulations of the Commission for Health
Services, may evaluate a sewage disposal system and determine
whether, regardless of the fact that the system has been found to
satisfy the requirements of the Environmental Management
Commission, the system satisfies the requirements of the
Commission for Health Services. It is the opinion of this Office that
the regulations of the Commission apphcable to sewage disposal
systems in foodhandUng and lodging establishments may be more
stringent than those of the Environmental Management Commission
apphcable to sewage disposal systems in general; but, in no event,
may the Department of Human Resources issue a permit under
G.S. 72-46 to an establishment which has not satisfied the applicable
regulations, if any, of the Environmental Management Commission
under G.S. 130-160 and G.S. 143-215. Tliis conclusion necessarily
follows from the determination that G.S. 130-160 and
G.S. 143-215 impose minimum requirements of sanitation for
sewage disposal systems and that G.S. 72-46 imposes supplemental
requirements on foodhandling and lodging establishments.
G.S. 72^6 provides that the Commission for Health Services may
prepare rules concerning waste disposal, among other things, in
determining the overall sanitation of the establishment; but
G.S. 130-160 specifically provides that all places of business shall
have a sanitary system of sewage disposal. It would be anomalous
to conclude that an establishment, although failing to satisfy the
specific mandate of G.S. 130-160 and G.S. 143-215, could
nevertheless possess the level of sanitation demanded by G.S. 72-46.
Therefore, if the Office of Environmental Protection has issued a
permit or temporary permit indicating compUance with
G.S. 130-160 and G.S. 143-215, the Department of Human
Resources may independently evaluate the sewage disposal system
in determining the general sanitation of the foodhandling or lodging
estabUshments. However, if the Office of Environmental Protection
denies a permit or withdraws a temporary permit, the estabUshment
cannot ipso facto satisfy the requirements to obtain a minimum
grade of C.
Robert Morgan, Attorney General
Robert R. Reilly
Associate Attorney
-20-
17 July 1974
Subject:
Requested by:
Questions:
Conclusions:
State Departments, Institutions, and
Agencies; State Department of Youth
Development; Infants and Incompetents;
Medical Treatment for Students; Consent
for Surgical Operations on Minor Students
Mr. John R. Larkins, Commissioner
Office of Youth Development
Department of Social Rehabilitation and
Control
Under present conditions where none of
the facilities of the State Department of
Youth Development have a medical doctor
at the facility but where each has a
contractual relationship with a medical
doctor for medical services to its students:
(1) Who is authorized to consent to a
non-emergency surgical operation on a
minor student?
(2) Who is authorized to consent to an
emergency surgical operation on a minor
student?
(3) What authorization is needed for
non-surgical medical treatment given to a
minor student?
(4) May effective general consent be
obtained in advance from parents,
guardians, relatives or legal custodians for
all necessary medical treatment and surgery
which may be given to a minor student in
the future?
Under the circumstances described in the
questions:
-21-
(1) Consent for a non-emergency surgical
operation on a minor student should be
obtained from a responsible member of his
family, guardian, or one having legal
custody. If such type of individual
qualified to give this consent cannot be
found, then consent should be obtained
from the local health director of the area
where the facility is located.
(2) Consent for an emergency surgical
operation on a minor student should be
obtained from the superintendent of the
institution and the medical doctor under
contract for medical services to students of
the facility.
(3) The need for non-surgical medical
treatment given to a minor student should
be determined by the medical doctor under
contract to the facility, and, upon such
determination, no further consent is
necessary.
(4) General consent from parents,
guardians, relatives or legal custodians
obtained in advance for surgical operations
on minor students would not be effective
to authorize future surgical operations. In
view of conclusion (3), general advance
consent for future non-surgical treatment
of minor students is not prohibited nor
would it be necessary for the
administration of non-surgical treatment by
the medical doctor under contract.
G.S. 134-26, ratified in 1971, provides:
"§134-26. Providing necessary medical and surgical
treatment for students. - The State Department of
Youth Development is authorized and directed to
-22-
provide, through hcensed physicians and surgeons,
such medical and surgical treatment as is necessary to
preserve the life and health of the students. The
medical staff of any school, institution, or agency,
under the management and control of the State
Department of Youth Development, is hereby
authorized to perform or cause to be performed, by
competent and skillful physicians or surgeons, medical
treatment or surgical operations upon any student
when such operation is necessary for the physical
health of the student. Provided, that no operation shall
be performed except as authorized in G.S. 130-191."
As a result, in order to resolve the question regarding non-emergency
surgery, it is necessary to examine G.S. 130-191. As found in the
1974 Replacement Volume 3B of the North Carolina General
Statutes, that section makes the following provisions for
non-emergency surgery on minor students:
"No such operation shall be performed . . ., if the
inmate be a minor, without the consent of a
responsible member of his family, a guardian, or one
having legal custody of such minor ... In any event
in which a responsible member of the inmate's family,
or a guardian for such inmate, cannot be found, as
evidenced by the return of a registered letter to the
last known address of the guardian or responsible
relative, then the local health director of the area in
which the hospital or institution is located shall be
authorized to give or withhold, on behalf of the
inmate, consent to the operation."
This language unequivocally demonstrates a legislative intent to
secure the consent for non-emergency surgery from the parents,
guardian, or a person having custody where it is reasonably possible.
As an alternative, when efforts to find such person in the manner
prescribed have been unsuccessful, the local health director is vested
with the responsibility for resolving the issue of whether the
operation should be performed and is authorized to give the required
consent.
-23-
Paragraph 2 of G.S. 130-191 covers the situation where emergency
surgery on a minor resident is involved but it is impossible to obtain
the timely consent of "a responsible member of his family, guardian,
or one having legal custody." In that situation "... the decision
to proceed with the operation shall be made by the chief medical
officer and the superintendent of the institution with the advice
of the medical staff of the institution." Clearly, under existing
circumstances, substituting a medical doctor under contract for a
non-existent chief medical officer and his staff would fall squarely
within the ultimate intent of the legislators, i.e., obtaining the
approval of the superintendent of the institution and a professionally
qualified medical doctor. This section and this rationale would
appear to be similar to that involved in Article 1, Chapter 90, of
the North Carolina General Statutes, dealing with the general
treatment of all minors in this State. In view of the specific language
of G.S. 130-191 and the Hmitations of its area of application, its
provisions should control in the event of any conflict or
inconsistencies with the provisions of Article 1 of Chapter 90.
So too, the intent of the legislators as expressed in G.S. 134-26
would also be implemented by equating a medical doctor under
contract to the "medical staff" described in that section. Thus the
medical doctor having a contractual relationship with the facility
would be the determiner of the need for non-surgical treatment of
a minor student. Of course, responsibility rests upon the personnel
at the facility for insuring that any minor student displaying
symptoms of illness, disease, etc., receives appropriate medical
examination for the purpose of determining the need for medical
treatment.
Finally, the specificity of the language of G.S. 130-191, together
with the limitations imposed by G.S. 134-26, precludes the deriving
of any true authorization for future surgery from a general consent
previously obtained from responsible adults. As to non-surgical
treatment, in view of the statutory provisions governing this
situation, such prior consent is not required as a prerequisite for
obtaining appropriate treatment. However, this general consent to
non-surgical treatment is not prohibited and might serve at least
a psychological purpose in reassuring the responsible adults that the
minor student will receive proper medical treatment, or in deterring
future attempts to institute litigation because of medical treatment
which has been given.
-24-
It is noted that a prior opinion of this Office addressed to Dr. John
S. Chamblee, Rocky Mount City Health Director, dated 1 July 1969,
and published at 40 N.C.A.G. 674 has dealt with these questions.
In view of the language of the present statutes governing this
situation, that prior opinion is hereby superseded with this opinion
and the advice given in the prior opinion should no longer be
followed.
Robert Morgan, Attorney General
William F. O'Connell
Assistant Attorney General
19 July 1974
Subject:
Requested by:
Mental Health; Involuntary Commitment;
Authority of Attending Physician to
Determine Place of Pre-Hearing Custody
Mr. M. G. Boyette
County Attorney
Moore County
Question: May the attending physician in a
community mental health center, acting
solely at his own discretion, transfer to a
regional mental health facility a respondent
in an involuntary commitment proceeding
who is in pre-hearing detention at the
center?
Conclusion: An attending physician at a community
mental health center, acting solely at his
own discretion, may not transfer to a
regional mental health facility a respondent
in an involuntary commitment proceeding
who is in pre-hearing detention at the
center.
This Office has recently had occasion to examine the problems
attendant to the pre-hearing detention of respondents in involuntary
-25-
commitment cases, including the authority to determine a proper
place for detention. See opinions of the Attorney General to Dr.
N. P. Zarzar, Director, Division of Mental Health Services, Subjects:
Determination of Place of Detention Prior to Commitment Hearing;
Supervision and Treatment of a Respondent Detained in a
Community Mental Health Center or Regional Mental Health
Facility; and Return of Respondent to Mental Health Facility for
Treatment Pending Commitment Hearing, all three opinions dated
July 10, 1974. The conclusions arrived at in these opinions were
predicated to a very great extent upon some of the desired results
which the General Assembly obviously intended to achieve by
ratifying the new involuntary commitment statutes-i.e., insuring the
minimum amount of pre-hearing restraint commensurate with the
individual case, avoiding any requirement for excessive
transportation of the respondent as a part of the commitment
proceedings, accessibility of the respondent to his lawyer, and
placing the proceedings squarely within orderly judicial proceedings
so that the rights of all parties can be protected. The same basic
considerations are involved in arriving at the conclusion voiced here.
If the order of the magistrate or clerk specifies the place of detention
and a change therein becomes imperative, the judicial officer who
issued this order should be contacted, informed of the situation,
and requested to alter the detention order. If no place of detention
is specified in the order, and the order does not grant the detaining
facility discretion in the matter, then the local plan dealing with
mental health facilities formulated under G.S. 122-58.16 should
afford proper guidance on the matter of transfer of the respondent.
The controlling statutes speak clearly regarding the authority of a
qualified physician attending the respondent to release him from
any detention prior to his hearing. Thus, if the physician finds that
the respondent is not mentally ill or inebriate and not imminently
dangerous to himself or to others, then he may release him from
such detention until the time of his commitment hearing. See
G.S. 122-58.6. However, if the attending physician determines that
the respondent should be detained, he is not authorized, on his own,
to transfer the respondent to a regional mental health facility in
contravention of the order of the magistrate or clerk or contrary
to the provisions of the local mental health plan. Although authority
is vested in the attending physician to administer appropriate,
-26-
reasonable medication and treatment to a respondent being detained,
in view of the specific statutory language dealing with the place
of detention, this authority does not extend to an unauthorized
transfer of a respondent in pre-hearing detention.
Robert Morgan, Attorney General
William F. O'Connell
Assistant Attorney General
5 August 1974
Subject:
Requested by:
Questions:
Mental Health; Mentally 111 or Inebriate
Persons; Patients' Rights; Contraband;
Search and Seizure; Regulation of Parking;
Assault
Dr. Pedro Carreras, Assistant Director
John Umstead Hospital
(1) May the Director of a State mental
institution confiscate contraband articles in
possession of a patient at such institution?
(2) May the Director of a State mental
institution search a patient and his
possessions for articles that may be
dangerous, not only to the patient, but to
other patients and staff as well, when
reliably informed that a patient has such
articles in his possession?
(3) What degree of force may be used by
a State mental health hospital staff member
to defend himself when assaulted by a
violent and aggressive patient?
(4) Is John Umstead Hospital authorized
to establish parking areas for patients and
enforce use of such areas?
-27-
Conclusions: (1) The Director of a State mental
institution may confiscate contraband
articles in possession of a patient at such
institution.
(2) The Director of a State mental
institution may search a patient and his
possessions for articles that may be
dangerous not only to the patient but to
other patients and staff as well, when
reliably informed that a patient has such
in his possession; however, where criminal
prosecution is indicated and where it does
not appear that the situation is so emergent
that irremediable harm would result from
delay, a search warrant should be obtained
prior to search.
(3) A mental health hospital staff member
may use only that degree of force necessary
to repel and secure a violent and aggressive
patient.
(4) John Umstead Hospital may establish
parking areas for patients and enforce use
of such areas.
The mental hospital to which a mentally ill or inebriate person is
committed pursuant to Article 5A of Chapter 122 of the General
Statutes has custody of such person and is responsible for
appropriate supervision during the commitment period. See
G.S. 122-58.8(b). G.S. 122-55.2 provides that a patient has a right
to keep and use his own clothing and personal possessions and to
have access to individual storage space for his private use. However,
nothing contained therein gives the patient a right to have in his
possession articles that are imminently dangerous to himself or
others or property, the possession of which is made a criminal
offense under the laws of this State, i.e., concealed weapons, illegal
drugs, etc. The Department of Human Resources has jurisdiction
over all the State's mental hospitals, G.S. 122-1, and the
Commission for Mental Health Services is authorized to estabHsh
-28-
rules and regulations governing the admission of persons to such
institutions. G.S. 122-3. The Department may, by proper
regulations, require inventorying and proper storage of such articles
as may be dangerous but not otherwise illegally possessed.
The authorities and case law in this State concerning search and
seizure deal generally with actual or suspected criminal law violations
and evidence obtained by an unlawful search and seizure may not
be introduced at the trial of the accused.
A warrant may be issued by any justice, judge, clerk or assistant
or deputy clerk of any court of record, or any magistrate of the
General Court of Justice to search for any contraband, evidence,
or instrumentality of crime upon finding probable cause for the
search. G.S. 15-25(a). In order to obtain a search warrant, it is
necessary that an affidavit under oath establish the basis for the
finding of probable cause for its issuance. G.S. 15-26. Further, no
evidence obtained or facts discovered by means of an illegal search
shall be competent as evidence in any trial. G.S. 15-27(a).
This Office is of the opinion that contraband articles, i.e., weapons,
illegal drugs, etc., in the possession of a patient at a mental
institution may be seized by the Director of such institution,
particularly where the retention of such would constitute a danger
to the safety not only of the particular patient but other patients
and the staff as well. This applies to such articles in a patient's
possession at the time of his admission and at all times thereafter
during his detention at the hospital.
Further, if there is reasonable ground to believe that a patient has
such articles in his possesion, this information may be conveyed
by proper affidavit to a magistrate or other person authorized to
issue a search warrant and such magistrate or other officer may,
if convinced, issue such warrant. Where criminal prosecution is
anticipated, obtaining a search warrant will tend to make amply
sure that the objects seized will be admissible at trial. However,
in situations where it appears probable that bodily injury or property
destruction, etc., will result from the delay, the better cause may
well be to conduct the search without benefit of a warrant; hence,
the conclusions reached in Questions (1) and (2).
-29-
The right of self-defense provides the answer to Question (3). A
person may use such force to repel an assault as is reasonably or
apparently necessary to protect himself from death or great bodily
harm. The reasonableness of the apprehension is to be determined
by the jury in accordance with the facts and circumstances as they
appeared to defendant at the time of assault. See State v. Francis,
252 N.C. 57, 112 S.E. 2d 756 (1960). The force used must not
be excessive or disproportionate to the force it is intended to repel
and the question of excessive force is ordinarily for determination
of the jury. State v. Ritter, 239 N.C. 89, 79 S.E. 2d 164 (1953).
Thus, a mental hospital staff member may, if assaulted by a violent
and aggressive patient, use such force as is necessary to defend
himself; however, great care should be exercised to assure that the
force used to repel the assailant is not excessive under the
circumstances.
As to Question (4), G.S. 122-16.1 and G.S. 122-95 appear to be
dispositive. Under G.S. 122- 16. 1(b), the Commission for Mental
Health Services is authorized to establish parking areas on the
grounds of mental institutions. Under G.S. 122-95, the North
Carolina Department of Human Resources is authorized to make
rules and regulations and to adopt such ordinances as may be
necessary for the better administration of John Umstead Hospital
and is authorized in particular to estabUsh parking areas. We are
of the opinion that this authority is sufficiently broad to enable
John Umstead Hospital to designate State-owned areas as patient
parking lots and to require patients having automobiles at the
institution to park their automobiles in those areas.
Robert Morgan, Attorney General
Parks H. Icenhour
Assistant Attorney General
12 August 1974
Subject: Social Services; Closed-End Budget for
Financing Programs of Public Assistance at
the County Level; Chapter 1418, Session
Laws 1973, Second Session; Legality of
Social Services Commission Proviso that for
-30-
Fiscal 1974-75 Counties Will Be Required
to Provide Adult Services, Under More
Liberal Eligibility Standards, Only to the
Extent the County Budgets Permit
Requested by: Mr. Robert Ward
Deputy Director
Division of Social Services
N. C. Department of Human Resources
Question: May the Social Services Commission adopt
a proviso that for fiscal 1974-75 counties
will be required to provide adult services,
under more liberal eligibility standards,
only to the extent their budgets permit?
Conclusion: The Social Services Commission may adopt
a proviso that for fiscal 1974-75 counties
will be required to provide adult services,
under more Hberal eligibility standards,
only to the extent their budgets permit.
At the June 14, 1974, meeting of the North Carohna Social Services
Commission approval was given to raising the maximum level of
income for eligibility for potential recipients of adult services, with
the proviso that for fiscal 1974-75 counties will be required to
provide such services only to the extent their budgets permit. The
focal issue in this instance is the possibility that certain applicants
for adult services who are otherwise eligible under the financial
standard adopted by the Social Services Commission may be
deprived of such services by virtue of the fact that the county has
exceeded its budgetary maximum for these programs for fiscal
1974-75. Such a result would run afoul of 45 CFR §222.5 and
45 CFR §220.15:
"All of the services (adult) contained in the State plan
must be available, accessible, and provided with
reasonable promptness to all ehgible persons needing
the services." 45 CFR §222.5. (Emphasis supplied)
"The State plan:
-31-
(a) Must assure that responsibility is assumed for tiie
provision of services (certain adult services under
Title IV-A of the Social Security Act) to all
appropriate persons receiving aid and others in the
home whose needs were considered in determining
eUgibility for such aid, as called for under each of the
requirements in §§ 220.16- 220.25..."
45 CFR §220.15. (Emphasis supplied)
Such a result would also run afoul of the due process and equal
protection clauses of the Fourteenth Amendment to the
Constitution of the United States.
However, Chapter 1418 of the 1973 Session Laws, Second Session,
1974, established the "State Public Assistance Contingency Fund"
from State appropriations to provide additional funds to the counties
for all programs of public assistance in fiscal year 1974-75 in the
event that expenditures in such county programs exceeded the
approved budget of total county funds required to finance each
program of public assistance within that county for fiscal year
1974-75. Consequently, when the aforementioned proviso is
considered in connection with the provisions of Chapter 1418, it
becomes evident that all persons eligible for adult services in fiscal
1974-75 will, in fact, receive such services, only the costs thereof
will be assumed in one of the following manners:
1. By the individual county under its budget for adult
services until that budget has been exhausted at which
time the county may, with the approval of the
Secretary of Human Resources or his representative,
transfer county funds from another public assistance
program to the adult services programs. See Section
5 of Chapter 1418.
2. When the county's budget for all public assistance
programs is exhausted, the expense of these programs
in the county for fiscal year 1974-75 will be defrayed
by an allotment from the "State Public Assistance
Contingency Fund," made to the county at any time
during the fiscal year by the Secretary of Human
-32-
Resources when satisfied of the county's need for such
allotment. See Section 2 of Chapter 1418.
In sum, Chapter 1418 has cured the proviso adopted by the Social
Services Commisssion on June 14, 1974, of significant constitutional
and statutory defects. Therefore, the proviso is legally sanctionable
at this time.
Robert Morgan, Attorney General
William Woodward Webb
Assistant Attorney General
12 August 1974
Subject:
Requested by:
Questions:
Mental Health; Commitment Rehearings;
Waiver of Notification of Time and Place
of Rehearing
Mr. J. Laird Jacob, Jr.
Special Counsel
Broughton Hospital
(1) Is it required that the clerk's notice of
rehearing pursuant to Article 5A,
Chapter 122, North Carolina General
Statutes, in an involuntary commitment
case be actually served upon the
respondent and the appropriate special
counsel?
(2) May the special counsel in an
involuntary commitment case involving an
indigent respondent:
(a) accept service of the clerk's
notice of rehearing (AOC-L Form
406) for the respondent?
(b) waive the service of the clerk's
-33-
notice of rehearing (AOC-L Form
406) upon the respondent?
(c) waive service of the clerk's notice
of rehearing (AOC-L Form 406)
upon the respondent and special
counsel?
Conclusions: (1) Absent appropriate waiver of service,
or consent to non-service,
G.S. 122-58.1 1(a) requires actual service
of the clerk's notice of rehearing in an
involuntary commitment case upon both
the respondent and the special counsel.
(2) The special counsel in an involuntary
commitment case involving an indigent
respondent:
(a) may accept service of the clerk's
notice of rehearing (AOC-L Form
406) for the respondent;
(b) waive service of the clerk's notice
of rehearing (AOC-L Form 406)
upon the respondent;
(c) waive service of the clerk's notice
of rehearing (AOC-L Form 406)
upon both the respondent and
special counsel.
Under the present involuntary commitment statutes an initial period
of involuntary commitment may not exceed ninety (90) days. Where
continued involuntary commitment is indicated, a rehearing must
be held to determine the need for continuation beyond the end
of the initial period. G.S. 122-58.1 1(a). The second period of
involuntary commitment cannot exceed one hundred and eighty
(180) days, and, if continuation beyond that period appears
necessary, the respondent must be afforded the opportunity of
annual rehearings. G.S. 122-58.1 l(d),(e).
-34-
G.S. 122-58.1 1(a), with reference to the first rehearing, provides
the clerk "...shall notify the respondent and his counsel of the time
and place of the rehearing." Other provisions specify that the same
procedures appertain to rehearings as those governing initial hearings
and that respondents have the same rights as they have at initial
hearings. G.S. 122-58.1 l(c),(e). On the topic of original hearings,
G.S. 122-58.5 stipulates:
"Notice must be given at least 48 hours in advance,
unless waived by counsel for the respondent."
Further indicative of the legislator's ideas as to the role of counsel,
he is authorized to waive the presence of any respondent at a hearing
(G.S. 122-58. 7(d)), and the right to rehearings after the first
rehearing may be waived when "...the respondent through his
counsel" files a written waiver of such right (G.S. 122-58. 11(e)).
In order to fully protect the rights of indigents in the mental health
facilities, the present statutes authorize the appointment of special
counsel at each regional psycliiatric facility. These special counsel
are required "...to represent at rehearings under this Article all
indigent respondents" and their authority extends even to the initial
determination of indigency. G.S. 122-58. 12(a).
As the necessary implementation of the statutory requirement for
notice, a particular form (AOC-L Form 406) has been devised and
is utihzed for the purpose of effecting service upon respondents and
special counsel. In accordance with normal practice, these notices
are being served upon the respondents and special counsel by law
enforcement officers. Apparently the present questions arose from
a desire to obviate the monetary costs and man-hours expended in
preparation and service of these notices where it is the desire of
special counsel to waive these formalities.
In view of the language used throughout Article 5 A, it is manifest
that the General Assembly intended to vest considerable discretion
and authority in the hands of the special counsel so as to enable
them to represent the respondents' best interests. Thus, it would
appear that the actions described in Conclusion (2) are permitted.
-35-
It is contemplated, of course, that where formal notice is waived,
informal notification adequate to amply protect a respondent's rights
will be made and that appropriate recordation thereof will be
available to substantiate the absence of a deprivation of the rights
of any respondent. In addition. Conclusion (2) is Hmited to a
situation where only special counsel is involved and there is no
individual counsel of record. Where there is individual counsel of
record who is still representing a respondent, undoubtedly such
individual counsel would be authorized to waive or accept service
in the same fasliion as special counsel. However, in that type of
situation, special counsel would not be authorized to take these
actions on his own.
Robert Morgan, Attorney General
William F. O'Connell
Assistant Attorney General
12 August 1974
Subject: Mental Health; Involuntary Commitment;
Propriety of the "Qualified Physician"
Acting As Physician In Charge of
Treatment
Requested by: Mr. R. J. Bickel
Assistant Director for Administration
Division of Mental Health Services
N. C. Department of Human Resources
Question: Can a duly hcensed medical doctor who is
a full time mental health center staff
member act as the quahfied physician
responsible for committing to the mental
health center inpatient unit a patient whom
he has appropriately evaluated to be
mentally ill or inebriate, and, at the same
time, be the primary medical physician in
charge of this person's treatment in the
center's inpatient unit without violating the
legal rights of the patient or the physician?
-36-
Conclusion: There is no legal impediment to, or
violation of the legal rights of any party
resulting from, the qualified physician
responsible for committing a patient to the
mental health center inpatient clinic also
acting as the primary medical doctor in
charge of the patient's treatment at the
center's inpatient unit.
In view of the medicolegal approach to handling involuntary
commitment cases in North Carolina, Article 5 A of Chapter 122
of the General Statutes places considerable emphasis on the role
of the "quahfied physician" in involuntary commitment proceedings.
He is responsible for determining initially if the respondent meets
the criteria for involuntary commitment and whether pre-hearing
restraint is necessary. As a practical matter, it would appear that
his testimony is normally the most vital - and probably controlling
- evidence presented upon the subject of need for commitment and
treatment.
These facts, however, do not serve to incapacitate the qualified
physician from acting as the physician in charge of the respondent's
treatment when the respondent becomes an inpatient as the result
of the involuntary commitment proceedings. The basic objective in
involuntary commitment proceedings is to secure proper treatment
for individuals who need such treatment. In other words, the motive
behind these proceedings is a curative one rather than a punitive
one. Thus, the very act of commitment, where appropriate, is an
integral step in the proper therapeutic program for the respondent.
The quahfied physician is acting in the best interest of the
respondent at the time of the commitment proceedings just as he
is acting in the patient's best interest in administering inpatient
treatment to him. As a result, there is no legal problem presented
by the medical doctor performing the dual functions described.
Two additional comments, not legal in nature, are in order on this
subject. The functioning of the physician in the commitment
proceedings may, in some instances, adversely affect the rapport
desired between the physician and the patient and there may be
some deterioration of the patient's confidence in the physician as
a result of what the respondent may think is derogatory testimony.
-37-
Conversely, though, it is obvious that when the qualified physician
and the treating physician are one and the same, it is far more likely
that the treatment rendered will be compatible with that envisioned
at the time commitment for treatment is judicially determined to
be appropriate. These, however, are administrative matters with no
legal connotations which must be resolved in view of the resources
available at the individual facility.
Robert Morgan, Attorney General
William F. O'Connell
Assistant Attorney General
12 August 1974
Subject: Prisons and Prisoners; Work Release; Parole
Commission
Requested by: Mr. J. Mac Boxley
Chairman
Parole Commission
Questions: (1) Is the Parole Commission responsible
for granting work release privileges to
persons committed to the Division of
Prisons?
(2) Is responsibility for granting work
release privileges for persons sentenced to
imprisonment for less than five years
reserved in the Division of Prisons?
Conclusions: (1) Yes
(2) No
Chapter 1262 of the Session Laws of 1973 (Second Session 1974),
entitled "An Act to Further Effectuate the Reorganization of State
Government #4.", provides in Sec. 8(b), to be codified as
G.S. 143B-266, that:
-38-
"All releasing authority previously resting in the
Commissioner and Commission of Correction with the
exception of authority for extension of the hmits of
the place of confinement of a prisoner contained in
G,S. 148-4 is hereby transferred to the Parole
Commission. Specifically, such releasing authority
includes work release (G.S. 148-33.1) . . .provided
the individual considered for work release . . . shall
have been recommended for release by the Secretary
of Correction or his designee." (Emphasis added)
Thus, the General Assembly has unequivocally assigned to the Parole
Commission, effective July 1, 1974, the responsibility for granting
of work release privileges to persons committed to the Division of
Prisons.
G.S. 148-33.1 authorizes work release and subsections (a) and (b)
made a distinction in work release granting procedures to persons
sentenced to a term not exceeding five years. Formerly,
G.S. 148-33. 1(a) did not require Board of Parole authorization for
work release in the event the sentencing court had recommended
work release to a person sentenced to a term not exceeding five
years. If the term exceeded five years, Parole Board approval was
required before the Department of Correction could place the
individual on work release. G.S. 148-33. 1(b). In the absence of
G.S. 148-33.1 there would be no basis for granting work release
privileges to any inmate, regardless of the length of sentence.
It would undoubtedly ease the work load of the Parole Commission
if the Division of Prisons could treat work release privileges for
inmates sentenced to less than five years as an extension of the
limits of confinement under G.S. 148-4. Unfortunately, there is no
way to bifurcate work release into under and over five-year
categories so as to avoid the language of G.S. 143B-266 vesting "All
releasing authority . . . Specifically . . . work release
(G.S. 148-33.1) . . ." in the Parole Commission.
There would be no authorization for release privileges were it not
for G.S. 148-33.1. Therefore, the conclusion is inevitable that the
Parole Commission is exclusively responsible for granting work
-39-
release privileges to all persons in the custody of the Division of
Prisons, regardless of whether or not their sentences are less than
or more than five years.
Robert Morgan, Attorney General
Jacob L. Safron
Assistant Attorney General
13 August 1974
Subject:
Requested by:
Question:
Health; Solid Waste Disposal; Chapter 130,
Article 13B; G.S. 153A-292; ApplicabiUty
of Local Ordinances
Mr. R. Kason Keiger
Town Attorney
Kemersville
Does Article 13B of Chapter 130 of the
General Statutes, authorizing the
Department of Human Resources to
establish a statewide soUd waste disposal
system, preempt the field of legislation and
bar the enactment and enforcement of
county zoning ordinances on the subject?
Article 13B does preempt the field of
legislation and bar the enactment and
enforcement of county zoning ordinances
on the subject; but the boards of county
commissioners may, pursuant to
G.S. 153A-292, enact ordinances
governing solid waste disposal facilities
established and operated by the boards.
Chapter 153A, Article 18, Part 3, of the General Statutes pertains
to county zoning authority. G.S. 153A-340 is the general grant of
power which authorizes counties to enact zoning restrictions for the
-40-
Conelusion:
purpose of promoting health, safety, morals or the general welfare.
G.S. 153A-346 provides that if the regulations made under the
authority of Part 3 impose higher standards than required under
other statutes, ordinances and regulations, the regulations made
under the authority of Part 3 control; if not, the other statutes,
ordinances and regulations control.
Chapter 130, Article 13B, of the General Statutes authorizes and
directs the Department of Human Resources "to engage in research,
conduct investigations and surveys, make inspections, and establish
a statewide solid waste disposal program." The Department shall
"(d)evelop a comprehensive program for implementation of safe and
sanitary practices for the disposal of solid waste throughout the
State." The Commission for Health Services "shall have authority
to provide standards for the establishment, location, operation,
maintenance, use and discontinuance of solid waste disposal sites
and facilities."
It is well established in this State that "(m)unicipal ordinances are
ordained for local purposes in the exercise of a delegated legislative
function, and must harmonize with the general law of the State.
In case of conflict the ordinance must yield to the State law." Davis
y. Charlotte, 242 N.C. 670, 89 S.E. 2d 406 (1955).
It is also well established that "(w)here a field of general legislation
is wholly taken over by the State, local zoning regulations or
ordinances...may not interfere with its supreme authority in that
field." C. J. S., Zoning, s. 10, p. 693. Thus, the question arises
whether resolution of this matter rests upon a determination of
conflict between State law and regulation and a county ordinance
or whether resolution rests upon a finding of State preemption in
the field of solid waste disposal.
In Petition of Hilovsky, 108 A. 2d 705, 179 Pa. 118 (1954), the
Pennsylvania Supreme Court addressed the question whether a
zoning ordinance may prohibit the sale of intoxicating liquor by
a properly licensed hotel. The Court concluded that "(i)f it be argued
that dispensing of Hquor has a reasonable relation to police power,
the answer is that even so municipalities may not invade the field
of regulation which the State legislature has completely filled by
its comprehensive liquor control act.... A municipality may not in
-41-
the guise of a zoning ordinance regulate the business of dispensing
liquor." (at 706). In Staley v. Winston-Salem, 258 N.C. 244,
128 S.E. 2d 604 (1962), the North CaroHna Supreme Court
considered a Winston-Salem ordinance which purported to regulate
the sale of beer or wine. The Court reviewed the history of extensive
State legislation in the field and concluded that "(t)o interpret it
(the State law) so as to permit local communities to override and
set at nought the conclusions reached by the State Board (concerning
licensing) might well reproduce the condition deplored by the 1945
Legislature. Local ordinances cannot override statutes applicable to
the entire State. (Citation omitted). Petitioners' right to operate the
restaurant being conceded, the zoning ordinance could not set at
nought a statewide statute permitting the sale of wines in such
restaurants. Such sales are a permitted part of authorized business."
(at 248 and 249).
An analogy between liquor regulation and solid waste disposal
regulation is appropriate. In Staley v. Winston-Salem, supra, the
Court found clear legislative intent of State preemption of liquor
regulation; G.S. 130-166.18(1) clearly directs the Department of
Human Resources to develop a comprehensive program throughout
the State for regulation of solid waste disposal. Therefore, it is the
opinion of this Office that Article 13B of Chapter 130 preempts
the field of soHd waste disposal regulation and bars the enactment
and enforcement of county zoning ordinances on the subject which
are in conflict or inconsistent with State regulations.
It should be noted that nothing herein is intended to suggest that
local zoning ordinances may not classify land to permit or prohibit
use as a landfill. However, once land is appropriately classified,
establishment, location, operation, maintenance, use and
discontinuance of solid waste disposal sites and facilities are not
subject to zoning regulations.
The General Statutes do confer specific authority on counties to
regulate by ordinance the removal, disposal, storage, collection,
transportation and use of solid waste and the use of solid waste
disposal facilities. G.S. 153A-132.1 authorizes a board of county
commissioners to enact ordinances governing the removal and
disposal of soHd waste in the rural area of the county beyond
municipal corporate limits. G.S. 153A-136 provides that a county
-42-
may by ordinance regulate "the storage, collection, transportation,
use, disposal, and other dispostion of solid wastes." The broad
language is Hmited by an enumeration of specifics thereafter. The
section proceeds to confer upon the counties the authority to
regulate and hcense "persons wishing to commercially collect or
dispose of solid wastes." Subsection (b) thereof states that the
county ordinances shall be "consistent with and supplementary to"
the rules and regulations of the Commission for Health Services.
G.S. 153A-292 authorizes the board of county commissioners to
estabhsh and operate solid waste collection and disposal facilities
beyond municipal corporate hmits. The section states that "(t)he
board may by ordinance regulate the use of such garbage, refuse,
and solid waste disposal facilites; the nature of the solid wastes
disposed of therein; and the method of disposal." Prior to the
revision of Chapter 153 of the General Statutes by 1973 Session
Law Chapter 822, the authority of the boards of county
commissioners to regulate collection and disposal of garbage was
contained in Article 22 of Chapter 153. Article 22 did not contain
a provision similar to the one in G.S. 153A-292, quoted above. The
revision of Chapter 153, effective February 1, 1974, was enacted
subsequent to that of Article 13B of Chapter 130. The question
is what effect the above-quoted provision has on the mandate
contained in G.S. 130-166.18 for the Department of Human
Resources to develop a statewide program for solid waste disposal.
It is an elemental rule of statutory construction that statutes
pertaining to similar matters are to be harmonized and that each
statute is to be given its full effect. As previously stated, it is clear
that the Legislature intended to estabhsh a comprehensive statewide
program for solid waste disposal. It is also clear that the Legislature
in G.S. 153A-292 authorized the boards of county commissioners
to enact ordinances concerning the use of sohd waste disposal
facilities established and operated by the boards.
In G.S. 130-17, local boards of health are authorized to adopt more,
but not less, stringent rules and regulations to protect and advance
the public health where a peculiar local condition or circumstance
so requires. As previously mentioned, G.S. 153A-346 provides that
where county zoning ordinances and other statutes and ordinances
conflict, that which provides the higher standard prevails. Although
-43-
these two statutes are not applicable to the question under
discussion, they indicate legislative intent in similar circumstances.
Therefore, it is the opinion of this Office that the clear authority
of the boards of county commissioners to enact ordinances pertinent
to soUd waste disposal systems under G.S. 153A-292 is limited by
the statewide authority and responsibility of the Department of
Human Resources to develop a comprehensive program for solid
waste disposal. The boards of county commissioners may enact
ordinances necessary for the establishment and operation of a facility
but those ordinances involving sanitation practices and procedures
may not be less stringent than the corresponding rules and
regulations of the Commission for Health Services.
Robert Morgan, Attorney General
Robert R. Reilly
Associate Attorney
16 August 1974
Subject:
Requested by:
Question:
Conclusion:
Motor Vehicles; Driver's License; Limited
Driving Privileges; Bond Forfeiture
Honorable E. E. Crutchfield
District Court Judge
A person has been charged with driving
under the influence and has not been tried,
his case having been nol prossed upon entry
of a judgment absolute on a cash bond.
Since, pursuant to G.S. 20-24{c), such
forfeiture is equivalent to a conviction,
may a limited driving privilege be issued as
provided in G.S. 20-1 79(b)?
No.
G.S. 20-1 79(b)(1) reads in relevant part:
-44-
"Upon a first conviction only, the trial judge may
when feasible allow a limited driving privilege or
license to the person convicted for proper purposes
reasonably connected with the health, education and
welfare of the person convicted and his family...."
Tlie entry of a judgment absolute on a cash bond is not a trial
nor would the judge entering such order be the trial judge as
contemplated in this section.
It would appear that the proper procedure would be for the
defendant to appear for trial on the charge. The bond forfeiture
should be vacated in the event the defendant is tried and the court
intends to issue the defendant a hmited driving privilege to avoid
conflict with G.S. 20-24(c).
Robert Morgan, Attorney General
William W. Melvin
Assistant Attorney General
16 August 1974
Subject: Mental Health; Mentally 111 or Inebriate
Persons; Transportation to State Hospital;
Responsibility of County
Requested by: Honorable Charles M. Johnson
Clerk of Superior Court
Montgomery County
Question:
Conclusion:
Is transportation of a mentally ill or
inebriate person to a State hospital the
responsibihty of the county?
Transportation to or from a regional
hospital outside the county is the
responsibility of the county.
-45-
G.S. 122-58.14 provides for transportation of a respondent in an
involuntary commitment proceeding to or from a clerk or magistrate,
a qualified physician, a community mental health facility and a
hearing shall be provided by the city or county depending upon
whether the respondent is a resident of the city or a resident of
the county outside the city limits. This statute provides in pertinent
part as follows;
"Transportation to or from a regional hospital outside
the county, for any purpose, is the responsibility of
the county, pursuant to G.S. 122-42." (Emphasis
added)
G.S. 1 22-42 provides that the cost and expenses of conveying every
patient to any hospital from any county or of removing him from
the hospital to the county from which he was hospitalized or to
the county of his residence when released shall be paid by the
treasurer of the county of residence upon order of the board of
county commissioners. This statute further authorizes a county, in
proper instances, to bring an action to recover such cost.
Clearly the Legislature intended local transportation to be furnished
by the city or county based upon the residence of the respondent.
However, in language that is clear and in no manner ambiguous,
responsibility for transportation of a respondent to a regional
hospital outside the county is the responsibility of the county;
hence, the foregoing conclusion.
Robert Morgan, Attorney General
Parks H. Icenhour
Assistant Attorney General
16 August 1974
Subject: FaciUty Services; Licensing; Appeal From
Denial or Revocation of License of a Home
for the Aged and Infirm or a Family Care
Home
A6-
Requested by:
Questions:
Mr. I. O. Wilkerson, Jr.
Director
Division of Facility Services
Department of Human Resources
In case of an appeal from denial or
revocation of a license to operate a home
for the aged and infirm or a family care
home in this State, what official or agency
is authorized to:
(a) determine the appropriate rules
governing such appeal?
(b) furnish administrative support
for processing such appeal?
(c) conduct a hearing on such
appeal?
(d) determine the ultimate
administrative action to be taken on
such appeal?
Conclusions: In case of an appeal from denial or
revocation of a Ucense to operate a home
for the aged and infirm or a family care
home in this State:
(a) the Commission of Social
Services prescribes the appropriate
rules and regulations governing such
appeal;
(b) the Division of Facility Services
furnishes administrative support for
processing such appeal;
(c) the Director, Division of Facility
Services, or a person designated by
him, conducts the hearing on such
appeal;
-41-
;
(d) as to a home for the aged and
infirm, the Division of Facility
Services is responsible for ultimate
administrative action taken on the
appeal, after review of the transcript
of the hearing by the Division. As
to a family care home, the Division
of Facility Services is responsible for
ultimate administrative action taken
on the appeal after review of the
transcript of the hearing by the
Social Services Commission. Final
revocation of the license of a home
for the aged and infirm can be made
only after confirmation thereof by
the Division of Facihty Services and
final confirmation of the revocation
of a Ucense of a family care home
can be made only after confirmation
thereof by the Social Services
Commission.
Prior to the Organization Act of 1973, the State Department of
Social Services was responsible for licensing the types of homes
involved here, acting under rules and regulations adopted by the
State Board of Social Services. The rules and regulations formulated
by the Board charged the State Department of Social Services, in
general, with administrative support of appeals processing, and
required the State Commissioner of Social Services, or a person
designated by him, to conduct appeals hearings. These rules further
provided that ultimate determination on an appeal would be made
by the State Department of Social Services after review of the
transcript by the Department in the case of a home for the aged
and infirm and after review of the transcript by the Board in the
case of a family care home. Elsewhere in the rules, revocation of
such licenses was prohibited except after final confirmation of the
first type of Ucense described by the Department and final
confirmation of the revocation of the second type by the Board.
These rules and regulations, as originally promulgated, still contain
the same language, and, by virtue of G.S. 143B-20, retain their legal
efficacy.
-48-
Under the Organization Act of 1973, however, the position of
Commissioner of Social Services and the Department of Social
Services were aboUshed, while the Social Services Commission was
established. See G.S. 143B-153 through G.S. 143B-156. Since the
effective date of the Organization Act, the Social Services
Commission is responsible for promulgation of rules and regulations
for licensing and inspection of the homes under discussion
(G.S. 143B-153), and the Department of Human Resources is
statutorily responsible for the hcensing and inspecting of these
homes, acting under the rules and regulations of the Social Services
Commission (G.S. 108-77).
Giving additional illumination upon the question of assumption of
tlie responsibihties prescribed in the licensing rules and regulations,
G.S. 143B-7 provides as follows:
"§143B-7. Continuation o//w«cr/o«s. -Each principal
State department shall be considered a continuation
of the former agencies to whose power it has
succeeded for the purpose of succession to all rights,
powers, duties, and obligations of the former agency.
Where a former agency is referred to by law, contract,
or other document, that reference shall apply to the
principal State department now exercising the
functions of the former agency."
There can be no question that the hcensing rules and regulations
involved here are "documents" within the context of G.S. 143B-7.
Thus, applying this section to the present problems, it is clear that
the responsibilities and authority previously vested in the Board of
Social Services and the Department of Social Services devolved upon
the Secretary of Human Resources and the Department of Human
Resources, respectively, by virtue of the Organization Act.
Subsequent to the effective date of the Organization Act, the
Secretary of Human Resources, acting under the authority of
G.S. 143B-10, promulgated directives which created a Division of
Facility Services within his Department, appointed a Director of this
new Division, and transferred the hcensing functions of the types
of homes under scrutiny to this new Division. (See Department of
-49-
Human Resources directives numbers 1 1-73, 1 1-73 (Change 2), 1 1-73
(Change 3), and 14-73). These transfers and delegations of authority
have resulted in the responsibilities and authorizations for actions
on appeals as described in Conclusions (a) through (d) above.
Robert Morgan, Attorney General
WiUiam F. O'Connell
Assistant Attorney General
16 August 1974
Subject:
Requested by:
Question:
State Departments, Institutions and
Agencies; Aid to the BUnd, Chapter 111
of the General Statutes; Legal Authority of
the Division of Services for the Blind to
Enter into Contract with Manufacturer's
Representative Under the Specific
Exception in G.S. 1 1 1-27.1 Exempting the
Executive Budget Act from Applicability
to Such Contractual Arrangement.
Mr. Stephen A. Johnson
Business Affairs Section
Division of Services for the BUnd
Department of Human Resources
May the Business Enterprises Program,
Business Affairs Section of the Division of
Services for the BUnd enter into a
contractual agreement with a
manufacturer's representative/broker for
the sale of products produced by the
clients of the Self-Employment Program
without violating the Purchases and
Contracts Section of the Executive Budget
Act?
Conclusion: The Business Enterprises Program, Business
Affairs Section of the Division of Services
-50-
for the Blind may enter into a contractual
agreement with a manufacturer's
representative/broker for the sale of
products produced by the clients of the
Self-Employment Program without
violating the Purchases and Contracts
Section of the Executive Budget Act.
G.S. 111-27.1 provides that the Department of Human Resources
is authorized to conduct activities "to promote the rehabilitation
and employment of the Wind, including the operation of various
business enterprises suitable for the blind to be employed in or to
operate." The Executive Budget Act which provides in G.S. 143-49
that the Director of Administration is to contract for "all contractual
services and needs of State government, or any of its departments,
institutions, or agencies; or to authorize any department, institution,
or agency to purchase or contract for such services," applies "to
the operation of such (blind) enterprises as to all appropriations
made by the State to aid in the organization and establishment of
such businesses." G.S. 111-27.1
However, there is a specific exception carved out of G.S. 1 1 1-27.1
respecting "(P)urchases and sales of merchandise or equipment, the
payment of rents and wages to blind persons operating such
businesses, and other expenses thereof, from funds derived from
local subscriptions and//-om the day by day operations" which "shall
not be subject to the provisions of law regulating purchases and
contracts, or to the deposit and disbursement thereof appUcable to
State funds but shall be supervised by the Department of Human
Resources." (Emphasis supplied)
Since this manufacturer's representative would be selling the
merchandise of the clients of the Self-Employment Program and
would derive his remuneration from the sales he is able to make,
it is our opinion that a contract between the Division of Services
for the Blind and this party for such services would fall within the
purview of the exception embodied in G.S. 111-27.1. The
compenstion of the manufacturer's representative can be considered
an expense of the sale of the client's merchandise to be paid from
the day by day operations, i.e., commission on the amount of sales
produced. Accordingly, under G.S. 111-27.1 the contractual
-51-
arrangement sought need only be supervised by the Department of
Human Resources and is not subject to the Purchases and Contracts
Section of the Executive Budget Act.
Robert Morgan, Attorney General
William Woodward Webb
Assistant Attorney General
28 August 1974
Subject:
Requested by:
Questions:
Conclusions:
Mental Health; Voluntary Admissions;
Involuntary Return, Involuntary
Commitment, and Discharge of Escapee
From A Treatment FaciUty
Mr. R. J. Bickel
Assistant Director of Administration
Division of Mental Health Services
Department of Human Resources
If a patient who has been voluntarily
admitted to a North Carolina treatment
facility escapes from that facility:
(a) may he be involuntarily returned to
that facility by a law enforcement officer
upon request by the facility?
(b) may involuntary commitment
proceedings be instituted against him
during his absence, and, if so, by whom?
(c) if the escapee voluntarily returns to the
faciUty but still desires to be discharged
therefrom, do the usual provisions for
release apply?
If a patient who has been voluntarily
admitted to a North Carolina treatment
-52-
facility escapes from that facility:
(a) he may be involuntarily returned to
that facility by a law enforcement officer
upon the request of the facility, although
there is no absolute requirement that his
return be so requested.
(b) involuntary commitment proceedings
may be instituted against him during his
absence by any person who has sufficient
knowledge of the situation upon which to
base the required affidavit.
(c) if the escapee voluntarily returns to the
facility but still desires to be discharged
and involuntary commitment proceedings
are not instituted, he must be discharged
within seventy-two (72) hours from the
time of execution of his written request for
release.
G.S. 122-56.3 makes it very clear that a written request for release
is a prerequisite for the release of a patient who has been voluntarily
admitted to a North Carolina treatment facility and that the facihty
may hold the patient for a period of seventy-two (72) hours after
the submission of such request. In the case of a minor, this request
for release must be executed by a parent, person standing in loco
parentis or guardian, as appropriate. See G.S. 122-56.5 and opinion
of the Attorney General to Mr. R. J. Bickel, Assistant Director for
Administration, Division of Mental Health Services, dated 14 May
1974. Thus, since the requisite statutory formalities have not been
complied with in the case of an escapee, the facility may secure
the services of a law enforcement officer to obtain his return if
such is appropriate.
The governing statutes do not require that the return of an escapee
be requested, however, and it would seem that the proper course
in a given case would be based upon the situation present there.
The action taken should be based upon a recognition that the
admission of the patient was originally a voluntary one and that,
-53-
absent other action, the patient may secure his release from the
facihty seventy-two (72) hours after return by making application
therefor. Other factors involved in making an intelligent
determination of the proper course of action would be whether the
original voluntary admission was really in Heu of involuntary
commitment, and whether the individual's present mental condition
is severe enough to meet the requirements for involuntary
commitment and to indicate the propriety of such commitment.
In some cases, if involuntary commitment is an order, then initiation
of these proceedings-with the resultant taking into custody of the
patient in accordance with G.S. 1 22-58.3-might well be a simpler,
more effective course than seeking his return as an escapee.
If involuntary commitment appears appropriate, G.S. 122-58.3
authorizes "...Any person who has knowledge of a mentally ill or
inebriate person who is imminently dangerous to himself or others"
to execute the requisite affidavit which serves as the cornerstone
of this type of proceeding. It would seem that personnel at the
treatment facihty who have recently observed the patient would be
in a singularly good position to execute the affidavit, with no
particular functionary being preferred over another as the affiant.
Of course, in some instances, a member of the family or other person
might be more suitable to perform this act, again depending on the
facts present.
Where the escapee is a minor, it would seem that the parent, person
standing in loco parentis or guardian would normally, as a practical
matter, be the determiner as to whether the escapee should be
returned in his capacity as a voluntary admittee. Where involuntary
commitment appears appropriate, though, while the wishes of the
parent, etc., would be worthy of serious consideration, such would
not legally preclude the initiation of involuntary commitment
proceedings, where appropriate.
James H. Carson, Jr., Attorney General
William F. O'Connell
Assistant Attorney General
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28 August 1974
Subject:
Requested by:
Questions:
Conclusions:
Mental Health; Criminal Law and
Procedure; Involuntary Commitment of a
Defendant Sent to a Mental Health Facility
Under G.S. 122-83
Mr. Michael Rieder
Regional Administrator
Forensic Services
Division of Mental Health Services
Department of Human Resources
(1) What findings must be made by a judge
in order to warrant placing a defendant in
a State mental health facility pursuant to
G.S. 122-83?
(2) Does G.S. 122-83 apply in cases where
a defendant is charged with either a
misdemeanor or a felony and does the
duration of the commitment depend upon
the maximum sentence permissible for the
crime involved?
(3) What, if any, proceedings are necessary
after the arrival at a State mental health
faciUty of a defendant who has been sent
there under the provisions of G.S. 122-83?
(4) When charges are still pending against
a defendant sent to a State mental health
facihty under the provisions of
G.S. 122-83, should the court be notified
if his condition changes so that he is
mentally capable of standing trial or
discharge from the facihty is appropriate?
(1) The minimum necessary finding to
warrant sending a defendant to a State
mental health facility pursuant to
-55-
G.S. 122-83 is a finding that the defendant
is mentally ill at the time of arraignment
and for that reason cannot be tried for the
crime alleged.
(2) G.S. 122-83 applies regardless of
whether a felony or misdemeanor is
involved and the permissible punishment
for the crime involved is not controlling of
the period of commitment.
(3) The proceedings, time Umitations, and
provisions for rehearings, set forth in
Article 5 A, Chapter 122, General Statutes
of North Carolina should be followed for
the processing of a defendant who has been
sent to a State mental health facility
pursuant to G.S. 122-83.
(4) When charges are still pending against
a defendant placed in a State mental
facility pursuant to G.S. 122-83, the
appropriate court should be notified by the
facihty if a change in the defendant's
condition indicates that he is mentally
capable of being tried or that he should
be discharged from the facihty.
In pertinent part, G.S. 122-83 provides as follows:
"All persons who may hereafter commit crime while
mentally ill, and all who, being charged with crime,
are adjudged to be mentally ill at the time of their
arraignment, and for that reason cannot be put on trial
for the crimes alleged against them, shall be sent by
the court before whom they are or may be arraigned
for trial, when it shall be ascertained by due course
of law that such person is mentally ill and cannot
plead, to any State mental health facility in North
Carolina, and they shall be confined therein under the
rules and regulations prescribed by the Commission for
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Mental Health Services under the authority of this
Article, and they shall be treated, cared for, and
maintained in said facility..."
Reading of this Section immediately reveals several significant things.
First, there is no requirement as to the nature, type or degree of
crime charged. Second, there are no specific requirements in the
language of the Section for an evaluation by the hospital to
determine if the defendant is mentally capable to stand trial or
mentally responsible for his crime nor is there a specific directive
that the hospital report back to the court on this subject. Third,
no time limitations are provided in the language of the Section,
so that, under the literal wording thereof, open-end detention would
be permitted absent some sort of additional proceedings or action.
This Office has previously had occasion to examine the provisions
of G.S. 122-84 and G.S. 122-91 dealing, inter alia, with the general
subject of disposition of defendants lacking mental capacity or
mental responsibility to stand trial. See 43 N.C.A.G. 261 (1973).
There, it was concluded that the proceedings authorized by Article
5 A, Chapter 122, General Statutes of North Carolina should be
utilized for involuntary commitment of individuals falling under the
provisions of those sections. The same rationale involved there is
proper here.
There is a serious question as to whether G.S. 122-83 was ever
intended to serve as the actual vehicle of commitment without
implementation as to procedures being derived from other sources.
See State v. Lewis, 11 N.C. App. 226, pp. 233-234 (1971).
Though the Court of Appeals, under the facts of Lewis, felt that
it was unnecessary to decide that specific question, it clearly ruled
that some form of "due process" must be insured to defendants
in these situations (op. cited at p. 238), and tacitly recognized that
open-end commitment without limitation as to time and conditions
would be improper (op. cited at pp. 240-241).
Article 5A has been rewritten by the General Assembly since the
date of the opinion set forth at 43 N.C.A.G. 261. Therefore, some
of the language of the old statute relied upon in our prior opinion
is no longer present in the current statute. However, the new
Article 5 A contains the following policy declarations indicative of
legislative intent
:
-57-
"§122-58.1. Declaration of policy.-W is the policy of
the State that no person shall be committed to a
mental health facility unless he is mentally ill or an
inebriate and imminently dangerous to himself or
others; that a commitment will be accomplished under
conditions that protect the dignity and constitutional
rights of the person; and that committed persons will
be discharged as soon as a less restrictive mode of
treatment is appropriate." (Emphasis supplied)
Based upon this language and relying upon judicial decisions in this
area-notably Jackson v. Indiana, 406 U.S. 715, 718, (1972), and
with particular reference to the portions thereof quoted in
43 N.C.A.G. 261 at p. 263-it is clear that open-end, unUmited
detention of a criminal defendant based upon his capacity to stand
trial would be improper and illegal. Examining the language of
G.S. 122-83, it is also clear that a defendant may still "be sent"
to a State mental facility under that Section upon a finding by
the judge that he is so mentally ill at the time of his arraignment
that he cannot be tried. Obviously, under settled North Carolina
law, in arriving at that conclusion the judge would have to find
that this individual was incapable of understanding the nature of
the proceedings and of participating in his own defense. However,
upon arrival at the facility, the only procedures available for
processing this defendant are found in the provisions of Article 5A,
Chapter 122, and the provisions of that Article, including the time
limitations, provisions for future examination of the case and
rehearings thereon, should be followed.
It would appear that, normally, G.S. 122-83 will be utiUzed in
situations wherein the pending charge against the defendant has not
been dismissed or otherwise disposed of. Therefore, though the
section contains no specific language requiring a report back to the
judge, incorporation of such a directive in the order of the court
would be entirely appropriate. Further, even in the absence of such
a specific directive, notification of the court of the defendant's
condition, of his ability to stand trial, and of any plans to discharge
him from the faciUty should be made to the court issuing the order
under the provisions of G.S. 122-83.
-58-
James H. Carson, Jr., Attorney General
William F. O'Connell
Assistant Attorney General
28 August 1974
Subject:
Requested by:
Questions:
Conclusions:
Public Contracts; Counties; Lease-Purchase
Contract Subject to Public Bidding
Requirements of Article 8, Chapter 143
Mr. Bruce Yarrington
Assistant to County Administrator
Moore County
(1) Does a county have authority to
purchase fire trucks and other needed
equipment under a lease-purchase contract?
(2) Must such contract comply with the
provisions of Article 8, Chapter 143 of the
General Statutes relating to public bids?
(1) Yes.
(2) Yes.
G.S. 153A-158 authorizes counties to acquire real and personal
property by gift, grant, devise, bequest, exchange, purchase, lease,
or any other lawful method, and the county may acquire the fee
or any lesser interest in such property.
G.S. 153A-165 authorizes counties to lease, as lessee, with or
without option to purchase, any real or personal property for any
authorized public purpose. A lease of personal property with an
option to purchase is subject to Chapter 143, Article 8 of the
General Statutes.
G.S. 143-129 specifies when public bidding is required. Thus if the
cost of the fire truck or equipment is within the cost requirements
-59-
of G.S. 143-129, the lease-purchase contract must be let on formal
bids. Informal bids could be required pursuant to G.S. 143-131.
Of course, G.S. 152-28(b) is applicable to such contracts and
appropriations must appear in the budget for the sum to fall due
during the fiscal year.
James H. Carson, Jr., Attorney General
James F. Bullock
Deputy Attorney General
28 August 1974
Subject:
Requested by:
Questions:
State Departments, Institutions, and
Agencies; Chapter 1318 of the 1973
Session Laws, Second Session; Direct
Grants to Economic Opportunity Agencies
from the Department of Human Resources
Mr. David T. Flaherty
Secretary
Department of Human Resources
(1) Does the Department of Human
Resources have the authority under
Chapter 1318, 1973 Session Laws to make
allocations of the State appropriations
provided in Section 9 to eligible
community action agencies in the absence
of notice of termination of funding by the
federal Office of Economic Opportunity?
(2) Are allocations to Caswell Action
Committee, Inc., and/or Rockingham
County Fund, Inc., authorized under
Chapter 1318 in the absence of notice of
termination of funding by the federal
Office of Economic Opportunity to the
eligible community action programs in
North Carolina?
-60-
Conclusions: (1) The Department of Human Resources
does not have the authority under Chapter
1318, 1973 Session Laws to make
allocations of the State appropriations
provided in Section 9 to eligible
community action agencies in the absence
of notice of termination of funding by the
federal Office of Economic Opportunity.
(2) Allocations to Caswell Action
Committee, Inc., and/or Rockingham
County Fund, Inc., are not authorized
under Chapter 1318 in the absence of
notice of termination of funding by the
federal Office of Economic Opportunity to
the eUgible community action programs in
North Carolina.
The preamble to Chapter 1318 of the 1973 Session Laws, Second
Session, makes explicit that the financial obligation to provide direct
grants to economic opportunity agencies is contingent upon a loss
of federal financial assistance from the United States Office of
Economic Opportimity:
"Whereas, continued federal assistance from the
United States Office of Economic Opportunity (OEO)
for these agencies is in grave doubt beyond June 30,
1974; and
"Whereas, the State should provide standby funds to
assist these local agencies in the event federal OEO
funds are cut off..."
(Emphasis supplied)
This conclusion is supported by other sections of Chapter 1318:
"Sec. 4. Eligibility for State financial assistance.-The
North Carolina Department of Human Resources is
directed to allocate funds provided by this act for basic
administrative costs to agencies which on June 30,
1973, were receiving funds from OEO as community
-61-
action agencies under 42 U.S.C.A. 2808, or their legal
successors ('eligible agencies'). Caswell Action
Committee, Inc., and Rockingham County Fund, Inc.,
are deemed to be eligible agencies for this purpose.
"Sec. 5. Allocation of State financial assistance-Funds
to eligible agencies shall be allocated as follows:
(1) An eUgible agency wishing to receive funds
under this act must apply to the Department
for said funds within 60 days after notice of
termination of funding provided to said eligible
agency for administrative costs by OEO or its
successor." (Emphasis supplied)
Sections 5(3) and 9 provide additional support for our conclusion;
"Within 90 days, but after 60 days from notice of
termination by OEO of funding for the administrative
costs of eligible agencies..." (§5(3), Chapter 1318)
(Emphasis supplied)
"...If sufficient funds for the basic administrative costs
of the economic opportunity agencies in North
CaroUna are made available to these agencies from the
federal government by July 1, 1974, this appropriation
shall revert to the General Fund..." (§9, Chapter
1318)
Finally, if there are any doubts remaining as to the clear intent
of the General Assembly with respect to the disbursement of funds
appropriated by Chapter 1318, they should be quickly resolved by
reference to Section 5(6) providing:
"An otherwise eligible economic opportunity agency
may quaUfy for funds under this act only after notice
of termination of funding provided for administrative
costs by OEO or its successor." (Emphasis supplied)
Although there are other duties and responsibilities reposed in the
Department of Human Resources by Chapter 1318 (in particular,
-62-
Section 3(3) and (4)) whose performance is not contingent on the
loss of federal funds, there is no question but that as a condition
precedent to allocating State funds appropriated by this act, there
must be at least a notice of termination of funding to the eUgible
community action agency for administrative costs by OEO or its
legal successor, if not an actual termination.
Caswell Action Committee, Inc., and Rockingham County Fund,
Inc., under Section 4 of Chapter 1318 are simply added to the pool
of economic opportunity agencies eligible for State funds should
their federal financial assistance for administrative costs be cut off.
James H. Carson, Jr., Attorney General
William Woodward Webb
Assistant Attorney General
3 September 1974
Subject: Motor Vehicles; Emergency Warning
Devices; Civil Air Patrol Emergency Service
Vehicles
Requested by: Major Jack D. Cabe
North CaroHna State Highway Patrol
Question: Are Civil Air Patrol emergency service
vehicles authorized to use emergency
warning devices when actually engaged in
emergency search and rescue operations?
Conclusion: Yes
The North Carolina Wing of the Civil Air Patrol was created pursuant
to Chapter 167 of the General Statutes of North Carohna and
transferred to the Department of MiUtary and Veterans Affairs in
1973 by General Statute 143B-248.
The Civil Air Patrol is an auxiliary of the United States Air Force
and is charged with the responsibility of conducting air search and
-63-
ground rescue and recovery of persons involved in aircraft accidents
and as a part of the civil defense preparedness group has
responsibility for rescue and recovery in case of natural or man-made
disasters and other emergency situations.
Taking into consideration the nature and the duties of the Civil
Air Patrol in light of General Statutes 20-125, 20-156 and 20-157,
we are of the opinion emergency service vehicles of the Civil Air
Patrol when actually engaged in emergency service and rescue
operations fall within the purview of the aforesaid sections of the
General Statutes of North Carolina.
James H. Carson, Jr., Attorney General
William W. Melvin
Assistant Attorney General
3 September 1974
Subject:
Requested by:
Mental Health; Involuntary Commitment
and Voluntary Admissions; Consent to
Surgery on Mental Patients; Apphcability
of Patients' Rights Bill to Local General
Hospitals
Dr. N. P. Zarzar
Director
Division of Mental Health Services
N. C. Department of Human Resources
Questions: (1) What section of the North Carolina
statutes is controlling with regard to the
consent required for surgery on patients
voluntarily admitted or involuntarily
committed as mentally ill persons or
inebriates under the provisions of Article
4 or Article 5A of Chapter 122 of the
General Statutes?
-64-
(2) Does the same section control on the
subject of consent for surgery where the
patient has been voluntarily admitted or
involuntarily committed to a local general
hospital under Article 4 or Article 5A of
Chapter 122 of the General Statutes?
Conclusions: (1) G.S. 122-55.6 is the controlling section
of the North Carolina statutes with regard
to the consent required for surgery on
patients voluntarily admitted or
involuntarily committed as mentally ill
persons or inebriates under the provisions
of Article 4 or Article 5A of Chapter 122
of the General Statutes.
(2) G.S. 122-55.6 does control on the
subject of consent for surgery where the
patient has been voluntarily admitted or
involuntarily committed to a local general
hospital under Article 4 or Article 5A of
Chapter 122 of the General Statutes.
G.S. 122-55.6, which was enacted as a part of the so-called "Patients'
Rights Bill" by the 1973 Session of the General Assembly, affords
the following guarantees to patients in "treatment facilities":
"Treatment involving...surgery, other than emergency
surgery, shall not be given without the express and
informed written consent of the patient if competent,
otherwise of the patient and guardian as hereinafter
defined, unless the patient has been adjudicated an
incompetent under Chapter 35 of the General Statutes
and has not been restored to legal capacity, in which
case express and informed written consent of his
guardian or trustee appointed pursuant to Chapter 35
of the General Statutes must be obtained. Such
consent may be withdrawn at any time by the person
who gave such consent."
It is interesting to note that G.S. 122-56.5 contains virtually the
-65-
same provisions relative to persons who have been voluntarily
admitted to treatment facilities and who have been adjudicated non
compos mentis.
For purpose of the Patients' Rights Bill, G.S. 122-36(g) contains
the following illuminating language as to what is to be considered
a treatment facility:
"(g) The words 'treatment facility' shall mean any
hospital or institution operated by the State of North
Carolina and designated for the admission of any
person in need of care and treatment due to mental
illness or mental retardation, any center or facility
operated by the State of North Carolina for the care,
treatment or rehabilitation of inebriates, and any
community mental health clinic or center administered
by the State of North CaroHna."
With regard to voluntary admissions of mental patients,
G.S. 122-56. 2(b) specifies:
"(b) the words 'treatment facility' as used in this
article, mean any hospital or institution operated by
the State of North Carolina and designated for the
admission of any person in need of care and treatment
due to mental illness or inebriety, and any community
mental health clinic or center operated in conjunction
with the State."
As to involuntary commitment, the statutes do not speak in terms
of a "treatment facility". According to the language of
G.S. 122-58. 8(b), involuntary commitment is authorized:
"...at a mental health facility, public or private,
designated or licensed by the Division of Mental Health
Services. Treatment at a private faciUty shall be at the
expense of the respondent to the extent that such
charges are not disposed of by contracts between the
county and the private facility."
Some question has arisen as to the effect on mental patients of
the provisions of G.S. 130-191 which deals with "inmates" of "any
-66-
penal or charitable hospital or institution of the State of North
CaroUna " There are some minor differences between the provisions
of that statute and G.S. 122-55.6. However, it is noted that
GS 130-191 had its genesis in 1919 and that the latest specific
change thereto was engrafted by the General Assembly m 1957
It would appear that the later more specific provisions of
G S 122-55 6 dealing with the Umited question of mental patients
admitted or committed to treatment facilities, is the controlhng
statute and will prevail where there are conflicts between it and
G.S. 130-191.
In fulfllling the requirements levied under current statutes for the
care and treatment of mentally ill patients and inebriates, utihzation
of local general hospitals as the facilities for inpatient care has
become a common place occurrence throughout the State This use
is in keeping with the basic desire to treat the patient locally ,
where
possible, and plans involving such use are formulated under the
authorization of G.S. 122-58.16. In such instances clearly the
patients voluntarily admitted or involuntarily committed to the local
general hospitals should be given the same rights as those who are
placed in facilities operated by governmental entities. As a result,
the provisions of G.S. 122-55.6 afford the statutory guidance o
local general hospitals concerned with the problem of consent to
surgery on patients voluntarily admitted or involuntanly committed
to them under the provisions of Article 4 or Article 5 A.
James H. Carson, Jr., Attorney General
William F. O'Connell
Assistant Attorney General
3 September 1974
Subject:
Requested by:
Mental Health; Area Mental Health Boards;
Authority to Set Salaries of Employees
Mr. R. J. Bickel
Deputy Director for Administration
Division of Mental Health Services
N. C. Department of Human Resources
-67-
Questions: (1) In an area mental health program
encompassing only a single county, who
has the authority to set the wages of
employees of the area mental health
program?
(2) In an area mental health program
encompassing multiple counties, who has
the authority to set the wages of employees
of the area mental health program?
Conclusions: (1) In an area mental health program
encompassing only a single county, the area
mental health board has the authority to
set the wages of employees of the area
mental health program.
(2) In an area mental health program
encompassing multiple counties, the area
mental health board has the authority to
set the wages of employees of the area
mental health program.
By virtue of Article 2C, Chapter 122, General Statutes of North
Carolina, the Legislature authorized the establishment of area mental
health programs to serve the population of their respective
geographic entities. These areas may include single or multiple
counties. The present questions have apparently arisen because of
uncertainty as to whether employees of the area mental health
programs are "county employees" falling within the purview of
G.S. 126.9.
Each area mental health program is administered by an area mental
health board which "...constitutes an entity created by the legislature
with governmental functions." See 42 N.C.A.G. 120 (1972). This
Office has previously taken the position that an area mental health
program is under the authority and control of its mental health
board and not the county board or boards of commissioners. See
41 N.C.A.G. 778 (1972).
By virtue of the basic rationale involved in the two prior opinions
of this Office to the effect that area mental health programs are
-68-
separate entities, it must, of necessity, follow that the employees
involved are employees of the area program rather than county
employees.
It must be recognized, of course, that the actions of the area mental
health boards are subject to the rules and regulations of the State
Commission for Mental Health Services and are required to act
jointly with the Department of Human Resources in developing
annual plans. See G.S. 122-35. 20(e). Of great significance in
interpreting the intent of the General Assembly are the provisions
of G.S. 122-35. 20(a) through (d). Therein, it is provided that the
boards of county commissioners shall have representation on the
area mental health board, and, in some instances, can actually serve
as the area mental health board or appoint all members thereof.
Thus, it is apparent that it was the legislative intent that the area
mental health program be a separate entity but yet be in a position
to receive the benefit of some guidance and advice from the boards
of county commissioners.
James H. Carson, Jr., Attorney General
William F. O'Connell
Assistant Attorney General
5 September 1974
Subject: Constitutional Law; Executive Powers;
Authority of the Governor of North
Carolina to Transfer the Office of Child
Development from the North Carolina
Department of Administration to the
North Carohna Department of Human
Resources and the State Office of
Economic Opportunity from the North
Carolina Department of Human Resources
to the North Carolina Department of
Administration; Article III, Section 5(10)
of the Constitution of North Carolina.
Requested by: Honorable James E. Holshouser, Jr.
Governor of North Carolina
-69-
Questions: (1) May the Governor of North CaroHna
transfer the Office of Child Development
from the North Carolina Department of
Administration to the North Carolina
Department of Human Resources and the
State Office of Economic Opportunity
from the North Carolina Department of
Human Resources to the North Carolina
Department of Administration?
(2) Does the Executive Order effecting
such transfer have to be submitted to the
General Assembly for consideration?
Conclusions: (1) The Governor of North Carohna may
transfer the Office of Child Development
from the North Carolina Department of
Administration to the North Carolina
Department of Human Resources and the
State Office of Economic Opportunity
from the North Carolina Department of
Human Resources to the North CaroHna
Department of Administration.
(2) The Executive Order effecting such
transfer does not have to be submitted to
the General Assembly for consideration.
Article HI, Section 5(10) of the Constitution of North Carolina
provides, inter alia:
"...the Governor may make such changes in the
allocation of offices and agencies (of the State) and
in the allocation of those functions, powers, and duties
as he considers necessary for efficient administration.
If those changes affect existing law, they shall be set
forth in executive orders, which shall be submitted to
the General Assembly not later than the sixtieth
calendar day of its session..."
-70-
The Governor is undoubtedly empowered to effect the transfer of
the Office of Child Development from the North Carolina
Department of Administration to the North Carolina Department
of Human Resources. Moreover, since such transfer in no way affects
existing law, no Executive Order need be submitted to the General
Assembly.
The transfer of the State Office of Economic Opportunity from
the Department of Human Resources to the Department of
Administration is only shgh