February 9, 1995
Mr. Marvin K. Dorman, Jr. State Budget Officer Office of State Budget and Management 116 West Jones Street Raleigh, North Carolina 27603-8005
RE: Advisory Opinion; Authority of the Advisory Budget Commission to require that the Governor consult with the Commission prior to exercising an executive function; N.C.G.S. §143
4.
Dear Mr. Dorman:
In 1990, the Advisory Budget Commission adopted a policy relating to lease-purchase agreements by state agencies. One requirement of the policy adopted by the Advisory Budget Commission is that all proposed lease-purchases by state agencies estimated to cost $100,000 or more, or any lease-purchases less than $100,000 with extenuating circumstances, must be presented by agency representatives to the Governor, for consultation with the Advisory Budget Commission prior to such requests being submitted to the Board of Awards by the Department of Administration, Division of Purchase and Contract.
You ask our advice whether the Advisory Budget Commission has the authority to adopt a policy mandating that the Governor consult with the Commission prior to further requests being submitted to the Board of Awards. For reasons which follow, it is our opinion that the Advisory Budget Commission does not possess the authority to require the Governor to consult with the Commission before the Governor takes action concerning lease-purchase agreements by state agencies.
By law, the Advisory Budget Commission consists of "five Senators appointed by the President Pro Tempore of the Senate, five Representatives appointed by the Speaker of the House and five persons appointed by the Governor . . . .". N.C.G.S. §143-4. Although the Governor may consult with the Advisory Budget Commission on any matter he deems appropriate, the Governor cannot be required to consult with the Advisory Budget Commission. Any rule by the Commission so requiring is, in our opinion, unconstitutional.
The North Carolina Constitution requires that the legislative and executive powers of the state government be separate and distinct from each other. Article I, Section 6 of the North Carolina Constitution. The Supreme Court of North Carolina has held that the Separation of Powers Provision of our Constitution must be strictly adhered to and that provision prohibits the commingling of power by the executive and legislative branches. State ex rel. Wallace v. Bone, 304 NC 591 (1982); Advisory Opinion in re Separation of Powers, 305 NC 767 (1982). Based upon the Bone and Advisory decisions of our Supreme Court, it is clear that legislators may not sit on any board or commission that exercises a part of the administrative or executive power of the State of North Carolina or which has any control over the executive power of the Governor, the Chief Executive Officer of the State. Article III, Section 1 of the North Carolina Constitution.
Therefore, any regulation promulgated by the Advisory Budget Commission that requires the Governor to consult with it prior to proceeding with the exercise of an executive power is a violation of the Separation of Powers Provision of our State Constitution. Since the Bone and Advisory decisions were issued, our office has rendered numerous opinions concluding that legislators could not serve on any boards or commissions which exercise any portion of the administrative or executive power of the State. We do not include copies of those opinions here, but they are available upon request.
In conclusion, the Governor may proceed without first consulting with the Advisory Budget Commission, should the Governor choose to do so.
Andrew A. Vanore, Jr. Chief Deputy Attorney General