September 27, 1994
Mr. David C. Worth Counsel, Savings Institution Division North Carolina Department of Commerce 1110 Navaho Drive, Suite 3001 Raleigh, NC 27609
Re: Advisory Opinion — Mileage Reimbursement Pursuant to N. C. Gen. Stat. § 138-6
Dear Mr. Worth:
This will respond to your request for an opinion on the mileage reimbursement rate to which a state employee is entitled for use of a privately owned vehicle pursuant to N. C. Gen. Stat. § 1386(a)(1). You indicated that the Savings Institution Division is an agency which collects fees from its regulated industries, deposits those monies with the State Treasurer and utilizes those funds with which to operate. Your agency does not receive an appropriation from the General Assembly.
Together with your request, you include a copy of a 10 December 1975 opinion from this office which concludes that "… State officers and employees are entitled to reimbursement at a rate of fifteen cents (15¢) per mile [the rate in effect at that time] traveled when privately owned automobiles are used in pursuance of official state business, regardless of the number of miles traveled." For the reason set forth below, this opinion must now be qualified by Department of Administration rules promulgated in recent years.
DISCUSSION OF THE LAW N. C. Gen. Stat. § 138-6(a)(1), as recently amended by the General Assembly, 1993 Sess. Laws, c. 321, s. 4, provides for reimbursement for transportation by privately owned automobiles as follows:
"[T]ravel on official business by the officers and employees of State departments, institutions and agencies which operate from funds deposited with the State Treasurer shall be reimbursed. . . [f]or transportation by privately owned automobiles, the business standard mileage rate set by the Internal Revenue Service per mile of travel . . . ."
The rate set by the Internal Revenue Service, effective January 1, 1994, is .29¢ per mile. See, Rev. Proc. 93-51, I.R.B. 1993-42. The foregoing statute is, in our opinion, subject to rules promulgated by the Department of Administration pursuant to N.C. Gen. Stat. § 143-341(8)i.7. The latter provision of law authorizes the Department "… to adopt, with the approval of the Governor, reasonable rules regulating the use of private motor vehicles upon State business by the officers and employees of State agencies, and to enforce those rules."
Under this authority, the Department of Administration has promulgated rules which limit statutory reimbursement rates to trips not exceeding sixty miles. 1 NCAC 38 .0502(a). For trips exceeding sixty miles, the rules provide that a state vehicle must be used if one is available within the Raleigh servicing area. 1 NCAC 38 .0502(b). The rules do, however, provide that ". . . when use of a private vehicle is in the best interest of the state and results from the particular requirements of the employee’s duties, statutory rates may be paid." 1 NCAC 38 .0502(c). The
latter rule does not clarify who will determine whether or not it would be in the best interest of
the state for an employee to use a private vehicle, but as these rules are promulgated by the
Department of Administration, it would appear to be that Department’s decision.
CONCLUSION
In summary, it is our conclusion that the reimbursement rate provided at N. C. Gen. Stat. § 1386(a)(1) is subject to the limitations prescribed in the Administrative Code, 1 NCAC 38 .0500 et.
seq. To the extent that this opinion is in conflict with the opinion of 1975, that opinion is hereby
superseded.
We trust this that this adequately addresses your questions to us. Please let us know if we may be
of further assistance.
Andrew A. Vanore, Jr.
Chief Deputy Attorney General
Ann Reed
Senior Deputy Attorney General