Review of Non-Public Institutions by the Board of Governors

Subject:

Requested By: Richard Robinson, Assistant to the President, The University of North Carolina

Question: Is an institution, duly licensed pursuant to G.S. 116-15 prior to its 1984 amendment, and falling within the six-year mandatory review exception to the amendment, subject to review by the Board of Governors for licensure renewal in less than the mandatory 6-year review period?

Conclusion: Yes.

You have requested an opinion regarding the interpretation of the recently enacted provisions of

G.S. 116-15 as they apply to the licensing review of certain nonpublic post-secondary educational institutions. Specifically, you inquire whether the regulations of the Board of Governors, providing for review after two years of all previously licensed institutions, are consistent with the language and intent of the new G.S. 116-15. It is the opinion of this office that the rules and standards promulgated by the Board of Governors are valid and constitute a legitimate exercise of its statutory authority.

Prior to 1 October 1984, G.S. 116-15 (1983) governed the licensing of nonpublic educational institutions and conferred on the Board of Governors the power to issue licenses, including the power to establish the standards for issuing such licenses. During the 1983 session of the General Assembly, the legislature enacted "An Act to Rewrite the Statute Under Which Nonpublic Postsecondary Educational Institutions May be Licensed to Conduct Post-secondary Degree Activity in North Carolina." Chapter 1006, 1983 Session Laws (effective 1 October 1984). The statute, as rewritten, is far more explicit than its predecessor in setting out the directives and guidelines for issuing licenses to these nonpublic post-secondary schools. The guidelines for licensure, set forth in subsection (f) of the new version of the statute, essentially codify the standards which previously had been adopted and used by the Board pursuant to its authority to promulgate standards under former G.S. 116-15.

The new G.S. 116-15 provides in subsection (g) for periodic review of institutions receiving licenses "to determine that the institution continues to meet the standard for licensure of subsection (f) above". The statute goes on to require such review upon the happening of certain events or circumstances and states specifically that review "shall always occur . . . if two years has elapsed since licensure of the institution was granted by the Board." G.S. 116-15(g). The statute, however, contains the following exception to the general review provisions:

Notwithstanding the foregoing paragraph [mandating two-year periodic review], if an institution has continued to be licensed under this section and continuously conducted post-secondary degree activity in this State under the same publicly registered name or series of publicly registered names since July 1, 1979, or for six consecutive years, whichever is the shorter period, and is accredited by an accrediting commission recognized by the Council on Post-Secondary Accreditation, such institution shall be subject to licensure review by the Board every six years to determine that the institution continues to meet the standard for licensure of subsection (f) above.

G.S. 116-15(g). (Emphasis added)

Thus, while the general rule is that review of licensing must take place at a minimum every two years, the statute specifically excepts from the general rule any institution continuously licensed pursuant to its provisions "since July 1, 1979, or for six consecutive years, whichever is the shorter period. . ." The issue presented concerns the relationship between the general rule and the exception in the context of review of institutions licensed prior to the effective date of the 1983 amendments to G.S. § 116-15.

In construing a statute, the intent of the legislature must control the interpretation of its provisions, and that intent must be ascertained by examining the language of the act, its spirit, what it was intended to accomplish, and the means by which its ends were to be achieved. Stephenson v. Durham, 281 N.C. 300, 188 S.E. 2d 281 (1972). The legislature is presumed to have acted with care and it is also presumed that the provisions of an act have meaning. We are of the opinion that under the plain and simple wording of G.S. 116-15(g) the general rule is that institutions must be reviewed at least every two years unless they fall within the exception, in which case the mandatory review may take place at any time within six years from a previous licensure. Thus, an institution licensed in 1983 and otherwise qualifying for the six-year exception would not have to be reviewed prior to 1989.

Nevertheless, the provisions of subsection (g) relating to mandatory periodic review merely set the outside time limits within which the legislature has decreed that review must occur. The statute gives to the Board of Governors the authority and the responsibility for licensing nonpublic post-secondary educational institutions and further requires the Board to review those institutions receiving licenses "to determine that [each] institution continues to meet the standard for licensure. . . ." Given the weight of the responsibility cast upon the Board, it would be incumbant upon that body to conduct a review of any institution at any time such a review was deemed appropriate by the Board. The statute only sets the outside limits; it does not purport to limit the number or frequency of reviews which the Board may, in its discretion and pursuant to the duty charged to it by statute, conduct of any institution licensed by it.

In addition, subsection (i) of the statute provides that the "Board shall have authority to establish such rules, regulations, and procedures as it may deem necessary or appropriate to effect the provisions of this section." Pursuant to this statutory authority, the Board has adopted Rules and Standards (Revised September 1985) which impose a review requirement not contained in the statute itself. That requirement, found in subdivision VII, entitled "Procedures for Seeking Licensure," provides as follows:

(3) A regular license issued to an institution prior to the effective date of these rules shall continue in effect following the effective date of these rules and standards. Review of such prior licensure shall occur when two years have elapsed since licensure was granted by the Board of Governors. If at that time the institution has continued to be licensed and continuously conducted post-secondary degree activity in North Carolina under the same publicly registered name or series of publicly registered names since July 1, 1979, or for six consecutive years, whichever is the shorter period, . . . the institution shall be subject to licensure review by the Board of Governors every six years to determine whether the institution continues to meet standards for licensure. (Emphasis added).

Although the Board has, by this provision, established a requirement that all institutions, licensed at the time of the effective date of the statute, must undergo review upon the expiration of their current licenses and are essentially not to be subject to the six-year review period until this initial review takes place successfully, it is our opinion that such a provision is entirely within the prerogative of the Board. As noted, the time limits set out in the review provisions are outside limits within which review must take place; they are not rights bestowed upon institutions shielding them from review for six years. The Board may, in its discretion, undertake review more often than required by the statute. The Board is not required to wait for any period of time to elapse before reviewing an institution. The section quoted above, requiring review of currently licensed institutions which would otherwise be subject to the relaxed review period, demonstrates that the Board has elected to exercise its statutory authority to conduct reviews prior to the expiration of the prescribed maximum period. This, in our opinion, is both permitted and authorized by the statute. Accordingly, the provision quoted above, requiring review short of the six-year period, is a valid one.

LACY H. THORNBURG Attorney General

Laura E. Crumpler Assistant Attorney General