Department of Correction; Substance Abuse Program

Subject:

Department of Correction; Substance Abuse Program

Requested By:

Substance Abuse Council

Questions:

(1)

Under N.C. Gen. Stat. § 148-19(d) and N.C. Gen. Stat. § 143B-271, does the Commission for Mental Health, Mental Retardation and Substance Abuse Services have a statutory duty to request and permit the Substance Abuse Advisory Council for the Department of Correction to give its advice as to the adoption of any rules or regulations the Commission proposes to adopt concerning substance abuse treatment standards in the prisons?

(2)

Can the Commission in adopting standards disregard the provision of N.C. Sess. Laws 1987,

c.

758 that says – "Preference shall be accorded to qualified recovering alcoholics and substance abusers in the employment of treatment counselors."?

Conclusions:

(1)

No

(2)

No

(1)

N.C. Gen. Stat. § 148-19(d) was originally adopted in 1977, N.C. Sess. Laws 1977, c.332, and provided that:

The Commission for Mental Health shall prescribe standards for the delivery of mental health services to inmates in the custody of the Department of Correction. The Commission for Mental Health Services shall give the Secretary of Correction an opportunity to review and comment on proposed standards prior to promulgation of such standards; however, final authority to determine such standards remains with the commission. . .

The General Assembly amended the statute in 1985 to include the words "mental retardation and substance abuse" after the words "mental health" throughout the section. N.C. Sess. Laws 1985, c.589, s.55.1. Thus, after the effective date of the 1985 amendments, the Commission for Mental Health, Mental Retardation and Substance Abuse Services (hereafter, the Commission) had exclusive and final authority to adopt standards for inmate substance abuse programs, but was also required to consult with the Secretary of Correction in the process.

In 1987 the General Assembly enacted comprehensive legislation establishing a substance abuse program to be administered by the Department of Correction. N.C. Sess. Laws 1987, c.738,

s.111. The legislation also created a Substance Abuse Advisory Council (hereafter, the Council) with the mandate to "consult with the Secretary of the Department of Correction in the administration of the Substance Abuse Program." Id., codified at N.C. Gen. Stat. § 143B-270.

The powers and duties of the Council were set out in N.C. Gen. Stat. § 143B-271 which provides that,

The Substance Abuse Advisory Council shall advise the Secretary of the Department of Correction on the administration of the Substance Abuse Program. The Council shall also give advice as to any rules and regulations adopted and on any other matters pertaining to the Substance Abuse Program. (Emphasis added).

Although the Council was not given any rule making authority of its own, the clear intent of the General Assembly was to give the Council an active role in the formulation of policy governing the substance abuse program. Thus, the Council was directed to give advice to the Secretary of Correction as to any rules and regulations and on any other matters pertaining to the program. However, the 1987 legislation did not impose a duty upon the Commission to consult directly with the Council. Rather, the Commission’s responsibility as set out in N.C. Gen. Stat. § 14819(d) was left untouched and is fulfilled by giving the Secretary of Correction an opportunity to review and comment on proposed standards for the delivery of substance abuse services to inmates. The Secretary of Correction should then consult with the Council under N.C. Gen. Stat. § 143B-270 and -271 in order to effectuate the legislatively intended role of the Council.

(2) The 1987 legislation also expressly provides in Section 111(c) (codified as N.C. Gen. Stat. § 143B-264) that "Preference shall be accorded to qualified recovering alcoholics and substance abusers in the employment of treatment counselors." If standards adopted by the Commission conflict with that legislative mandate, then they are invalid. State’s Rights Democratic Party v. State Board of Elections, 229 N.C. 179, 49 S.E.2d 379 (1948).

LACY H. THORNBURG Attorney General

Lucien Capone III Special Deputy Attorney General