Mental Retardation and Substance Abuse Authorities

Subject:

Requested By: Robert B. Long, Jr. Legal Counsel Blue Ridge Community Mental Health Center

Question: May the Finance Officer of a multiple-county Area Mental Health, Mental Retardation and Substance Abuse Authority be appointed to hold office at the pleasure of the appointing authority?

Conclusion: Yes.

G.S. 122-35.45(b) provides as follows:

"Area Mental Health, Mental Retardation, and Substance Abuse Authority Employees. -Employees under the direct supervision of the area mental health, mental retardation, and substance abuse authority are employees of the area mental health, mental retardation, and substance abuse authority and for the purpose of personnel administration, Chapter 126 of the General Statutes shall apply unless otherwise provided in this Article." (Emphasis supplied)

On the other hand, the following mandate is found in G.S. 159-24.

"§ 159.24. Finance Officer. – Each local government and public authority shall appoint a finance officer to hold office at the pleasure of the appointing board or official. The finance officer may be entitled "accountant," "treasurer," "finance director," "finance officer," or any other reasonably descriptive title. The duties of the finance officer may be imposed on the budget officer or any other officer or employee on whom the duties of budget officer or any other officer or employee on whom the duties of budget officer may be imposed. (1971, c. 780, s. 1; 1973, c. 474, s. 17.) (Emphasis supplied)

The question has arisen as to which of these is controlling in the event of a conflict regarding the term of employment or the right to continue the employment in a conceivable given situation. Nowhere in Chapter 122 (and more specifically in Article 2F thereof) is there any language specifically stating that an area authority is a public authority falling within the ambit of Chapter

159. However, most significantly, the 1977 Session of the General Assembly, in its extensive revision of the statutes dealing with area authority, included, inter alia, the following language in

G.S. 122-35.36(1):

". . . An area mental health (mental retardation and substance abuse) authority is a local political subdivision of the State except that a single-county area mental health, mental retardation, and substance abuse authority shall be considered a department of the county in which it is located for the purposes of Chapter 159 of the General Statutes."

Sub silentio, this provision clearly contemplates the reverse of the exception stated therein pertaining to a single-county area authority — i.e., that a multiple-county area authority falls within the purview of Chapter 159 as a public authority. Further, the Attorney General has consistently held that a multiple-county area authority falls within the purview of Chapter 159 as a public authority. Further, the Attorney General has consistently held that multiple-county area authority falls within the purview of Chapter 159 as a public authority. Further, the Attorney General has consistently held that a multiple-county area authority (formerly area program) is a public authority governed by the provisions of Chapter 159. See 47 N.C.A.G. 8, 11 (1977); 44

N.C.A.G. 185, 186 (1974). Also see G.S. 159-7(10).

It is basic principle of statutory interpretation that, in the face of apparent conflict between two statutes, they are to be reconciled by any fair construction thereof, if such is possible. Board of Agriculture v. Drainage District, 177 N.C. 222 (1919); Peoples Bank v. Loven, 172 N.C. 666, (1916). The conclusion arrived at here is in accordance with that principle of law.

Rufus L. Edmisten Attorney General

William F. O’Connell Special Deputy Attorney General