Governor’s Authority to Provide Flood Relief

December 1, 1999

Marvin K. Dorman, Jr. State Budget Officer Office of State Budget and Management 20320 Mail Service Center Raleigh, North Carolina 27699-0320

Re: Advisory Opinion; G.S. §§ 166A-2 and 5; Governor’s Authority to Provide Flood Relief

Dear Mr. Dorman:

By letter dated November 29, 1999, you asked for our opinion regarding the authority of the Governor to establish programs to provide relief for homeowners, small businesses and farmers who suffered damages in Hurricane Floyd but who are not eligible for relief under current federal and State programs. You have also asked about the Governor’s authority to fund those programs through savings in the expenditures of State departments and institutions.

The Emergency Management Act of 1977 was adopted by the General Assembly for the purpose, among others, of setting forth “the power and responsibility of the Governor” to provide for “recovery from natural or man-made disasters” through “the rapid and orderly rehabilitation of persons and the restoration of property.” G.S. § 166A-2. To accomplish this purpose, the General Assembly conferred on the Governor the power:

To use contingency and emergency funds as necessary and appropriate to provide relief and assistance from the effects of a disaster and to reallocate such other funds as may reasonably be available within the appropriations of the various departments when the severity and magnitude of such disaster so requires and the contingency and emergency funds are insufficient or inappropriate.

G.S. § 166A-5(c)(5). The only preconditions to the exercise of this power by the Governor are

(1)

the existence of a state of disaster proclaimed by the Governor or the General Assembly and

(2)

the concurrence of the Council of State. Id.

There is nothing ambiguous about the words of these statutes. In order to accomplish its purpose of providing for “the rapid and orderly rehabilitation of persons and the restoration of Marvin K. Dorman, Jr. December 1, 1999 Page 2

property,” the General Assembly conferred on the Governor the power to provide that relief to citizens through the reallocation of such funds “as may reasonably be available within the appropriations of the various departments.” These words clearly encompass the authority to create programs to aid flood victims who are not otherwise eligible for federal or State aid and to fund those programs from agency appropriations which can be diverted to that purpose without unnecessarily compromising the agencies’ ability to perform their duties. In this regard, the Governor has very broad discretion to determine the type of programs needed to provide relief to citizens and the level of funds which may reasonably be available within the appropriations of the various departments to fund those programs. In making these judgments, the Governor must weigh both the magnitude of the disaster and the obligation of the departments to fulfill their duties to citizens. Cf. Starling v. Constantine, 287 U.S. 378, 398 (1932) (observing that the good faith judgments of a governor regarding the exercise of his emergency powers are ordinarily not subject to judicial review).

We find nothing in the Executive Budget Act, G.S. § 143-1, et seq., that is inconsistent with the General Assembly’s grant of emergency powers to the Governor in G.S. § 166A-6(c)(5). Indeed, the Executive Budget Act itself grants emergency powers to the Governor. See G.S. § 143-23(a1)(2)(b) which confers the power on the Governor to increase budgeted expenditures for programs or purposes when “required to respond to an unanticipated disaster such as a . . . hurricane.” Please note, however, that the emergency powers granted the Governor by G.S. § 166A-6(c)(5) to reallocate funds do not include the power to utilize the Savings Revenue Account created by G.S. § 143-15.3 for emergency purposes. That account is a “restricted reserve in the General Fund,” and, therefore, this money is not subject to the Governor’s power under G.S. § 166A-6(c)(5) to reallocate funds “within the appropriations of the various departments.”

In summary, it is our opinion that the General Assembly, by G.S. §§ 166A-2 and 6(c)(5), has conferred the power on the Governor during a state of disaster, and with the concurrence of the Council of State, to establish programs to aid the victims of that disaster and to fund those programs from appropriations to the State’s agencies and institutions.

Other legal questions may arise in the course of the creation or implementation of these flood relief programs. We, of course, are available to assist with such legal questions.

Marvin K. Dorman, Jr. December 1, 1999 Page 3

Sincerely,