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Authority of Board of County Commissioners; College Scholarship Program

August 4, 1998

Mr. Wm. Jeff Miller County Manager Ashe County

P.O. Box 633 Jefferson, North Carolina 28640

Re: Advisory opinion; Authority of board of county commissioners; college scholarship program; Ashe County; Article IX, Section (2)(2), North Carolina Constitution; N.C.G.S. § 153A149(b)(7); N.C.G.S. § 159A-149(g); N.C.G.S. § 153A-255.

Dear Mr. Miller:

The following is in response to your request for an opinion in your letter dated May 21, 1998. Your letter contains the following question:

May a board of county commissioners fund a college scholarship program available for students of the county public school system?

Under North Carolina law, the issue of the authority of local government units to appropriate public funds is determined by the answer to the following two standard questions: First, is the appropriation for a public purpose; and, second, is there specific statutory authority for the appropriation. Watauga County Bd. Of Education v. Town Of Boone, 106 N.C.App. 270, 416 S.E.2d 411(1992).

The scholarship program is described in the request for an opinion as a "promotional effort to place emphasis on the importance of education." The rationale behind the scholarship program therefore is to provide an incentive for academic achievement for all the students in the county public school system. Assuming that the program has objective and non-discriminatory standards, the program would appear to be a legitimate means to support the goal of public education. Public education is clearly a public purpose, Maready v. City Of Winston-Salem, 342

N.C. 708, 720, 467 N.C. 615, 623 (1996); Education Assistance Authority v. Bank, 276 N.C. 576; 174 S.E.2d. 551 (1970). Therefore the answer to the first of the two standard questions is yes, because the appropriation for the scholarship program is for a public purpose. The fact that the actual scholarships will benefit individual persons does not defeat the public purpose of the program, which is to provide incentive to further the education of the general county public school student body.

With regard to the second standard question, the statutory provisions must either expressly authorize the activity, or it must be necessarily implied within the language of the statute.

Article VII, Section 1 of the North Carolina Constitution gives the General Assembly the authority to provide for the organization and government of counties, including the granting of such powers and duties to the counties as it deems advisable. As an agent of the State, a county has no inherent power, but may exercise only those powers prescribed by statute and those necessarily implied by law. (Citations omitted) In re Easement in Fairfield Park, 90 N.C.App. 303, 308, 368 S.E.2d 639, 641 (1988). Chapter 153A contains two statutory provisions that refer to the authority of a board of county commissioners with regard to education, i.e., N.C.G.S. § 153A-149(b)(7) and N.C.G.S. § 153A


§ 153A-149(b)(7) reads as follows: "(b) Each county may levy property taxes without restriction as to rate or amount for the following purposes: …. (7) Schools. —- To provide for the county’s share of the cost of kindergarten, elementary, secondary, and post-secondary public education." However, N.C.G.S. § 153A-149(g) provides that the section does not grant any separate authorization for any county to undertake any program not otherwise authorized by law, and that its intent is only to authorize the levy of property taxes for programs authorized by other statutes. Additionally, the North Carolina Supreme Court has described the effect of N.C.G.S. § 153A-149(g) as follows: "It is clear, then, that the power to tax conferred by section [N.C.G.S. § 153A-149] (c)(30) depends in turn upon the existence of authority to implement a given program in the first instance." Stam v. State, 302 N.C. 357, 360, 361, 275 S.E.2d 439, 441, 442 (1981). From the preceding, it is very clear that N.C.G.S. § 153A-149(b)(7) does not provide the necessary statutory authority for a board of county commissioners to establish a college scholarship program.
§ 153A-255 provides in part as follows: "Each county shall provide social services programs pursuant to Chapter 108A and Chapter 111 and may otherwise undertake, sponsor, organize, engage in, and support other social service programs intended to further the …. education ….of its citizens." The term "social service program" is not defined in Chapter 153A; however, the North Carolina Supreme Court has addressed the scope of N.C.G.S. § 153A-255 and has limited its application to programs that are similar in nature to the programs set out in Chapters 108A and 111 of the General Statutes.

Hughey [ 297 N.C. 86, 253 S.E.2d 898 (1979)] limits the broad language of G.S. 153A-255 to programs similar in nature to those provided for in Chapters 108 [now 108A] and 111. Hughey held that one common thread running through those chapters was that all the programs were intended to aid the indigent. Our further review of those statutes reveals that they all provide the class of poor with basic necessities which they themselves are unable to provide. …. We therefore conclude that the authority conferred upon counties to provide social services pursuant to G.S. 153A-255 is limited to providing the poor with the basic necessities of life." (Emphasis added)

Stam v. State, 302 N.C. 357,362, 275 S.E.2d 439, 442 (1981). There are no programs in Chapter 108A or Chapter 111 of the General Statutes that are at all similar to the scholarship program described in the request for an opinion, nor does the scholarship program provide the poor with the basic necessities of life.

Therefore, N.C.G.S. § 153A-255 does not grant the statutory authority for a county to establish the described scholarship program, and the answer to the second standard question is no. Because there is no General Statute or local act which either expressly provides authority for the scholarship program or which necessarily implies such authority, a board of county commissioners may not fund a college scholarship program.

Finally it is noted that Section 2(2) of Article IX of the North Carolina Constitution authorizes a board of county commissioners to add to or supplement a post-secondary scholarship program. That provision reads, in part, as follows: "The governing boards of units of local governments with financial responsibility for public education may use local revenues to add to or supplement any public school or post-secondary school program." While a board of county commissioners has a clear and express financial responsibility for public education (N.C.G.S. § 153A149(b)(7)), it is the opinion of this office that the language of Section 2(2) only authorizes a board of county commissioners to appropriate funds to be transferred to a post-secondary scholarship program established by a public community or technical college, or a constituent institution of The University of North Carolina. Thus, the constitutional provision would authorize Ashe County to .transfer funds to one or more public post-secondary institutions to be used for scholarships for students from the Ashe County public school system, but would not authorize Ashe County to establish its own independent college scholarship program.

signed by:

Charles J. Murray Special Deputy Attorney General

Ann Reed

Senior Deputy Attorney General