Authority of DOA to Charge Self-Supporting Agencies For Space

Subject:

Requested By: J. K. Sherron, Jr., Director State Property Office

Questions: (1)

Pursuant to Section 15.5, Chapter 802 of the 1977 Session Laws, is the North Carolina Wildlife Resources Commission, a self-supporting State agency, required to pay rental for the State-owned office space it will occupy in the Archdale Building?

(2)

In the event the Wildlife Resources Commission is required to pay rental for such space, is the Department of Administration required to give the Commission a credit against such charges for a $200,000 payment it made to the Department prior to occupancy of space in the Albemarle Building?

(3)

May the Department of Administration furnish State-owned office space at no charge to the State Banking Commission, a self-supporting State agency, in accordance with a formal letter of allocation signed by the Secretary of Administration prior to the effective date of Section 15.5, Chapter 802, 1977 Session Laws?

Conclusions: (1)

Yes.

(2)

No.

(3)

No.

The North Carolina Wildlife Resources Commission and the State Banking Commission are self-supporting State agencies.

Section 15.5, Chapter 802 of the 1977 Session Laws reads as follows:

"Sec. 15.5. The Department of Administration is directed to determine equitable fees for the use of State-owned and operated office space, and to assess "self-supporting" agencies for payment of these fees.

The payments shall be made to the Department of Administration."

The facts relevant to the first two questions are as follows: In 1955, the Legislature appropriated the sum of $200,000 from the Wildlife Resources Fund to partially finance construction of the Motor Vehicles Building to house the Department of Motor Vehicles, the Wildlife Commission, the State Banking Commission and other departments and agencies. The building was constructed and the Wildlife Commission occupied the fourth floor from 1956 through 1971.

Due to an increased need in office space by the Department of Motor Vehicles, the 1967 General Assembly appropriated $200,000 to the Department to "Purchase Fourth Floor Motor Vehicles Building from Wildlife Commission". Chapter 1108, 1967 Session Law. Plans were then made for the Commission to occupy space in the Albemarle Building to be constructed by the State.

Upon receipt of the $200,000 appropriated to the Department of Motor Vehicles, the Wildlife Commission paid said sum to the Department of Administration prior to occupancy of space in the Albemarle Building. This sum was added to the capital improvement appropriation for the construction of this building. This Office is unable to find any statutory provision authorizing or directing the payment of these funds to the Department of Administration. The funds have been expended.

This Office is of the opinion that the Wildlife Commission, a self-supporting State agency, would be required to pay rental for the State-owned office space it occupies after the effective date of Section 15.5, Chapter 802, 1977 Session Law. This statute applies to all "self-supporting" State agencies without exception. We find no other statutory provision which would exempt the Commission from the coverage of this statute. Although there are statutes which prohibit the diversion of funds from the Wildlife Resources Fund, we are of the opinion that Wildlife funds may be used to pay rentals, pursuant to Section 15.5, Chapter 802 of the 1977 Session Laws, inasmuch as the occupation of State-owned office space is essential in order for the Commission to perform its statutory duties.

As to Question 3, we find no statute which authorized or directed the payment of $200,000 to the Department of Administration. At the time this payment was made, there was no statutory authorization for the Department of Administration to charge self-supporting State agencies rental for space in State-owned buildings.

G.S. 143-244 provides that the "Board of Public Buildings and Grounds" shall provide the Wildlife Commission with offices in the City of Raleigh. This statute was in effect at the time the $200,000 payment was made. The statute contains no provision for the payment of rent. Although this Board did not exist at the time of this payment, its duties had been absorbed by the Department of Administration.

Just as we find no legislative authority for payment of the $200,000 to the Department of Administration, we find no legislative authority for a credit against rent or a repayment at this time.

The facts relevant to the last question are: Under the provisions of the 1955 Session Laws, the State Banking Commission also participated in the construction of the Motor Vehicles Building in the sum of $60,000 collected from fees pursuant to G.S. 153-122. In October of 1976, then Secretary of Administration Bruce A. Lentz allocated space in the State Office Building Number 2, then under construction, now known as the Dobbs Building, to the State Banking Commission. The letter of allocation states that because of prior investment in the Motor Vehicles Building by the Banking Commission, the Department of Administration "proposes to permanently provide sufficient State-owned office space at no charge to the North Carolina Banking Commission, to replace that space being vacated".

Section 15.5, Chapter 802 of the 1977 Session Laws, specifically directs the Department of Administration to assess "self-supporting" agencies equitable fees for the use of State-owned office space. This statutory provision would nullify the letter of allocation insofar as it purports to allocate the space in question "at no charge".

Although the question has not been specifically raised, we are of the opinion that the Banking Commission would not be entitled to any credit for the $60,000 of its funds used for construction of the Motor Vehicles Building. The General Assembly specifically appropriated the funds for this purpose. There has been no legislative authorization for a return of those funds to the Commission.

Rufus L. Edmisten Attorney General

T. Buie Costen Special Deputy Attorney General