November 4, 1997
R. Marcus Lodge General Counsel Department of Health and Human Services Post Office Box 29526 Raleigh, North Carolina 17626-0526
RE: Advisory Opinion: Butner Planning Council; Town Manager; N.C.G.S. §122C-403(9);
N.C.G.S. §122C-412; 1995 S.L. (Reg. Sess. 1996), c. 667, s.3; 1997 S.L. 1997-59
Dear Marc:
This letter is in response to your letter dated October 30, 1997, requesting an advisory opinion regarding the interpretation of N.C.G.S. §122C-403(9), which sets out the procedures for selecting the Butner Town Manager.
N.C.G.S. §122C-403 assigns to the Secretary of the Department of Health and Human Services the responsibility for administering the Camp Butner reservation. Subdivision (9) of this section authorizes, but does not require the Secretary to assign his duties to the Butner Town Manager. The Town Manager shall be hired upon the recommendation of the Butner Planning Council, which "shall submit the names of three candidates for the position … to the Secretary … and the Secretary shall select one of the candidates." The Town Manager serves at the pleasure of the Secretary.
The position of Town Manager is currently filled, and for that reason the Planning Council has asked whether it is nevertheless required to submit three names to the Secretary. It is our opinion that until there is a vacancy in the position, the Planning Council is not required to submit three names to the Secretary. This interpretation is based on the clear and unambiguous language of the statute, which gives the Secretary the discretion to determine whether to delegate his administrative responsibilities for the town to a Town Manager and which provides that the Town Manager will serve at the Secretary’s pleasure. As you point out in your letter, if the Planning Council were required to submit names while the position is filled, it would have the de facto power to fire the current Town Manager, a result which is clearly inconsistent with the authority and discretion given to the Secretary.
Furthermore, N.C.G.S. §122C-412(h) contains detailed timetables and implementing instructions regarding the appointment of the initial Planning Council. In contrast, N.C.G.S. §122C-403(9), contains no such timetables or instructions regarding the appointment of the Town Manager. This statute, therefore, provides additional support for our conclusion that N.C.G.S. §122C-403(9) does not require the Planning Council to submit three names to the Secretary for the position of Town Manager until the position becomes vacant.
I trust this fully answers your inquiry. Let me know if you need additional information.
Ann Reed Senior Deputy Attorney General