Public Entity Definition

Re: Advisory Opinion: Definition of “Public Entity”

Dear Mr. Skinner:

This letter responds to your request for an Attorney General’s opinion regarding the definition of “public entity” as that term is used in Chapter 496 of the 2001 Session Laws. Specifically, you request whether each public agency for which the Department of Administration awards construction contracts must have its own “outreach plan” or whether the Department of Administration may develop an “outreach plan” to be applied to all entities for which it is the awarding authority.

Based on our analysis set forth below, we conclude that the terminology “public entity” as utilized in Chapter 496 of the 2001 Session Laws refers to any elected or appointed authority under state law which is authorized to exercise a legislative, policy making, quasijudicial, administrative or advisory function. Practically speaking, such definition includes all cabinet level departments and other state agencies, including the constituent institutions of the University of North Carolina, which enter into contracts for construction subject to Article 8, Chapter 143 of the General Statutes.

As a general rule of statuatory construction, legislation must be construed to accomplish the General Assembly’s intent. Sutton v. Aetna Casualty and Surety Co., 325

N.C.

259, 265, 280 S.E.2d 759 (1989). The best indicia of legislative intention are the

T.

Brooks Skinner Page 2 March 7, 2002

language of the statute, its spirit and purpose. Savings and Loan League v. Credit Union Comm., 302 N.C. 458, 276 S.E.2d 404 (1981). When interpreting statutes, the words in the statute are to be given their ordinary meaning unless the General Assembly has specifically defined them or they have acquired a technical meaning. Food Town Stores v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

As a starting point, we note that the phrase “public entity” has been used interchangeably with the phrase “public body” in Chapter 496 of the 2001 Session Laws. See, N.C.G.S. § 143-128(b) and (e). The North Carolina courts have defined the term “public body” in connection with their interpretation of both the Open Meetings Law,

N.C.G.S.

§ 143-318.10 and Public Records Act, N.C.G.S. § 132-1.

N.C.G.S.

§ 132-1 defines “Public Records” as applying to a broad catagory of “documentary material made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina Government or its subdivisions.” (emphasis added). The statute defines subject agencies and subdivisions as “every public office, public officer or official (State or local, elected or appointed), institution, board, commission, bureau, council, department, authority or any unit of government of the State or of any county, unit, special district or other political subdivision of government.” N.C.G.S. § 132-1; News and Observer Publishing Company v. Poole, 330

N.C. 465, 477, 412 S.E.2d. 7, 14 (1992).

The Open Meetings Law more narrowly defines “public body” to mean:

any elected or appointed authority, board, commission, committee, council or any other body of the State, or one or more counties, cities, school administrative units, constituent institutions of the University of North Carolina, or other political subdivisions or public corporations in the State that (i) is composed of two or more members and, (ii) exercises or is authorized to exercise a legislative, policy making, quasijudicial, administrative, or advisory function.

N.C.G.S. § 143-318.10(b); DTH Publishing Corp. v. UNC-Chapel Hill, 128 N.C.App. 534, 537, 496 S.E.2d. 8, 10 (1998), rev. den., 348 N.C. 496, 510 S.E.2d 382 (1998).

Both Poole and DTH Publishing Corp. hold that a subdivision of State Government is a public body for purposes of complying with the Public Records Act or Open Meetings Law. Poole, 330 N.C. at 478, 412 S.E.2d at 14-15; DTH Publishing Corp., 128 N.C.App. at

T. Brooks Skinner Page 3 March 7, 2002

539, 496 S.E.2d at 11. In the DTH Publishing Corp., the court analyzed why the Undergraduate Student Honor Court (hereinafter “Undergraduate Court”) of the University of North Carolina in Chapel Hill qualifies as a “public body” pursuant to the Open Meetings Law, N.C.G.S. § 143-318.10. The court noted that the Undergraduate Court has a chairperson, vice chairs, at least thirty members, and hears evidence in the presence of four members led by the chair or vice chair. DTH Publishing Corp., 128 N.C.App. at 539, 496 S.E.2d at 11. The Undergraduate Court is also authorized to exercise an administrative or advisory function pursuant to N.C.G.S. § 143-318.10 when it holds hearings, issues subpoenas, renders verdicts and recommends sanctions pursuant to the power granted it by the University. Id. Consequently, the court found that given the decision-making authority and membership of the Undergraduate Court, it is considered a public body for purposes of the Open Meetings Law.

Thus, taking into consideration the definition of “public body” utilized by the North Carolina courts in interpreting the Open Meetings Law and Public Records Acts, the term “public body,” as used interchangeably with “public entity,” includes all elected or appointed authorities of the State and their individual departments, commissions, committees, councils, including the constituent institutions of the University of North Carolina.

In addition, acts of the North Carolina General Assembly creating public entities within city governments have been interpreted as creating public entities separate from the city itself. In Board of Transportation v. Charlotte Parks and Recreation Commission, 38

N.C. App. 708, 710, 248 S.E.2d 909, 911 (1978),app. dism., 296 N.C. 583, 254 S.E.2d 35 (1979). the Court of Appeals held that the Charlotte Parks and Recreation Commission created by an act of the General Assembly in 1927 and extended in 1965 is a separate public entity from the City of Charlotte. While no case has been reported in North Carolina holding that a state agency’s creation by the General Assembly makes it a separate public entity from the State, one can easily apply the logic in Charlotte Parks and Recreation Commission to reach the same conclusion. Accord WINFAS, Inc. v. Region P Human Development Agency, 64 N.C. App. 724, 308 S.E.2d 99 (1983)(Entity created by an act of a county commission and later incorporated under the Nonprofit Incorporation Act is still a separate public entity under the Open Meetings Law).

Significantly, Chapter 496 of the 2001 Session Laws itself is instructive on the meaning of “public entity.” N.C.G.S. § 143-64.31(a) states that “the public policy of the State and all public subdivisions and Local Government Units thereof [is] to announce all requirements for architectural, engineering and surveying and construction manager at risk services….” Shortly thereafter, in section (b), the term “public entity” is first used when referring to the unit of government required by the legislation to take action.

T. Brooks Skinner Page 4 March 7, 2002

Throughout the remainder of Chapter 496 of the 2001 Session Laws, “public entity” or “public body” is used to describe the governmental unit required or otherwise authorized to take action consistent with the legislation. For example, in N.C.G.S. § 143-128.2(b) each public entity must “establish prior to solicitation of business the good faith efforts it will take to make it feasible for minority businesses to submit successful bid proposals for the contracts for building projects.” While N.C.G.S. 143-128.3(e) authorizes the Secretary of Administration to adopt rules “for state entities” to implement the provisions of N.C.G.S. 143-128.2, N.C.G.S. 143-128.2(f) specifically provides that “[t]he public entity may require additional good faith efforts to be taken, as indicated in its bid specifications.”

Clearly, if the State were treated as the only public entity, then the Secretary of Administration alone could speak for the State in promulgating rules to establish good faith efforts. On the other hand, when public entities are specifically authorized to exceed what the Secretary establishes by rule, then public entities have additional discretionary authority to act in achieving the objectives set forth in G.S. § 143-128.2.

When considering this legislation in line with the above cited legal authority, it is clear that the General Assembly intended for all subdivisions of the State with discretionary decision making authority to exercise that authority to meet or exceed the ten percent (10%) verifiable goal set by statute while allowing the Secretary of Administration to set a minimum threshold by rule for achieving such a goal. The minimum threshhold adopted by rule shall control unless the State agency adopts a more stringent guideline. Consequently, we do not read Chapter 496 of the 2001 Session Laws as treating the State as one public body or one public entity.

By referring to “public entity” or “public body” and nothing more in establishing what actions must be taken to comply with the newly enacted provisions of Article 8, Chapter 143, the General Assembly did not single out any one agency of State Government as the public entity required to take such action, (emphasis added). All public bodies of the State must heed the provisions set forth in Chapter 496 of the 2001 Session Laws.

Very truly yours,

Reginald L. Watkins Senior Deputy Attorney General

T. Brooks Skinner Page 5 March 7, 2002

Roy A. Giles, Jr.
Special Deputy Attorney General

Jeffrey B. Parsons
Assistant Attorney General

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No. 7304