Public Officers and Employees; Use of State-owned vehicles

Subject:

Public Officers and Employees; Use of State-owned vehicles

Requested By:

The Honorable John C. Brooks Commissioner of Labor

Questions:

(1)

For what purpose may State-owned vehicles be used?

(2)

Are Council of State Officers inherently required to be on call 24 hours per day??

Conclusions:

(1)

Public Purposes, as defined below.

(2)

Yes.

North Carolina general Statutes § 14-247 states that use of a State-owned vehicle "for any private purpose whatsoever" is a misdemeanor. The punishment for violation thereof is set forth in G.S. § 14-251. It should be noted that the term "private purpose" is not defined by this or any other statute, rule, or regulation.

G.S. § 143-341(8)(i)(7) empowers the Department of Administration, "To adopt, with the approval of the Governor and Council of State, reasonable rules and regulations for the efficient and economical operation, . . . of all state-owned motor vehicles . . . and to enforce those rules and regulations." In accordance with this mandate, the Department of Administration, Office of General Services, has adopted comprehensive rules and regulations applicable to the use of State-owned vehicles. These are found in Title 1, North Carolina Administrative Code, Subchapter 4C (1 N.C.A.C. 4C). A handbook incorporating the same was published in July, 1976 and is entitled, North Carolina Central Motor Pool Rules and Regulations.

Section .0500 of those rules is entitled Vehicle Use. Section .0501 requires State-owned vehicles to be used "only for official State business. " This is said not to include commuting from an employee’s residence to his place of work unless such employee is subject to call on a 24-hour basis.

Section .0505 permits spouses of State employees to accompany them in State cars while on official State business, but prohibits an employee’s minor children from being passengers in State-owned cars.

Section .0507 states that an employee, while away from his office, may use a vheicle "prudently for travel to obtain meals, but not for entertainment while off duty." This section also states, "under no circumstances may a State employee operate a State vhicle after consuming intoxicating liquor of drugs."

Section .806, citing an authority G.S. § 143-341(8)(i)(7), states that violation of any aforementioned rule or regulation is a misdemeanor.

The unequivocable language contained in the foregoing authorities clearly establishes a prohibition against the use of a State-owned vehicle for any purpose other than official State business or necessary trips incident to the same.

Since the terms "private purpose" and "official State business" are not defined, only the judgment of the courts can be interposed to determine questions of propriety. Unfortunately, the issue has seldom been addressed. The vagueness of the statute and the absence of a State code of ethics only tends to complicate matters. Any attempt to predict the interpretation our courts might apply to a given situation would be speculation. The only safe course appears to be total avoidance of any situation which might create even the appearance of impropriety in the use of a State-owned vehicle. In short, a State employee contemplating a trip on official State business is effectively precluded from driving a State-owned vehicle if the slightest possibility exists that he might need transportation for a "private purpose" of any nature. Fortunately, State officers and employees who find themselves in such a situation are entitled to compensation on a mileage basis for the use of their private vehicles.

However, it is noted that no provision in the law or in any rules and regulations enacted pursuant to law permits reimbursement of the State, on a mileage basis, for the use of a State-owned vehicle for a "private purpose." Certain State officers and employees must drive State-owned vehicles which are radio equipped. Many of these officers and employees are on call 24 hours per day. These individuals appear to be on the horns of a legal dilemma:

(1)

They must drive State-owned vehicles (because of the equipment contained therein); but

(2)

If they drive such vehicles for any private purpose whatsoever they are subject to criminal prosecution.

Moreover, these same laws, rules, and regulations contain no provision permitting reimbursement of the State for mileage driven in a State car on private business. Thus, the State officer or employee is forced to choose between neglecting his job or violating the law with respect to the private use of State-owned vehicles. In the past, some State officers and employees have attempted a prudent compromise by reimbursing the State, regardless of the absence of statutory provisions, for mileage driven in a State car while on private business. This would appear to be a reasonable attempt to avoid the legal Catch-22 mentioned above and to serve the taxpayers of this State in an expedient manner.

The next question addressed is whether Council of State officials are inherently required to be on call 24 hours per day.

G.S. § 147-13 states that the Governor may convene the Council of State at any time. Article III, Section 5 of the North Carolina Constitution requires consultation of the Governor with the Council of State prior to convening an extra session of the General Assembly. The North Carolina Civil Preparedness Act of 1951, G.S. § 166 et seq. requires consultation by and between the Governor and Council of State in the allocation of emergency funds (G.S. § 166-5(b)(11)), assumption of additional powers by the Governor following a state of disaster (G.S. § 166.6.1). These and other similar requirements indicate that Council of State members are expected to be available at all times for the performance of their constitutional and statutory duties. Accordingly, we conclude that question number 2 above should be answered in the affirmative.

The Department of Administration is the agency empowered to adopt and promulgate rules and regulations for the use of State-owned motor vehicles. In order to clarify this matter, the Department of Administration has been contacted and asked to review its current rules and to consider promulgation of clarifying rules and regulations for the use of State-owned vehicles by members of the Council of State.

Rufus L. Edmisten Attorney General

George W. Lennon Associate Attorney