March 16, 1993
Ms. Alice Garland Director, Government Affairs ElectriCities of North Carolina, Inc. Post Office Box 29513 Raleigh, N.C. 27626-0513
Re: Advisory Opinion Concerning the Request from ElectriCities of North Carolina for an Interpretation of G.S. 159B-11
Dear Ms. Garland:
By letter dated March 2, 1993, ElectriCities has requested an opinion regarding G.S. 159B-11 as it applies to joint municipal power agencies. Such joint agencies are created pursuant to G.S. 159B, Article 2, and are public agencies. They are, in general, subject to the laws applicable to public bodies, including the public bid laws. G.S. 159B-11(1) through (20) delineate the general powers granted to these joint municipal agencies. Language in two of those subsections, (12) and (13), provides that no provisions of law with respect to the acquisition, construction or operation and disposition of property by other public bodies shall be applicable to any agency created pursuant to Chapter 159B. ElectriCities notes that the language "any agency created pursuant to this Chapter" would indicate that it applies broadly to the power agencies, while the placement of the language within the subsections rather than at the end of the authorities section raises the question of applicability, and has requested our opinion on the following question:
Is the exemption language in subsections (12) and (13) limited in applicability to the
powers conferred in those subsections or does it also apply to the powers conferred upon
joint agencies in the other subsections of G.S. 159B-11?
It is our opinion that a court would most likely conclude that the exemption language contained in subsections (12) and (13) applies only to those subsections. Although the language of the exception implies general applicability, the legislative history of the section and settled principles of statutory construction lead to the conclusion that the General Assembly intended to limit the exception to the acquisition and disposition of property through private negotiations as set forth in subsections (12) and (13). We conclude, therefore, that the exception does not apply to the powers granted joint agencies in other subsections of G.S. 159B-11.
Twenty specifically enumerated powers are granted to joint agencies in G.S. 159B-11. As originally enacted, the power to acquire, pledge and dispose of all property was contained in subsections (6), (7), (8), (12) and (13). None of the referenced subsections specifically authorized joint agencies to acquire and dispose of property through "private negotiation" and none contained exemption language. See 1975 Session Laws, c. 186, s. 1. Thus, at the time of original enactment, joint agencies were subject to the laws applicable to other public bodies, including the public bid laws, with respect to their acquisition, pledging and disposition of property.
In 1977, the General Assembly passed S.B. 187, AN ACT TO AMEND AND CORRECT OMISSIONS AND INTERNAL INCONSISTENCIES IN CHAPTER 159B OF THE GENERAL STATUTES. Some, though not all, provisions dealing with the acquisition and disposition of property were amended and rewritten by the 1977 Act. Subsections (6), (7) and (8), which dealt with the joint agencies’ power to acquire, pledge and dispose of property in general terms, remained unchanged. However, G.S. 159B-11 was amended by the 1977 Act to specifically authorize "private negotiations" and to add the exemption language. This amendment was accomplished by rewriting subsections (12) and (13) in their present forms. The exemption language was added not as a parallel, separate or coordinate subsection but as the final provision within subsections (12) and (13). As a result of the 1977 amendments, subsection (12) now grants joint agencies the following authority:
To acquire by private negotiated purchase or lease or otherwise an existing project, a project under construction, or other property, either individually or jointly, with one or more municipalities in this State or any state contiguous to this State owning electric distribution facilities or with any political subdivisions, agencies or instrumentalities of any state contiguous to this State or with other joint agencies created pursuant to this Chapter; to acquire by private negotiated purchase or lease or otherwise any facilities for the development, production, manufacture, procurement, handling, storage, fabrication, enrichment, processing or reprocessing of fuel of any kind or any facility or rights with respect to the supply of water, and to enter into agreements by private negotiation or otherwise, for a period not exceeding fifty (50) years, for the development, production, manufacture, procurement, handling, storage, fabrication, enrichment, processing or reprocessing of fuel of any kind or any facility or rights with respect to the supply of water; no provisions of law with respect to the acquisition, construction or operation of property by other public bodies shall be applicable to any agency created pursuant to this Chapter unless the legislature shall specifically so state; (Emphasis added.)
Similarly, subsection (13) now contains the following grant of authority:
To dispose of by private negotiated sale or lease, or otherwise an existing project, a project under construction, or other property either individually or jointly with one or more municipalities in this State or any state contiguous to this State owning electric distribution facilities or with any political subdivisions, agencies or instrumentalities of any state contiguous to this State or with other joint agencies created pursuant to this Chapter; to dispose of by private negotiated sale or lease, or otherwise any facilities for the development, production, manufacture, procurement, handling, storage, fabrication, enrichment, processing or reprocessing of fuel of any kind or any facility or rights with respect to the supply of water; no provisions of law with respect to the disposition of property by other public bodies shall be applicable to any agency created pursuant to this Chapter unless the legislature shall specifically so state; (Emphasis added.)
Application of well-established principles of statutory construction supports our conclusion that the exemption language written into subsections (12) and (13) by the 1977 amendments applies only to acquisitions and dispositions that are privately negotiated, not to all powers conferred in
G.S. 159B-11. First, 159B-11 must be construed with reference to the 1977 amendments. The general rule is that were a statute has two distinct subsections dealing with related matters, an amendment to one of the subsections will not ordinarily be construed to apply to the other also, since it is presumed that if the legislature intended it to apply to both, it would have expressed such intent. Therefore, all portions of the original act which are not in conflict with the provisions of the amendment normally remain in force with the same meaning and effect that they had before the amendment. Arrington v. Stone & Webster Engineering Corp., 264 N.C. 38, 140 S.E.2d 759 (1965); Rice v. Rigsby, 259 N.C. 506, 131 S.E.2d 469 (1963). In addition, a provision of a statute that deals with a specific situation controls, with respect to that situation, other provisions which are general in their application. In such cases, the specially treated situation is regarded as the exception to the general rule. This rule of construction is especially applicable where the specific provision is the later enactment. State ex rel. Utilities Commission
v. Lumbee River Electric Membership Corp., 275 N.C. 250, 166 S.E.2d 663 (1969).
It is our opinion that with respect to the power to acquire, construct or operate property [subsection (12)] and with respect to the power to dispose of property [subsection (13)], joint agencies were subject to the provisions of law applicable to other public bodies, including the public bid laws, prior to the 1977 amendments. We believe that the 1977 amendments to these subsections enlarged the joint agencies’ power in this regard by authorizing acquisitions and disposition through (a) private negotiations; and (b) exempting such privately negotiated acquisitions and dispositions from other laws governing public agencies. Cognizant of the rules of statutory interpretation, the legislature placed the exemption language within the applicable subsections, intending that the exemption language apply only to those specific subdivisions and that all other subsections of G.S. 159B-11 retain the same meaning and effect that they had before the 1977 amendments. Had the legislature intended the exemption language to apply to all of the powers granted joint agencies in other subsections of G.S. 159B-11, and not merely to those powers delineated in subsections (12) and (13), it could easily have expressed that intention by placing the exception language in a separate subsection which, by its terms, clearly applied to all other subsections.
MICHAEL F. EASLEY Attorney General
Jo Anne Sanford Special Deputy Attorney General
Lorinzo L. Joyner Special Deputy Attorney General