Travel Expense of Members; Payment of Actual Travel Expenses

Subject:

Requested By: Henry L. Bridges State Auditor

Question: Does G.S. 138-7 authorize the payment of actual travel expenses to members of occupational licensing boards, over and above the amounts provided in the schedule in G.S. 138-6(a)(3) for officers and employees of State departments?

Conclusion: No. G.S. 138-7 does not authorize the reimbursement of excess travel expenses of members of occupational licensing boards, by reason of: (1) the express limitation of G.S. 93B-5(b) restricting reimbursement of occupational licensing board members to amounts "not to exceed that authorized under G.S. 138-6(a) (1)(2) and (3)" for State employees; (2) the express restriction of G.S. 93B-5(d) which provides that "except as provided herein, board members shall not be paid a salary or receive any compensation for services rendered as members of the board"; and (3) the absence of any express exception in G.S. 138-7 to G.S. 93B-5 as was made to G.S. 138-5 and G.S. 138-6.

G.S.

93B-5 provides for compensation exclusively for members of occupational licensing boards. Subsection (b) provides for reimbursement of travel expenses "in an amount not to exceed that authorized under G.S. 138-6(a)(1)(2) and (3) for officers and employees of State departments". Subsection (d) provides: "except as provided herein board members shall not be paid a salary or receive any additional compensation for services rendered as members of the board."

G.S.

138-6(a) provides for travel allowances for State officers and employees of State departments, institutions and agencies which operate from funds deposited with the State Treasurer. Subsection (3) provides for "in lieu of actual expenses incurred for subsistence, payment of $31.00 per day when traveling in State or $39.00 per day when traveling out-of-state." It further provides for proration of subsistence payment when travel involves less than a 24 hour period in accordance with regulations promulgated by the Director of the Budget.

G.S.

138-7 as rewritten by the 1979 General Assembly provides that "expenditures in excess of the maximum amount set forth in G.S. 138-5 and G.S. 138-6 for travel and subsistence may be reimbursed if the prior approval of the department head is obtained." The Budget Director is required to establish and promulgate regulations under which "actual expense in excess of travel and subsistence allowance and convention registration fees as prescribed in G.S. 138-5 and G.S. 138-6 may be authorized by department heads for hotel, meals and registration." (Chapter 838, Section 17, 1979 Session Laws).

G.S.

138-5 provides for compensation for all boards and commissions, (excluding occupational licensing boards), which operate from funds deposited with the State Treasurer. Subsection (2) provides for the payment of subsistence while traveling at the rate of $15.00 per day or $35.00 per day when away over-night.

The language of G.S. 93B-5 is clear and does not require interpretation. G.S. 93B-5 deals exclusively with the compensation of occupational licensing board members and controls over any other statutes having general application. The language used expressly limits subsistence of occupational licensing board members to amounts not to exceed that authorized by G.S. 138-6(a)(3). By reference, an express limitation of $31.00 per day for in-state travel and $39.00 per day out-of-state is placed on the amount of subsistence to be reimbursed, subject to proration according to regulation promulgated by the director of the budget for periods of travel less than a twenty-four hour period. G.S. 93B-5 further prohibits the payment of any additional compensation for services except as provided by G.S. 93B-5.

G.S. 138-7 expressly provides for exceptions to G.S. 138-5 and G.S. 138-6 and authorizes reimbursement for actual expenses in excess of travel and subsistence as "prescribed by G.S. 138-5 and G.S. 138-6." G.S. 138-5 and G.S. 138-6 prescibe compensation for members of State boards and commissions excluding occupational licensing boards and for officers and employees of State agencies, which operate from funds deposited with the State Treasurer. G.S. 138-7 does not provide an exception to the statute authorizing compensation to occupational licensing board members (G.S. 93B-5) as it does to other statutes authorizing compensation for members of boards and commissions excluding occupational licensing boards (G.S. 138-5) and to State officers and employees (G.S. 138-6). Where express exceptions are made, the legal presumption is that the Legislature did not intend to save other cases from the operation of the statute. 50 Am. Jur. Statutes § 434.

A review of the history of the statutes providing for reimbursement for travel expenses supports the conclusion that G.S. 138-7 has no application to the reimbursement of travel expenses for occupational licensing board members. The statute (G.S. 93B-5) dealing exclusively with occupational licensing boards was passed and codified in 1957. In 1961, the General Assembly enacted and codified G.S. 138-5, G.S. 138-6 and G.S. 138-7 (Chapter 833, Sections 5, 6 and 6.1). The provisions were basically the same as had been previously provided in the 1957 and 1959 Budget Appropriations Acts with two exceptions. G.S. 138-5 and G.S. 138-6 as now codified only apply to boards and commissions and State departments and agencies "which operate from funds deposited with the State Treasurer". The other exception is that previously no excess payments had been authorized and a specific provision was made for reimbursement for excess travel expenses incurred over the amounts in the schedule which was codified as G.S. 138-7.

G.S. 138-7 expressly provides "exceptions to G.S. 138-5 and G.S. 138-6" and requires the Director of the Budget to promulgate regulations under which actual expenses in excess of those "prescribed by G.S. 138-5 and G.S. 138-6 may be reimbursed. We have considered the 1979 amendment. The 1979 amendment to G.S. 138-7: (1) reversed the sequences of the two sentences in that section; (2) eliminated the requirement for approval of the Advisory Budget Commission for the promulgation of the rules and regulations; and (3) provided for prior approval of the department head for reimbursement of travel and subsistence in lieu of the prior approval of the Director of the Budget. We do not find that the rewrite of G.S. 138-7 by the 1979 General Assembly extended the exceptions to the statute providing compensation to occupational licensing board members or to agencies which operate from funds which are not deposited with the State Treasurer.

For the foregoing reasons, this Office is of the opinion that G.S. 138-7 does not authorize the reimbursement of occupational licensing board members for subsistence expenses incurred in connection with travel in excess of the rates specified in G.S. 138-6(a)(3).

Rufus L. Edmisten Attorney General

Eugene A. Smith Special Deputy Attorney General