Should North Carolina Motor Vehicle Dealers' Advisory Board members get the $7 per diem from their 1973 statute or the higher $15 per diem from the general state board compensation statute?

Plain-English summary

The Controller raised a discrepancy with the AG. Members of the Motor Vehicle Dealers' Advisory Board (a Department of Transportation board created in 1973 to advise on motor vehicle dealer regulation) were being paid $7 per day of service, as their 1973 enabling statute (§ 20-305.4(d)) set. Other DOT board members got $15 per day under § 138-5(a)(1), the general state-board per-diem statute. The discrepancy was awkward and probably wrong, but DOT wanted an AG opinion before changing its payment practice.

Assistant Attorney General Thomas H. Davis, Jr. answered: pay the $15.

The legal mechanism is § 138-5(b), an amend-by-reference provision the General Assembly enacted as part of Chapter 1397 of the 1973 Session Laws (effective July 1, 1974). § 138-5(b) reads: "The schedules of per diem, subsistence, and travel allowances established in this section shall apply to members of all State boards, commissions, committees and councils which operate from funds deposited with the State Treasurer, excluding those boards, commissions, committees and councils the members of which are now serving without compensation and excluding occupational licensing boards as defined in G.S. 93B-1; and all special statutory provisions relating to per diem, subsistence, and travel allowances are hereby amended to conform to this section."

The bolded phrase at the end is the key: "all special statutory provisions . . . are hereby amended to conform to this section." That is an explicit legislative direction that prior special per-diem provisions inconsistent with the new $15 rate are amended to the new rate. The MVD Advisory Board's $7 rate in § 20-305.4(d) was such a special provision, and § 138-5(b) operated to amend it to $15.

The AG checked the exclusions in § 138-5(b). The Board was in existence at the time of the 1973 enactment. Its members were compensated (not serving without compensation), so the uncompensated-board exclusion did not apply. The Board is an advisory board for the Division of Motor Vehicles, not an occupational licensing board (occupational licensing boards have a specific definition in § 93B-1: boards that issue licenses for occupations and trades). So neither exclusion applied.

Therefore § 138-5(b) operated to amend § 20-305.4(d) to the $15 rate effective July 1, 1974. From that date forward, the Board's per diem was $15, not $7. The DOT had been underpaying for over a decade.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. § 138-5 has been amended several times since 1987 to update the per-diem rates (the rate is no longer $15). The basic uniform-per-diem framework remains, with the same kind of amend-by-reference provision. The Motor Vehicle Dealers' Advisory Board's structure and per diem rate should be verified against current statute. The general principle (a general per-diem statute with an amend-by-reference subsection can operate to amend prior special per-diem statutes to conform) is durable, but rates and specific board structures change.

Background and statutory framework

The 1973 rewrite of § 138-5 was an exercise in statutory tidying. The General Assembly had accumulated dozens of state boards, commissions, and councils over the decades, each with its own per-diem and travel-expense statute, set at varying rates from the era of its enactment. A board created in 1955 might still be paying its members 1955 rates. A board created in 1969 had its own rate. The result was a confusing patchwork.

§ 138-5(a)(1) set a uniform per diem ($15 in 1974, later updated) for all state boards funded from the State Treasury. § 138-5(b) is the amend-by-reference clause that swept up the prior special statutes and conformed them to the new uniform rate.

The two exclusions in § 138-5(b) preserve legislative judgments about specific board categories:

Uncompensated boards: Some boards are designed to serve without per-diem pay (typically advisory boards of professionals donating their time). The legislature did not want to retroactively impose a $15 rate on those boards.

Occupational licensing boards (as defined in § 93B-1): Licensing boards are funded by license fees, not by State Treasury appropriations. They have their own per-diem rules under Chapter 93B. The legislature exempted them from § 138-5(b) to preserve the separate funding and pay structure.

The MVD Advisory Board fit neither exclusion. It was created with statutory per-diem pay (so not uncompensated). It is an advisory board, not a licensing board (the Division of Motor Vehicles handles dealer licensing administratively). § 138-5(b) therefore reached it.

The AG opinion's significance is twofold: it confirmed the legal mechanism (amend by general reference is effective) and it cleared DOT to start paying the $15 rate without worrying that the older $7 statute somehow controlled.

Common questions

Could the MVD Board members claim back pay for the period 1974-1987 when they were paid $7 instead of $15?

The opinion does not address back pay. As a legal matter, the statutes had been amended in 1974 and the Board members were legally entitled to the higher rate from that date. As a practical matter, retroactive recovery would depend on the State Tort Claims Act, the State Treasurer's claims process, the limitations period for state claims against public funds, and the doctrine of laches. The 1987 opinion only addresses the prospective rate.

Does § 138-5(b) automatically update older statutes when § 138-5(a)(1) is amended?

§ 138-5(b) is written to amend "special statutory provisions" to conform "to this section." If § 138-5(a)(1) is later amended to set a different per-diem rate, the natural reading is that the amend-by-reference still operates to conform the older statutes to the new rate. Modern researchers should verify with current § 138-5 text whether the amend-by-reference still operates in this way.

What if a special per-diem statute specifically says "notwithstanding § 138-5"?

A specific statute that explicitly overrides § 138-5(b) by name would presumably control under the later-and-more-specific rule of statutory construction. The 1987 AG opinion does not address that scenario; it deals with a special statute that did not anticipate § 138-5(b) at all.

Do occupational licensing boards have higher or lower per diem under their own Chapter 93B rules?

The opinion does not survey occupational licensing board per-diem rates. § 93B-2 et seq. and the individual licensing board statutes govern those rates. The categorical exclusion in § 138-5(b) preserves the separate framework rather than dictating a particular rate.

What about travel and subsistence allowances?

§ 138-5(b) covers per diem, subsistence, and travel allowances. The AG opinion focuses on the per diem question because that was the Controller's question, but the same amend-by-reference mechanism applies to subsistence and travel allowances. A board member's mileage or lodging reimbursement under an older special statute would similarly be conformed to the rates in § 138-5(a).

Source

• Landing page: https://ncdoj.gov/opinions/per-diem-payments-to-members-of-the-motor-vehicle-dealers-advisory-board/

Citations

• N.C.G.S. § 20-305.4(d) (original $7 per diem for MVD Advisory Board)
• N.C.G.S. § 138-5 (general per-diem statute)
• N.C.G.S. § 138-5(a)(1) ($15 per diem rate)
• N.C.G.S. § 138-5(b) (amend-by-reference clause)
• N.C.G.S. § 93B-1 (definition of occupational licensing boards)
• 1973 Session Laws Chapter 1397 (rewrite of § 138-5)

Original opinion text

Requested By:

Lester Teal Controller

Question:

Does N.C.G.S. 138-5(b) amend G.S. 20-305.4(d) to increase the per diem paid to members of the Motor Vehicle Dealers' Advisory Board from $7.00 per day of service to $15.00 per day of service?

Conclusion:

Yes.

The Motor Vehicle Dealers' Advisory Board was created by the 1973 General Assembly, and the Act specifically provided:

"Members of the Board shall meet at the call of the Commissioner and shall receive as compensation for their services seven dollars ($7.00) for each day actually engaged in the exercise of the duties of the Board and such travel expenses and subsistence allowances as are generally allowed other State commissions and boards."

Currently, the North Carolina Department of Transportation is compensating the members of the Motor Vehicle Dealers' Advisory Board at the statutory rate of seven dollars ($7.00) per day of service. These payments are made from funds appropriated to the Division of Motor Vehicles. Members of all other Department of Transportation boards, commissions, committees, and councils entitled to a per diem are, however, compensated at the rate of fifteen dollars ($15.00) per day of service as provided for in G.S. 138-5(a)(1).

N.C.G.S. 138-5, which establishes compensation and allowances for members of State boards, commissions, committees and councils, was rewritten by the enactment of Chapter 1397 of the 1973 Session Laws, effective July 1, 1974. Among the provisions of this Act was an increase in per diem payments to fifteen dollars ($15.00) for each day of service (G.S. 138-5(a)(1)), and the following statement was included as Subsection 5(b):

"The schedules of per diem, subsistence, and travel allowances established in this section shall apply to members of all State boards, commissions, committees and councils which operate from funds deposited with the State Treasurer, excluding those boards, commissions, committees and councils the members of which are now serving without compensation and excluding occupational licensing boards as defined in G.S. 93B-1; and all special statutory provisions relating to per diem, subsistence, and travel allowances are hereby amended to conform to this section."

The Motor Vehicle Dealers' Advisory Board was in existence at the time Chapter 1397 was enacted by the 1973 General Assembly. The members of this Advisory Board were serving with compensation, and the Advisory Board is not an occupational licensing board as defined in G.S. 93B-1.

It appears clear from the language of G.S. 138-5(b) that the General Assembly intended that members of all State boards, commissions, committees and councils operating from funds deposited with the State Treasurer would from that time forward receive a per diem payment of fifteen dollars ($15.00) per day for each day of service. It is, therefore, this office's conclusion that the members of the Motor Vehicle Dealers' Advisory Board should be paid a per diem of fifteen dollars ($15.00) per day of service.

Lacy H. Thornburg Attorney General

Thomas H. Davis, Jr. Assistant Attorney General