When the State's Mental Health, Mental Retardation and Substance Abuse Services Commission writes rules for inmate substance-abuse treatment, does it have to give the Department of Correction's Substance Abuse Advisory Council a direct chance to weigh in? And can the Commission's rules drop the statutory preference for hiring recovering alcoholics and substance abusers as counselors?
Plain-English summary
The Substance Abuse Advisory Council to the Department of Correction asked the AG two governance questions about how inmate substance-abuse treatment rules get made.
The rulemaking architecture in 1990. Three statutory layers stacked together:
- G.S. § 148-19(d) (originally enacted 1977, amended in 1985 to add mental retardation and substance abuse) gave the Commission for Mental Health, Mental Retardation and Substance Abuse Services exclusive and final authority to set treatment standards for inmates, while requiring it to give the Secretary of Correction an opportunity to review and comment on proposed standards.
- G.S. § 143B-270 (1987) created the Substance Abuse Advisory Council to consult with the Secretary of Correction on the administration of DOC's Substance Abuse Program.
- G.S. § 143B-271 (1987) gave the Council the power to advise the Secretary on the administration of the program and on any rules or regulations adopted, while not giving the Council any rulemaking authority of its own.
Question 1: must the Commission consult the Council directly? The Council asked whether G.S. § 148-19(d) and G.S. § 143B-271, read together, required the Commission to ask for and accept the Council's input directly when writing substance-abuse standards for the prisons.
The 1990 AG said no. The 1987 legislation did not impose a duty on the Commission to consult directly with the Council. The Commission's obligation under § 148-19(d) is satisfied by consulting the Secretary of Correction. The Secretary in turn fulfills the Council's role under § 143B-270 and § 143B-271 by consulting with the Council before responding to the Commission. The chain runs Commission → Secretary → Council, not Commission → Council directly. The Council retains an active advisory role within the Department, but the Commission talks to the Secretary, not directly to the Council.
Question 2: can the Commission drop the counselor preference? The 1987 legislation, in N.C. Sess. Laws 1987, c. 758, included a directive (codified at G.S. § 143B-264) that "Preference shall be accorded to qualified recovering alcoholics and substance abusers in the employment of treatment counselors." Could the Commission's standards override that preference?
The 1990 AG said no. The preference is a statutory mandate. Standards adopted by the Commission that conflict with it are invalid. The AG cited State's Rights Democratic Party v. State Board of Elections, 229 N.C. 179 (1948), for the standard rule that an administrative rule in conflict with a statute is void to the extent of the conflict. The Commission has rulemaking authority but it cannot legislate around the General Assembly. If the preference is to change, the Legislature must change it.
Bottom line. The Commission keeps its final rulemaking authority but consults only through the Secretary of Correction. The Council advises within the Department. And whatever the Commission's standards look like, the recovering-counselor preference written into 1987 session law survives any rule that would conflict with it.
Currency note
This opinion was issued in 1990. 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. The Department of Correction has been reorganized into the Department of Public Safety (and substance-abuse programming has moved between divisions multiple times). The Commission's structure has also evolved (mental retardation/intellectual disability terminology updated, the substance abuse component repeatedly reorganized). The recovering-counselor preference and the rulemaking-versus-statute hierarchy described here should be checked against current Chapter 148, current Chapter 143B, and current Department of Adult Correction and Department of Health and Human Services structures.
Historical context: what the AG concluded
The opinion sits in the late-1980s buildout of comprehensive substance-abuse treatment in North Carolina prisons. The 1987 General Assembly invested in a dedicated Substance Abuse Program within DOC, created an advisory council to keep the program connected to the recovery community, and inserted a hiring preference for people in recovery as counselors. The structural design was deliberate: the Commission (which sets clinical standards for all state substance-abuse treatment) writes the standards; the Department implements them; the Council brings the lived-experience perspective into program administration.
The Council's question reflected a friction point that often emerges when two collaborating bodies are working on the same subject from different angles. The Commission was the rulemaker. The Council was an advisor inside DOC. The Council wanted a direct line to the rulemaking process. The AG's answer is that the Council's voice flows through the Secretary, who has the statutory consultation right under § 148-19(d) and who is statutorily directed (via § 143B-270 and § 143B-271) to take the Council's advice into account before responding.
The counselor-preference holding is the more interesting half. It illustrates the standard administrative-law hierarchy: statute trumps regulation. The General Assembly had made a substantive employment-policy judgment in 1987 session law that should be honored in the standards. A rule that watered down the preference would be void in court. The AG sent a clear signal that the Commission could not use its standards-setting authority to undo a legislative directive about who gets hired.
For program administrators in 1990 the operational takeaways were straightforward. Commission staff should circulate proposed inmate substance-abuse standards to the Secretary. The Secretary should bring the Council into the Department's review and feed Council input back to the Commission. The counselor preference must show up unambiguously in the program's hiring policies. Anything looser invites a legal challenge.
Common questions
Who has final authority to write inmate substance-abuse treatment standards?
Under G.S. § 148-19(d) as in effect in 1990, the Commission for Mental Health, Mental Retardation and Substance Abuse Services had final rulemaking authority. The Secretary of Correction had a review-and-comment right but no veto.
What does the Substance Abuse Advisory Council do?
The Council advises the Secretary of Correction on administration of the DOC Substance Abuse Program, including advice on any rules or regulations adopted. It does not have rulemaking authority of its own.
Why does the Commission consult only the Secretary and not the Council directly?
The 1987 legislation creating the Council and the program imposed a direct consultation duty only on the Secretary (with the Council) and only on the Commission (with the Secretary). The two consultation duties chain together but do not require the Commission to reach past the Secretary to the Council.
What is the counselor preference?
A statutory mandate, in 1987 Sess. Laws c. 758 § 111(c) (codified at G.S. § 143B-264), that "Preference shall be accorded to qualified recovering alcoholics and substance abusers in the employment of treatment counselors" in DOC's Substance Abuse Program.
Can the Commission's rules override the counselor preference?
No. The preference is a statute. Rules that conflict with it are invalid under State's Rights Democratic Party v. State Board of Elections, 229 N.C. 179 (1948).
Could the General Assembly amend the preference?
Yes. The preference exists by statute and can be changed by statute. The 1990 opinion describes the law as it then stood.
Background and statutory framework
The inmate-treatment-standards statute. G.S. § 148-19(d), originally adopted in 1977 (N.C. Sess. Laws 1977, c. 332), gave the Commission for Mental Health authority over inmate mental health treatment standards. The 1985 General Assembly amended the statute (N.C. Sess. Laws 1985, c. 589, s. 55.1) to add "mental retardation and substance abuse" throughout, expanding the Commission's authority to inmate substance abuse standards.
The 1987 Substance Abuse Program legislation. N.C. Sess. Laws 1987, c. 738, s. 111 established the DOC Substance Abuse Program and created the Substance Abuse Advisory Council. Codified at G.S. § 143B-270 (Council exists to consult with the Secretary) and G.S. § 143B-271 (Council advises the Secretary on administration and rules). The same act, at section 111(c), provided the counselor preference, codified at G.S. § 143B-264.
The conflict-with-statute rule. State's Rights Democratic Party v. State Board of Elections, 229 N.C. 179, 49 S.E.2d 379 (1948), establishes that administrative rules in conflict with controlling statutes are invalid.
Citations
- N.C. Gen. Stat. § 148-19(d)
- N.C. Gen. Stat. § 143B-264
- N.C. Gen. Stat. § 143B-270
- N.C. Gen. Stat. § 143B-271
- N.C. Sess. Laws 1977, c. 332
- N.C. Sess. Laws 1985, c. 589, s. 55.1
- N.C. Sess. Laws 1987, c. 738, s. 111
- N.C. Sess. Laws 1987, c. 758
- State's Rights Democratic Party v. State Board of Elections, 229 N.C. 179, 49 S.E.2d 379 (1948)
Source
Original opinion text
Requested By: Substance Abuse Council
Questions:
(1) Under N.C. Gen. Stat. § 148-19(d) and N.C. Gen. Stat. § 143B-271, does the Commission for Mental Health, Mental Retardation and Substance Abuse Services have a statutory duty to request and permit the Substance Abuse Advisory Council for the Department of Correction to give its advice as to the adoption of any rules or regulations the Commission proposes to adopt concerning substance abuse treatment standards in the prisons?
(2) Can the Commission in adopting standards disregard the provision of N.C. Sess. Laws 1987, c. 758 that says – "Preference shall be accorded to qualified recovering alcoholics and substance abusers in the employment of treatment counselors."?
Conclusions:
(1) No
(2) No
(1) N.C. Gen. Stat. § 148-19(d) was originally adopted in 1977, N.C. Sess. Laws 1977, c. 332, and provided that:
The Commission for Mental Health shall prescribe standards for the delivery of mental health services to inmates in the custody of the Department of Correction. The Commission for Mental Health Services shall give the Secretary of Correction an opportunity to review and comment on proposed standards prior to promulgation of such standards; however, final authority to determine such standards remains with the commission. . .
The General Assembly amended the statute in 1985 to include the words "mental retardation and substance abuse" after the words "mental health" throughout the section. N.C. Sess. Laws 1985, c. 589, s. 55.1. Thus, after the effective date of the 1985 amendments, the Commission for Mental Health, Mental Retardation and Substance Abuse Services (hereafter, the Commission) had exclusive and final authority to adopt standards for inmate substance abuse programs, but was also required to consult with the Secretary of Correction in the process.
In 1987 the General Assembly enacted comprehensive legislation establishing a substance abuse program to be administered by the Department of Correction. N.C. Sess. Laws 1987, c. 738, s. 111. The legislation also created a Substance Abuse Advisory Council (hereafter, the Council) with the mandate to "consult with the Secretary of the Department of Correction in the administration of the Substance Abuse Program." Id., codified at N.C. Gen. Stat. § 143B-270.
The powers and duties of the Council were set out in N.C. Gen. Stat. § 143B-271 which provides that,
The Substance Abuse Advisory Council shall advise the Secretary of the Department of Correction on the administration of the Substance Abuse Program. The Council shall also give advice as to any rules and regulations adopted and on any other matters pertaining to the Substance Abuse Program. (Emphasis added).
Although the Council was not given any rule making authority of its own, the clear intent of the General Assembly was to give the Council an active role in the formulation of policy governing the substance abuse program. Thus, the Council was directed to give advice to the Secretary of Correction as to any rules and regulations and on any other matters pertaining to the program. However, the 1987 legislation did not impose a duty upon the Commission to consult directly with the Council. Rather, the Commission's responsibility as set out in N.C. Gen. Stat. § 148-19(d) was left untouched and is fulfilled by giving the Secretary of Correction an opportunity to review and comment on proposed standards for the delivery of substance abuse services to inmates. The Secretary of Correction should then consult with the Council under N.C. Gen. Stat. § 143B-270 and -271 in order to effectuate the legislatively intended role of the Council.
(2) The 1987 legislation also expressly provides in Section 111(c) (codified as N.C. Gen. Stat. § 143B-264) that "Preference shall be accorded to qualified recovering alcoholics and substance abusers in the employment of treatment counselors." If standards adopted by the Commission conflict with that legislative mandate, then they are invalid. State's Rights Democratic Party v. State Board of Elections, 229 N.C. 179, 49 S.E.2d 379 (1948).
Lacy H. Thornburg, Attorney General
Lucien Capone III, Special Deputy Attorney General