Can a NC county manager, acting on the fire marshal's request, issue a memo declaring certain county buildings smoke-free and have that be legally binding?

Plain-English summary

Arthur Wilson, the county manager who requested this opinion, had issued a memorandum at his fire marshal's request declaring certain county buildings smoke-free. He asked the AG whether that memo amounted to a "rule" under G.S. 143-601(a) and whether it had legal effect. Special Deputy AG Charles J. Murray and Chief Deputy AG Andrew A. Vanore, Jr. said no, and then took the helpful next step of explaining how a county actually could regulate smoking in its own buildings.

The threshold conclusion was structural. G.S. 153A-169 places authority over the use of county property in the board of commissioners, which "may issue orders and adopt by ordinance or resolution regulations concerning the use of county property." The county manager's general powers under G.S. 153A-82 do not include policymaking over building use. The county fire marshal's role under G.S. 153A-234 also does not authorize independent action separate from the board. So a county manager issuing a memorandum on his own initiative, even at the fire marshal's request, was not exercising a statutory power. The memorandum was not a rule within the meaning of G.S. 143-601(a) and had no legal effect.

The AG then took up the harder definitional question: what is a "rule" under G.S. 143-601(a), which authorizes a "local law, rule or ordinance" restricting smoking in publicly owned buildings? "Local law" and "ordinance" are essentially synonymous and have well-established adoption procedures. "Rule," by contrast, is not defined in the local-government context. The AG offered two possible readings.

The first reading treats "rule" as synonymous with "ordinance," requiring the same formalities for adoption. Authority for this reading comes from McQuillin on Municipal Corporations: "Rules, regulations, and bylaws are sometimes construed as synonymous with and are to be promulgated as ordinances." On this view, the safest course is for the board to act by ordinance, which guarantees procedural validity even if it is more than the statute requires.

The second reading construes "rule" in pari materia with the word "order" in G.S. 153A-169 to authorize the board to act by order in some circumstances without the formality of an ordinance. The basis is the canon that all words in a statute should be given meaning where possible (In re Watson). G.S. 153A-169 distinguishes between an "order" on one hand and an "ordinance" or "resolution" on the other. The legislature likely intended a meaningful difference. Drawing the line, the AG said that any policy of general application affecting members of the public must be enacted by ordinance ("If a municipal action is one of general application prescribing a new plan or policy, it is considered legislative and therefore must be accomplished by ordinance," 5 McQuillin § 15.03 (1992)). So a smoke-free policy that reaches public-facing buildings has to be an ordinance. But for purely internal regulation of office buildings not generally used by the public, the board may act by "order" under G.S. 153A-169, subject to the scope limits of G.S. 143-601(a).

The closing point referenced G.S. 153A-12, the general statute on how a county exercises its corporate power. Except as otherwise directed by law, each power, right, duty, function, privilege, and immunity of the corporation is exercised by the board of commissioners. Where no specific statutory direction exists about how to exercise a power, the board carries it out by ordinance or resolution. In the absence of clear NC authority on what constitutes a "rule" and how to adopt one, G.S. 153A-12 effectively requires the board to adopt a resolution or ordinance setting out the procedure it will follow when adopting rules or orders. Without that framework, the line between an ordinance and an order is hard to police in practice.

The practical takeaway: if a county wants its buildings smoke-free in any binding way, the board of commissioners must act. A manager's memo, even one issued at the fire marshal's request, is not enough.

Currency note

This opinion was issued in 1993. 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.

NC's statewide smoking regulation has changed dramatically since 1993, including statewide bans on smoking in many public places that did not exist when this opinion was issued. The relationship between state preemption and local regulation has also evolved. Anyone with a present question about smoking restrictions in NC county buildings should consult current state smoke-free workplace law (Article 23 of Chapter 130A or successor provisions), current county-government statutes, and counsel familiar with NC public-health and local-government law.

Common questions

Q: Why does it matter whether the smoke-free decision is by manager memo or board ordinance?
A: Because it controls who has the legal authority to issue or rescind the policy, what procedures attach to it, and whether anyone can be held accountable for violating it. A manager's memo with no statutory authority is effectively a suggestion. A board ordinance, properly adopted, is binding and enforceable, and amendments require the same level of formality.

Q: What is the practical difference between an "ordinance" and an "order" under G.S. 153A-169?
A: Ordinances are legislative acts of general application. They go through formal adoption procedures (notice, public meeting, recorded vote, codification). Orders are narrower, often used for specific administrative matters where the board needs to act quickly or where the matter affects only internal county operations rather than the public at large. The opinion's two-reading framework lets the board pick the right tool for the policy at hand: ordinance for public-facing rules, order for internal-only matters.

Q: Could the fire marshal have issued the smoke-free policy independently?
A: No. G.S. 153A-234 sets out the fire marshal's authority but does not let the fire marshal act independently of the board on building-use policy. The fire marshal can advise the board, can act within whatever delegated authority the board grants, and can administer policies the board adopts, but cannot make those policies alone.

Q: What if the manager's memo was just an internal HR communication about workplace expectations?
A: If it were truly an internal HR communication about employee conduct (rather than a regulation of building use), it might draw authority from the manager's personnel-management role, not from G.S. 143-601(a). The opinion focuses on the memo's character as a rule about building use. A purely employee-relations directive about workplace smoking would have a different legal home.

Q: Why did the opinion list four statutes in its subject line?
A: Because the analysis weaves together four sources of authority: G.S. 143-601 (smoking restriction enabling statute), G.S. 153A-12 (general county-power exercise), G.S. 153A-82 (county manager's powers), G.S. 153A-169 (board's authority over county property), and G.S. 153A-234 (county fire marshal). Each statute had to be addressed to support the structural conclusion that only the board could effect a smoke-free policy.

Background and statutory framework

G.S. 143-601 is the state-level enabling statute that, at the time of the opinion, authorized public-building smoking restrictions through "local law, rule or ordinance." The statute's use of three different terms invited the question that the county manager asked: is a memorandum a "rule"? The AG's answer was no, both because a county manager has no policymaking authority over building use and because "rule" in the local-government context could not be parsed without reference to the formal procedural framework for adopting ordinances and orders.

Chapter 153A governs NC counties. The chapter's basic premise is that the board of commissioners is the locus of county legislative and policy-making authority, subject to specific delegations and to general statutory direction. The county manager handles administrative matters; the fire marshal handles fire-safety inspections; both work under and through the board.

The opinion's larger contribution is its sketch of how to think about "rule" in NC local-government practice. NC does not have a general administrative-rule procedure for local government like the state APA. So when a state enabling statute authorizes a local "rule," local government has to fall back on ordinance and order procedures. The AG suggested that boards adopt a resolution or ordinance setting out their own procedure for adopting rules and orders, which would protect against procedural attacks later.

Citations

• N.C.G.S. § 143-601 (smoking restriction enabling statute; authorizes "local law, rule or ordinance")
• N.C.G.S. § 143-601(a) (scope of local action authorized; query whether a county manager memo qualifies as a "rule")
• N.C.G.S. § 153A-12 (exercise of corporate power; except as otherwise directed by law, each power of the county shall be exercised by the board of commissioners; where no specific direction exists, by ordinance or resolution)
• N.C.G.S. § 153A-82 (county manager's general powers; no policymaking authority over building use)
• N.C.G.S. § 153A-169 (board of commissioners may issue orders and adopt by ordinance or resolution regulations concerning the use of county property)
• N.C.G.S. § 153A-234 (county fire marshal; no authority to act independently of the board)
• In re Watson, 273 N.C. 629, 161 S.E.2d 1 (1968) (NC Supreme Court; all words in a statute should be given meaning if possible)
• 5 McQuillin, Municipal Corporations § 15.02 (1989) (acts on which a municipal corporation desires to legislate must be put in the form of ordinances)
• 5 McQuillin, Municipal Corporations § 15.03 (1992) (if a municipal action is one of general application prescribing a new plan or policy, it must be accomplished by ordinance)

Source

• Landing page: https://ncdoj.gov/opinions/n-c-g-s-%ef%bf%bd%ef%bf%bd-143-601-153a-12-153a-82-153a-169-and-153a-234/

Original opinion text

The fetched body opens at the legal analysis of the manager's memorandum; the salutation and introductory framing of the request were not in the available extract.

N.C.G.S. § 143-601 and should not be interpreted or applied to other functions, duties, grants of power or responsibilities of governing boards of local governments or other public officials. In your letter you ask whether a memorandum issued by you as county manager at the request of the fire marshal declaring certain county buildings smoke free is a rule within the meaning of N.C.G.S. § 143-601(a). The provisions of N.C.G.S. § 153A-169 state that the board of commissioners "may issue orders and adopt by ordinance or resolution regulations concerning the use of county property." The powers and duties of a county manager are set out in general terms in N.C.G.S. § 153A-82, which does not contain any language granting authority to a county manager to set any policy regarding the use of a building. Similarly, the provisions of N.C.G.S. § 153A-234 regarding county fire marshals do not authorize that official to act independently of the board of commissioners. Since this office is unaware of any other statute providing a county manager with authority over the use of county property and your memorandum apparently was not issued pursuant to a specific order, ordinance or resolution of the board of commissioners, it is not a rule within the meaning of N.C.G.S. § 143-601(a) and has no legal effect.

The second question set out in your letter is what would be necessary to be construed as a rule under N.C.G.S. § 143-601(a) which uses the phrase "local law, rule or ordinance." The terms "local law" and "ordinance" are synonymous, and the law is very clear as to what constitutes an ordinance and what procedures are necessary to adopt an ordinance. However, in the context of North Carolina local government law, there are no statutes defining what a rule is, when a rule can be used and what procedures are necessary to adopt a rule. Therefore, what constitutes a "rule" within the meaning of N.C.G.S.§ 143-601(a) is problematical. It appears that there are two possible alternatives regarding the interpretation of the term "rule" as used in N.C.G.S. § 143-601(a). The first is to say that it means the same thing as the term "ordinance", and any such provision would have to be adopted by the board of commissioners in the same manner and with the same formalities as an ordinance. The second is to interpret the term "rule" to authorize the adoption of a policy by the board of commissioners without the procedures and formalities necessary for an ordinance, but only in those situations where the board is authorized by law to act in a summary manner.

There is authority for the principle that the term "rule" is synonymous with the term "ordinance."

"Rules, regulations, and bylaws are sometimes construed as synonymous with and are to be promulgated as ordinances . . . ." 5 McQuillin, Municipal Corporations § 15.03. Given the lack of express law on what constitutes a rule, the approach which is least vulnerable from a legal attack on procedural grounds would be for the board of commissioners to exercise its authority under N.C.G.S. § 143-601(a) by ordinance.

The second alternative is to interpret the word "rule" in N.C.G.S. § 143-601(a) in pari materia with the word "order" in N.C.G.S. § 153A-169 and conclude that the General Assembly intended that a board of commissioners could act in appropriate circumstances with regard to certain county property by order. The argument in support of that alternative is as follows. One of the precepts of statutory interpretation is that all words in a statute should be given meaning if possible, In re Watson, 273 N.C. 629, 161 S.E.2d 1 (1968). It appears that through the use of the word "order" in the enactment of N.C.G.S. § 153A-169, the General Assembly intended to make a distinction between "order" on the one hand and ordinance and resolution on the other in regard to the use of county property. The question then becomes under what circumstances must the board act by ordinance and when may it act by order.

It is clear that when addressing issues that involve members of the public in a general way it is necessary for the board of commissioners to act by ordinance.

Thus, it may be stated broadly that all acts that are done by a municipal corporation . . . on which the municipal corporation desires to legislate must be put in the form of ordinances. It may further be stated broadly that . . . all legislation creating liability or affecting in any important or material manner the people of the municipality should be enacted by ordinances, whether the city is acting in its governmental or private capacity.

5 McQuillin, Municipal Corporations § 15.02 (1989). Based on the foregoing quote, it would be necessary for a local governing body to adopt an ordinance to establish a policy creating smoke free buildings for areas that would have an impact on the public. "If a municipal action is one of general application prescribing a new plan or policy, it is considered legislative and therefore must be accomplished by ordinance", 5 McQuillin, Municipal Corporations § 15.03 (1992). Therefore, if the board of commissioners wishes to adopt a policy of general application under the provisions of N.C.G.S. § 143-601, it should do so by ordinance. In contrast, if it wishes to restrict smoking in county office buildings not generally used by the public, it may do so by "order" under the provisions of N.C.G.S. § 153A-169, with the restrictions on the scope of such an order as set out in N.C.G.S. § 143-601(a).

A final related point should be made. The statutory direction from the General Assembly in regard to the method a county is to exercise its corporate power is set out in N.C.G.S. § 153A-12 which reads as follows:

§ 153A-12. Exercise of corporate power.

Except as otherwise directed by law, each power, right, duty, function, privilege and immunity of the corporation shall be exercised by the board of commissioners. A power, right, duty, function, privilege, or immunity shall be carried into execution as provided by the laws of the State; a power, right, duty, function, privilege, or immunity that is conferred or imposed by law without direction or restriction as to how it is to be exercised or performed shall be carried into execution as provided by ordinance or resolution of the board of commissioners.

Due to the lack of statutory or case law authority in North Carolina defining "rule", along with the lack of authority concerning the procedures for adopting a rule, the provisions of N.C.G.S. § 153A-12 would appear to require that the board adopt a resolution or ordinance setting out the procedures it will follow when adopting a rule or order.

Charles J. Murray
Special Deputy Attorney General

Andrew A. Vanore, Jr.
Chief Deputy Attorney General