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

A county manager asked whether a memorandum he issued at the fire marshal's request, declaring certain county buildings smoke free, was a rule under G.S. § 143-601(a). The AG said the memorandum was not a rule and had no legal effect. The opinion found no statutory grant allowing the manager to set building-use policy, and said the fire marshal's statute did not let that official act independently of the board. The memorandum apparently had not been issued under a specific board order, ordinance, or resolution.

G.S. § 153A-169 allowed the board of commissioners to issue orders and adopt regulations by ordinance or resolution concerning county property. The AG said the safest way for the board to exercise its smoking-restriction power under G.S. § 143-601(a) was by ordinance. The opinion also considered reading "rule" together with the board's power to issue an "order." It said a policy affecting the public generally required an ordinance, while the board could restrict smoking in office buildings not generally used by the public by order, within G.S. § 143-601(a)'s limits.

The opinion did not analyze a separate personnel-management basis for the manager's memorandum. Its conclusion addressed the memorandum presented: a building-use policy issued without identified authority from a statute or board action.

Currency note

This opinion addressed a particular manager's memorandum and the statutes in 1993. Check current smoking restrictions and county authority for a present building policy.

Background and statutory framework

The opinion said G.S. § 143-601(a) used the phrase "local law, rule or ordinance" without defining a local-government rule or prescribing how one should be adopted. One possible reading equated rule with ordinance. Another allowed the board to act by order in appropriate circumstances under G.S. § 153A-169.

The AG distinguished policies with a general effect on the public from restrictions in county office buildings not generally used by the public. It also quoted G.S. § 153A-12, which directed that county powers be exercised by the board unless law provided otherwise. Given the lack of specific rule-adoption procedures, the opinion said that provision appeared to require the board to establish procedures by resolution or ordinance.

Common questions

Did the manager's memorandum itself create an enforceable smoking rule?

No. The AG said it was not a rule under G.S. § 143-601(a) and had no legal effect on the facts presented.

How did the AG suggest the board regulate smoking in public-facing county buildings?

The opinion said a policy affecting the public generally required an ordinance, and that using an ordinance was least vulnerable to a procedural challenge.

Could the board use an order for an internal county office building?

The opinion said the board could restrict smoking by order in county office buildings not generally used by the public, subject to G.S. § 143-601(a)'s limits.

Did the opinion approve a separate personnel-policy route for the manager?

No. It did not discuss that route. It found no statutory authority for this manager's building-use memorandum and noted the absence of an apparent board action authorizing it.

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