Can the Advisory Budget Commission require the Governor to consult with it before acting on state-agency lease-purchase requests?

Plain-English summary

In 1990, the Advisory Budget Commission adopted a policy requiring certain state-agency lease-purchase proposals to be presented to the Governor for consultation with the Commission before the Department of Administration sent them to the Board of Awards. The State Budget Officer asked whether the Commission could require the Governor to consult before taking action.

The AG said no. Under N.C.G.S. § 143-4, the Commission had five senators, five representatives, and five gubernatorial appointees. The opinion cited the constitutional separation of powers and North Carolina Supreme Court decisions holding that legislators may not serve on a board that exercises any administrative or executive power or has any control over the Governor's executive power. The defect lay in giving a body on which legislators served mandatory control over an executive step. The opinion did not make the number or majority status of the legislators the test.

The Governor could consult the Commission voluntarily. But the Commission could not require that consultation by policy before the Governor acted on the lease-purchase requests. The opinion concluded that the Governor could proceed without consulting if he chose.

Currency note

This opinion was issued in 1995. Check current Commission law and later separation-of-powers decisions for a present question.

Background and statutory framework

Article I, § 6 of the North Carolina Constitution separates the branches' powers; Article III, § 1 names the Governor the State's Chief Executive Officer. The AG relied on State ex rel. Wallace v. Bone and Advisory Opinion in re Separation of Powers for the rule that legislators may not serve on a board with executive or administrative power or control over the Governor's executive power.

The Commission policy covered lease-purchase requests estimated at $100,000 or more, plus smaller requests with extenuating circumstances. The opinion addressed only whether the Commission could make consultation with the Governor mandatory before those requests proceeded.

Common questions

Q: Could the Governor ask the Commission for advice voluntarily?
A: Yes. The opinion says the Governor may consult the Commission on any matter he considers appropriate.

Q: Could the Commission make that consultation a required step?
A: No. The AG concluded a Commission rule requiring consultation before the Governor exercised executive power violated separation of powers.

Q: Did the opinion turn on legislators holding a majority of Commission seats?
A: No. The AG stated that legislators may not sit on any board or commission exercising part of the State's executive or administrative power or any control over the Governor's executive power. It did not frame the test as a majority threshold.

Q: Did the AG decide whether a different, non-legislative advisory body could require consultation?
A: No. The opinion concerns this Commission's policy and composition. It does not evaluate another body's authority.

Citations

• N.C.G.S. § 143-4 (Advisory Budget Commission composition)
• N.C. Const. art. I, § 6 (Separation of Powers Provision)
• N.C. Const. art. III, § 1 (Executive power vested in the Governor)
• State ex rel. Wallace v. Bone, 304 N.C. 591 (1982)
• Advisory Opinion in re Separation of Powers, 305 N.C. 767 (1982)

Source

• Landing page: https://ncdoj.gov/opinions/authority-to-require-that-the-governor-consult-with-the-commission/

Original opinion text

February 9, 1995

Mr. Marvin K. Dorman, Jr. State Budget Officer Office of State Budget and Management 116 West Jones Street Raleigh, North Carolina 27603-8005

RE: Advisory Opinion; Authority of the Advisory Budget Commission to require that the Governor consult with the Commission prior to exercising an executive function; N.C.G.S. §143

4.

Dear Mr. Dorman:

In 1990, the Advisory Budget Commission adopted a policy relating to lease-purchase agreements by state agencies. One requirement of the policy adopted by the Advisory Budget Commission is that all proposed lease-purchases by state agencies estimated to cost $100,000 or more, or any lease-purchases less than $100,000 with extenuating circumstances, must be presented by agency representatives to the Governor, for consultation with the Advisory Budget Commission prior to such requests being submitted to the Board of Awards by the Department of Administration, Division of Purchase and Contract.

You ask our advice whether the Advisory Budget Commission has the authority to adopt a policy mandating that the Governor consult with the Commission prior to further requests being submitted to the Board of Awards. For reasons which follow, it is our opinion that the Advisory Budget Commission does not possess the authority to require the Governor to consult with the Commission before the Governor takes action concerning lease-purchase agreements by state agencies.

By law, the Advisory Budget Commission consists of "five Senators appointed by the President Pro Tempore of the Senate, five Representatives appointed by the Speaker of the House and five persons appointed by the Governor . . . .". N.C.G.S. §143-4. Although the Governor may consult with the Advisory Budget Commission on any matter he deems appropriate, the Governor cannot be required to consult with the Advisory Budget Commission. Any rule by the Commission so requiring is, in our opinion, unconstitutional.

The North Carolina Constitution requires that the legislative and executive powers of the state government be separate and distinct from each other. Article I, Section 6 of the North Carolina Constitution. The Supreme Court of North Carolina has held that the Separation of Powers Provision of our Constitution must be strictly adhered to and that provision prohibits the commingling of power by the executive and legislative branches. State ex rel. Wallace v. Bone, 304 NC 591 (1982); Advisory Opinion in re Separation of Powers, 305 NC 767 (1982). Based upon the Bone and Advisory decisions of our Supreme Court, it is clear that legislators may not sit on any board or commission that exercises a part of the administrative or executive power of the State of North Carolina or which has any control over the executive power of the Governor, the Chief Executive Officer of the State. Article III, Section 1 of the North Carolina Constitution.

Therefore, any regulation promulgated by the Advisory Budget Commission that requires the Governor to consult with it prior to proceeding with the exercise of an executive power is a violation of the Separation of Powers Provision of our State Constitution. Since the Bone and Advisory decisions were issued, our office has rendered numerous opinions concluding that legislators could not serve on any boards or commissions which exercise any portion of the administrative or executive power of the State. We do not include copies of those opinions here, but they are available upon request.

In conclusion, the Governor may proceed without first consulting with the Advisory Budget Commission, should the Governor choose to do so.

Andrew A. Vanore, Jr. Chief Deputy Attorney General