When the 1993 General Assembly transferred 'the legal counsel and support staff' of the Banking Commission to the Department of Justice, did that mean one Commission attorney or two?

Plain-English summary

In 1993, the North Carolina General Assembly passed Chapter 321 of the Session Laws, which transferred legal-counsel responsibilities for the Banking Commission from in-house staff to the Department of Justice. Two years later, the State Auditor questioned how many attorneys the transfer actually moved: one, or two? The Banking Commission had carried two attorney positions before the transfer, and the Auditor suggested the second one also should have followed the first over to DOJ.

The Banking Commissioner asked the AG, and the AG concluded only one attorney transferred.

The AG's reasoning was textual. Three statutory provisions described the transfer, all using singular language:

• Section 206(a) of Chapter 321 transferred "[t]he legal counsel and support staff of the Banking Commission" to DOJ. "The legal counsel" is singular.
• Section 206(b) of Chapter 321 rewrote N.C.G.S. § 53-96 to require the AG to "assign an attorney on his staff to work full-time with the Banking Commission." "An attorney" is singular.
• Chapter 561, § 83 of the 1993 Session Laws amended § 53-96 again to require the Commission to reimburse DOJ for "this position" (also singular).

Two canons of statutory construction sealed the result. First, statutes on the same subject must be read together (in pari materia) and harmonized to give effect to each. Second, the controlling factor is legislative intent. Reading all three provisions together, every singular reference pointed the same way: one attorney. The second Banking Commission attorney position stayed with the Commission, and DOJ's obligation extended only to a single full-time assigned attorney.

Currency note

This opinion was issued in 1995. 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 administrative arrangement between the Banking Commission and the Department of Justice may have changed in subsequent reorganizations; § 53-96 itself may have been amended again.

Background and statutory framework

Inter-agency transfers of attorney positions were a recurring feature of mid-1990s North Carolina budget legislation. The 1993 transfer of Banking Commission counsel was part of a broader pattern of centralizing legal services under the Department of Justice, which gave DOJ unified control over state-government litigation strategy and reduced the number of separate state-agency legal departments.

The State Auditor's role in flagging the question was a normal audit function. State Auditors track FTE positions in the budget by line, and when a position transfer occurs across the agency boundary, the Auditor must determine whether the receiving agency's count went up by the right number and the sending agency's count went down by the right number. The Banking Commission going from two attorneys to one (rather than two attorneys to zero) created the discrepancy that prompted the question.

The two interpretive canons the AG used are standard tools of North Carolina statutory construction. In pari materia means "in the same matter": when multiple statutes address the same subject, courts read them together as a coherent legislative scheme rather than in isolation. The harmonization principle prefers readings that give effect to every provision. The intent rule asks what the legislature meant, with the statutory text as the primary evidence.

The application here was straightforward. The legislature could have written "the legal counsel" if it meant a single attorney, or "the legal counsel staff" if it meant a department. It used the singular twice (in 206(a) and (b)) and "this position" once (in Chapter 561 § 83). Three singular references across three different drafting sessions made the inference robust: the legislature meant one attorney.

The reimbursement requirement in Chapter 561 § 83 is also worth noting. The Banking Commission was required to reimburse DOJ for the assigned attorney's cost, so the transfer was a budget-neutral reallocation rather than a transfer of cost. That structure is consistent with the legislature wanting clearer reporting lines (the attorney works for DOJ, not the Commission) while keeping the Commission financially responsible for its legal services.

Common questions

Did the second Banking Commission attorney position get eliminated, or did it stay with the Commission?

The opinion does not directly say what happened to the second position, only that it did not transfer. Logically, it stayed with the Banking Commission unless separately abolished. Personnel decisions at the Commission level would have determined whether to keep the position filled or repurpose it.

Could the Auditor's position (that two attorneys transferred) ever be defended?

A counter-argument would emphasize the "support staff" phrase in 206(a) and read "legal counsel" as a collective term for all of the Commission's legal personnel. The AG rejected that reading by pointing to the singular "an attorney" in 206(b) and "this position" in Chapter 561 § 83. Both rewrote the operative statute, and both used the singular. Once two statutory provisions used the singular for what DOJ would provide, the original "legal counsel" phrase had to be read as singular too.

What if the legislature had wanted two attorneys to transfer?

The legislature would have used plural language. The AG's reasoning implicitly invites that drafting fix: if a future session law wanted to transfer multiple positions, it could say "the legal counsel and assistant legal counsel" or "the two attorney positions" or "the legal staff." The drafting choices in 1993 instead were singular throughout.

Source

• Landing page: https://ncdoj.gov/opinions/transfer-of-legal-counsel/

Citations

• N.C. Gen. Stat. § 53-96
• 1993 N.C. Sess. Laws ch. 321, § 206
• 1993 N.C. Sess. Laws ch. 561, § 83

Original opinion text

August 15, 1995

Hal D. Lingerfelt
Commissioner of Banks
P.O. Box 29512
Raleigh, North Carolina 27626-0512

Re: Advisory Opinion — Transfer of Legal Counsel — N.C.G.S. § 53-96

Dear Commissioner Lingerfelt:

This will respond to your request for an opinion on an issue recently raised by the State Auditor regarding the interpretation of the 1993 Session Laws transferring the legal counsel position (and support staff) of the Banking Commission to the Department of Justice. Specifically the Auditor questions whether a second attorney position on the Commission staff should also be transferred to the Department of Justice. The Auditor suggests that the matter should be resolved by an opinion of this office.

We have examined the relevant provisions of the 1993 Session Laws. Section 206(a) of Chapter 321 transferred to the Department of Justice "[t]he legal counsel and support staff of the Banking Commission . . ." together with the funds, equipment, supplies, records and other property necessary to support this position. Section 206(b) rewrote N.C.G.S. § 53-96 to provide that "[t]he Attorney General shall assign an attorney on his staff to work full-time with the Banking Commission." Chapter 561 of the 1993 Session Laws, at § 83, amended N.C.G.S. § 53-96 to provide that the Commission shall reimburse the Department of Justice to support this position.

Two principles of statutory construction are relevant to our analysis of the foregoing provisions of law. First, statutes which deal with the same subject matter must be construed in pari materia and harmonized, if possible, to give effect to each. See, 27 Strong's North Carolina Index, 4th, Statutes § 27 (1994). Second, the controlling factor for interpreting any statute is the legislative intent. See, 27 Strong's North Carolina Index, 4th, Statutes § 29 (1994). Thus, while section 206(a) refers to the "legal counsel and support staff" of the Commission, sections 206(a) and (b) of Chapter 321 transfer "the" attorney for the Banking Commission to the Department of Justice and require the Attorney General to assign "an" attorney to the Commission. Likewise, the reference to the attorney in Chapter 521 is in the singular. We conclude therefore that the legislature intended to transfer only one attorney (and support staff) from the Banking Commission to the Department of Justice.

We trust this responds to your inquiry. If we may be of further assistance, please do not hesitate to let us know.

Andrew A. Vanore, Jr.
Chief Deputy Attorney General

Ann Reed
Senior Deputy Attorney General