NC NC AG Advisory Opinion (2001-03-11) 2001-03-11

Can a NC county board abolish its statutorily-created county police department and roll its duties into the sheriff's office?

Short answer: No. The AG concluded that the Gaston County Board of Commissioners cannot abolish the Gaston County Police Department or assign its duties to the sheriff's office without a new act of the General Assembly. The Department was created by Chapter 93 of the 1929 Session Laws and its structure and duties were set out in Chapter 904 of the 1983 Session Laws. Although the General Assembly briefly authorized the County to abolish the Department in 1973 (Chapter 791), it took that authority back in 1981 (Chapter 484). § 153A-76(1) and (3) forbid county commissioners from abolishing offices established by law or reassigning duties assigned by law to particular agencies.

Disclaimer: This is an official North Carolina Attorney General advisory opinion. AG opinions are persuasive authority but not binding precedent like a court ruling. This summary is for informational purposes only and is not legal advice. Consult a licensed North Carolina attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

Plain-English summary

Gaston County is one of only a handful of NC counties that has both a county police department and a sheriff's office. The county police department came from a 1929 special act of the General Assembly. By 2001, Gaston County was apparently considering whether to abolish the department and let the sheriff's office handle its duties. Heath R. Jenkins wrote the AG asking whether the County Board of Commissioners had the legal authority to do that on its own.

Assistant AG John Aldridge had answered no in an advisory letter on February 22, 2001, but advisory letters carry less weight than formal opinions because they reflect the views of the signing lawyer rather than a committee review. Jenkins asked that the question be re-reviewed as a full opinion. Senior Deputy AG James J. Coman wrote the final opinion concluding the same: no, the County Board cannot abolish the Police Department without an act of the General Assembly.

The legislative history matters. The Gaston County Police Department was established by Chapter 93 of the 1929 Session Laws. The General Assembly later established a civil service board for the Department (Chapter 16, Session Laws of 1957). In 1973, the General Assembly briefly granted Gaston County the power to abolish the Department (Chapter 791, Session Laws of 1973), but the Board never used that power. In 1981, the General Assembly repealed that authority (Chapter 484, Session Laws of 1981). And in 1983 the General Assembly affirmatively restructured the Department, setting out its duties (Chapter 904, Session Laws of 1983). The cumulative effect: the General Assembly has been actively governing the existence and structure of the Department, and has explicitly removed county-level abolition authority.

Why the County couldn't just abolish it under § 153A-76. § 153A-76 grants county boards broad authority to create and abolish positions and agencies, but expressly excludes "office[s], position[s], department[s], board[s], commission[s] or agenc[ies] established or required by law." The Gaston County Police Department was established by law. The Board may not "discontinue or assign elsewhere a function or duty assigned by law to a particular office." The Department's duties were assigned by law in the 1983 act. Subsections (1) and (3) of § 153A-76 are clear textual bars.

The Dillon's Rule background. Units of local government in NC are under "the absolute control of the General Assembly with respect to governmental matters." Town of Saluda v. County of Polk, 207 N.C. 180, 176 S.E. 298 (1934). They have no powers except those granted by the General Assembly and may not exercise those powers in any manner inconsistent with state law. In Re Martin, 286 N.C. 66, 209 S.E.2d 766 (1974). The Department is the General Assembly's creation; only the General Assembly can dismantle it.

The path forward. If Gaston County wanted to consolidate, it needed to ask the General Assembly to either restore the 1973 abolition authority or to directly abolish the Department by special act. Without legislative action, the consolidation could not legally proceed.

Currency note

This opinion was issued in 2001. 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 Gaston County Police Department continues to exist; the General Assembly may have amended Chapter 904 of the 1983 Session Laws or related local acts. § 153A-76 has also been amended over the years. The basic Dillon's Rule principle that local governments cannot abolish statutorily-created agencies remains the dominant NC framework.

Background and statutory framework

Gaston County Police Department's statutory pedigree.
- 1929 Session Laws c. 93: Created the Department.
- 1957 Session Laws c. 16: Established a civil service board.
- 1973 Session Laws c. 791: Authorized the County Board to abolish the Department. The Board never acted.
- 1981 Session Laws c. 484: Removed the County Board's abolition authority.
- 1983 Session Laws c. 904: Re-established the Department's structure and duties.

The pattern is a legislature actively managing the existence and structure of a local agency. The fact that the General Assembly briefly granted abolition authority and then took it back is particularly telling: the General Assembly knew how to give the County the power and chose to revoke it.

§ 153A-76 (limits on county reorganization powers). Subsection (1) bars commissioners from abolishing "an office, position, department, board, commission or agency established or required by law." Subsection (3) bars commissioners from "discontinu[ing] or assign[ing] elsewhere a function or duty assigned by law to a particular office, position, department, board commission or agency." Both subsections directly cover the Gaston situation.

Dillon's Rule. NC follows Dillon's Rule: local government powers come from the General Assembly. Town of Saluda and In Re Martin are the leading citations. Where a state act sets up an agency and assigns it duties, the agency cannot be dismantled by local action even if local officials prefer a different structure.

Local act vs. general law. The Gaston County Police Department was created by a local act of the General Assembly (Chapter 93 of 1929 Session Laws). NC's Constitution permits local acts for many subjects, and the General Assembly has used them frequently to structure county governments. Local acts have full statutory force; the County cannot override them through ordinance.

Why some other NC counties have county police. A small number of NC counties (Gaston, Mecklenburg before its 1993 merger of police, etc.) have or had county police departments separate from sheriff's offices, all created by local acts. Most NC counties rely solely on the sheriff for general law enforcement.

Advisory letter vs. formal opinion. The opinion notes that Assistant AG John Aldridge's February 22, 2001 response was an advisory letter, which under AG policies reflect the signing lawyer's views but are not necessarily reviewed and approved by senior staff. A formal opinion is reviewed by a committee of a Senior Deputy AG, the Chief Deputy AG, and the Chief Counsel for the AG. The formal opinion gives the conclusion more weight in inter-agency disputes and litigation.

Common questions

Q: Could Gaston County put consolidation on a referendum?

A: The AG concluded no. The General Assembly's authority is paramount; a county referendum cannot override a state act. Local opinion can pressure the General Assembly to act, but the legal effect requires legislative action.

Q: Could the sheriff just informally take over county police duties?

A: The AG concluded no. § 153A-76(3) bars reassigning legally-assigned functions. The County Police Department's duties are assigned to it by Chapter 904 of the 1983 Session Laws. The sheriff cannot informally absorb those duties.

Q: What if the General Assembly later repealed Chapter 93?

A: A subsequent General Assembly can abolish the Department directly or restore abolition authority to the County. NC's General Assembly has done this several times in the past for various local entities. The 1973-1981 abolition-authority arc shows how the dance plays out.

Q: Are sheriffs subject to the same kind of legislative control?

A: Sheriffs occupy a different constitutional position in NC. Article VII, § 2 of the NC Constitution provides for a sheriff in each county, elected by the people. The General Assembly cannot abolish the office of sheriff in a county; the constitutional structure protects the position. County police departments, which are creatures of statute, have no equivalent constitutional protection.

Q: How does this opinion affect general administrative consolidation efforts?

A: It clarifies that any consolidation involving statutorily-created agencies needs legislative action. Counties exploring efficiency moves should ask their delegation whether the underlying agencies were created by law, and if so, plan for a local bill.

Citations from the opinion

N.C. Gen. Stat. §§ 153A-76, 153A-76(1), 153A-76(3)
Chapter 93, Session Laws of 1929
Chapter 16, Session Laws of 1957
Chapter 791, Session Laws of 1973
Chapter 484, Session Laws of 1981
Chapter 904, Session Laws of 1983
Town of Saluda v. County of Polk, 207 N.C. 180, 176 S.E. 298 (1934)
In Re Martin, 286 N.C. 66, 209 S.E.2d 766 (1974)

Source

Landing page: https://ncdoj.gov/opinions/consolidation-of-the-gaston-county-police-department-with-the-gaston-county-sheriffs-office/

Original opinion text

Reproduced from the NCDOJ landing page. The linked landing page is authoritative.

Re: Advisory Opinion: Consolidation of the Gaston County Police Department with the Gaston County Sheriff's Office

Dear Mr. Jenkins:

By letter dated February 22, 2001, Assistant Attorney General John Aldridge advised you that, in his opinion, the Gaston County Board of Commissioners does not have the power under present law to abolish the Gaston County Police Department and merge it with the Gaston County Sheriff's Office. Mr. Aldridge's opinion was issued in the form of an advisory letter. Under our policies, such letters are provided to "state and local government officials or their attorneys regarding routine legal matters." They "reflect the opinion of the signing lawyer" but are not necessarily reviewed and approved by senior members of the staff.

You have now requested that Mr. Aldridge's letter be reviewed and issued as an opinion of the Attorney General. Under our policies, "advisory opinions are provided upon written request to state or local government officials regarding legal issues significant to the operations and administration of the agencies." Such opinions are reviewed and approved by a committee composed of a Senior Deputy Attorney General, the Chief Deputy Attorney General and the Chief Counsel for the Attorney General. We are pleased to honor your request.

The Gaston County Police Department was provided for by the General Assembly in Chapter 93, Session Laws of 1929. In 1957, the General Assembly established a civil service board for the Gaston County Police Department. Chapter 16, Session Laws of 1957. In 1973, the General Assembly authorized the Gaston County Board of Commissioners to abolish the Gaston County Police Department. Chapter 791, Session Laws of 1973. The Gaston County Board of Commissioners never exercised this authority and in 1981 the General Assembly took it away. Chapter 484, Session Laws of 1981. The General Assembly in 1983 again addressed the Gaston County Police Department and set forth it's structure and duties. Chapter 904, Session Laws of 1983.

A fundamental tenet of law is that units of local government are under the absolute control of the General Assembly with respect to governmental matters. They have no powers except those granted by the General Assembly and they may not exercise those powers granted to them in any manner inconsistent with laws enacted by the General Assembly. See, e.g., Town of Saluda v. County of Polk, 207 N.C. 180, 176 S.E. 298 (1934); In Re Martin, 286 N.C. 66, 209 S.E.2d 766 (1974). This tenet has been codified by the General Assembly with respect to the power of county commissioners to organize county governments. G.S. § 153A-76. That statute grants to boards of county commissioners broad powers to create and abolish county government positions and agencies but specifically provides that the board of commissioners may not "abolish an office, position, department, board, commission or agency established or required by law" and may not "discontinue or assign elsewhere a function or duty assigned by law to a particular office, position, department, board commission or agency." G.S. § 153A-76(1) and (3).

The Gaston County Police Department was established by the General Assembly to perform specific functions and duties. General principles of law and the specific provisions of G.S. § 153A-76(1) and (3) forbid the Gaston County Board of Commissioners from abolishing the County Police Department or assigning its duties to another entity. Thus, it is the opinion of this office that the Gaston County Board of Commissioners may not abolish the Gaston County Police Department or assign its duties to some other entity unless and until that action is authorized by the General Assembly.

Very truly yours,

James J. Coman, Senior Deputy Attorney General

JJC/sp

cc: Edwin M. Speas, Jr., Chief Deputy Attorney General
J. B. Kelly, General Counsel
John Aldridge, Assistant Attorney General