Does the NC Commissioner of Motor Vehicles count as a 'law-enforcement officer' eligible for State 401(k) employer contributions?
Plain-English summary
Michael Williamson, the Director of the Retirement Systems Division at the Department of State Treasurer, wrote to the AG asking a narrow but consequential question: was the Commissioner of Motor Vehicles, George Edgar Tatum, a "law-enforcement officer" within the meaning of G.S. § 143-166.30? If yes, the State owed monthly employer contributions of 5% of his compensation to the State 401(k) Supplemental Retirement Income Plan. If no, those contributions could not lawfully be paid.
The statute defined "law-enforcement officer" as "a full-time paid employee of an employer who is actively serving in a position with assigned primary duties and responsibilities for prevention and detection of crime or the general enforcement of the criminal laws of the State or serving civil processes, and who possesses the power of arrest by virtue of an oath administered under the authority of the State."
The AG worked through that definition piece by piece against the Commissioner's job:
- The Commissioner serves no civil process.
- The Commissioner is not responsible for the "general enforcement of the criminal laws of the State."
- The Commissioner does, however, have duties statutorily directed at prevention and detection of crime. The AG cataloged the Commissioner's statutory portfolio under Chapter 20 (drivers licenses, vehicle titling and registration, motor carrier regulation, odometer fraud inspection, the Motor Vehicle Safety and Financial Responsibility Act, etc.) and concluded that "at least some" of those duties fall in the prevention-and-detection-of-crime category.
- The Commissioner holds the power of arrest. G.S. § 20-49 gives the Commissioner the powers of a peace officer and authority to make arrests for any violation committed in his presence of Chapter 20 provisions or other laws regulating vehicles or highways.
- The specific officeholder, Commissioner Tatum, had been certified as a reserve deputy with the Cumberland County Sheriff's Office since 1981, and that certification had been transferred to the Division of Motor Vehicles effective March 29, 2004. He had been sworn under N.C. Constitution Article VI, Section 7 and G.S. § 11-11.
Stacking those facts against the statutory definition, the AG concluded that Commissioner Tatum met the definition. Employer contributions to the State 401(k) Plan on his behalf were therefore authorized under G.S. § 143-166.30.
The opinion is fact-specific. The AG flagged that the analysis turned in part on the specific oath and certification status of the individual officeholder. A future Commissioner without an active law-enforcement certification might not qualify under the same statutory definition.
Currency note
This opinion was issued in 2004. 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 retirement contribution percentages, the precise statutory cross-references, and the criminal-justice training/certification framework all evolved after 2004.
Background and statutory framework
The State 401(k) Plan as a law-enforcement perk. The General Assembly created the Supplemental Retirement Income Plan in G.S. § 143-166.30 specifically for state-employed law enforcement officers. In addition to the employee's own voluntary deferrals, the State contributes 5% of pay each month. The Board of Trustees of the State Retirement System administers the Plan. Eligibility turns on whether the employee meets the statutory definition of a "law-enforcement officer."
The four-part statutory test. The definition in G.S. § 143-166.30(a)(4) is one long sentence, but it breaks into separable elements:
1. Full-time paid employee of an employer
2. Actively serving in a position with assigned primary duties for:
- prevention and detection of crime, OR
- general enforcement of the criminal laws of the State, OR
- serving civil processes
3. Possesses the power of arrest
4. Power of arrest is held "by virtue of an oath administered under the authority of the State"
The Commissioner's statutory duties. The Commissioner of Motor Vehicles is created and empowered by Chapter 20. G.S. § 20-39(a) charges him with administering and enforcing every law regulating motor vehicles and use of highways. G.S. § 20-49 makes him a peace officer for those purposes, with arrest authority for any violation committed in his presence.
Why this matters beyond Commissioner Tatum. The opinion turns partly on individual certification: Tatum was a sworn deputy with an active certification transferred to DMV. The AG did not say every Commissioner of Motor Vehicles is automatically a "law-enforcement officer" for retirement-plan purposes. The answer depends on whether the specific officeholder both (a) has duties that fit the statutory description and (b) holds an active arrest-power oath.
Common questions
Q: What was the dollar effect of this answer?
A: The State 401(k) Plan provides for monthly employer contributions equal to 5% of a participating law enforcement officer's compensation. That contribution flows to the officer's individual account and grows tax-deferred. For a Commissioner-level salary, the 5% match was a substantial annual benefit.
Q: Did this opinion mean that anyone at DMV is a 'law-enforcement officer' for retirement purposes?
A: No. The opinion was about the Commissioner specifically. Whether a particular DMV employee qualifies depends on whether their duties involve prevention and detection of crime and whether they hold the arrest power by oath. License examiners and clerical staff typically would not qualify. Sworn DMV enforcement officers (the License and Theft Bureau, for example) typically do.
Q: Why did the AG focus so much on the individual officeholder's certification rather than the office itself?
A: Because the statutory test includes the arrest-power-by-oath element. An office could exist with the legal authority of a peace officer, but if no one had been sworn in under N.C. Constitution Article VI, Section 7 or G.S. § 11-11, the arrest-power requirement would not be satisfied. Personal status is part of the test.
Q: Does the Commissioner have to choose between this Plan and the regular state retirement system?
A: No. The Supplemental Retirement Income Plan is in addition to, not in lieu of, the Teachers' and State Employees' Retirement System or the Local Governmental Employees' Retirement System. The law enforcement 5% employer match is a supplemental benefit on top of base retirement coverage.
Citations
Statutes:
- G.S. § 143-166.30 (Supplemental Retirement Income Plan, State 401(k) Plan)
- G.S. § 143-166.30(a)(4) (definition of law-enforcement officer)
- G.S. § 143-166.30(d) (Plan participation)
- G.S. § 143-166.30(e) (5% state contribution)
- G.S. § 20-2 (Commissioner of Motor Vehicles office)
- G.S. § 20-39(a) (Commissioner's enforcement duties)
- G.S. § 20-49 (peace officer powers, arrest authority)
- G.S. § 11-11 (statutory oath of office)
- Chapter 20 of the General Statutes (motor vehicle regulation)
- N.C. Constitution, Article VI, Section 7
Source
Original opinion text
Reply to: ROBERT M. CURRAN
SERVICE TO STATE AGENCIES
919.716.6800
FAX: 919.716.6755
E-MAIL: [email protected]
June 30, 2004
Mr. Michael Williamson
Director
Department of State Treasurer, Retirement Systems Division
325 N. Salisbury St.
Raleigh, North Carolina 27602
Re: Advisory Opinion; G.S. § 143-166.30 Commissioner of Motor Vehicles; State 401(k) Plan
Dear Mr. Williamson:
This is in response to your request for an opinion regarding the status of the Commissioner of Motor Vehicles, George Edgar Tatum, for purposes of law enforcement officer participation in the State 401(k) Plan.
The General Assembly has created "a Supplemental Retirement Income Plan [also known as the 'State 401(k) Plan'] (hereinafter referred to as the 'Plan') established for the benefit of all law-enforcement officers employed by the State, who shall be participants." G.S. § 143-166.30(d). In addition to a participant's own voluntary contributions, "the State shall contribute monthly to the individual accounts of participants [law enforcement officers] who are employed by the State an amount equal to five percent (5%) of the compensation of each participant." G.S. § 143-166.30(e). Further, [t]he Board of Trustees of the State Retirement System shall administer the Plan. . . ." For purposes of the Plan, a law enforcement officer is defined as follows:
'Law-enforcement officer' means a full-time paid employee of an employer who is actively serving in a position with assigned primary duties and responsibilities for prevention and detection of crime or the general enforcement of the criminal laws of the State or serving civil processes, and who possesses the power of arrest by virtue of an oath administered under the authority of the State.
G.S. § 143-166.30(a)(4). You have asked whether the Commissioner of Motor Vehicles is a "law-enforcement officer" for purposes of this statute. It is my understanding that the Division of Motor Vehicles, in response to your office's request for a position description for the Commissioner, referred generally to Chapter 20 of the General Statutes.
The position of Commissioner of Motor Vehicles is created by statute. G.S. § 20-2. The Commissioner is "vested with the power and is charged with the duty of administering and enforcing the provisions of this Article [Article 3 of Chapter 20] and of all laws regulating the operation of vehicles or the use of the highways. . . ." G.S. § 20-39(a). Of particular relevance to the issue at hand, the Commissioner is conferred with the power of a peace officer "for the purpose of enforcing the provisions of this Article and of any other law regulating the operation of vehicles or the use of the highways" and also has the authority to make arrests "for any violation committed in [his] presence of any of the provisions of this Article or other laws regulating the operation of vehicles or the use of the highways." G.S. § 20-49.
Applying the above definition of a law-enforcement officer to the position of the Commissioner, it does not appear that the Commissioner is authorized to serve civil process, nor is the Commissioner responsible for the "general enforcement of the criminal laws of the State." The question, then, is whether the Commissioner is "serving in a position with assigned primary duties and responsibilities for prevention and detection of crime . . . and . . . possesses the power of arrest by virtue of an oath administered under the authority of the State."
The duties and responsibilities of the Commissioner and Division of Motor Vehicles under Chapter 20 are numerous. They include: the issuance and regulation of drivers licenses (Articles 2A and 2C); the issuance of identification cards for nonoperators (Article 2B); registration and certification of titles to motor vehicles (Article 3, Part 3); the regulation of rental vehicles (Article 3, Part 6A); maintaining reports of stolen vehicles (Article 3, Part 8); designating official stations for adjusting headlamps and regulating vehicle safety equipment (Article 3, Part 9); maintaining reports of motor vehicle accidents (Article 3, Part 10, § 166.1); licensing and regulation of stations that perform vehicle safety and emissions inspections (Article 3A); regulating motor carriers of migratory farm workers (Article 6A); administering and enforcing the provisions of the Motor Vehicle Safety and Financial Responsibility Act and the Vehicle Financial Responsibility Act (Articles 9A, 13); licensing of motor vehicle dealers and manufacturers (Article 12); licensing of driver training schools (Article 14); and the inspection of odometer disclosure statements (Article 15, § 347.1).
Thus, from a reading of the statutory duties conferred upon the Commissioner of Motor Vehicles, it appears that at least some of his "primary duties and responsibilities" are in the area of "prevention and detection of crime." Additionally, it has been presented that Mr. Tatum formerly served as a deputy sheriff, and that he is, therefore, a sworn law enforcement officer. According to the records of the Sheriff's Education and Training Standards Commission, Mr. Tatum has been certified as a reserve deputy with the Cumberland County Sheriff's Office since 1981. According to the Criminal Justice Standards Division, Mr. Tatum has now had his law enforcement certification transferred to the Division of Motor Vehicles, effective March 29, 2004. Therefore, it appears that Mr. Tatum "possesses the power of arrest by virtue of an oath administered under the authority of the State." See, North Carolina Constitution, Article VI, Section 7; G.S. § 11-11.
Therefore, the current Commissioner appears to meet the definition of a "law-enforcement officer" for purposes of G.S. § 143-166.30. For the foregoing reasons, it is our opinion that employer contributions to the State 401(k) Plan on behalf of Mr. Tatum pursuant to G.S. § 143-166.30 should be accepted. If you should have any further questions regarding this, please feel free to contact me.
Very truly yours,
Ann Reed
Senior Deputy Attorney General
Robert M. Curran
Assistant Attorney General