North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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Reply to: ROBERT M. CURRAN SERVICE TO STATE AGENCIES 919.716.6800 FAX: 919.716.6755 E-MAIL: bcurran@ncdoj.com

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 “lawenforcement 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.

Mr. Michael Williamson June 30, 2004 Page 2

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. Michael Williamson June 30, 2004 Page 3

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