North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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REPLY TO: James J. Coman Law Enforcement & Prosecutions Division

(919) 716-6500 FAX: (919) 716-6760

March 12, 2001

Heath R. Jenkins Chairman Gaston County Board of Commissioners Post Office Box 1578 Gastonia, North Carolina 28053-1578

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. Heath R. Jenkins Page 2 March 12, 2001

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