North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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July 25, 1977

Subject:

Mental Health; Area Mental Health Programs; Authority to Submit Employee Pay Plan

Requested By:

R. J. Bickel Deputy Director for Administration Division of Mental Health Services

Question:

Under the terms of G.S. 122-35.46, effective July 1, 1977, is the approval of the board (single-county area) or boards (multi-county area) of county commissioners, as the case may be, necessary prior to the submission of the salary plan for employees of an area mental health authority to the State Personnel Office, if the salary plan is within the specified statutory limitations?

Conclusion:

No, this submission is not required if the salary plan is within the specified statutory limitations.

The 1977 General Assembly completely rewrote the North Carolina statutes dealing with area mental health programs. The new statute provides for the creation of area mental health authorities, defined as follows:

"The governing unit authorized by the Commission for Mental Health Services and delegated the authority to serve as the comprehensive planning, budgeting, implementing, and monitoring group for community-based mental health, mental retardation, and substance abuse programs. An area mental health authority is a local political subdivision of the State except that a single-county area mental health authority shall be considered a department of the county in which it is located for the purposes of Chapter 159 of the General Statutes." (G.S. 122-35.36(1))

The governing body of each authority is an area mental health board. (G.S. 122-35.36(2)). Members of a single-county area mental health board are appointed directly by the board of county commissioners. (G.S. 122-35.39(b)). For a multiple-county authority, each board of county commissioners appoints one commissioner as a mental health board member and these appointed members select the additional mental health board members. (G.S. 122-35.39(c)).

The new G.S. 122-35.45(b) provides the following illuminating information as to the statutus of area mental health authority employees:

"Area mental health authority employees. Employees under the direct supervision of the area mental health authority are employees of the area mental health authority and for the purpose of personnel administration, Chapter 126 of the General Statutes shall apply unless otherwise provided in this Article."

On the specific point of salary plans, the new statutes contain the following language:

"§ 122-35.46. Salary Plan for area mental health employees. -- The salary plan for area mental health employees shall be set by the area mental health authority. Such salary plan shall be established in conformity with G.S. Chapter 126. In a multiple-county area, such salary plan shall not exceed the highest paying salary plan of any county in that area. In a single-county area, such salary plan shall not exceed the county's salary plan. The salary plan limitations set forth in this section may be exceeded only if the area mental health authority and the board or boards of county commissioners, as the case may be, jointly agree to exceed those limitations."

Collective analysis of all of these statutes reveals several significant changes and/or clarifications of prior statutes dealing with the subject of area mental health programs. Additionally, prior opinions of the Attorney General dealing with this subject must be reexamined in view of the new statutes; any conflict between this opinion and such prior opinions should be resolved in favor of this later opinion.

Among the points that appear to be clear from the new statutes are the following:

(1)
a single-county area mental health authority is not a public authority for purposes of Chapter 159 but apparently a multiple-county authority will be such public authority. (Compare 44 NCAG 185 (1974).
(2)
a single-county area mental health authority apparently does not have to designate a budget and fiscal officer but can be served by the county personnel. (Compare 45 NCAG 120 (1975).
(3)
area mental health authorities will be considered as local political subdivisions so as to constitute an entity capable of conducting normal business, within the limitations of the new G.S. 122-35.53. (Compare 42 NCAG 120 (1972).
(4)
Employees of an area mental health authority are not "county employees" but they are governed by the provisions of Chapter 126 unless the new statutes provide otherwise. (Compare 45 NCAG 70 (1975).

Finally, the language of G.S. 122-35.46 would seem to unequivocally stipulate that the salary plan for area mental health employees shall be set by the area mental health authority, except where the salary plan limitations are exceeded. This provision of that statute appears to apply equally to both single and multiple-county authorities, despite the fact that the former are now considered a part of the county for Chapter 159 purposes.

Rufus L. Edmisten Attorney General

William F. O'Connell Special Deputy Attorney General