North Carolina Advisory Opinions January 01, 1995: NC Att. Gen Opinion - Voter Assistance by a Candidate

Advisory Opinion Text

January 17, 1995

Mr. Reginald T. Shuford Richard Schwartz & Associates

P. O. Box 2350 Raleigh, NC 27602

Re: Advisory Opinion; Local Board of Education's Authority to Recover Overpayment of Teacher Salary

Dear Mr. Shuford:

On November 21, 1994 you requested our opinion whether local boards of education are prohibited from recovering salary overpayments erroneously made to teachers and other public school employees. For reasons which follow, it is our opinion that a local board of education has both the authority and responsibility to recover salary overpayments made to any employee.

The pertinent statutes are N.C. Gen. Stat. § 115C-302(a)(4) and -316(a)(6). N.C. Gen. Stat. § 115C-302(a) provides, in pertinent part, that:

Teachers shall be paid promptly when their salaries are due provided the legal requirements for their employment and service have been met. . . . Teachers paid State funds shall be paid as follows:

(4) Each local board of education shall sustain any loss by reason of any overpayment to any teacher paid from State funds.

An identical provision in N.C. Gen. Stat. § 115C-316(a)(6) applies to other public schoo l employees.

The plain import of these statutes is that as between the State and a local school board, the local school board will sustain any loss resulting from salary overpayments to teachers and other school employees. In contrast, nothing in these statutes suggests that as between a local school board and its employees, the local school board will sustain the loss resulting from salary overpayments. Such a construction would result in a windfall to these employees from public funds. We do not believe the General Assembly would have intended such a result; nor do we believe the statutes should be construed in such a manner absent a plain and express statement to that effect by the General Assembly.

Edwin M. Speas, Jr. Senior Deputy Attorney General

Barbara A. Shaw

Assistant Attorney General