North Carolina Department of Justice
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Reply to: ALEXANDER MCC. PETERS SERVICE TO STATE AGENCIES 919.716.6800 FAX: 919.716.6755 E-MAIL: apeters@mail.jus.state.nc.us

September 8, 1999

The Honorable Thomas W. Ross Director The Administrative Office of the Courts

P.O. Box 2448 Raleigh, North Carolina 27602

Re: Advisory Opinion: N.C. GEN. STAT. §§ 7A-10, -44, and -341 Longevity Pay for Former Director of the Administrative Office of the Courts upon Appointment to the Supreme Court

Dear Judge Ross:

You have asked for our opinion as to what longevity pay, if any, should be included in the salary to which Franklin E. Freeman, Jr., will be entitled upon taking office as an Associate Justice of the North Carolina Supreme Court. Specifically, you have asked whether or not his service as director and assistant director of the Administrative Office of the Courts and as assistant district attorney can be taken into account in calculating his service for longevity purposes. For reasons set out below, it is our opinion that his service as director and assistant director of the Administrative Office of the Courts can be taken into account in calculating his service for longevity purposes, but not his service as assistant district attorney.

N.C. GEN. STAT. § 7A-10(c) provides:

In lieu of merit and other increment raises paid to regular State employees, the Chief Justice and each of the Associate Justices shall receive as longevity pay an annual amount equal to four and eight-tenths percent (4.8%) of the annual salary set forth in the Current Operations Appropriations Act payable monthly after five years of service, nine and six-tenths percent (9.6%) after 10 years of service, fourteen and four-tenths percent (14.4%) after 15 years of service, and nineteen and two-tenths percent (19.2%) after 20 years of service. “Service” means service as a justice or judge of the General Court of Justice or as a member of the Utilities Commission. Service shall also mean service as a district attorney or as a clerk of superior court.

The Honorable Thomas W. Ross September 8, 1999 Page 2

N.C. GEN. STAT. § 7A-10(c). This statute specifically includes service as a district attorney within the meaning of “service.” The question, then, is whether “service,” for purposes of N.C. GEN.STAT. § 7A-10(c), can also include service as director or assistant of the Administrative Office of the Courts or as assistant district attorney, even though such service is not enumerated in the statute. Two other statutes bear on this question.

N.C. GEN. STAT. § 7A-341 provides that

[the Director of the Administrative Office of the Courts] shall receive the annual salary provided in the Current Operations Appropriations Act, payable monthly, and . . . longevity pay at the rates and for the service designated in G.S. 7A-44(b) for a judge of the superior court. Service as director shall be equivalent to service as a superior court judge for the purposes of entitlement to retirement pay or retirement for disability.

N.C.
GEN. STAT. § 7A-341. N.C. GEN. STAT. § 7A-44(b), in turn, states:
In lieu of merit and other increment raises paid to regular State employees, a judge of the superior court, regular or special, shall receive as longevity pay an annual amount equal to four and eight-tenths percent (4.8%) of the annual salary set forth in the Current Operations Appropriations Act payable monthly after five years of service, nine and six-tenths percent (9.6%) after 10 years of service, fourteen and four-tenths percent (14.4%) after 15 years of service, and nineteen and two-tenths percent (19.2%) after 20 years of service. “Service” means service as a justice or judge of the General Court of Justice or as a member of the Utilities Commission or as director or assistant director of the Administrative Office of the Courts. Service shall also mean service as a district attorney or as a clerk of superior court.
N.C.
GEN. STAT. § 7A-44(b) (emphasis added).
As a general rule of statutory construction, if a statute is susceptible to more than one construction, the consequences of each possible construction will be considered, and undesirable consequences will be avoided if possible. See, e.g., Little v. Stevens, 267 N.C. 328, 148 S.E.2d 201 (1966). Similarly, “[i]n construing statutes courts normally adopt an interpretation which will avoid absurd or bizarre consequences, the presumption being that the legislature acted in accordance with reason and common sense and did not intend untoward results.” Comr. of Insurance v. Automobile Rate Office, 294 N.C. 60, 68, 241 S.E.2d 324, 329 (1978).
N.C.
GEN. STAT. §§ 7A-44(b) and -341 make clear that service as the director or assistant director of the Administrative Office of the Courts is to be treated as service as a superior court judge

The Honorable Thomas W. Ross September 8, 1999 Page 3

for longevity purposes. Under these circumstances, we do not believe that the legislature intended the result that a former director or assistant director of the Administrative Office of the Courts would be allowed to have that service taken into consideration for longevity purposes should he be appointed or elected to the superior court bench, but not if he should be appointed or elected to the Supreme Court. Rather, we believe that service for purposes of N.C. GEN. STAT. § 7A-10(c), which includes “service as a justice or judge of the General Court of Justice,” should be interpreted to include service as director or assistant director of the Administrative Office of the Courts, inasmuch as N.C. GEN. STAT. § 7A-44(b) and -341 specifically make such service equivalent to service as a judge of the General Court of Justice for longevity purposes. We believe that this is particularly true in light of the fact that the North Carolina courts have held that statutes providing for benefit schemes for State employees should be interpreted so as to include rather than exclude employees. See, e.g., Stanley v. Retirement and Health Benefits Division, 55 N.C. 588, 591, 286 S.E.2d 643, 645, cert. denied 305 N.C. 587, 292 S.E.2d 571 (1982) (addressing “overall policies of the retirement, disability, and death benefit scheme” for State employees ).

As for whether service as an assistant district attorney can be included in calculating Mr. Freeman’s longevity, however, we must conclude that it cannot. N.C. GEN. STAT. §§ 7A-10(c) and 44(b) both provide that service includes service as a district attorney. No mention is made of service as an assistant district attorney, while N.C. GEN. STAT. § 7A-44(b) does specifically include service as assistant director of the Administrative Office of the Courts. We conclude that, had the General Assembly intended service as an assistant district attorney to be considered service within the meaning of N.C. GEN. STAT. § 7A-10(c), it could and would have said so specifically. Inasmuch as there is no indication of such legislative intent in any of the relevant statutes, we do not believe that

N.C. GEN. STAT. § 7A-10(c) can be interpreted to include service as an assistant district attorney.

For the foregoing reasons, it is our opinion that the calculation of Mr. Freeman’s longevity pay as a Supreme Court Justice should include his service as director and assistant director of the Administrative Office of the Courts as well as his service as district attorney, but not his service as assistant district attorney.

Very truly yours,

Ann Reed Senior Deputy Attorney General The Honorable Thomas W. Ross September 8, 1999 Page 4

Alexander McC. Peters Special Deputy Attorney General

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