§ 138-1. Annual salaries payable at periodic intervals.
All annual salaries shall be paid at least monthly and may be paid twice a month, every two weeks, or weekly. A unit of State government whose payroll is processed through the central payroll disbursing account of the Office of the State Controller must obtain the approval of the State Controller to pay annual salaries on any basis other than a monthly basis.
History. Code, s. 3731; 1893, c. 54; Rev., s. 2772; C.S., s. 3847; 1925, c. 230; 1929, c. 100; 1973, c. 1430; 1991, c. 542, s. 3.
§ 138-2. Payment of fees; when to be paid in advance.
All public officers shall receive the fees prescribed for them respectively, from the persons for whom, or at whose instance, the service shall be performed, except persons suing as paupers, and no officer shall be compelled to perform any service, unless his fee be paid or tendered, except in criminal actions. The said officers shall receive no extra allowance or other compensation whatever, unless the same shall be expressly authorized by statute. In case the service shall be ordered by any proper officer of the State, or of a county, for the benefit of the State or county, the fees need not be paid in advance; but if for the State, shall be paid by the State, as other claims against it are; if for a county, by the board of commissioners, out of the county funds. The fees in criminal cases are not demandable in advance.
History. Code, ss. 1173, 3758; Rev., s. 2804; C.S., s. 3849.
As to fees, salaries and emoluments of judicial officers, see N.C. Const., Art. IV, § 21.
As to liability of defendant in criminal actions for costs, see G.S. 6-47 , 6-48.
As to liability of a prosecuting witness for costs, see G.S. 6-49 et seq.
This Section and G.S. 1-305 to Be Construed Together. —
This section and G.S. 1-305 , providing that clerks shall issue execution on all judgments rendered in their respective courts within six weeks of the rendition thereof or be amerced in the sum of $100.00, must be construed together; hence, a clerk of the superior court will not incur the penalty prescribed in G.S. 1-305 unless the plaintiff pays or tenders him his fees for that service. Bank of Oxford v. Bobbitt, 111 N.C. 194 , 16 S.E. 169, 1892 N.C. LEXIS 149 (1892).
Officers of Court Must Demand Fees. —
Officers of the courts are not compelled to perform their duties unless the fees prescribed by law are paid or tendered them, but they must demand them before laches can be imputed to the litigants. West v. Reynolds, 94 N.C. 333 , 1886 N.C. LEXIS 59 (1886).
An officer is not “compelled to perform” the required service, but he may perform it and dispense with payment therefor, and if he does not so intend, he should say so at the time, and should not presume that the posting of the notice in his office of an inflexible rule that he had adopted and from which he would not under any circumstances depart would be known to everyone. West v. Reynolds, 94 N.C. 333 , 1886 N.C. LEXIS 59 (1886).
Right of Superior Court Clerk to Demand Fees in Advance. —
The clerk had the right, even under the common law, as he has under the statute, to demand his fees in advance. Clerk v. Wagoner, 26 N.C. 131 , 1843 N.C. LEXIS 106 (1843); Martin v. Chesteen, 75 N.C. 96 , 1876 N.C. LEXIS 213 (1876); Andrews v. Whisnant, 83 N.C. 446 , 1880 N.C. LEXIS 95 (1880); West v. Reynolds, 94 N.C. 333 , 1886 N.C. LEXIS 59 (1886); Long v. Walker, 105 N.C. 90 , 10 S.E. 858, 1890 N.C. LEXIS 204 (1890); Ballard v. Gay, 108 N.C. 544 , 13 S.E. 207, 1891 N.C. LEXIS 106 (1891).
In criminal actions, superior court clerk cannot require costs of transcript upon appeal to be paid in advance, even where defendant does not appeal in forma pauperis, and a certiorari will issue directing the clerk to send up the transcript which he holds for such prepayment. State v. Nash, 109 N.C. 822 , 13 S.E. 733, 1891 N.C. LEXIS 320 (1891).
Refusal of Supreme Court Clerk to Docket Transcript Where Fee Not Paid. —
The appellant’s undertaking does not cover the fee of the clerk of the Supreme Court in docketing the case, and the clerk is in the exercise of his right in refusing to docket the transcript where he has demanded the prescribed fee in advance and its payment has been refused. Dunn v. Clerk's Office, 176 N.C. 50 , 96 S.E. 738, 1918 N.C. LEXIS 181 (1918).
Right of Register to Refuse Registration of Mortgage until Fees Paid. —
The register has the right to refuse to treat a mortgage as delivered to him for registration until his fees in that respect have been paid. Cunninggim v. Peterson, 109 N.C. 33 , 13 S.E. 714, 1891 N.C. LEXIS 157 (1891).
Effect of Unconditional Pardon on Fees Due Officers of Court. —
Fees due officers of the court are rights vested by law, and are not discharged when a defendant receives an unconditional pardon, after conviction and sentence, from the Governor of the State. State v. Mooney, 74 N.C. 98 , 1876 N.C. LEXIS 26 (1876).
Where a pardon is pleaded after verdict and before judgment, it will discharge defendant from the costs. State v. Underwood, 64 N.C. 599 , 1870 N.C. LEXIS 193 (1870); State v. Mooney, 74 N.C. 98 , 1876 N.C. LEXIS 26 (1876).
Recovery of Improperly Collected Fees. —
Where a person is compelled to pay a public officer fees which he had no right to claim in order to induce him to do his duty, such fees may be recovered back. Robinson v. Ezzell, 72 N.C. 231 , 1875 N.C. LEXIS 194 (1875).
Power of Legislature to Reduce or Increase Salaries of Officers. —
The legislature may reduce or increase the salaries of such officers as are not protected by the Constitution during their term of office. Cotten v. Ellis, 52 N.C. 545 , 1860 N.C. LEXIS 107 (1860).
Taxation of Salary. —
It was formerly held that the State could not tax the salary of a state officer whose office was created by the Constitution. Purnell v. Page, 133 N.C. 125 , 45 S.E. 534, 1903 N.C. LEXIS 27 (1903).
§ 138-3. Compensation limited to that fixed by law.
No officer or employee of the State shall receive any compensation other than the salaries fixed by law, except as provided by way of fees or by special appropriation or from any departmental funds.
History. 1907, c. 830, s. 1; c. 994, s. 1; C.S., s. 3850; 1925, c. 128, s. 1.
§ 138-4. Governor to set salaries of administrative officers; exceptions; longevity pay.
The salaries of all State administrative officers not subject to the North Carolina Human Resources Act shall be set by the Governor, unless a law provides otherwise.
Whenever by law it is provided that a salary shall be fixed or set by the General Assembly in the Current Operations Appropriations Act, and that office or position is filled by appointment of the Governor, or the appointment is subject to the approval of the Governor, or is made by a commission a majority of whose members are appointed by the Governor, then the Governor may, increase or decrease the salary of a new appointee by a maximum of ten percent (10%) over or under the salary of that position as provided in the Current Operations Appropriations Act, such increased or decreased salary to remain in effect until changed by the General Assembly or until the end of the fiscal year, whichever occurs first. The Governor under this paragraph may not increase the salary of any nonelected official above the level set in the Current Operations Appropriations Act for any member of the Council of State. This section does not apply to any office filled by election by the people, and does not apply to any office in the legislative or judicial branches.
Officials whose salaries are covered by the provisions of this section shall be eligible for longevity pay on the same basis as is provided to employees of the State who are subject to the State Personnel Act.
History. 1947, c. 898; 1957, c. 541, s. 1; 1983, c. 717, s. 49; 1983 (Reg. Sess., 1984), c. 1034, ss. 164, 216; 1985 (Reg. Sess., 1986), c. 955, ss. 51-53; 1987, c. 738, s. 32(a); 1991, c. 542, s. 4; 2006-203, s. 79; 2013-382, s. 9.1(c).
Session Laws 2006-203, s. 126, provides, in part: “Prosecutions for offenses committed before the effective date of this act [July 1, 2007] are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”
Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:
“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’
“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’
“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”
Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”
Session Laws 2013-382, s. 9.2, provides: “No action or proceeding pending on the effective date of this section, brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies.”
Session Laws 2013-382, s. 9.3, provides: “Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office.”
Effect of Amendments.
Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “North Carolina Human Resources Act” for “State Personnel Act” in the first paragraph.
§ 138-5. Per diem and allowances of State boards, etc.
Except as provided in subsections (c) and (f) of this section, members of State boards, commissions, committees and councils which operate from funds deposited with the State Treasurer shall be compensated for their services at the following rates:
- Except as otherwise provided by this subdivision, compensation at the rate of fifteen dollars ($15.00) per diem for each day of service. Members of the North Carolina Vocational Rehabilitation Council, the Statewide Independent Living Council, and the Commission for the Blind who are unemployed or who shall forfeit wages from other employment to attend Council or Commission meetings or to perform related duties, may receive compensation not to exceed fifty dollars ($50.00) per diem for attending these meetings or performing related duties, as authorized by sections 105 and 705 of the Rehabilitation Act of 1973, P.L. 102-569, 42 U.S.C. § 701, et seq., as amended.
- Reimbursement of subsistence expenses at the rates allowed to State officers and employees by subdivision (3) of G.S. 138-6(a) .
- Reimbursement of travel expenses at the rates allowed to State officers and employees by subdivisions (1) and (2) of G.S. 138-6(a) .
- For convention registration fees, the actual amount expended, as shown by receipt.
- Except as provided in subsections (c) and (f) of this section, the schedules of per diem, subsistence, and travel allowances established in this section shall apply to members of all State boards, commissions, committees and councils which operate from funds deposited with the State Treasurer, excluding those boards, commissions, committees and councils the members of which are now serving without compensation and excluding occupational licensing boards as defined in G.S. 93B-1 ; and all special statutory provisions relating to per diem, subsistence, and travel allowances are hereby amended to conform to this section.
- Repealed by Session Laws 1979, 2nd Session, c. 1137, s. 29.
- The subsistence reimbursement for actual lodging expenses provided in this section must be documented by a receipt of lodging expenses from a commercial establishment.
- Out-of-state travel on official business by members of State boards, commissions, committees and councils which operate from funds deposited with the State Treasurer shall be reimbursed only upon authorization obtained in the manner prescribed by the Director of the Budget.
- Members of all State boards, commissions and councils whose salaries or any portion of whose salaries are paid from State funds shall receive no per diem compensation from State funds for their services; provided, however, that members of State boards, commissions and councils who are also members of the General Assembly shall receive, when the General Assembly is not in session, subsistence and travel allowances at the rate set forth in G.S. 120-3.1(a)(2) through (a)(4).
History. 1961, c. 833, s. 5; 1963, c. 1049, s. 1; 1965, c. 169; 1971, c. 1139; 1973, c. 1397; 1979, c. 838, s. 18; 1979, 2nd Sess., c. 1137, s. 29; 1983, c. 761, s. 24; c. 923, s. 217; 1983 (Reg. Sess., 1984), c. 1034, s. 185; 1985, c. 757, s. 201(b); 1985 (Reg. Sess., 1986), c. 1014, s. 39(a); 1987, c. 738, s. 58(a), (b); 1999-237, s. 11.49.
Limitations on Use of State Aircraft.
Session Laws 2001-424, s. 612, provides: “No airplane or helicopter operated or maintained with State funds may be used to transport any member of a board or commission to or from a meeting of the board or commission to which that member is appointed unless:
“(1) The member is an elected official or head of a principal State department who serves on the board or commission by virtue of his or her office;
“(2) The member is traveling with another member who is an elected official who serves on the board or commission by virtue of his or her office;
“(3) The member is traveling on an airplane or helicopter that is flying to a particular destination for official State business other than a meeting of a board or commission; or
“(4) The Director of the Office of State Budget and Management has approved the use of the State airplane or helicopter as an exceptional circumstance.
“The Director of the Office of State Budget and Management shall report to the Chairs of the Appropriations Committees of the Senate and House of Representatives by December 31 each year on the use of State aircraft in the prior year pursuant to subdivision (4) of this section.”
OPINIONS OF ATTORNEY GENERAL
Subsection (b) of this section amended G.S. 20-305.4(d) to increase the per diem paid to members of the Motor Vehicle Dealers’ Advisory Board from $7.00 per day of service to $15.00 per day of service. See opinion of Attorney General to Mr. Lester Teal, Controller, — N.C.A.G. — (Nov. 11, 1987).
The payment of members of state boards and commissions as mandated by subsection (a) does not apply to the members of the Board of Nursing. See opinion of Attorney General to Howard A. Kramer, Attorney at Law and General Counsel, North Carolina Board of Nursing, 2001 N.C. AG LEXIS 32 (7/27/01).
§ 138-6. Travel allowances of State officers and employees.
Travel on official business by the officers and employees of State departments, institutions and agencies which operate from funds deposited with the State Treasurer shall be reimbursed at the following rates:
- For transportation by privately owned automobile, the business standard mileage rate set by the Internal Revenue Service per mile of travel and the actual cost of tolls paid. Any other law which sets a mileage rate by referring to the rate set herein, instead establishes a rate of twenty-five cents (25¢) per mile. No reimbursement shall be made for the use of a personal car in commuting from an employee’s home to his duty station in connection with regularly scheduled work hours.
- For bus, railroad, Pullman, or other conveyance, actual fare.
For expenses incurred for subsistence, payment of eighty-one dollars ($81.00) per day when traveling in-state or ninety-three dollars ($93.00) per day when traveling out-of-state. Payment of sales tax, lodging tax, local tax, or service fees applied to the cost of lodging are to be paid in addition to the daily subsistence amount. The employee may exceed the part of the ceiling allocated for lodging without approval for overexpenditure provided that the total lodging and food reimbursement does not exceed the maximum provided by this subdivision. When travel involves less than a full day (24-hour period), a reasonable prorated amount shall be paid in accordance with regulations and criteria which shall be promulgated and published by the Director of the Budget. Reimbursement to State employees for lunches eaten while on official business may be made only in the following circumstances:
- When an overnight stay is required reimbursement is allowed while an employee is in travel status;
- When the cost of the lunch is included as part of a registration fee for a formal congress, conference, assembly, or convocation, by whatever name called. Such assembly must involve the active participation of persons other than the employees of a single State department, institution, or agency and must be necessary for conducting official State business; or
- When the State employee is a member of, or providing staff assistance to, a State board, commission, committee, or council which operates from funds deposited with the State Treasurer, and the lunch is preplanned as part of the meeting for the entire board, commission, committee, or council.
- For convention registration fees not to exceed the actual amount expended as shown by a valid receipt or invoice.
- Effective July 1, 2001, and effective July 1 of each odd-numbered year thereafter, the Director of the Budget shall revise the amounts of payment of subsistence per day when traveling in-State and out-of-state by an amount equal to the percentage increase in the Consumer Price Index for All Urban Consumers for the most recent 24-month period.
- Out-of-state travel on official business by the officers and employees of State departments, institutions, and agencies which operate from funds deposited with the State Treasurer shall be reimbursed only upon authorization obtained in the manner prescribed by the Director of the Budget.
- Reimbursement of actual costs of overnight lodging, whether in-state or out-of-state, must be documented by a receipt of actual lodging expenses from a commercial establishment. This documentation shall be attached to the reimbursement request. All reimbursement requests shall be filed for approval and payment within 30 days after the travel period for which the reimbursement is being requested.
History. 1961, c. 833, s. 6; 1963, c. 1049, s. 2; 1965, c. 1089; 1969, c. 1153; 1971, c. 881, ss. 1, 2; 1973, c. 595, s. 1; c. 1456; 1975, c. 892, s. 1; 1977, c. 928; 1977, 2nd Sess., c. 1136, s. 38.1; c. 1237, ss. 1, 2; 1979, c. 34, s. 1; c. 1002, s. 1; c. 1050, s. 1; 1979, 2nd Sess., c. 1137, s. 26; 1981, c. 859, ss. 57-59; 1983, c. 761, s. 22; c. 913, s. 27; c. 923, s. 217; 1985, c. 757, s. 201(a); 1985 (Reg. Sess., 1986), c. 1014, s. 39(b); 1987, c. 738, ss. 58(c), 58(d), 60; 1987 (Reg. Sess., 1988), c. 1086, s. 30(a); c. 1100, s. 38(a); 1993, c. 321, s. 24(a); 1993 (Reg. Sess., 1994), c. 769, s. 7.27A; 1998-212, s. 28.20(a); 1999-237, s. 28.20; 2000-140, s. 93.1(a); 2001-424, s. 12.2(b); 2007-322, s. 8.
For provision that notwithstanding this section, a magistrate may not be reimbursed by the State for travel expenses incurred on official business within the county in which the magistrate resides, see G.S. 7A-171.1(b) .
As to travel expenses incurred by Department of Agriculture employees while testing a manufacturer’s weighing or measuring device, see G.S. 81A-10 .
Reimbursement for Use of Personal Vehicles.
Session Laws 2013-360, s. 18B.20, provides: “Notwithstanding the provisions of G.S. 138-6(a)(1), the Judicial Department, during the 2013-2015 fiscal biennium, may elect to establish a per-mile reimbursement rate for transportation by privately owned vehicles at a rate less than the business standard mileage rate set by the Internal Revenue Service.”
For similar prior provisions, see Session Laws 2005-276, s. 14.21, Session Laws 2007-323, s. 14.10, Session Laws 2009-451, s. 15.7, and Session Laws 2011-145, s. 15.3.
Session Laws 2013-360, s. 1.1, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2013.’ ”
Session Laws 2013-360, s. 38.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium.”
Session Laws 2013-360, s. 38.5, is a severability clause.
Effect of Amendments.
Session Laws 2007-322, s. 8, effective July 30, 2007, deleted the former last sentence of subdivision (a)(1) which read: “Any designation of an employee’s home as his duty station by a department head shall require prior approval by the Office of State Budget and Management on an annual basis.”
OPINIONS OF ATTORNEY GENERAL
State officers and employees are entitled to be reimbursed at a rate of 15¢ (now 25¢) per mile traveled when privately owned automobiles are used in pursuance of official State business, regardless of the number of miles traveled. See opinion of Attorney General to Honorable Donald L. Smith, 45 N.C. Op. Att'y Gen. 168 (1975).
Proration of the daily subsistence allowance as promulgated pursuant to subdivision (a)(3) of this section by the Division of State Budget, for the reimbursement of state employees for expenses incurred for lodging and meals when travel involves less than a 24-hour period, is applicable to occupational licensing board members. See opinion of Attorney General to Mr. Henry L. Bridges, State Auditor, 49 N.C. Op. Att'y Gen. 74 (1979).
§ 138-7. Exceptions to §§ 138-5 and 138-6.
Expenditures in excess of the maximum amounts set forth in G.S. 138-5 and 138-6 for travel and subsistence may be reimbursed if the prior approval of the department head is obtained. The Director of the Budget shall establish and publish uniform standards and criteria under which actual expenses in excess of the travel and subsistence allowances and convention registration fees as prescribed in G.S. 138-5 and 138-6 may be authorized by department heads for extraordinary charges for hotel, meals, and registration, whenever such charges are the result of required official business.
History. 1961, c. 833, s. 6.1; 1965, c. 1089; 1969, c. 1153; 1971, c. 881, s. 3; 1973, c. 595, s. 2; 1979, c. 838, s. 17.
OPINIONS OF ATTORNEY GENERAL
Director of the budget has authority to authorize payment of actual expenses in excess of statutory maximum. See opinion of Attorney General to Mr. G. Andrew Jones, State Budget Office, Department of Administration, 40 N.C. Op. Att'y Gen. 742 (1970).
This section does not authorize the payment of actual travel expenses to members of occupational licensing boards over and above the amounts provided in the schedule in G.S. 138-6(a)(3) for officers and employees of state departments. See opinion of Attorney General to Mr. Henry L. Bridges, State Auditor, 49 N.C. Op. Att'y Gen. 40 (1979).
§ 138-8. Moving expenses of State employees.
Subject to the rules and regulations promulgated by the Office of State Budget and Management and approved by the Director of the Budget, any department, institution or agency of the State is hereby authorized to pay, from funds available to it, reasonable expenses for transporting the household goods of an employee and members of his household when the transfer of the employee is considered by the Director of the Budget to be in the best interests of the State.
History. 1977, c. 802, s. 15; 1979, 2nd Sess., c. 1137, s. 27; 2000-140, s. 93.1(a); 2001-424, s. 12.2(b).