AG 2001 03 26 - Laserfiche WebLink

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You know my love of history, so pardon me if I draw upon a historical example: the forms of the Roman Republic - such as the consuls, the Senate and the tribunes - continued in existence for hundreds of years after the ascendancy of Augustus under the Roman Empire, but they were almost totally without any real authority (which was held very close to the vest by the Emperor and his imperial officials). You've always got to ask the question: Who is the Emperor? Obviously, the "emperor' is the State, but the key point is that under the draft scheme an intermediary is being inserted between the State and the county program. And that intermediary is county government. The question is: Who is really in charge here? And the answer is: the administering county. Under the draft legislation, the current area board is transformed into a purely advisory board and the area authority becomes a subdivision of the administering county. The essential powers currently held by area authorities are stripped away and given to the administering county, such as the power to hire the program director, to make a budget, to cor/struct and operate facilities, to charge fees for services, to enter into contracts for the provision of services, and to establish an employee salary plan. The board of the new county program, like the consuls, senators and tribunes of the Korean Empire, is a vestigial remnant without any authority. Regardless of whether a program is single- or multi-county under the draft legislation, the real power to control the county program rests in the "administering county" as defined by Section 1.2 (a) of the draft legislation (amending G.S. 122C-3). The control of the administering county over a multi-county program is made clear by G.S. 122C-88(a) of the draft legislation. Certainly the administering county may use an interlocal agreement to delegate to a multi-county entity many of the powers conferred by the draft legislation and otherwise. However, the two most important powers, (a) control of the budget and (b) the power to hire and fire the program director must be retained by one of the participating counties. (The power, to own real property is also a power that cannot be delegated under the terms of G.S. 160A-460. Further, a question arises about the area authorities current power to obtain G.S. 160A-20 installment purchase financing and what would happen to currently existing 160A-20 financings under the draft law). I question whether an administering county will really want to make a broad delegation of power once it fully understands the extent of an administering county's multiple exposures to financial liability. This should be remembered as we look at the draft proposal: Under the proposed new structure~ the administering county is fully exposed to the county program's liabilities. This is true in the case of both single- and multi-county programs. Some of these liabilities include: Tort Liability The exposure to tort liability in mental health's high-risk environment is considerable. This is especially true since much of mental health service provision is accomplished through contract agencies. Under current G.S. 122C-142, the area program has the duty to monitor these contracts to assure compliance with state laws and regulations. Under the draft G.S. 122C-100.7, the responsibility to monitor to assure compliance is shifted to the county program which is, as I have pointed out above, a department of the administering county.