North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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REPLY TO: Thomas J. Ziko Education Section Tele: (919) 716-6920 FAX: (919) 716-6764

May 15, 2001

Franklin E. Freeman, Jr.

Senior Assistant for Governmental Affairs

Office of the Governor

Administration Building, Suite 101

116 W. Jones Street

Raleigh, North Carolina 27603-8001

Re: Advisory Opinion; Appointments to the State Board of Education; State Employees; G.S. § 115C-10.

Dear Mr. Freeman:

You have recently inquired as to whether there are any laws which limit the Governor’s authority to appoint State employees to the State Board of Education. The composition of the State Board of Education is determined in accordance with G.S. § 115C

10. That statute states, in pertinent part:

The State Board of Education shall consist of the Lieutenant Governor,

the State Treasurer, and 11 members appointed by the Governor, subject

to confirmation by the General Assembly in joint session. Not more than

one public school employee paid from State or local funds may serve as

an appointive member of the State Board of Education. No spouse of any

public school employee paid from State or local funds and no employee

of the Department of Public Instruction or his spouse, may serve as an

appointive member of the State Board of Education. Of the appointive

members of the State Board of Education, one shall be appointed from

each of the eight educational districts and three shall be appointed as

members at large. Appointments shall be for terms of eight years and

shall be made in four classes. Appointments to fill vacancies shall be

made by the Governor for the unexpired terms and shall not be subject to

confirmation.

Franklin E. Freeman, Jr. May 15, 2001 Page 2

As you can see, G.S. § 115C-10 does limit the number of public school employees who can serve on the State Board of Education and actually prohibits spouses of public school employees and employees or spouses of employees of the Department of Public Instruction from serving on the Board at all. However, the statute neither prohibits State employees in general from serving on the State Board of Education nor limits the number of State employees who may serve on the Board. Furthermore, the fact that the statute specifically prohibits employees of the Department of Public Instruction from serving on the State Board of Education is a clear indication that the General Assembly did not intend to prohibit employees of other State agencies from serving on the Board. In this respect, G.S. § 115C-10 differs from G.S. § 116-7 which explicitly prohibits all State employees or their spouses from serving on the Board of Governors of the University of North Carolina.

In light of the plain language of the statute, it is our opinion that the Governor has the authority to appoint any number of State employees to the State Board of Education and the State employees so appointed and confirmed have the right to serve on the Board, provided they are not employees of the Department of Public Instruction.

We trust that this advisory opinion removes any questions you have regarding the Governor’s authority to appoint State employees to the State Board of Education. If you have other questions on this subject, please do not hesitate to contact us.

Very truly yours,

Grayson G. Kelley Senior Deputy Attorney General

Thomas J. Ziko Special Deputy Attorney General