North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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REPLY TO: Grayson G. Kelley

(919) 716-6900 FAX: (919) 716-6763

October 21, 2003

Jeffrey P. Gray Holt York McDarris & High L.L.P. Post Office Box 2060 Raleigh, North Carolina 27602

Re: Advisory Opinion; Centennial Authority; Vacancies; N.C.G.S. § 160A-480.3 (2001)

Dear Mr. Gray:

The Centennial Authority (“Authority”) was established by the General Assembly to operate a regional sports and entertainment facility. Act of July 19, 1995, ch. 458, sec. 4, 1995 N.C. Sess. Laws 1277, 1288. Your law firm is counsel for the Authority. On behalf of the Authority by letter dated October 8, 2003, you requested our opinion regarding the power to fill a vacancy on the Authority’s governing board.

The method of appointment and terms of the members of the Authority’s governing board are prescribed by N.C.G.S. § 160A-480.3(b). Four (4) of the members of that board are appointed by the General Assembly upon recommendation of the Speaker of the House of Representatives for four-year terms and four (4) other members are appointed by the General Assembly upon recommendation of the President Pro Tempore of the Senate for four-year terms. The term of office of one of the legislative appointees expired on July 1, 2003. Because the legislature has not yet made a new appointment to fill this expired term of office, the incumbent member of the board “held-over” until recently when he resigned. A question has been raised about whether the power to fill the vacancy created by this resignation rests with the legislature or the remaining members of the Authority. As counsel for the Authority, you are of the opinion that the power to fill this vacancy until the legislature makes a new appointment rests with the remaining members of the Authority’s board. We agree.

The General Assembly has chosen to divide the power to appoint and reappoint the members of the governing board of the Authority from the power to fill vacancies. Accordingly, N.C.G.S. § 160A-480.3(b) provides that the legislature will appoint the initial members of the governing board and that their “[s]uccessors shall be appointed in the same manner for four-year terms.” Conversely, that statute provides that “[v]acancies occurring in the membership of the authority shall be filled by the remaining members.”

Jeffrey P. Gray October 21, 2003 Page 2

In practice this division of power means that upon the expiration of the term of office of the member in question on July 1, 2003 the General Assembly had the power to reappoint the incumbent for a new four-year term or to appoint another person to a new four-year term. When, as here, the power to appoint is not immediately exercised, the incumbent "holds over," i.e., continues in office "until other appointments are made."

N.C. Const., art. VI, § 10. An appointee who holds over beyond the term of his office is not filling a vacant position, rather, he is filling an extended term of his office. See, generally, 63C Am. Jur. 2d, Public Officers and Employees, §§ 121 and 149 (1997). On the other hand, an incumbent who is holding over cannot be compelled to continue in office until his successor is appointed. Thus, if an appointee who is holding over beyond the expiration of his term of office resigns a vacancy is created, which vacancy is filled as provided in N.C.G.S. § 160A-480.3(b) “by the remaining members” of the Authority’s governing board.

Had the holdover incumbent not resigned, he would have served until his successor was appointed by the General Assembly. In our opinion, the person appointed to fill the vacancy created by the resignation of the member holding over stands in the place of that member. Thus, the person appointed to fill the vacancy will only serve until the legislature fills the four-year term which began on July 1, 2003. The person appointed by the legislature to this term will then serve until July 1, 2007. See 63C Am. Jur. 2d., Public Officers and Employees, § 151 (1997) (“a holdover does not change the length of the term but merely shortens the term of the succeeding office”).

We trust that our views will be of assistance to you and Authority.

Very truly yours,

Grayson G. Kelley Senior Deputy Attorney General

Thomas J. Ziko Special Deputy Attorney General

GGK/TJZ/sf