North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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[464] May 9, 2000

Mr. William Holman, Secretary North Carolina Department of Environment and Natural Resources

P.O. Box 27687 Raleigh, N.C. 27611-7687

Re: Advisory Opinion: Lawfulness of Environmental Management Commission (EMC) Members' Offices and Actions of Commission; N.C.G.S. § 143B-283.

Dear Mr. Holman:

Thank you for your inquiry whether it is unlawful for members of the Environmental Management Commission (EMC) to be appointed to consecutive terms and whether an unlawfully sitting member invalidates the Commission's actions. Your questions arise from the recent reappointments of three EMC members by the Governor.

The Environmental Management Commission was constituted by the General Assembly in 1974. 1973 N.C. Sess. Laws, 1974 Session, c. 1262, s. 20. The General Assembly required that the Governor's thirteen appointees be drawn from specific professions and have specific areas of expertise, so that the EMC would be composed of members who collectively possess a broad range of environmental knowledge and perspectives. The appointees must consist of:

(1)
One who shall be a licensed physician with specialized training and experience in the health effects of environmental pollution;
(2)
One who shall, at the time of appointment, be actively connected with the Commission for Health Services or local board of health or have experience in health sciences;
(3)
One who shall, at the time of appointment, be actively connected with or have had experience in agriculture;
(4)
One who shall, at the time of appointment, be a registered engineer with specialized training and experience in water supply or water or air pollution control;
(5)
One who shall, at the time of appointment, be actively connected with or have had experience in the fish and wildlife conservation activities of the State;
(6)
One who shall, at the time of appointment, have special training and scientific expertise in hydrogeology or groundwater hydrology;
(7)
Three members interested in water and air pollution control, appointed from the public at large;
(8)
One who shall, at the time of appointment, be actively employed by, or recently retired from, an industrial manufacturing facility and knowledgeable in the field of industrial air and water pollution control;
(9)
One who shall, at the time of appointment, be actively connected with

or have had experience in pollution control problems of municipal or

county government;

(10)
One who shall, at the time of appointment, have special training and scientific expertise in air pollution control and the effects of air pollution; and
(11)
One who shall, at the time of appointment, have special training and scientific expertise in freshwater, estuarine, marine biological, or ecological sciences.

G.S. § 143B-283(a). In order to ensure that the EMC membership continues to represent these specific professions and areas of knowledge, the General Assembly provided, “At the expiration of each member's term, the Governor shall replace the member with a new member of like qualifications.” G.S. § 143B-283(b).

I. G.S. § 143B-283(b) Does Not Prohibit Reappointment of Members to the Environmental Management Commission.

On March 9, 2000, EMC members Daniel Besse, Will Fowler, and David Moreau were sworn in for their second consecutive terms of office on the Commission. You have asked whether G.S. § 143B-283(b) prohibits the reappointment of these EMC members for a second term of office. We believe it does not.

Section 143B-283(b) is ambiguous as to reappointments because it lacks express language prohibiting reappointments, which is present in several other statutes to guide the Governor. In several instances, the General Assembly has chosen to limit terms of service for members of environmental commissions. In these cases, it has done so through express language. For example, G.S. § 143B-299, which governs the selection of members of the Sedimentation Control Commission, provides, “Except for the person filling position number five, no member of the Commission shall serve more than two complete consecutive three-year terms.” G.S. § 143B-299(b). Similarly, G.S. § 143B-301.12, which governs the selection of members of the Well Contractors Certification Commission, provides, “No member shall serve more than two consecutive terms.” G.S. § 143B-301.12(c). See also G.S. § 143B-313.2(b) (Members of North Carolina Parks and Recreation Authority “shall serve no more than two full two-year terms.”) It is apparent that when the General Assembly intends to restrict terms of environmental commission service, it does so through clear and unambiguous language. Accordingly, when the General Assembly has not expressly enacted such a restriction, one should not be read into the statute.

Deference is due to an executive interpretation of an ambiguous statute. “The construction of statutes adopted by those who execute and administer them is evidence of what they mean.” State v. N.C. Automobile Rate Administrative Office, 294 N.C. 60, 67, 241 S.E.2d 324, 329 (1978). The interpretations of those who execute the laws are “strongly persuasive” and “entitled to 'due consideration.'” Polaroid Corp. v. Offerman, 349 N.C. 290, 302, 507 S.E.2d 284, 293 (1998), cert. denied, 526 U.S. 1098, 143 L.Ed.2d 671 (1999) (citations omitted). Historically, the executive branch has interpreted § 143B-283 to allow EMC members to be reappointed to their seats for a second term. In fact, our research indicates that since 1986, seven other EMC members have been reappointed. These reappointments have been made by governors of both parties. Governor Martin reappointed four members, including three Hunt appointees, and Governor Hunt reappointed three members, including two Martin appointees and one legislative appointee. This traditional practice of reappointment, which has been followed by administrations of both parties, is persuasive evidence that

G.S. § 143B-283 allows reappointments of EMC members.

II. The North Carolina Constitution Allows Members to Hold Over in Office.

In the case of Commissioners Besse, Fowler, and Moreau, Article VI, Section 10 of the North Carolina Constitution also applies. It provides:

In the absence of any contrary provision, all officers in this State, whether

appointed or elected, shall hold their positions until other appointments

are made or, if the offices are elective, until their successors are chosen

and qualified.

N.C. Const., Article VI, Section 10. This constitutional mandate is reflected in G.S. § 128-7, which states that “[a]ll officers shall continue in their respective offices until their successors are elected or appointed, and duly qualified.” Under these “hold-over” provisions, commission members remain in office until other appointments are made. Regardless of their ability to be reappointed, since Commissioners Besse, Fowler, and Moreau were properly qualified and duly appointed to the Commission at the time of their initial appointments, under Article VI, Section 10 and G.S. § 128-7 they may continue to hold their positions “until other appointments are made.” Because Governor Hunt has not appointed others to their positions, they continue to be lawful “hold-over” commission members.

III. Actions Taken by a Commission with Unlawful Members are Nonetheless Valid.

Even if it were found that a commission member holds office unlawfully, actions taken by the Commission during the member's time of service are valid. A person who by proper authority is admitted and sworn into a public office is a de facto officer, even if he or she is later determined to have been in office unlawfully. Armstrong v. McInnis, 264 N.C. 616, 142 S.E.2d 670 (1965). A de facto officer is “one whose title is not good in law, but who is in fact in the unobstructed possession of an office and discharging its duties in full view of the public, in such manner and under such circumstances as not to present the appearance of being an intruder or usurper.” Waite v. Santa Cruz, 184 U.S. 302, 323, 46 L.Ed. 552, 566 (1902), adopted by Smith v. Carolina Beach, 206 N.C. 834, 175 S.E. 313 (1934).

Because they have been appointed by the Governor pursuant to G.S. § 143B283 and sworn into office, the three members are, at a minimum, de facto officers.

G.S. § 128-6 provides that a de facto officer has the authority to discharge the duties of the office until he or she is removed in accordance with statutory procedure:

Any person who shall, by the proper authority, be admitted and sworn into any office, shall be held, deemed, and taken, by force of such admission, to be rightfully in such office until, by judicial sentence, upon a proper proceeding, he shall be ousted therefrom, or his admission thereto be, in due course of law, declared void.

See People ex rel. Duncan v. Beach, 294 N.C. 713, 242 S.E.2d 796 (1978). In particular, until a de facto officer is ousted by proper procedure, his or her acts are valid as to third persons. State v. Porter, 272 N.C. 463, 158 S.E.2d 626 (1968). Therefore, actions of a Commission partially composed of de facto officers would also be valid actions.

We hope we have answered your questions. Please contact us should further inquiries arise.

Signed by:

Daniel C. Oakley Senior Deputy Attorney General

Francis W. Crawley Special Deputy Attorney General

Amy R. Gillespie Assistant Attorney General

cc: Dr. David Moreau Members of EMC