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

April 13, 2004

B. Joseph Causey, Jr. Suite 20, South Park Plaza

P.O.
Drawer 168 Shallotte, North Carolina 28459
Huey Marshall
P.O.
Box 249 Bolivia, North Carolina 28422

Re: Advisory Opinion; Term of Appointments to Fill Vacancies on Brunswick County Board of Education; N.C. Gen. Stat. §§ 115C-37 and 37.1 (2003).

Dear Gentlemen:

As counsel to the Brunswick County Commissioners and the Brunswick County Board of Education, you have recently written to request an opinion regarding the term of office of persons appointed to fill vacancies on the Brunswick County Board of Education.

Pursuant to a local act effective July 3, 1981, the Brunswick County Board of Education is elected on a partisan basis. 1981 N.C. Sess. Laws c. 802, sec. 9. However, no local act affecting the Brunswick County Board of Education describes how vacancies are to be filled or whether the persons appointed to fill vacancies on the board are to serve for the remainder of the term of the person who created the vacancy or only until the next election of board members.

Absent controlling local legislation, the filling of vacancies on local boards of education is governed by G.S. § 115C-37 (2003) or G.S. § 115C-37.1 (2003). The answer to your inquiry requires a review and understanding of the legislative histories of those statutes.

Prior to 1967, county boards of education were appointed by the General Assembly. G.S. § 115-19 (1966). Vacancies in those appointed boards of education were filled in two stages. G.S. § 115-24 (1966). The first stage of the vacancy ran from the date of the vacancy to the next regular session of the General Assembly. The B. Joseph Causey, Jr. Huey Marshall April 21, 2004 Page 2

second stage ran for the remainder of the unexpired term. See, State ex rel. Atkins v. Fortner, 236 N.C. 264, 268, 72 S.E.2d 594, 597 (1952). The executive committee of the political party of the member causing the vacancy had authority to fill the first stage of the vacancy and the General Assembly had authority to fill the second stage. If the executive committee did not act in thirty days, the power to fill the first stage vacancy passed to the State Board of Education. G.S. § 115-24 (1966).

In 1967, the General Assembly passed “AN ACT TO CREATE A UNIFORM SYSTEM FOR THE NOMINATION AND ELECTION OF MEMBERS OF COUNTY BOARDS OF EDUCATION IN ALL THE COUNTIES OF THE STATE.” (1967 N.C. Sess. Laws c. 972) That Act rewrote then G.S. §115-19 to require:

The members of the County Board of Education in each county that does not on the effective date of this Act elect its members by vote of the people, shall be elected in one of the following ways:

(1)
On a partisan basis in the same manner as members of the General Assembly; or
(2)
On a non-partisan basis at the time of the primary election for the nomination of candidates for the General Assembly.

1967 N.C. Session Laws c. 972, sec. 2.

That same Act rewrote then G.S. § 115-24 to provide:

All vacancies in the membership of the Boards of Education whose members are elected pursuant to the provisions of G.S. 115-19 by death, resignation or other causes shall be filled by appointment by the remaining members of the Board, of a person to serve until the next election of members of such Board, at which time the remaining unexpired term of the office in which the vacancy occurs shall be filled by election.

1967 N.C. Sess. Laws c. 972, sec. 6.

Therefore, as of July 1, 1969, the effective date of that Act, the General Assembly had expressly provided that all vacancies on boards of education, whether those boards were elected in partisan or non-partisan elections, were to be filled by appointment by the remaining members of the board. Persons so appointed were to serve until the next election of members of such board, at which time the remaining unexpired term of the office in which the vacancy occurred was to be filled by election.

B. Joseph Causey, Jr. Huey Marshall April 21, 2004 Page 3

In 1969, the General Assembly passed “AN ACT ELIMINATING CERTAIN INCONSISTENCIES BETWEEN THE OMNIBUS SCHOOL BOARD APPOINTMENT ACT AND THE GENERAL STATUTES, AND CLARIFYING THE PROCEDURE FOR ELECTION OF COUNTY BOARDS OF EDUCATION IN 1970." Section 2 of that Act rewrote G.S.§ 115-19 to read, in pertinent part:

G.S. 115-19. How elected. The County Boards of Education shall be elected on a nonpartisan basis at the time of the primary election in 1970 and biennially thereafter. The names of the candidates shall be printed on the ballots without reference to any party affiliation and any qualified voter residing in the county shall be entitled to vote such ballots. Except as otherwise provided herein, the election shall be conducted according to the provisions of Chapter 163 of the General Statutes then governing primary elections.

1969 N.C. Sess. Laws c. 1301, sec. 2.

Section 4 of the Act provided “All laws and clauses of laws in conflict with this Act are repealed, except local acts providing for the election of county boards of education by the people.” 1969 N.C. Sess. Laws c. 1301, sec. 4. Therefore, as of July 2, 1969, the effective date of the Act, the general statutes required all county boards of education to be elected in nonpartisan elections; only counties with local acts which provided for election by the people could conduct partisan school board elections. The process for filling vacancies on school boards and the term of persons appointed to fill such vacancies continued to be controlled by G.S. § 115-24. That statute continued to refer to G.S. § 115-19, which after the 1969 amendment, only permitted nonpartisan elections.

In 1981, G.S. § 115-19 was recodified as G.S. § 115C-37(a) and G.S. § 11524 was recodified as G.S. § 115C-37(f). 1981 N.C. Sess. Laws c. 423, sec. 1. Consistent with the recodification, the reference in G.S. § 115C-37(f) (formerly G.S. § 115-24) to G.S. § 115-19 was changed to G.S. § 115C-37(a). At the time the recodification was ratified, May 20, 1981, G.S. § 115C-37(f) remained the sole, general method for filling vacancies on boards of education.

However, on the date the recodification became effective, July 1, 1981, the General Assembly ratified 1981 N.C. Sess. Laws c. 763, “AN ACT TO PROVIDE THAT WHEN VACANCIES OCCUR IN THE OFFICES OF COUNTY COMMISSIONER, SHERIFF, REGISTER OF DEEDS, CORONER, OR PARTISAN SCHOOL BOARD RACES, THE APPOINTING BOARD OR PERSON MUST APPOINT THE PERSON RECOMMENDED BY THE POLITICAL PARTY EXECUTIVE COMMITTEE OF THE VACATING OFFICER, AND BY REQUIRING A DISTRICT BAR TO NOMINATE CANDIDATES FOR DISTRICT COURT JUDGES OF THE SAME PARTY OF THE B. Joseph Causey, Jr. Huey Marshall April 21, 2004 Page 4

VACATING JUDGE.” Section 4 of that Act amended 1981 N.C. Sess. Laws c. 423 to add a new section, G.S. § 115C-37.1.

G.S. § 115C-37.1(a) provides a uniform procedure for filling vacancies on certain listed county boards of education which are elected by public or local act on a partisan basis. This Act became effective on July 1, 1981, the same date as 1981 N.C. Sess. Laws c. 423.

The passage of this Act meant that, as of July 1, 1981, the State for the first time had a general provision for filling vacancies in the membership of county boards of election which were elected on a partisan basis and were specified in the statute. G.S. § 115C-37.1 is now specifically applicable to the Brunswick County Board of Education,

G.S. § 115C-37.1(d), but neither G.S. § 115C-37.1 nor any local acts affecting the Brunswick County Board of Education specify whether the persons appointed to fill vacancies on the board are to serve for the remainder of the term of the person who created the vacancy or only until the next election of board members.

Although G.S. § 115C-37(f), by reference to G.S. § 115C-37(a), appears to be restricted to county boards of education elected on a non-partisan basis, the legislative history demonstrates that this limitation is an anomalous and unintentional consequence of unrelated amendments and recodifications of G.S. § 115C-37(a).

Based on the legislative history of G.S. § 115C-37(a) and 37(f) recited above, it is our opinion that, absent controlling local acts, it has always been the intent of the General Assembly that the persons appointed to vacancies on local boards of education are to serve until the next election of members of such board, at which time the remaining unexpired term of the office in which the vacancy occurred is to be filled by election. This opinion is consistent with former G.S. § 115-24 (1966), G.S. § 115-24 (1967) and the present G.S. § 115C-37(f), all of which indicate a legislative intent to limit the term of persons appointed to fill vacancies on boards of education to the time between the occurrence of the vacancy and the next election of the body empowered to make the interim appointment. Furthermore, our opinion is consistent with the Supreme Court’s observation regarding the fundamental principles of representative government. See Rodwell v. Rowland, 137 N.C. 617, 622, 50 S.E. 319, 321 (1905) (“the leading idea of the Constitution of 1868, as amended by the Convention in 1875, [is] that appointees to elective offices should not hold their places any longer than is required for the people again to exercise their right of choosing such officers at the polls, and that they should be permitted to do so at the earliest opportunity that can be afforded for that purpose.”)

Therefore, it is our opinion that persons appointed to vacancies on the Brunswick County Board of Education are to serve until the next election of members of B. Joseph Causey, Jr. Huey Marshall April 21, 2004 Page 5

such board, at which time the remaining unexpired term of the office in which the vacancy occurred must be filled by election.

Very truly yours,

Grayson G. Kelley Chief Deputy Attorney General

Thomas J. Ziko Special Deputy Attorney General

cc: Alison Schafer Robert Joyce