North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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December 2, 2004

L. Wardlaw Lamar
Valentine, Adams, and Lamar, L.L.P.
203 South Barnes Street
Nashville, NC 27856

Re: Advisory Opinion: Vacancy on Board of Education; Election of Unqualified Candidate; N.C.G.S. § 115C-37;1991 N.C. Sess. Laws c. 391.

Dear Wardlaw:

On behalf of the Nash-Rocky Mount Board of Education (Board of Education), you have requested an advisory opinion regarding a candidate’s qualifications to hold a seat on the Board of Education and the law governing the filling of any vacancy created by the disqualification of a candidate elected to a seat on the Board of Education. Your request arises because a candidate, who filed for a seat in the November 2004 election and is the only candidate in the district to file for the seat, is a current employee of the Board of Education. On November 2, 2004, the candidate was elected to the seat. Your questions and our opinions follow.

1. Are vacancies on the Board of Education to be filled in accordance with 1991 N.C. Sess. Laws c. 391 or N.C.G.S. § 115C-37? N.C.G.S. § 115C-37 generally governs the election of members to local boards of education. However, in 1991, the General Assembly enacted “AN ACT TO PROVIDE FOR THE MERGER AND CONSOLIDATION OF THE SCHOOL ADMINISTRATIVE UNITS IN NASH COUNTY AND THE CITY OF ROCKY MOUNT” (1991 N.C. Sess. Laws c. 391)(“the Nash-Rocky Mount Local Act” or “the Act”) which merged the Nash County and the City of Rocky Mount Boards of Education and created the Nash-Rocky Mount Board of Education. Sections 11 and 12 of the Nash-Rocky Mount Local Act specifically address the process for electing members to the Board of Education.  

While a local act is generally considered an exception to a General Statute, laws on the same subject must be construed to avoid conflict. Fletcher v. Collins, 218 N.C. 1, 6-7, 9 S.E.2d 606, 610 (1940). "Where two statutes on the same subject, or on related subjects, are apparently in conflict with each other they are to be reconciled, by construction, so far as may be, on any fair hypothesis, and validity and effect given to both, if this can be done without destroying the evident intent and meaning of the later act." State Board of Agriculture v. White Oak-Buckle Drainage Dist., 177 N.C. 222, 226, 98 S.E. 597, 599 (1919)(quoting Black's Interpretation of Laws (1896), p. 60, sec. 32). However, where the statutes conflict, the later enacted local act is considered an exception to the general statute and is given precedence. Carr v. Little, 188 N.C. 100, 111, 123 S.E. 625, 630 (1924).

N.C.G.S. § 115C-37(d) provides:

Each county board of education shall hold a meeting in December following the election. At that meeting, newly elected members of the board of education shall qualify by taking the oath of office prescribed in Article VI, Sec. 7 of the Constitution.

The Nash-Rocky Mount Local Act states in pertinent part: “Persons elected to the Nash-Rocky Mount Board of Education shall take office on the second Monday in December following their election. . . .” 1991 N.C. Sess. Laws c. 391, sec. 11(a). There is no conflict between N.C.G.S. § 115C–37(d) and the Nash-Rocky Mount Local Act; the Nash-Rocky Mount Local Act is simply more specific than the General Statute. Therefore, new members of the Board of Education must qualify for office by taking the oath at a meeting held on the second Monday in December following their election.

2. If he remains an employee of the Board of Education, can the candidate take the oath of office as required by N.C.G.S. § 115C-37(d)? No. 

N.C.G.S.§ 115-37(g) requires any person elected to a local Board of Education who is also employed by the Board of Education to resign such employment before taking office. The Nash-Rocky Mount Local Act does not reiterate that qualification but does require a member to be a “qualified voter and resident of the district from which he or she seeks to be elected.” 1991 N.C. Sess. Laws c. 391, sec. 11(b). Again, there is no conflict between the General Statute and the Nash-Rocky Mount Local Act; the Act simply imposes an additional qualification on a candidate’s eligibility to serve on the Board of Education. Moreover, the General Assembly expressly provided that members of the Board of Education were to be elected as provided in Chapter 115C of the General Statutes. 1991 N.C. Sess. Laws c. 391, sec. 11(a). There being no conflict between the Nash-Rocky Mount Local Act and the General Statute, both must be given effect. Consequently, N.C.G.S. § 115C-37(g) requires the candidate to resign his employment with the Board of Education before taking his seat on the Board of Education.

3. If the candidate cannot “take office on the second Monday in December following [his] election” as required in § 11(a) of the Nash-Rocky Mount Local Act, does his failure to take the oath create a vacancy on the Board of Education? Yes. 

Because he is an employee of the Board of Education, N.C.G.S. § 115C-37(g) requires the candidate to resign his employment before taking office. The oath of office is required by N.C.G.S. § 115C-37(d) in order to qualify for the office. Although the candidate has stated he will retire in February 2005, his planned retirement date is three months after the date the Nash-Rocky Mount Local Act requires him to take office, i.e., “the second Monday in December following [his] election. . . .” 1991 N.C. Sess. Laws c. 391, sec. 11(a). Therefore, if he does not change his plans, the candidate will be unable to take the oath of office and assume office at the December 2004 meeting of the Board of Education.

A public office is vacant when it is without an incumbent who has the legal right to exercise its functions. State ex rel. Atkins v. Fortner, 236 N.C. 264, 269, 72 S.E.2d 594, 597 (1952). A vacancy in the office “occurs at the time of the happening of the event which is the cause of the vacancy.” Id. In this case, if the candidate does not resign from employment, the cause of the vacancy will be the candidate’s ineligibility to take the required oath the “second Monday in December following [his] election” (1991 N.C. Sess. Laws 391, §11(a)) due to his continued employment with the Nash-Rocky Mount Board of Education. N.C.G.S. § 115C-37(g). Therefore, it is our opinion that,absent a change in the candidate’s plans, a vacancy on the Board of Education will occur on the second Monday in December following the election.

4. Can the candidate qualify to take his office on the Board of Education by resigning from his employment with the Board of Education at some time after the date fixed for taking the oath? Yes. 

After he resigns his employment, the candidate will qualify for appointment to a vacancy on the Board but he will not qualify to hold that office by virtue of his election.

Because the candidate is “disqualified to act, there must be a resort to the process of filling the office, in case of a vacancy.” People ex rel. Duncan v. Beach, 294 N.C.713, 718, 242 S.E.2d 796, 799 (1978), quoting Spruill v. Bateman, 162 N.C. 588, 589, 589, 77 S.E. 768, 768 (1913). The Nash-Rocky Mount Local Act provides that vacancies on the Board of Education shall be filled as follows:

All vacancies occurring in the Nash-Rocky Mount Board of Education by reason of death, resignation, removal from residence from the district from which elected or for any cause whatsoever, shall be filled by the remaining members of said Board by appointing a member from the voting district created by the vacancy for the unexpired term. 1991 N.C. Sess. Laws 391, §12 (emphasis added).

In contrast to this provision of the Nash-Rocky Mount Local Act, N.C.G.S.§115C-37(f) states that vacancies are to be

filled by appointment by the remaining members of the board, of a person toserve until the next election of members of such board, at which time the remaining unexpired term of office in which the vacancy occurs shall be filled by election.

Because the Nash-Rocky Mount Local Act conflicts with the general statute,the Nash-Rocky Mount Local Act controls. Fletcher v. Collins, 218 N.C. 1, 6-7, 9 S.E.2d 606, 610 (1940). Therefore, vacancies on the Board of Education are to be filled for the remainder of the unexpired term. Although the Nash-Rocky Mount Local Act does not provide a time limit for filling such vacancy, the law does obligate the remaining members of the Board of Education to fill the vacancy. See Advisory Opinion, G.S. §115C-67; G.S. § 115C-68.3; Obligation to Fill a Vacancy on the Cabarrus County Board of Education; Op. Atty. Gen. N.C. (July 16, 1993).

If the candidate resigns or retires from employment with the Board of Education after the organizational meeting on the second Monday in December, he will become qualified to take the oath of office. Although qualified to take the oath, the candidate will not become eligible to assume the office as an elected member because he will not possess the “legal right to exercise the functions of the ... office in controversy” until after the event which triggers a vacancy in the office has already occurred. State ex rel. Atkins v. Fortner, 236 N.C. 264, 270, 72 S.E.2d 594, 598 (1952). Once he has resigned his employment with the Board of Education, however,he may be appointed by the remaining members of the Board of Education to fill the unexpired term, pursuant to § 12 of the Nash-Rocky Mount Local Act.

We note that, while the candidate’s failure to qualify to hold a position on the Board of Education creates a vacancy on the Board, the incumbent Board member continues to hold office by virtue of Article VI, Section 10 of the North Carolina Constitution which provides that “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.”

In summary, it is our opinion that the candidate cannot take the oath of office required to assume his elected position on the Board of Education until such time as the candidate has resigned from employment with the Board of Education. If the candidate fails to resign by the time of the organizational meeting on the second Monday in December following the election, as required by the Nash-Rocky Mount Local Act, his failure to qualify will create a vacancy on the Board of Education. The remaining members of the Board of Education must fill the vacancy by appointing a member from the voting district created by the vacancy for the unexpired term. Until such time that remaining members appoint a replacement, the incumbent shall remain in office. If the candidate resigns his employment with the Board and qualifies to take the oath of office before the remaining members of the Board of Education appoint anew member, the candidate will be eligible to be appointed by the Board of Education for the remainder of the unexpired term.

Very truly yours,

Grayson G. Kelley
Chief Deputy Attorney General

Thomas J. Ziko
Special Deputy Attorney General