In North Carolina, can a county board of commissioners get around the two-consecutive-term limit on county social services board members by appointing each of two sitting members to serve the 'unexpired term' of the other?
Plain-English summary
Willie E. Sloan, Chairman of the Brunswick County Board of Social Services (BSS), asked the AG two related questions about a maneuver his county had used. In December 1978, the Brunswick County Board of Commissioners had "appointed" each of two sitting BSS members to serve the "unexpired term" of the other, swapping the so-called "county commissioner member" and "citizen member" designations between Member A (newly elected to the commissioners) and Member B (no longer a commissioner). The question was whether the swap (1) qualified as a vacancy-fill appointment under G.S. 108A-6 (which doesn't count as a "term" for the two-term limit) and (2) allowed Member B, who was no longer a commissioner, to be reappointed beyond six consecutive years.
The 1983 AG answered no to both questions.
No vacancy existed. G.S. 108A-3 sets out the appointment structure for the BSS: two members by the county commissioners, two by the state Social Services Commission, and a fifth jointly. G.S. 108A-3(c) requires only that members be county residents; subsection (a) "permits but does not require" the appointment of a commissioner to the BSS. The "county commissioner member" / "citizen member" labels were Brunswick County tradition, not statutory categories. So when Member A was elected to the commissioners in 1978, his BSS seat did not become vacant. He simply remained on the BSS, with his three-year term running through June 30, 1981. With no actual vacancy, there was nothing to fill, and the December 1978 swap had no statutory effect.
The swap could not invoke G.S. 108A-6. The statute says vacancy-fill appointments do not count as a term for two-term-limit purposes. But the statute applies only when a vacancy exists. The swap created no vacancy because each member's existing term was undisturbed.
The two-term limit applies. G.S. 108A-4 prohibits service beyond two consecutive terms unless the member (1) was a county commissioner during one of the first two consecutive terms AND (2) is a county commissioner at the time of reappointment. Member B met the first condition but not the second (he had lost his commissioner seat in 1978 and was not on the commission in 1983). So he could not be reappointed for a third consecutive term beginning July 1, 1983.
Anti-circumvention reasoning. The AG flagged the broader concern that, if the swap worked, two BSS members could perpetuate themselves on the board indefinitely by swapping each other's "unexpired terms" every cycle. Neither member would ever serve a "term" for two-term-limit purposes, and the statutory cap would become a dead letter. The AG declined to read the statute that way.
Currency note
This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Chapter 108A's structure for county social services boards has been updated multiple times, including changes to the membership composition, the term-limit framework, and the relationship between commissioners and DSS boards (some counties have moved to consolidated human services boards under G.S. 153A-77). The basic anti-circumvention principle (vacancy-fill rules apply only when vacancies exist) is durable, but the specific section numbers and term-limit details should be verified against current statutes.
Historical context: what the AG concluded
The 1983 opinion is a textbook application of purposive statutory construction to defeat a clever workaround.
It identified the misnomer. Brunswick County had been calling its appointees "county commissioner member" and "citizen member" as a matter of tradition. The statute did not require either label. The categories existed in county practice, not state law. So the December 1978 swap was redesignating county-tradition labels, not statutory roles.
It distinguished redesignation from appointment. A redesignation of a label does not vacate the underlying seat. A redesignation is internal county housekeeping; an appointment is a statutory act creating or filling a seat. The 1978 swap, read charitably, was a redesignation, not an appointment.
It would not let form override substance. Even taking the swap at face value as an appointment, the AG refused to apply G.S. 108A-6 because no vacancy existed. The statutory predicate ("appointments to fill vacancies") was simply absent.
It invoked the anti-circumvention rationale. The opinion's final paragraph notes that the swap reading would allow indefinite tenure through repeated swaps. The General Assembly enacted a two-term limit for a reason; a construction that lets a board of commissioners nullify the limit by stipulation is not what the legislature intended.
It applied the commissioner-exception narrowly. G.S. 108A-4's exception to the two-term limit is doubly conditioned: prior commissioner service AND current commissioner status. Both must hold at the time of the reappointment. Member B's loss of his commissioner seat broke the second condition.
Background and statutory framework
G.S. 108A-3(b) (formerly G.S. 108-9) prescribes the composition of a county board of social services: two members appointed by the county commissioners, two appointed by the State Social Services Commission, and a fifth member chosen by the other four. The composition gives both county and state input into BSS operation.
G.S. 108A-4 (formerly G.S. 108-10) sets terms at three years and limits service to two consecutive terms. The statute carves out an exception: the limit does not apply if the member was a county commissioner at any time during the first two consecutive terms AND is a county commissioner at the time of reappointment. The carve-out reflects a judgment that a county commissioner who is also serving on the BSS plays a coordinating role worth preserving even past the general term limit.
G.S. 108A-6 governs vacancy-fill appointments. A vacancy-fill appointment runs only to the end of the former member's term and does not count as a "term" for the two-term-limit calculation. This avoids penalizing a member who served a short partial term.
G.S. 108A-3(c) requires that members be "bona fide residents of the county from which they are appointed to serve." That is the only statutory eligibility criterion the AG cited.
Common questions
What is the point of the county-commissioner-member exception?
The exception preserves a coordinating role for a sitting county commissioner who is also on the DSS board, even past the two-term general limit. The judgment is that when a commissioner is serving on both boards concurrently, the value of continuity in that dual role outweighs the general turnover policy.
Could the county commissioners have actually appointed a new third member in 1978 instead of swapping?
Yes. If Member A's election to the county commissioners had been read as creating a vacancy on the BSS (which the opinion rejects), the county commissioners could have appointed a third person to fill it. The opinion's central point is that Member A's seat did not actually become vacant; his BSS term continued regardless of his new commissioner role.
How long can a county-commissioner-member serve total?
Indefinitely, as long as the commissioner status holds at each reappointment. The exception removes the two-term cap entirely for as long as both conditions are met. Once the member loses commissioner status, the next reappointment is barred if it would exceed two consecutive terms.
What if the member resigns mid-term and is later reappointed?
The opinion does not directly address voluntary resignations. A resignation creates a vacancy, which G.S. 108A-6 then governs. The vacancy-fill term does not count, but a subsequent regular reappointment would be subject to the general two-term limit (or the commissioner exception).
Can the appointing authority simply choose not to enforce the term limit?
No. The term limit is a statutory prohibition, not a discretionary policy. A reappointment that violates the limit is unlawful regardless of the appointing authority's preferences. The 1983 opinion's anti-circumvention reasoning is explicit on this.
Source
Citations
- N.C.G.S. § 108A-3
- N.C.G.S. § 108A-3(b)
- N.C.G.S. § 108A-3(c)
- N.C.G.S. § 108A-4
- N.C.G.S. § 108A-6
Original opinion text
Requested By: Mr. Willie E. Sloan, Chairman, Brunswick County Board of Social Services
Questions:
(1) When a board of county commissioners purports to appoint each of two currently serving members of a county board of social services to serve the "unexpired term" of the other, do such appointments fall within the purview of N.C.G.S. § 108A-6?
(2) May a member of a county board of social services, who was the subject of the purported appointment referred to above and who has served six consecutive years as a board member, be reappointed to serve an additional term on the board when the member is not also a county commissioner?
Conclusions:
(1) No.
(2) No.
The Brunswick County Board of Social Services (BSS) consists of five members. Pursuant to N.C.G.S. § 108A-3(b) [formerly § 108-9], two members of the BSS are appointed by the Brunswick County Board of County Commissioners, two members are appointed by the North Carolina Social Services Commission, and the four members so appointed select the fifth member. All appointments are for terms of three years. N.C.G.S. § 108A-4, formerly § 108-10.
It appears that the Brunswick County Board of County Commissioners traditionally has appointed one of its own members, known as the "county commissioner member," to fill one BSS position and has appointed a citizen who is not a county commissioner to fill the other position. The latter is known as the "citizen member."
Member A was appointed to the BSS in October, 1977 to fill the unexpired term of a former citizen member whose term expired June 30, 1978. Member A was reappointed as the citizen member for the term beginning July 1, 1978.
Member B, a county commissioner, was appointed as the county commissioner member for a term beginning July 1, 1977. During 1978, Member A was elected to the Board of County Commissioners, but Member B was not reelected. Accordingly, consistent with its tradition, the Board of County Commissioners, at its meeting of December 18, 1978, purported to appoint Member B to fill Member A's "unexpired term" as the citizen member and to appoint Member A to fill Member B's "unexpired term" as the county commissioner member of the BSS.
Subsequently, Member B was reappointed to the BSS for a term beginning July 1, 1980, which was the expiration of his initial term of appointment. Member A, likewise, was reappointed to the BSS at the expiration of his term for a new term beginning July 1, 1981.
The current term of Member B expires on June 30, 1983, at which time he will have served on the BSS, without interruption, for six consecutive years, which is the equivalent of two consecutive three year terms. Member B is not currently a county commissioner.
N.C.G.S. § 108A-4 states, in pertinent part:
"No member may serve for more than two consecutive terms. Notwithstanding the previous sentence, the limitation on consecutive terms does not apply if the member of the social services board was a member of the board of county commissioners at any time during the first two consecutive terms, and is a member of the board of county commissioners at the time of reappointment."
The prohibition of the statute and the exception thereto are clear. No person may serve more than two consecutive terms as a member of a county board of social services unless:
(1) He was a county commissioner at some time during his first two consecutive terms on the BSS; and
(2) He is a county commissioner at the time of his appointment to his third or other additional consecutive term as a member of the BSS.
Under certain circumstances, consideration must be given to N.C.G.S. § 108A-6 in determining what constitutes two consecutive terms. That statute reads:
"Appointments to fill vacancies shall be made in the manner set out in G.S. 108A-3. All such appointments shall be for the remainder of the former member's term of office and shall not constitute a term for the purposes of G.S. 108A-4."
The questions presented upon these facts, then, is whether N.C.G.S. § 108A-4 prohibits the reappointment of Member B to another term on the BSS beginning July 1, 1983 or whether his service on the BSS from December 18, 1978 through June 30, 1980 constituted serving the unexpired term of another member and, under N.C.G.S. 108A-6, did not constitute a term for the purposes of N.C.G.S. 108A-4.
We conclude that N.C.G.S. § 108A-6 does not apply under the facts presented and that the reappointment of Member B to a new term beginning July 1, 1983 would violate the provision of N.C.G.S. § 108A-4 prohibiting a member from serving more than two consecutive terms.
Member B was a county commissioner at the time of his initial appointment to the BBS for a term beginning July 1, 1977. His term of office as a county commissioner expired in 1978, however, and he was not reelected. He is not now a county commissioner nor does it appear that he will be at the expiration of his current term on the BSS. Under these circumstances, he does not fall within the exception to the prohibition set forth in N.C.G.S. § 108A-4.
The purported appointment of Member B by the Board of County Commissioners on December 18, 1978 to fill the "unexpired term" of Member A does not fall within the purview of N.C.G.S. § 108A-6. That statute concerns "[a]ppointments to fill vacancies" "for the remainder of the former member's term of office".
Member A was appointed on July 1, 1978 for a three year term expiring on June 30, 1981. The statutory precondition for service on the BSS is that the members "be bona fide residents of the county from which they are appointed to serve". N.C.G.S. § 108A-3(c). Subsection (a) of that statute permits, but does not require, the appointment of a county commissioner to the BSS. Thus, the election of Member A to the Board of County Commissioners in 1978 did not affect his service on the BSS in any way. His position as a member of the BBS did not become vacant, and he continued to serve until the expiration of his term on June 30, 1981, at which time he was reappointed.
Since Member A's position on the BBS was not vacant on December 18, 1978, the purported appointment of Member B to fill Member A's "unexpired term" was a nullity. Indeed, it appears most likely that the county commissioners intended to simply redesignate Member A and Member B as the "county commissioner member" and the "citizen member," respectively, rather than to appoint each to the other's "unexpired term." This construction is supported by the fact that had Member B been actually appointed to serve Member A's term, his appointment would have terminated at the end of Member A's term of office, i.e., June 30, 1981. Instead, Member B was reappointed for a term beginning July 1, 1980, which was the end of the initial term to which he had been appointed on July 1, 1977. The same, of course, is true of Member A. He was reappointed at the end of the term for which he had originally been appointed, not at the end of Member B's term.
Finally, it would subvert the clear intent of both N.C.G.S. §§ 108A-4 and 108A-6 to conclude that, by virtue of the purported appointment of each member to serve the other's term and by operation of N.C.G.S. § 108A-6, neither Member A nor Member B served a term of office under N.C.G.S. § 108A-4. Such a conclusion would permit a board of county commissioners to perpetrate their appointees in office by simply reappointing each to serve the other's "unexpired term" at appropriate times during their tenure on the social services board. In that event, each member would always complete the term of the other, and neither member would ever be subject to the prohibition of N.C.G.S. § 108A-4. We do not believe that the General Assembly intended such a result.
RUFUS L. EDMISTEN
Attorney General
Henry T. Rosser
Assistant Attorney General