When a Council of State member serves ex officio on a North Carolina board or commission, can the official send a deputy or assistant to attend meetings, count toward quorum, and cast votes on the official's behalf?

Plain-English summary

Commissioner of Insurance Jim Long asked a question many busy state officials must have asked silently for years: when the General Assembly puts a member of the Council of State on some board or commission "ex officio," does the official have to personally attend every meeting, or can a deputy go in the official's place and even cast votes?

Associate Attorney General Donald R. Teeter walked through the constitutional and statutory architecture and concluded: yes, in most cases. The opinion gave a careful, layered answer.

Constitutional foundation. The Council of State is set in the state Constitution: the Governor, Lieutenant Governor, Secretary of State, State Auditor, State Treasurer, Superintendent of Public Instruction, Attorney General, Commissioner of Agriculture, Commissioner of Labor, and Commissioner of Insurance. All are statewide elected executive officers. They have various powers and duties, some from the Constitution itself and many from statute.

Ex officio membership. The General Assembly routinely puts Council of State members on boards and commissions ex officio, that is, by virtue of holding their office. Examples include the State Capital Planning Commission and many other boards.

Six officers have express delegation statutes. The Governor (§ 147-12(8), which expressly mentions ex officio duties), the Secretary of State (§ 147-36.1), the State Auditor (§ 147-64.10), the State Treasurer (§ 147-75), the Attorney General (§ 114-4.4), and the Commissioner of Insurance (§ 58-7.1) all have statutes authorizing them to delegate statutory duties to subordinates. The general grant covers ex officio board service.

Four officers have no express delegation statute. The Lieutenant Governor, Superintendent of Public Instruction, Commissioner of Agriculture, and Commissioner of Labor have no parallel delegation statute. One could read the legislature's silence as a prohibition under the canon inclusio unius est exclusio alterius ("the inclusion of one is the exclusion of others"). The AG declined to read it that way. The General Assembly had given a blanket delegation authority to department heads in § 143B-10, and there was nothing in the offices of the four un-statuted officers that would imply a contrary legislative intent. The omission was a casus omissus, an unintended gap, not a deliberate prohibition.

General principles of delegation. A public officer can delegate ministerial duties freely but generally not "purely discretionary" duties that the legislature reposed in the officer personally. Voting on a board, the AG concluded, was not the kind of solitary discretion that the no-delegation rule targets. A board's discretion is exercised by the collective body; a single member's vote, especially when cast through a subordinate under the member's control, is closer to an executive function than a judicial one.

Constitutional and statutory carve-outs. Some duties are non-delegable by their nature. The Governor cannot delegate the pardon power (it's constitutionally personal). The Lieutenant Governor cannot delegate the duty to preside in the Senate (beyond what the Constitution itself permits). The Attorney General must personally approve consent judgments (§ 114-2.2). Where a statute expressly says no proxy voting (as § 115C-11(d) does for the State Board of Education), the no-proxy rule controls and overrides the general delegation principle. And where a statute names a specific Chief Deputy as the proper delegee, that statute controls.

So the practical answer for a Council of State member: read your own delegation statute (if there is one), check whether the particular board has a specific personal-duty statute (proxy ban or named-delegee provision), and otherwise feel free to send a knowledgeable subordinate.

Currency note

This opinion was issued in 1986. 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. The Council of State membership has remained stable since 1986 (the same ten executive offices), but the specific delegation statutes, the board and commission landscape, and the proxy-voting carve-outs have all been amended numerous times. A modern Council of State member or a board that has a Council of State ex officio member should consult the current statute creating the board, the current delegation statute, and the current Open Meetings Law (which can affect what counts as a quorum and a vote) before relying on a 1986-era framework.

Background and statutory framework

North Carolina's Council of State is a particularly strong council-of-state model among American states. The ten elected statewide executive officers each hold their own constitutional or statutory office and operate with independent constituencies, not as a cabinet appointed by the Governor. The body convenes regularly to advise the Governor on specified matters (gubernatorial appointments, contract approvals, property transactions, certain emergency-management actions).

In addition to their individual office duties and the collective Council of State function, the members are routinely placed on dozens of boards and commissions ex officio. The Lieutenant Governor sits on the State Board of Education. The State Treasurer sits on many financial boards. The Attorney General is often statutory counsel for state agencies. The cumulative time commitment of ex officio service would consume a significant share of each official's working calendar if the official personally attended every meeting.

The delegation framework the AG laid out is therefore practically essential to state government. Without it, either the officials would be perpetually late and absent, or boards would chronically lack quorum, or many boards would simply collapse.

The Lieutenant Governor's special position is worth noting. Several state boards include the Lieutenant Governor ex officio, but the State Board of Education's statute (§ 115C-11(d)) specifically forbids proxy voting on that board. The 1986 opinion acknowledged this carve-out without resolving its scope; the Lieutenant Governor cannot vote by proxy on the SBE specifically, but can presumably delegate on other boards.

The opinion's textual approach (defaulting toward delegation absent express prohibition) was an important cue for state government practice. It put the burden on the General Assembly to specify, when it wants personal attendance, the same way it specified for the SBE. Where the legislature has not specified, delegation is the default.

Common questions

Can a delegate be counted toward quorum?

Yes, per the opinion's conclusion. The delegate stands in the Council of State member's place for all purposes the member could perform personally, including being counted toward quorum and voting. The exception is where the board's own statute requires personal attendance or forbids proxy voting.

What level of subordinate can be delegated?

The opinion did not specify a minimum rank. Common practice is to send a chief deputy, a senior policy advisor, or a relevant subject-matter expert from the office. The key constraint is that the delegate must be a subordinate (under the member's control) rather than an outside agent.

What if a board statute names a specific person as the delegee?

That statute controls. If the General Assembly said "the State Treasurer or the Treasurer's Chief Deputy may serve," then the Chief Deputy is the only authorized delegate; the Treasurer cannot designate someone else.

What about the Open Meetings Law implications?

The 1986 opinion did not address Open Meetings Law issues, but the Open Meetings Law (Chapter 143, Article 33C) applies to board meetings regardless of who attends as a Council of State delegate. A delegate's presence and voting at a public meeting is itself public action subject to the same notice and minutes requirements.

Can the Governor delegate gubernatorial appointment power?

No. The opinion specifically noted that constitutionally personal duties (the pardon power, presiding in the Senate, signing or vetoing bills) cannot be delegated. Statutory duties expressly reposed in the Governor personally (e.g., declaring states of emergency, calling special legislative sessions) likewise cannot be delegated absent express authorization.

Source

• Landing page: https://ncdoj.gov/opinions/members-of-the-council-of-state-who-are-ex-officio-members/

Citations

• N.C. Const. art. III, § 8 (Council of State membership)
• N.C. Const. art. III, §§ 6 and 7(2) (Council of State powers and duties)
• N.C. Const. art. IX, § 4(1) (State Board of Education)
• G.S. §§ 58-7.1, 114-4.4, 115C-10, 115C-11(d), 143B-10, 147-3, 147-12(8), 147-36.1, 147-64.10, 147-75
• Shreveport Engraving Co. v. United States, 143 F.2d 222 (5th Cir. 1944)

Original opinion text

Requested By: The Honorable James E. Long Commissioner of Insurance

Question: Whether the members of the Council of State who are ex officio members of Boards and Commissions may authorize delegates or subordinates to attend the meetings of, be counted as part of the quorum of, and vote on matters before those Boards and Commissions?

Conclusion: Council of State members may delegate their statutory duties and powers to attend meetings of, be counted as part of the quorum of, and vote on matters before Boards and Commissions of which they are ex officio members.

The membership of the Council of State is defined by the North Carolina Constitution, Article III, Section 8 to include the Governor, Lieutenant Governor, the Secretary of State, the State Auditor, the State Treasurer, the Superintendent of Public Instruction, the Attorney General, the Commissioner of Agriculture, the Commissioner of Labor and the Commissioner of Insurance. All these officers are executive officers of North Carolina. G.S. 147-3. Except for the express constitutional powers and duties of the Governor and Lieutenant Governor, the powers and duties of the individual members of the Council of State are prescribed by law. North Carolina Constitution, Article III, Sections 6 and 7(2).

In addition to the statutory and common law powers and duties of the Council of State members, the General Assembly has enacted laws creating various boards and commissions, generally within the Executive Branch, membership on which it has conferred on one or more Council of State members, ex officio. See e.g., North Carolina Capital Planning Commission, N.C.G.S. Chapter 143B, Article 9, Part 3.

Ex officio means:

From office; by virtue of the office; without any other warrant or appointment than that resulting from the holding of a particular office.

Black's Law Dictionary, Page 661 (4th Edition, 1968).

The method of conferring a statutory duty on a public officer (i.e., ex officio conferral as opposed to direct appointment) is not dispositive of the incumbent's ability to delegate that duty. Rather, a public officer's ability to delegate any of his statutory powers and duties is, in the absence of contrary statutory law, limited by the nature of the duty in question. See generally, 2 Am. Jur. 2d, Administrative Law § 221.

It has been suggested that Council of State members may not send delegates or subordinates to Board meetings to carry out their ex officio duties because in voting on matters before the Boards the delegates or subordinates would be impermissibly exercising the discretion of the principal officer.

While it is true that as a general matter of law a public officer may not delegate discretionary duties (as opposed to purely ministerial duties), see generally 63A Am. Jur. 2d, Public Officers § 301, that rule appears to have been applied mainly to situations where a discretionary decision is to be made solely by that officer. To the extent that a Board, by its action, exercises discretion, the single vote of a Council of State member's delegate on that Board would not appear to be within the scope of the general rule. Additionally, the rule may not even apply where the action is taken through a subordinate, there being no true delegation as would occur if the delegee is otherwise outside the control of the delegating officer. See Shreveport Engraving Company v. United States, 143 F.2d 222 (5th Cir. 1944). See also, 2 Am. Jur. 2d, Administrative Law § 224.

Similarly, the delegation of legislative or judicial powers, nothing else appearing, is not permitted as a general rule. We are not aware that any of the Boards in question exercise judicial or true legislative power. Indeed, North Carolina case law would appear to find grave constitutional questions in such an exercise. Rather, the Boards of interest here all appear to be Executive Branch entities on which Council of State members serve as executive officers of the State. Of course, the delegation of executive power is a very common occurrence. See generally, 2 Am. Jur. 2d, Administrative Law §§ 221 - 226.

Even if the vote of a delegate or subordinate on one of the Boards in question were deemed to be an exercise of discretion, that exercise is permissible where the nature of the power or duty conferred on the principal officer is such as to imply a power to delegate. Such an implication would appear to arise when delegation is a practical and reasonable necessity and where it does not appear that the source of the authority, in this case the General Assembly reposed special trust in the personal exercise of the power or duty by the principal officer. See Shreveport, supra. The matters coming on for consideration before the Boards in question are often not within the executive officer's usual sphere of expertise. Rather, it appears that the General Assembly's purpose may likely have been in insuring the input of the various departments and branches of State government and to insure that these departments are knowledgeable of the work of the various Boards. In this context, the method of conferral takes on significance, for it would seem far more likely that when the press of events makes it impossible or impracticable for a member of the Council of State to personally perform all the duties of his office, the General Assembly would intend that the enumerated duties of office receive personal attention prior to ex officio duties.

Therefore, even in the absence of direct statutory authority, it is our opinion that Council of State members may, either by delegates or by designated subordinates, exercise their ex officio duty to attend Executive Boards and Commissions and power to vote on matters before those bodies.

Of course, the General Assembly has expressly approved the delegation of duties by most Council of State members. This approval appears to extend to all statutory duties of office without distinction between enumerated and ex officio duties. These statutes are:

• G.S. 147-36.1 (Secretary of State)
• G.S. 147-64.10 (State Auditor)
• G.S. 147-75 (State Treasurer)
• G.S. 114-4.4 (Attorney General)
• G.S. 58-7.1 (Commissioner of Insurance)
• G.S. 147-12(8) expressly authorizes the Governor to delegate ex officio duties. The reason for this distinction with regard to the Governor would appear to issue from the fact that many of the Governor's non-ex officio duties and powers are constitutionally fixed.

The Lieutenant Governor, the Superintendent of Public Instruction, the Commissioner of Agriculture and the Commissioner of Labor are neither expressly empowered nor expressly forbidden to delegate duties or powers. It might be argued that where the General Assembly has expressly sanctioned delegation of statutory duties for some Council of State members, its failure to do so for others implies an intention to forbid delegation by those others under the theory of inclusio unius est exclusio alterius. In this regard it is noteworthy that the General Assembly has given blanket authority for delegation by principal department heads. G.S. 143B-10. We perceive nothing in the nature of the offices of Commissioner of Agriculture, Superintendent of Public Instruction and Commissioner of Labor or in the statutory duties of the office of the Lieutenant Governor that would give rise to such an intent. Therefore, and in view of the express statutory approval of delegation of statutory duties by the other executive officers of this State from the Governor down to the level of department head, the failure of the General Assembly to expressly authorize delegation by the four officers above named is merely a casus omissus and no negative inference should be drawn therefrom.

As implied or alluded to hereinabove, there are or may be statutory or other limitations to the general ability of Council of State members to delegate powers and duties of their office. For example, the Attorney General must personally approve consent judgments. G.S. 114-2.2. Similarly, while the Lieutenant Governor and the State Treasurer are ex officio members of the State Board of Education, Article IX, Sec. 4(1), N.C. Constitution, and G.S. 115C-10, that same article provides that "no voting by proxy may be permitted." N.C.G.S. 115C-11(d). Additionally, where the general statutes expressly provide for delegation of authority to a specifically named subordinate officer, e.g. a Chief Deputy, the statute would control and any other delegation would likely be impermissible. Also, a duty imposed or a power granted expressly by the Constitution is so fundamental as to be non-delegable absent express constitutional warrant. Hence, the Governor could not delegate the pardon power, the Lieutenant Governor could not delegate his power to preside in the Senate (other than the delegation which is constitutionally sanctioned), and the members of the Council of State could not attend meetings of the Council by proxy.

In summary, those members of the Council of State who have statutory authority to delegate duties may, in conformity with such statutes, attend and vote at meetings of Boards of which they are ex officio members through delegates or designated subordinates. The remaining members of the Council of State may make similar delegations or designations where, in the member's judgment, other duties necessitate his absence and the statute creating his ex officio membership does not express or clearly imply an intent of the General Assembly that the powers of such membership be exercised personally.

Lacy H. Thornburg
Attorney General

Donald R. Teeter
Associate Attorney General