When a five-member North Carolina county board of social services picks its fifth member, do all four other members have to be present, and do they all have to agree?

Plain-English summary

In 1988 the Burke County Staff Attorney asked the AG how the county's five-member Board of Social Services should choose its fifth seat. The statute, N.C.G.S. § 108A-3(b), gives four of the seats to two appointing authorities (two from the county commissioners, two from the state Social Services Commission) and then says those four members shall select the fifth. If the four "are unable to agree upon the fifth member," the senior regular superior court judge of the county makes the appointment.

Two practical questions came out of that text. First, must all four other members be physically present at the meeting that selects the fifth? Second, must they all agree (unanimity), or is a majority enough?

Assistant Attorney General Catherine C. McLamb gave a split answer: No to the first, Yes to the second.

On presence: the AG looked to the Open Meetings Law (Article 33C of Chapter 143), which already governed how the four-member group could meet. Selection of a board member is "action" by a public body and must happen openly under § 143-318.9. § 143-318.11(8) specifically requires that a vacancy in a public body be filled in open meeting. § 143-318.10(a) requires the meeting to be open to the public. But § 143-318.13(a) lets a public body meet by conference call or other electronic means as long as the public can hear. § 143-318.13(b) lets the body vote by signed written ballots that are available for public inspection. Reading these together, the AG concluded that the statute did not require all four members to assemble in one room at one time. They could vote by conference call, vote by signed ballots, or otherwise act apart, as long as the public meetings rules were followed.

On unanimity: the AG focused on the statute's plain language. § 108A-3(b) says the senior superior court judge appoints the fifth member "if the four are unable to agree." The natural reading is that "agree" means all four; if a majority would do, the statute would say "a majority cannot agree" or "the four cannot reach a majority." Citing Preston v. Thompson, the AG applied the standard rule that clear statutory language gets its plain meaning without interpolation. The result: any one of the four can effectively veto a candidate. If the four cannot reach a 4-0 consensus on a name, the superior court judge takes over the appointment.

The opinion notes that this also covers the situation where one or more of the four do not participate at all. If a member fails to vote, the four-of-four threshold cannot be met, and the appointment again defaults to the superior court judge. The absence of one member does not let the remaining three appoint the fifth.

Currency note

This opinion was issued in 1988. 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 county board of social services appointment structure has been modified by subsequent legislative changes (including provisions added to allow alternative county governance structures for social services). Article 33C of Chapter 143 (the Open Meetings Law) has been amended several times since 1988, including changes to the rules around electronic participation and written ballots. A current researcher should re-verify both the appointment statute and the meeting-procedure rules before applying this opinion to a present-day appointment.

Background and statutory framework

The county Board of Social Services is the policy-making body for county-administered social services programs (the local administration of state public assistance and child welfare). The board was structured to balance state and local interests: the General Assembly gave half the appointments to the county commissioners, half to the state Social Services Commission, and then required the appointees themselves to pick the tie-breaker fifth member.

That tie-breaker design only works if the four appointees actually have to agree. If a simple majority of the four could pick the fifth, then whichever side (county or state) had three of the four appointees would dominate. Requiring unanimity forces the four appointees to find someone acceptable to both sides. The statutory fallback (a superior court judge if they cannot agree) gives them an incentive to compromise: better to negotiate a fifth member than to let a judge decide.

The opinion's reliance on the Open Meetings Law for the physical-presence question is structurally important. North Carolina's Open Meetings Law was designed to make public-body decisions visible to citizens. § 143-318.11(8) specifically calls out filling a vacancy in the body's own membership as something that must happen in open meeting (closing the meeting for that is explicitly prohibited). Once you have to do it openly, the question of whether everyone is in the same room becomes secondary; the relevant requirement is whether the public can observe.

The AG's reading also implicitly addresses geographic and scheduling realities. Burke County, like most North Carolina counties at the time, drew its Social Services Commission appointees from a wide area. Forcing all four members into the same room could create scheduling deadlock that effectively transferred the appointment to the superior court judge by default. Allowing conference-call or written-ballot participation lets the four members do their job from where they are.

Common questions

What counts as "unable to agree" if a fourth member just stays silent?

The opinion treats silence as inability to agree. The statute requires four-of-four affirmative agreement. A non-vote is not a vote of yes. Practically, if a member is invited to participate (by phone, by written ballot, by attendance) and does not respond within a reasonable time, the chair can treat the four as unable to agree and refer the selection to the senior resident superior court judge.

Can the four agree to delegate the fifth-member pick to one of them?

No. The statute names the four collectively as the appointing authority. Delegating the choice to one of them would substitute that one for the four. The same reasoning that prevents the county commissioners or the Social Services Commission from picking the fifth (instead of the four appointees) prevents the four from picking one of themselves as the appointing authority.

Once the senior superior court judge picks the fifth member, does that pick need ratification by the four?

The statute does not require ratification. Once the four are unable to agree, the appointing authority shifts to the judge; the four no longer have a role for that vacancy. The judge's choice takes effect as the appointment.

Does the same unanimity rule apply to a three-member board?

The opinion only addresses the five-member structure under § 108A-3(b). The three-member board (also authorized by § 108A-2) is appointed differently (one each by county commissioners, Social Services Commission, and a method involving the two prior appointees). The unanimity-in-tiebreak logic does not transpose directly; a researcher facing a three-member board question should look at the specific statutory language in force.

Can the four members fill a future fifth-member vacancy together with a new fifth-member selection?

The opinion does not address that. The plain reading of § 108A-3(b) is that it governs initial selection of the fifth member. Vacancies in the fifth seat after the initial selection would be governed by whatever the statute says about replacing the fifth member; if the statute is silent, then it's filled the same way the original was. Counties facing this question in practice should consult the current text and any board bylaws.

Source

• Landing page: https://ncdoj.gov/opinions/method-of-appointment-of-members-of-county-boards-of-social-services/

Citations

• N.C.G.S. § 108A-2 (three-member or five-member board)
• N.C.G.S. § 108A-3(b) (appointment method for five-member board, including selection of fifth member)
• N.C.G.S. § 143-318.9 (action by public body must be open)
• N.C.G.S. § 143-318.10(a) (meetings open to the public)
• N.C.G.S. § 143-318.11(8) (vacancy-filling is a non-closable purpose)
• N.C.G.S. § 143-318.13(a) (conference call or electronic meeting open to public)
• N.C.G.S. § 143-318.13(b) (signed written ballots available for public inspection)
• Publishing Co. v. Board of Education, 29 N.C. App. 37, 223 S.E.2d 580 (1976) (selection is "action" of a public body)
• Preston v. Thompson, 53 N.C. App. 290, 280 S.E.2d 780 (1981) (plain-meaning rule of statutory construction)

Original opinion text

Requested By: Stephen M. Schoeberle Burke County Staff Attorney

Questions: (1)

• Does N.C.G.S. § 108A-3(b) require that all of the other four (4) members of a five member County Board of Social Services be present when the Board selects the fifth member?
• (2)
• Does N.C.G.S. § 108A-3(b) require that the other four (4) members be unanimous in their selection of the fifth member?

Conclusions: (1)

• No.
• (2)
• Yes.

Article 1 of Chapter 108A provides for county administration of various social services programs. Part 1 of this Article specifies the creation and manner of operation of the county Boards of Social Services. A county board of social services may consist of three members or five members. § 108A-2. The method of appointment of the members of the county board of social services is set out in § 108A-3. If a county has determined to have a five member board, the method of appointment of the members is governed by subsection (b) of this statute. Under this subsection, two members of the board will be appointed by the county board of commissioners and two members will be appointed by the Social Services Commission. The selection of the fifth member is specified as follows: ". . . the four [members] so appointed shall select the fifth member. If the four are unable to agree upon the fifth member, the senior regular superior court judge of the county shall make the selection." § 108A-3(b).

The methodology of the selection of the fifth member of the board is not particularized in the statute. However, since voting or selecting a fifth member to fill this vacant position is an "action" of a public body, the selection must comply with Article 33C of Chapter 143 governing meetings of public bodies. See, Publishing Co. v. Board of Education, 29 N.C. App. 37, 223 S.E.2d 580 (1976). This Article provides that actions must be conducted openly. § 143-318.9. A public body may not consider or fill a vacancy among its own membership except in an open meeting. § 143-318.11(8). Outside of enumerated exceptions, official meetings of a public body "shall be open to the public, and any person is entitled to attend such a meeting." § 143-318.10(a). In addition to meeting by assemblage of persons, meetings may be held by use of conference telephone or other electronic means opened to the public. § 143-318.13(a). In addition to spoken votes, voting may take place by signed written ballots available for public inspection. § 143-318.13(b). Thus, there is no directive in § 108A-3(b) or prohibition in Chapter 143 that would mandate the presence of all four members of the Social Services Board at the time of selection of the fifth member so long as the public meetings requirements are fulfilled.

Although all four members of the Social Services Board need not be present at the meeting to select the fifth member, there must be a unanimous decision by all four members with no dissent at the time of the selection. The provisions of § 108A-3(b) which provide for the selection of a fifth member clearly state that a senior regular superior court judge of the county shall make the selection "[i]f the four are unable to agree upon the fifth member . . . ." Where language of a statute is clear and unambiguous, there is no room for construction and it must be given its plain and definite meaning without the interpolation or implication of provisions not contained therein. Preston v. Thompson, 53 N.C. App. 290, 280 S.E.2d 780, appeal dismissed, review denied, 304

N.C. 392, 289 S.E.2d 833 (1981). In the absence of any statutory language permitting selection of the fifth member by a majority vote or a vote by less than four members, the plain language of this statute mandates that all four members of the Board must participate and must agree in the selection of the fifth member. If the four cannot agree or if one or more do not participate in the selection of the fifth, then selection is made by a superior court judge as provided by statute.

LACY H. THORNBURG Attorney General

Catherine C. McLamb Assistant Attorney General