Can the members of the North Carolina State Board of Education (including the elected Lieutenant Governor and State Treasurer, who sit ex officio) send proxies to cast their votes or take part in Board deliberations?
Plain-English summary
Kenneth Harris asked the AG whether members of the State Board of Education could send proxies to cast votes or to take part in the Board's deliberations. The question mattered most for the two ex officio members (the Lieutenant Governor and the State Treasurer), because both of those offices have their own staff and statutory powers that arguably support delegation. Senior Deputy AG Edwin M. Speas, Jr., and Special Deputy AG Thomas J. Ziko said no.
The starting point is G.S. 115C-11(d), which "specifically forbids the Board from permitting 'voting by proxy.'" That language is categorical. It applies to the eleven appointed members and, the AG concluded, equally to the Lieutenant Governor and the Treasurer.
The harder part of the analysis was whether the ex officio members were nevertheless exempt because each holds independent statutory powers, some of which allow assignment of duties to subordinates. The AG acknowledged the prior 55 NCAG 116 (1986) opinion recognizing that ex officio board members sometimes can send subordinates to act on their behalf, but emphasized that this is not one of those situations. The Lieutenant Governor has no statute authorizing any assignment of his power. The Treasurer does have a general discretionary power under G.S. 147-75 to "authorize a deputy to perform any duties pertaining to the office," but that general grant does not override the specific anti-proxy rule. The AG cited Food Stores v. Board of Alcoholic Control, 268 N.C. 624 (1966), for the principle that specific statutes control over general ones to the extent of any conflict, and 29 CJS, Elections § 201(1), for the background rule that "voting is regarded as a non-delegable public trust."
The opinion then went one step further and said the Board also could not let members appoint proxies just to take part in discussions and deliberations (as opposed to voting). The reasoning was that all thirteen members exercise the constitutional power to "supervise and administer the free public school system" under N.C. Const. Art. IX, § 5. Deliberations that lead to the exercise of constitutional, as distinct from purely statutory, powers cannot be assigned to another person except as the General Assembly expressly authorizes, and the General Assembly has not done so for the State Board.
The bottom line: no SBE member, appointed or ex officio, may appoint a proxy either to vote or to take part in the Board's discussions and deliberations.
Currency note
This opinion was issued in 1993. 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 115C has been heavily amended in the decades since 1993, and the State Board of Education's composition and procedures have shifted with both statutory and constitutional changes. The Lieutenant Governor and the State Treasurer remain ex officio members under N.C. Const. Art. IX, § 4(1), but their ability to participate by deputy or surrogate is a question that depends on current statutory text. Anyone with a present question about SBE proxies should consult current Chapter 115C, current Board bylaws, and counsel familiar with NC education law.
Common questions
Q: Why did the State Board even need to ask, given the express anti-proxy text?
A: The anti-proxy text in G.S. 115C-11(d) was unambiguous as to the appointed members, but ex officio members of NC boards have sometimes been treated differently. The Lieutenant Governor and Treasurer hold their seats by virtue of their elected office, and both offices have other statutory authorities that allow them to act through deputies. The Board apparently wanted to know whether that pattern carried over to SBE meetings, or whether the proxy bar swept in everyone.
Q: What did the AG do with the Treasurer's G.S. 147-75 delegation power?
A: The AG read it as a general grant of authority that the more specific G.S. 115C-11(d) trumped on this issue. The standard tool there is the "specific over general" canon of statutory construction, sourced in Food Stores v. Board of Alcoholic Control, 268 N.C. 624 (1966). The Treasurer's broader power to send a deputy to "perform any duties pertaining to the office" is real and useful in many settings, but not here.
Q: Why is it different to delegate "deliberation" than to delegate "voting"?
A: It is not really different in this opinion. The AG concluded both were off-limits for the SBE because of the constitutional source of the Board's power. The Board exercises the constitutional supervisory power over public schools (N.C. Const. Art. IX, § 5), and deliberations feed into the exercise of that constitutional power. Constitutional-source powers can only be delegated when the General Assembly says so, and it has not said so for SBE deliberations.
Q: What if a member is unavoidably absent from a Board meeting?
A: Under the 1993 reading, that member simply does not participate in that meeting. The Board still acts through whichever members are present, subject to quorum and any other procedural rules. The opinion does not address how to handle a chronically-absent member or a member who has lost capacity, which are quorum/governance questions for the Board's bylaws.
Q: Does this analysis apply to other state boards?
A: Not automatically. The specific anti-proxy text in G.S. 115C-11(d) is what drove the result for the SBE. Other NC boards governed by their own statutes might or might not have a parallel bar. The general background rule that voting is non-delegable absent specific authority, however, is widely applicable, so the burden tends to rest on the side seeking to permit a proxy to point to express statutory permission.
Background and statutory framework
The State Board of Education is created by the NC Constitution (Art. IX, § 4) and has thirteen members: the Lieutenant Governor and the State Treasurer ex officio, and eleven members appointed by the Governor and confirmed by the General Assembly in joint session. The Board's constitutional supervisory power over public schools (Art. IX, § 5) is implemented through Chapter 115C of the General Statutes.
G.S. 115C-11(d) governs Board procedure, including its rule against proxies. That rule was already on the books in 1993 and remains a touchstone for SBE governance. The opinion is mainly an exercise in saying that a clear specific text means what it says, even against a backdrop of general delegation powers held by some members in other capacities.
Citations
- N.C.G.S. § 115C-11(d) (State Board procedure; flatly forbids voting by proxy)
- N.C.G.S. § 147-75 (State Treasurer; general discretionary power to authorize a deputy to perform any duties pertaining to the office)
- N.C. Const. Art. IX, § 5 (Board's constitutional supervisory power over public schools)
- Food Stores v. Board of Alcoholic Control, 268 N.C. 624, 151 S.E.2d 582 (1966) (NC Supreme Court; specific statutes control over general ones to the extent of any conflict)
- 55 N.C.A.G. 116 (1986) (prior AG opinion on ex officio board members sending subordinates in some circumstances)
- 29 C.J.S. Elections § 201(1) (voting regarded as a non-delegable public trust absent contrary statute)
Source
Original opinion text
The fetched body opens at the legal analysis; the salutation and introductory paragraphs were not in the available extract.
G.S. 115C-11(d) specifically forbids the Board from permitting "voting by proxy." This prohibition plainly applies to deny the Board the power to permit its eleven appointed members to vote by proxy. It also applies to deny the Board the power to permit the Lieutenant Governor and Treasurer to vote by proxy. The Lieutenant Governor and Treasurer, unlike the appointed members of the Board, do possess independent statutory powers. These powers, in some instances, include the power to assign subordinates to attend meetings of boards of which they are ex officio members and to act on their behalf. See 55 NCAG 116 (1986). This, however, is not one of those instances; none of their independent powers override the specific prohibition in G.S. 115C-11(d) against "voting by proxy" by members of the State Board. In the case of the Lieutenant Governor, no statute authorizes an assignment of power. The Treasurer does have the discretionary power to "authorize a deputy to perform any duties pertaining to the office." G.S. 147-75. This general discretionary power, however, is not sufficient to override the specific prohibition against "voting by proxy." See Food Stores v. Board of Alcoholic Control, 268 N.C. 624, 151 S.E.2d 582 (1966) (to the extent of any conflict specific statutes control over general statutes); see also 29 CJS, Elections, § 201(1) (In the absence of a specific statute to the contrary "voting is regarded as a non-delegable public trust.")
Our conclusion that the Board may not permit members to appoint proxies to participate in the Board's discussions and deliberations is based on similar reasoning. All thirteen members of the Board exercise the constitutional power to "supervise and administer the free public school system." N.C. Const. Art. IX, § 5. Deliberations and discussions by the Board leading to the exercise of constitutional, as contrasted with statutory powers, cannot be assigned to another person except as specifically authorized by the General Assembly. See 55 N.C.A.G. 116 (1986). The General Assembly has not authorized such assignments.
In sum, our opinion is that the State Board of Education may not authorize any of its members to appoint proxies to cast their votes or to participate in the Board's discussions and deliberations.
Edwin M. Speas, Jr.
Senior Deputy Attorney General
Thomas J. Ziko
Special Deputy Attorney General