Can a North Carolina town amend its charter by ordinance to limit when the mayor can vote, even if the original charter was created by the now-abolished Municipal Board of Control?
Plain-English summary
The town of River Bend is governed by a charter originally adopted through the Municipal Board of Control under Article 1A of Chapter 160A. The relevant charter article said:
The Mayor shall serve a two year term and shall have the right to vote only where there is a tie vote excluding his vote or where the issue is the appointment of officers. The Mayor shall have no right to break a tie vote in which he participates.
The mayor wrote to the AG asking whether the town could amend its charter by ordinance, using the regular Chapter 160A amendment procedure, to drop the "appointment of officers" voting power and bring the charter into line with the options listed in N.C.G.S. § 160A-101(8). That statute lays out the standard options for selecting and empowering mayors:
(8) Selection of mayor: a. The mayor shall be elected by all the qualified voters of the city for a term of not less than two years nor more than four years. b. The mayor shall be selected by the council from among its membership to serve at its pleasure. Under option a. the mayor may be given the right to vote on all matters before the council, or he may be limited to voting only to break a tie. Under option b. the mayor has the right to vote on all matters before the council. In both cases the mayor has no right to break a tie vote in which he participated.
The AG said the town could amend the charter by ordinance using the Part 4 procedure (N.C.G.S. §§ 160A-101 through 160A-111). The opinion rests on two points.
First, § 160A-101 is a menu. Cities can pick and choose among the listed options, and § 160A-102 lets them amend their charter by ordinance. The statute "delegates to the municipal level the authority to modify charter provisions relating to the operation of the city," and there is nothing suggesting the General Assembly meant Part 4 to be read narrowly. See also § 160A-4 (broad construction of municipal authority).
Second, the original charter's pedigree (the Municipal Board of Control, which no longer exists because Article 1A was repealed in 1982) does not lock the charter in place. N.C.G.S. § 160A-3 makes clear that the amendment tools remain available regardless of how a particular charter came into being.
The AG also explained the policy logic behind the unnumbered paragraph that was added to § 160A-101(8) in 1973. When the mayor is selected from among council members (option b), he has to be able to vote on everything so that he can represent his ward. When the mayor is separately elected by all the voters (option a), there is no representation concern, and the city can decide locally whether the mayor should vote on all matters or only to break a tie.
For the actual ordinance language, the AG suggested putting the full revised charter article in both the resolution of intent and the ordinance text. That way the change is clear and the town does not lose other elements of the original article, like the directive that the mayor is elected by all qualified voters for a two-year term.
Currency note
This opinion was issued in 1994. 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.
Part 4 of Article 5 of Chapter 160A (the city-charter amendment procedure) has remained the workhorse tool for municipal charter changes in North Carolina, but specific section numbers, notice and hearing requirements, and ballot referendum thresholds have been amended. Any town using this procedure today should verify the current text of N.C.G.S. §§ 160A-101 through 160A-111 and any League of Municipalities checklist on charter amendments.
Common questions
Q: Can River Bend make this change without a voter referendum?
A: Part 4 of Article 5 lets cities change charters by ordinance in many cases, but some changes require a referendum or a longer notice-and-hearing process under § 160A-103 and following sections. The AG opinion answered the threshold question (the procedure is available) but did not walk through every procedural step the town would have to follow. A municipal attorney should confirm the specific track required for the specific change.
Q: What if the town wants to keep the mayor's vote on officer appointments?
A: The current charter already gives the mayor that vote. The opinion is about the town's authority to drop the power if it wants to, not about any obligation to do so. The town can leave the existing charter language alone.
Q: Does it matter that the charter originally came from the Municipal Board of Control?
A: The AG said no. The Municipal Board of Control was repealed in 1982 along with Article 1A of Chapter 160A. The charters that body issued remained in effect. N.C.G.S. § 160A-3 confirms that the Part 4 amendment procedures are available regardless of the original source of a city's charter.
Q: Why does § 160A-101(8) require the mayor to always be able to vote if the council selects him from its own membership?
A: The AG explained that when a council selects one of its members to be mayor, that person was originally elected as a representative of a portion of the city's voters. To represent those voters on the governing body, the mayor must be able to vote. When the mayor is separately elected by all the voters of the city (as River Bend's mayor is), there is no comparable representation concern, so the city can decide locally whether the mayor votes on all matters or only to break ties.
Background and statutory framework
Article 1A of Chapter 160A created a Municipal Board of Control that could incorporate municipalities and issue charters. That regime was repealed in 1982. The successor authority for amending the resulting charters lives in Part 4 of Article 5 of Chapter 160A, sections 160A-101 through 160A-111. Section 160A-101 lists optional forms of government and structural choices (form, mode of election, terms, mayoral selection, and so on). Section 160A-102 lets a city amend its charter by ordinance to adopt any of those options, subject to the procedural requirements in the following sections.
The mayor-voting option came in two flavors after a 1973 amendment to § 160A-101(8):
- Separately elected mayor (option a): the city can choose whether the mayor votes on all matters or only on a tie.
- Council-selected mayor (option b): the mayor votes on everything, because he was originally elected as a council member representing a constituency.
In both cases, the mayor cannot break a tie that he himself participated in.
River Bend's existing charter departed from these standard options in one specific way: it gave the mayor a vote on "the appointment of officers" even though the mayor was separately elected. The mayor wanted to drop that special-purpose voting power and put the charter on one of the standard tracks. The AG said § 160A-102 lets the town do exactly that by ordinance.
The opinion repeated the broad-construction principle from N.C.G.S. § 160A-4, which directs courts to read municipal grants of authority liberally. That principle helps when (as here) the precise mechanical move (using Part 4 to change a single voting rule rather than to change the mode of mayoral election or term) is not the most obvious application of the statute. The AG read § 160A-101 as a menu of options and § 160A-102 as a flexible tool to bring a charter into line with that menu.
Citations
- N.C.G.S. § 160A-3 (charter status independent of original source)
- N.C.G.S. § 160A-4 (broad construction of municipal authority)
- N.C.G.S. §§ 160A-6 to 160A-10 (repealed Article 1A procedures for the former Municipal Board of Control)
- N.C.G.S. § 160A-101 (optional forms; menu of governance choices)
- N.C.G.S. § 160A-101(8) (mayor selection and voting options)
- N.C.G.S. § 160A-102 (amendment of charter by ordinance)
- N.C.G.S. §§ 160A-101 to 160A-111 (Part 4 charter amendment procedures)
Source
Original opinion text
March 16, 1994
The Honorable William H. Ritchie, Jr.
Mayor, Town of River Bend
45 Shoreline Drive
New Bern, NC 28562
Re: Advisory Opinion; River Bend Town Charter; N.C.G.S. § 160A-101 through 160A-111; Mayor's Vote.
Dear Mayor Ritchie:
The following is in response to the request for an opinion set out in your letter dated February 22, 1994 regarding provisions in the charter of the town of River Bend concerning the mayor's vote. The charter was adopted under the procedures of Article 1A of Chapter 160A, N.C.G.S. § 160A-6 through 160A-10. Those statutes established a procedure for the creation of municipalities through the Municipal Board of Control. Article 1A was repealed in 1982 and the Municipal Board of Control went out of existence at that time.
As set out in your letter the relevant portion of the charter provides as follows: Article III: The Mayor shall serve a two year term and shall have the right to vote only where there is a tie vote excluding his vote or where the issue is the appointment of officers. The Mayor shall have no right to break a tie vote in which he participates. Your letter states that there is a desire to change the charter "to provide for the vote of the mayor consistent with the provisions of N.C.G.S. § 160A-101(8)" which reads as follows: § 160A-101. Optional forms. Any city may change its name, or alter its form of government by adopting any one or combination of the options prescribed by this section: . . . . (8) Selection of mayor: a. The mayor shall be elected by all the qualified voters of the city for a term of not less than two years nor more than four years. b. The mayor shall be selected by the council from among its membership to serve at its pleasure. Under option a. the mayor may be given the right to vote on all matters before the council, or he may be limited to voting only to break a tie. Under option b. the mayor has the right to vote on all matters before the council. In both cases the mayor has no right to break a tie vote in which he participated.
Your letter, in essence, requests an opinion as to whether the charter may be amended by ordinance pursuant to N.C.G.S. § 160A-102 to delete the provisions authorizing the mayor to vote with regard to the appointment of officers. It is the opinion of this office that the procedures set out in Part 4 of Article 5 of Chapter 160A, N.C.G.S. § 160A-101 through 160A-111 (hereinafter "Part 4"), may be used to amend the charter to make the change under consideration.
N.C.G.S. § 160A-101 provides a list of options set out in subdivisions (1) through (9) and allows cities to pick and choose among those options. The statute delegates to the municipal level the authority to modify charter provisions relating to the operation of the city, and there is nothing to indicate that the General Assembly intended that Part 4 be narrowly construed. See also N.C.G.S. § 160A-4. As first enacted, N.C.G.S. § 160A-101(8) did not contain the unnumbered paragraph following paragraph b. The unnumbered paragraph was added by Section 19 of Chapter 426 of the 1973 Session Laws. Its main impact appears to be to express the logical principle that if the mayor is selected from those elected to the governing council, it is necessary for him to vote on all issues to ensure representation of his constituency. When the mayor is elected separately by all voters there is not the same consideration and it appears that the General Assembly determined that the eligibility of the mayor to vote could be decided at the local level. In other words, where the individual selected as mayor was elected as a representative of a portion of the city voters, the mayor must be able to represent those voters on the governing board, but where the mayor is elected separately by all the voters either option set out in the first sentence of the unnumbered paragraph in N.C.G.S. § 160A-101(8) may be chosen. The fact that using the procedures of Part 4 would not result in any change in the method of selection or term of the mayor should not preclude the use of the procedures of Part 4 to allow the city to choose one of the other options set out in N.C.G.S. § 160A-101(8).
In response to the request for suggestions of how to word the ordinance, it might be prudent to have the resolution of intent and the ordinance contain the precise text of the revised Article III of the charter so that it will include the direction that the mayor shall be elected by all the qualified voters of the city for a term of two years.
It is our further opinion that the fact that the charter came into existence through the actions of the Municipal Board of Control which has ceased to exist because of the repeal of Article 1A of Chapter 160A does not in any way reduce the availability of Part 4 to modify the town's charter, N.C.G.S. § 160A-3.
Charles J. Murray
Special Deputy Attorney General
Ann Reed
Senior Deputy Attorney General