Are the two 'at-large' members on the Coastal Resources Advisory Council legally seated, when the statute lists specific seats and caps total membership at 47?
Plain-English summary
Roger Schecter, who directed the NC Division of Coastal Management, asked the AG to look at how the Coastal Resources Advisory Council (CRAC) had been seating members. The statute that governs CRAC membership, G.S. 113A-105(b), caps the Council at 47 and then describes the specific seats: a list that adds up to 45 designated members. CRAC at the time of the question had 47 sitting members, two of whom held seats labeled "at-large." Schecter asked whether that worked.
Senior Deputy AG Daniel C. Oakley said no.
The statute gives a maximum total (47) but then specifies how 45 of those slots get filled. It does not mention "at-large" members. The cap and the enumeration together meant the Council had room for the 45 named seats, period. The two seats CRAC had been treating as "at-large" had no statutory basis. The AG concluded that the people occupying those seats were not Council members and should be asked to step down.
The opinion did not stop there, because the practical problem was that the two had been voting, attending meetings, and acting like members for some time. The AG applied the de facto officer doctrine to that problem. Quoting Strong's N.C. Index 3d, Public Officers § 7.1: "The acts of a de facto officer will be held valid upon principles of policy and justice as to third persons having occasion to deal with the officer, since third persons have the right to act upon the assumption, without investigating his title, that he is a rightful officer." That meant past CRAC actions in which the unauthorized at-large members had participated were not retroactively void. Going forward, however, CRAC needed to operate within the statute's actual numbers.
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.
G.S. 113A-105(b) has been amended since 1994; the CRAC's membership composition and cap may not match what the 1994 statute described. Anyone with a current question about CRAC membership should consult the current text of Section 113A-105(b) and any amending session laws, rather than relying on this opinion's count.
Common questions
Q: What is the Coastal Resources Advisory Council?
A: An advisory body created by the Coastal Area Management Act (CAMA) to advise the Coastal Resources Commission and the Division of Coastal Management on coastal management issues. Members are typically appointed for their expertise in coastal subjects.
Q: What is the de facto officer doctrine, and why does it matter here?
A: It is a common-law doctrine that protects third parties who deal with someone who appears to hold an office. If an unauthorized person votes on a permit, the permit applicant should not lose the benefit of that decision after the fact just because the voter turned out not to be a proper member. Without this rule, every CRAC action taken with the at-large members participating could be challenged years later. The doctrine treats the past actions as valid while still requiring the unauthorized seats to be vacated going forward.
Q: What should the two unseated members do?
A: The opinion says they should be told they are not Council members and asked to submit resignations. That formalizes the removal and provides a clean record.
Q: Could the General Assembly add at-large seats?
A: Yes. If a legislative body wants flexibility to add public members who do not fit the enumerated categories, it can amend G.S. 113A-105(b) to authorize a specific number of at-large or appointed-at-pleasure seats. The AG's opinion stays neutral on whether that would be a good idea; it just confirmed that the 1994 statute did not authorize them.
Q: Does this opinion mean other state advisory boards with at-large seats are illegitimate?
A: Only if the authorizing statute for that board is structured like Section 113A-105(b): a hard total cap plus an enumerated list that does not include an at-large category. Statutes that authorize at-large seats expressly (or that set only a maximum without enumerating the specific seats) are different.
Background and statutory framework
CAMA, codified at Chapter 113A Article 7, sets up a layered structure: the Coastal Resources Commission makes rules and decisions, the Division of Coastal Management administers the program, and the Coastal Resources Advisory Council provides expert input. Section 113A-105(b) sets the size and composition of CRAC.
The 1994 opinion is an example of the AG enforcing the limits a statute places on appointed-body composition. Public bodies sometimes adapt their membership over time to fit operational needs (more expertise in one area, broader stakeholder representation), and those informal additions can drift past the statutory authorization. The opinion gave the Division of Coastal Management cover to fix the membership without invalidating the Council's prior work product.
Citations
- N.C.G.S. § 113A-105(b) (CRAC membership; statutory cap at 47, with enumerated seats adding to 45)
- Strong's N.C. Index 3d, Public Officers § 7.1 (de facto officer doctrine: third parties may rely on the appearance of office)
Source
Original opinion text
July 8, 1994
Mr. Roger Schecter, Director
Division of Coastal Management
P. O. Box 27687
Raleigh, North Carolina 27611-7687
RE: ADVISORY OPINION: Coastal Resources Advisory Council Membership; G.S. 113A-105(b).
Dear Mr. Schecter:
You have asked this office to review the statutory authority for the appointment of two (2) at-large members to the Coastal Resources Advisory Council (CRAC). The appointments to the CRAC are governed by G.S. 113A-105(b), which provides that the membership cannot exceed forty-seven (47) members, but further specifies the manner of designating what results in forty-five (45) members. Current CRAC membership totals 47, including two at-large.
In my opinion, there is no authority for at-large appointments. Any person apparently holding a seat pursuant to such a designation must be advised that he or she is not a CRAC member and asked to submit a resignation.
Persons who may have received an at-large appointment previously would be considered de facto officers of the CRAC, and their actions on behalf of the CRAC are not void. "The acts of a de facto officer will be held valid upon principles of policy and justice as to third persons having occasion to deal with the officer, since third persons have the right to act upon the assumption, without investigating his title, that he is a rightful officer." Strong's N.C. Index 3d, Public Officers § 7.1.
I trust this fully answers your question. If you have the need for further assistance, please feel free to contact me.
Daniel C. Oakley
Senior Deputy Attorney General