Can the NC State Treasurer (who is by statute ex officio chairman of the State Banking Commission) authorize the Assistant State Treasurer to preside over Banking Commission meetings when the Treasurer is absent?

Plain-English summary

The State Banking Commission needed to know whether the State Treasurer (who serves as the Commission's chairman by statute) could authorize the Assistant State Treasurer to preside over a Commission meeting in the Treasurer's absence.

Chief Deputy Attorney General Andrew A. Vanore, Jr. and Chief Counsel John R. McArthur worked through three statutory pieces:

G.S. 53-92 makes the State Treasurer an ex officio member of the State Banking Commission, designates the Treasurer chairman of the Commission, counts the Treasurer toward the Commission's quorum, and provides that the Commissioner of Banks acts as the Commission's Executive Officer. "Ex officio" means, per Black's Law Dictionary, "from office; by virtue of the office; without any other warrant or appointment than that resulting from the holding of a particular office."

G.S. 147-75 says: "[t]he treasurer may authorize a deputy to perform any duties pertaining to the office."

The 1986 formal opinion (55 NCAG 116) concluded: "Council of State members may delegate their statutory duties and powers to attend meetings of, be counted as a part of the quorum of, and vote on matters before Boards and Commissions of which they are ex officio members."

Reading those three together, the AG concluded the State Treasurer could authorize the Assistant State Treasurer (a deputy of the Treasurer) to preside at Banking Commission meetings during the Treasurer's absence. The Assistant exercises the Treasurer's delegated authority under G.S. 147-75, and the 1986 opinion extends the same delegation principle to ex officio Board and Commission duties.

The opinion added one constraint. If the Treasurer wanted to designate someone other than an employee or deputy of the Office of State Treasurer to chair a Commission meeting, the designee would have to be either (a) a member of the Commission, or (b) the Commissioner of Banks. The Treasurer cannot give an outsider chairmanship authority; the G.S. 147-75 delegation is limited to deputies of the Treasurer's office.

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. Chapter 53 (banking) and the State Banking Commission structure have been substantially rewritten since 1994, including the move to a Commissioner of Banks/Banking Commission framework under the Office of the Commissioner of Banks (OCOB). The Treasurer's ex officio chairmanship may have changed. Anyone with a current question about Banking Commission procedure should pull the current banking statutes and current Commission bylaws. The general principle (Council of State member can delegate ex officio Board duties to a deputy) likely survives, but the specifics need verification.

Common questions

Q: What does "ex officio" mean here?
A: It means the Treasurer sits on the Commission solely because of the Treasurer's office, not because of any separate appointment. The chairman role is similarly tied to the office. When a new person becomes State Treasurer, that person automatically becomes chairman of the Banking Commission, without any further appointment.

Q: Why was delegation a question at all?
A: Because some statutory duties are personal to the officer and cannot be delegated. Council of State members in particular have constitutional offices and the question of which of their duties can be delegated has been litigated and opined on repeatedly. The 1986 opinion answered the question generally for ex officio Board service.

Q: Why did the AG mention the Commissioner of Banks?
A: Because the Banking Commission's organic statute (G.S. 53-92) designates the Commissioner of Banks as Executive Officer of the Commission. The Commissioner is therefore one obvious alternative to the Treasurer for presiding-officer duties if the Treasurer (or the Treasurer's deputy) is unavailable. The other obvious alternative is a Commission member, who has a direct authority to participate that no outsider has.

Q: Could the Treasurer simply skip Banking Commission meetings?
A: That is not addressed. The opinion is about the affirmative power to delegate. Whether the Treasurer can decline to attend is a separate question and may depend on the Commission's quorum and meeting rules and on the Council of State's own conventions.

Q: Does this apply to other ex officio Council of State roles?
A: The 1986 formal opinion (55 NCAG 116) was the general principle. So in theory, yes: any Council of State member who serves ex officio on a Board or Commission can delegate the duties of that membership (attendance, quorum participation, voting) to a deputy. Each individual statute should still be checked.

Q: What is the Office of State Treasurer?
A: A constitutional office under Article III, Section 7 of the NC Constitution. The State Treasurer is elected statewide on the Council of State ballot. The office manages state cash, oversees pension fund investments, administers various financial programs, and sits on many ex officio Boards including (in 1994) the State Banking Commission.

Background and statutory framework

The State Banking Commission was the regulatory body for state-chartered banks in NC in 1994. G.S. 53-92 set up its composition, including the State Treasurer's ex officio role as chairman and the Commissioner of Banks's role as Executive Officer. That structure was designed to give the Commission both a Council of State officer (Treasurer) and a specialized banking regulator (Commissioner) in leadership roles.

G.S. 147-75 is the general delegation statute for the State Treasurer. It is brief: "[t]he treasurer may authorize a deputy to perform any duties pertaining to the office." That clause has been the workhorse for thousands of routine acts the Assistant State Treasurer performs in the Treasurer's name.

The 1986 formal opinion 55 NCAG 116 had to be issued because Council of State officers serve on many boards and commissions ex officio, and the resulting demands on the officers' time made delegation practically necessary. The 1986 opinion confirmed that Council of State members could delegate the routine attendance, quorum, and voting duties associated with ex officio Board service.

The 1994 opinion combines these pieces in a tidy way. It is a short opinion that does the work of clearing up a recurring procedural question without breaking new doctrinal ground.

Citations

• N.C.G.S. § 53-92 (State Treasurer ex officio chairman of State Banking Commission; Commissioner of Banks as Executive Officer)
• N.C.G.S. § 147-75 ("treasurer may authorize a deputy to perform any duties pertaining to the office")
• 55 NCAG 116 (1986) (Council of State members may delegate ex officio Board and Commission duties)
• Black's Law Dictionary (Deluxe 4th ed. 1951), definition of "ex officio"

Source

• Landing page: https://ncdoj.gov/opinions/presiding-officer-of-meetings-of-the-state-banking-commission/

Original opinion text

The text reproduced from the NCDOJ landing page begins with statutory analysis. The salutation, addressee, and opening framing are not in the rendered HTML on the landing page.

• N.C.G.S. § 53-92 provides that the State Treasurer is an ex officio member of the State Banking Commission, is chairman of the Commission, and is counted to determine whether a quorum is present at a Commission meeting. That statute also provides that the Commissioner of Banks shall act as the Executive Officer of the Banking Commission. Black's Law Dictionary (Deluxe 4th Edition, 1951) defines ex officio as follows: "From office; by virtue of the office; without any other warrant or appointment than that resulting from the holding of a particular office."
• N.C.G.S. § 147-75 provides in pertinent part that "[t]he treasurer may authorize a deputy to perform any duties pertaining to the office."

In a formal opinion issued by this office on June 18, 1986, we concluded that "Council of State members may delegate their statutory duties and powers to attend meetings of, be counted as a part of the quorum of, and vote on matters before Boards and Commissions of which they are ex officio members." See, 55 NCAG 116 (1986). We enclose a copy of the 1986 opinion for your convenience.

It is clear, therefore, since the State Treasurer is by statute designated Chairman of the Banking Commission, the State Treasurer may appoint the Assistant State Treasurer to preside in his absence over a meeting of the Banking Commission. However, should the State Treasurer choose to appoint someone other than an employee and deputy of the Office of State Treasurer to chair a Commission meeting, that person would have to be either a member of the Commission or the Commissioner of Banks.

We trust that this answers your inquiry. Should you have any questions, please contact us.

Andrew A. Vanore, Jr. Chief Deputy Attorney General

John R. McArthur

Chief Counsel