After the 1995 statutory amendments that stripped some independent powers from the State Superintendent of Public Instruction, did the Superintendent still have authority to sign contracts on behalf of the State Board of Education?

Plain-English summary

Superintendent of Public Instruction Bob Etheridge asked the AG to clarify the scope of his authority to enter contracts after the General Assembly's 1995 amendments to G.S. 115C-19 and G.S. 115C-21 (Chapter 72 of the 1995 Session Laws). The amendments were part of a larger reorganization that moved authority from the Superintendent toward the State Board of Education.

Chief Deputy AG Andrew A. Vanore, Jr., and Senior Deputy AG Edwin M. Speas, Jr., walked through the constitutional and statutory framework. Under Art. IX, Sec. 4(2) of the NC Constitution and G.S. 115C-19, the Superintendent is the "chief administrative officer" of the State Board of Education. The role is implementation: the Superintendent carries out decisions made by the General Assembly or the State Board, whether those decisions take the form of laws, policies, rules, contracts, or grants. The duty to implement does not, by itself, carry the power to make policies, rules, contracts, or grants. Power to make those things comes either from laws enacted by the General Assembly or from delegations of authority by the State Board.

Historically, the General Assembly had given the Superintendent some independent contracting powers, including under former G.S. 115C-21(c)(1) the power to "enter into contracts for operations of the Department of Public Instruction." Those independent statutory contracting powers were eliminated by Chapter 72 of the 1995 Session Laws.

The State Board, separately, had delegated some powers to the Superintendent over the years. Policy 02A105, adopted September 7, 1989, delegated to the Superintendent the power to "make and execute contracts for and on behalf of the State Board for the purchase of goods, supplies, materials or services when the total value of the contract is less than $25,000."

The 1995 amendments did not change that delegation. G.S. 115C-21(a)(5), as amended, in fact reiterated the principle that the Board may delegate powers to the Superintendent. The AG concluded that the 1989 delegation remained in effect: until the Board adopted a new policy, the Superintendent could continue to make and execute contracts under $25,000.

The opinion also clarified what the Superintendent did not have: independent authority to make policies or rules (the General Assembly had never granted such authority and the Board had never delegated it), and independent authority to award or accept grants (no delegation existed for that either). The State Board was at the time considering a new delegation policy that might, when adopted, expand the Superintendent's authority over contracts and other final decisions; until then, the 1989 policy was the floor.

Currency note

This opinion was issued in 1995. 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.

The relationship between the State Superintendent and the State Board of Education has been a recurring point of statutory and political conflict in NC over the years. The 2016 General Assembly passed S.L. 2016-126, which significantly altered the allocation of authority, and the resulting Cooper v. Berger litigation tested the constitutional limits. The Superintendent's contracting authority is governed today by the current Chapter 115C, the current State Board policies, and any subsequent statutory amendments. Anyone advising a current Superintendent on contracting power should pull the present statute and the latest State Board policy delegations.

Common questions

Q: Why does the State Superintendent get authority from two sources?
A: Because NC's education-governance structure splits authority between the State Board of Education (the policymaking body, with members appointed by the Governor and confirmed by the General Assembly) and the State Superintendent (a separately elected statewide constitutional officer). The General Assembly can grant powers directly to either; the State Board can delegate some of its powers to the Superintendent. The result is that the Superintendent's authority on any given topic depends on what the legislature has done and what the Board has delegated, both of which can change.

Q: What changed in the 1995 amendments?
A: Chapter 72 of the 1995 Session Laws eliminated several independent statutory powers the Superintendent had held. Former G.S. 115C-21(c)(1), giving the Superintendent independent authority to "enter into contracts for operations of the Department of Public Instruction," was repealed or substantially restructured. The amendments shifted the Superintendent toward a pure implementation role.

Q: How does Board Policy 02A105 work?
A: Adopted September 7, 1989, it delegates to the Superintendent the authority to make and execute contracts on behalf of the Board, but only for the purchase of goods, supplies, materials, or services, and only when the total value of the contract is less than $25,000. Above $25,000 (or for grants, or for policymaking), the Superintendent must bring the matter to the Board.

Q: Can the Superintendent sue or settle litigation on behalf of the Board?
A: Not directly under this opinion, which addresses only contracting authority. Litigation authority typically lies with the Attorney General representing the State, or with the Board itself for certain matters. The Superintendent's authority would depend on a separate Board delegation or statutory grant.

Q: What is the current status of Policy 02A105?
A: The 1995 AG opinion confirmed it was still in effect as of September 1995. Whether the current State Board policy structure preserves an equivalent delegation should be checked against the current SBE Policy Manual.

Background and statutory framework

The North Carolina Constitution establishes the State Superintendent of Public Instruction as a constitutional officer elected statewide (Art. IX, Sec. 4(1)) and designates the Superintendent as the secretary and chief administrative officer of the State Board of Education (Art. IX, Sec. 4(2)). The State Board, in turn, has constitutional and statutory authority over the supervision and administration of the free public school system and the educational funds provided for its support (Art. IX, Sec. 5).

Chapter 115C of the General Statutes implements the constitutional framework. G.S. 115C-19 describes the Superintendent's role as chief administrative officer of the Board. G.S. 115C-21 lists the Superintendent's powers and duties, including various administrative and implementation responsibilities. Over time the statute has been amended repeatedly, with the 1995 amendments being one of several major restructurings.

This opinion captures a particular moment in NC education governance: the General Assembly had just pulled back the Superintendent's independent contracting authority, and the Superintendent wanted to know what was left. The AG's answer set up the architecture for the next several years: independent statutory powers were gone, but a 1989 Board delegation survived, and the Board was considering an updated delegation that would supersede or supplement the 1989 policy.

Citations

• N.C. Const. Art. IX, Sec. 4(2) (Superintendent as chief administrative officer of State Board)
• N.C.G.S. § 115C-19 (Superintendent's role)
• N.C.G.S. § 115C-21 (Superintendent's powers and duties, as amended in 1995)
• N.C.G.S. § 115C-21(a)(5) (Board may delegate powers to Superintendent)
• Former N.C.G.S. § 115C-21(c)(1) (independent contracting power, repealed/restructured in 1995)
• Chapter 72, 1995 Session Laws (amendments restructuring Superintendent's authority)
• State Board of Education Policy 02A105 (Sept. 7, 1989) (delegation of under-$25,000 contract authority to Superintendent)

Source

• Landing page: https://ncdoj.gov/opinions/contractual-powers-of-the-state-superintendent-of-public-instruction/

Original opinion text

September 11, 1995

Mr. Bob Etheridge
Superintendent of Public Instruction
Education Building
Raleigh, NC

Re: Advisory opinion; G.S. 115C-21; Contractual Powers of the State Superintendent of Public Instruction

Dear Mr. Etheridge:

On September 8, 1995, you asked for our opinion about the extent of your authority to supervise and administer the public school system in light of amendments to G.S. 115C-19 and 21 by the 1995 Session of the General Assembly. Chapter 72, 1995 Session Laws. You are particularly concerned about your power to make contracts.

In answering your question, it is helpful to bear in mind the role of the Superintendent. Under the Constitution and laws of this State, the Superintendent of Public Instruction is the "chief administrative officer" of the State Board of Education. N.C. Const. Art. IX, Sec. 4(2); G.S. 115C-19. In that role it is the duty of the Superintendent to implement all decisions made by the General Assembly or the State Board, whether those decisions are made in the form of laws enacted by the General Assembly or policies, rules, contracts or grants adopted by the State Board. The duty to implement laws, policies, rules, contracts and grants does not, however, carry with it the power to make policies, rules, contracts or grants. To the extent that power may exist, it arises only from laws enacted by the General Assembly or delegations of authority made by the State Board.

The General Assembly, to our knowledge, has never conferred on the Superintendent the power to make policies or rules independent of the State Board, though it has from time to time given the Superintendent the independent power to make contracts and other decisions, including the power to contract with persons to serve as employees of the Department of Public Instruction. See, e.g., former G.S. 115C-21(c)(1) giving the Superintendent the power to "enter into contracts for operations of the Department of Public Instruction." Those independent powers, however, were eliminated by the General Assembly by the enactment of Chapter 72 of the 1995 Session Laws.

Similarly, the State Board of Education, to our knowledge, has never delegated power to the State Superintendent to make policies or rules. Like the General Assembly, however, the State Board has from time to time delegated power to the Superintendent to make certain contracts. For example, Policy 02A105 adopted by the State Board on September 7, 1989 delegates to the Superintendent the power to "make and execute contracts for and on behalf of the State Board for the purchase of goods, supplies, materials or services when the total value of the contract is less than $25,000."

Nothing in legislation recently enacted by the General Assembly, particularly Chapter 72 of the 1995 Session Laws, changes the basic role of the Superintendent. The Superintendent does not make policies or rules; the Superintendent implements the policies and rules adopted by the State Board. The Superintendent does not generally have the power to make contracts or the power to award or accept grants. That power rests with the Superintendent only as prescribed by the General Assembly or delegated by the State Board. To our knowledge, the State Board has not delegated to the Superintendent the power to award or accept any grants. As noted above, however, the State Board in 1989 delegated to the Superintendent the power to "make and execute" contracts of less than $25,000. In our opinion that delegation of power remains in effect and was not altered or repealed by the 1995 amendment to G.S. 115C-21. To the contrary, G.S. 115C-21(a)(5) as amended simply reiterates the principle that the State Board may delegate powers to the Superintendent.

As you know, the State Board is considering, but has not yet adopted, a new policy delegating powers to the Superintendent, including the power to make and execute certain contracts. That new policy will determine the scope of the Superintendent's power to make contracts or make other final decisions in the future. Until then, however, the 1989 delegation of power to make and execute contracts of less than $25,000 remains in effect.

Andrew A. Vanore, Jr.
Chief Deputy Attorney General

Edwin M. Speas, Jr.
Senior Deputy Attorney General