Can a State Board of Education member keep his seat if his spouse works for a local public school system, and what happens if a board member's spouse takes a public school job after the member is confirmed?

Plain-English summary

Chairman Jay Robinson wrote to the AG on June 2, 1997 with an embarrassing problem. Two of his State Board of Education members might be sitting in violation of NCGS 115C-10, which barred public school employees and their spouses from State Board service.

Eddie Davis III had been appointed in April 1993 to the single "public school employee" seat on the Board created by the 1989 amendment to 115C-10. He was a Durham Public Schools employee. So was his wife. The literal text of 115C-10 said that "no spouse of any public school employee paid from state or local funds" could serve on the Board. Did that bar Davis from holding his seat?

Lowell Thomas had been appointed in March 1995. He was not a public school employee. His wife was not, either, at the time of his confirmation. But she had later accepted a part-time position with the Caldwell County Schools. Did that hire automatically vacate Thomas's seat?

Chief Deputy AG Andrew Vanore and Senior Deputy AG Edwin Speas, for AG Easley, gave different answers to the two cases.

Davis: still eligible. The 1985 amendment to 115C-10 had created a categorical bar against public school employees and their spouses serving on the State Board. The 1989 amendment carved out exactly one seat for "not more than one public school employee paid from state or local funds." The General Assembly had decided in 1989 that the benefit of having a working educator on the Board outweighed the conflict-of-interest concerns that drove the 1985 amendment. If having a public school employee on the Board was acceptable (the higher-conflict scenario), then having a public school employee on the Board whose spouse also worked for the schools (the lower-conflict scenario) had to be acceptable too. Reading the 1985 spouse bar literally to exclude Davis would mean every public school employee could be appointed to the dedicated seat except those few whose spouses also worked for the schools, which would be illogical and arbitrary. Three principles of statutory construction (purpose-based reading, later-enacted-controls, and avoidance of illogical results) all converged. Davis kept his seat.

Thomas: automatically out. The 1985 spouse bar applied to him by its plain terms. When his wife accepted the Caldwell County Schools part-time position after his confirmation, he became ineligible to continue serving. The statute does not distinguish between full-time and part-time spouse employment; any local-funded public school job triggers the bar. Under the double-office-holding doctrine in Atkinson v. Fortner, 236 N.C. 264 (1952), accepting an incompatible position is deemed by operation of law to vacate the existing one. So when his wife took the Caldwell job, Thomas was deemed to have resigned. The Governor could fill the vacancy for the remainder of his term without legislative confirmation. If Thomas's wife was no longer a public school employee at the time the vacancy was filled, Thomas himself was eligible to be reappointed.

Currency note

This opinion was issued in 1997. 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. NCGS 115C-10 has been amended multiple times since 1997, and the State Board of Education composition has changed under subsequent legislative reforms. Anyone with a current question about State Board eligibility must read the current 115C-10 and any later AG opinions or cases construing it.

Background and statutory framework

NCGS 115C-10 governs the composition of the North Carolina State Board of Education. As of June 1997, the statute had two key clauses, layered onto each other by separate amendments:

• A 1985 amendment that barred public school employees, their spouses, and Department of Public Instruction employees and spouses from being appointed to the State Board. The legislative purpose was to avoid conflicts of interest: the State Board sets policy for the public school system, and the General Assembly wanted to insulate Board members from direct employment ties.

• A 1989 amendment that carved out one exception: "not more than one public school employee paid from state or local funds may serve as an appointive member of the State Board of Education." The legislative reversal was driven by a perceived shortage of working-educator perspective in State Board deliberations.

The 1989 amendment did not expressly address what happens if the dedicated public-school-employee appointee is also married to a public school employee. The 1985 spouse bar remained on the books and arguably reached the spouse of the dedicated seat-holder. Read together, the statute appeared internally inconsistent: it allowed Davis (a public school employee) to sit on the Board but seemed to bar him because his wife (a public school employee) was also barred. That literal reading produced an absurd result.

The AG resolved the conflict by applying three canons of statutory construction:

1. Read for legislative purpose, not literal text. The 1985 spouse bar was a conflict-of-interest provision. The 1989 amendment was a clear legislative judgment that one public-school-employee seat outweighed those concerns. Reading the 1985 bar to swallow the 1989 carve-out would defeat the legislative purpose of the 1989 amendment.

2. Later-enacted provisions control over earlier conflicting provisions. Under In re Guess, 324 N.C. 105 (1989), when statutory clauses conflict the more recent one prevails. The 1989 amendment came four years after the 1985 amendment.

3. Avoid illogical or arbitrary results. Under Sheffeld v. Consolidated Foods, 302 N.C. 403 (1981), a literal reading must yield where it produces an illogical or arbitrary outcome. Reading the 1985 spouse bar to disqualify only those public school employees whose spouses also worked for schools, while letting in those whose spouses worked elsewhere, was both illogical and arbitrary.

For Thomas, none of those canons applied. He was not a public school employee. The 1989 carve-out was not relevant to him. The 1985 spouse bar applied straightforwardly. The only complication was whether part-time employment counted, and the AG read the statute to include any spouse-employment regardless of FTE.

The Atkinson v. Fortner line of double-office-holding cases supplied the mechanism. Under longstanding North Carolina doctrine, when an officeholder's spouse takes a position that makes the officeholder ineligible to continue, the officeholder is deemed to have resigned by operation of law. The vacancy is created the moment the disqualifying event occurs; no separate proceeding is needed.

Common questions

Could Thomas have kept his seat if his wife had quit the Caldwell County job?

The AG opinion suggests yes, but with a procedural step. The moment his wife accepted the Caldwell position, the vacancy was created by operation of law. The Governor then has the appointment power to fill the vacancy for the remainder of Thomas's original term without legislative reconfirmation. If Thomas's wife had left the position before the Governor acted, Thomas would have been eligible to be reappointed to the vacancy he had himself created. Whether the Governor would have done so was a political question, not a legal one.

What about the General Assembly's 1989 confirmation of Davis's appointment? Did it ratify any flaw?

The opinion does not address that. The 1989 confirmation likely strengthened the legal position of Davis's appointment, but the AG's reasoning did not rest on legislative ratification. It rested on construction of the statute itself.

Does the spouse bar apply to a spouse working in a private school?

No. NCGS 115C-10 expressly limits the bar to spouses of "public school employees paid from state or local funds." Private school employment is outside the statute. So is employment by a federally-funded program that does not pay through state or local funds. The AG opinion does not discuss those edge cases, but the statutory text makes the limit clear.

What if the public-school-employee Board member is married to a DPI employee?

The 1985 amendment expressly barred "any employee of the Department of Public Instruction or his spouse" from serving. That clause is parallel to the public-school-employee-spouse clause. Under the AG's reasoning, the 1989 carve-out for one public-school-employee seat would not extend to also relieving that seat-holder from the DPI-spouse bar. DPI is closer to the State Board policymaking apparatus than local school employment is, so the conflict concern is higher. The opinion does not address this scenario directly, but the logic supports keeping the DPI-spouse bar intact.

Could the General Assembly fix the inconsistency by amendment?

Yes. The legislature could amend 115C-10 to clarify that the 1989 carve-out also relieves the seat-holder from the 1985 spouse bar (or to remove the spouse bar entirely). The AG opinion's role is to construe the statute as written; the General Assembly is free to rewrite it.

Source

• Landing page: https://ncdoj.gov/opinions/public-school-employees-and-spouses-of-public-school-employees-on-state-board-of-education/

Citations

• N.C. Gen. Stat. § 115C-10
• 1985 N.C. Sess. Laws ch. 479, § 36
• 1989 N.C. Sess. Laws ch. 46
• State v. McHone, 243 N.C. 231, 90 S.E. 536 (1953)
• State v. Blacksback, 314 N.C. 232, 333 S.E.2d 2 (1985)
• In re Banks, 295 N.C. 236, 244 S.E.2d 386 (1978)
• State v. Partlow, 91 N.C. 550 (1984)
• In re Guess, 324 N.C. 105, 376 S.E.2d 8 (1989)
• Sheffeld v. Consolidated Foods, 302 N.C. 403, 276 S.E.2d 422 (1981)
• Atkinson v. Fortner, 236 N.C. 264, 72 S.E.2d 592 (1952)

Original opinion text

June 3, 1997

Dr. Jay Robinson
Chairman
State Board of Education
Education Building
Raleigh, North Carolina

Re: Advisory Opinion; G.S. 115C-10; Public School Employees and Spouses of Public School Employees on State Board of Education

Dear Dr. Robinson:

It has very recently come to your attention that two members of the State Board of Education may not properly hold their offices under G.S. 115C-10 in light of the fact that their spouses are employed by local boards of education. By letter dated June 2, 1997, you explained the facts relating to the two Board members and asked for our opinion about their status.

We will first review the history of G.S. 115C-10 to determine the meaning the General Assembly intended that statute to have and then apply that meaning to the facts you have provided to determine the status of the two Board members.

Though there is obvious potential for tension between membership on the governing body of the State's public school system and simultaneous employment by a local school system, see State v. McHone, 243 N.C. 231, 90 S.E. 536 (1953) (discussing doctrine of incompatible offices), there was no statutory limitation on the eligibility of local school system employees for appointment to the State Board of Education prior to 1985. Effective July 1, 1985, however, the General Assembly amended G.S. 115C-10 to provide that "no public school employee paid from state or local funds or his spouse" could subsequently be appointed to the State Board either for a full term or to fill a vacancy. 1985 Sess. Laws ch. 479, § 36. Four years later the General Assembly determined that the benefit of having one public school employee serve as a member of the State Board outweighed the potential tension between simultaneous State Board membership and public school employment. To that end, the General Assembly enacted Chapter 46 of the 1989 Session Laws which amended G.S. 115C-10 to provide that "not more than one public school employee paid from state or local funds may serve as an appointive member of the State Board of Education." As amended in 1985 and 1989, G.S. 115C-10 provides in pertinent part:

Not more than one public school employee paid from state or local funds may serve as an appointive member of the State Board of Education. No spouse of any public school employee paid from state or local funds and no employee of the Department of Public Instruction or his spouse may serve as an appointive member of the State Board of Education.

With this background we turn to the facts you have provided us regarding the two State Board members in question. Eddie Davis, III was appointed to the State Board of Education in April, 1993. He was employed by the Durham Public Schools at that time and was appointed to fill the one seat on the State Board for a public school employee authorized by the 1989 amendment to G.S. 115C-10. Mr. Davis' wife was also employed by the Durham County Schools at the time of his appointment, and remains so employed. Thus, the question regarding Mr. Davis is whether that part of G.S. 115C-10 prohibiting a spouse of a public school employee from serving on the State Board applies to Mr. Davis.

Reading G.S. 115C-10 literally would result in the conclusion that Mr. Davis was ineligible for appointment to the State Board in 1993 and remains ineligible today by virtue of his wife's employment with the Durham Public Schools. We believe, however, that such a reading is contrary to the General Assembly's intention and should not be adopted. See State v. Blacksback, 314 N.C. 232, 333 S.E.2d 2 (1985) (statutes must be construed to accomplish the General Assembly's intention).

Legislative intent is ascertained by reference to the purpose of the statute as a whole, the law as it prevailed prior to the statute, and the end to be accomplished. In Re Banks, 295 N.C. 236, 239-40, 244 S.E.2d 386, 389 (1978); State v. Partlow, 91 N.C. 550 (1984). Viewed in this light it is in our opinion that the General Assembly intended by the 1989 amendment to G.S. 115C-10 to authorize one public school employee to serve on the State Board even if his or her spouse is also a public school employee. At least three principles of statutory construction support this reading. First, even though the general legislative purpose for the 1985 amendment to G.S. § 115-10 is the avoidance of potential conflicts of interest, it is clear that the General Assembly believed that the benefits of having at least one public school employee on the State Board outweighed the potential conflicts associated with that person's public school employment. Obviously, the potential conflict between public school employment and service on the State Board is inherently greater than the potential conflicts between marriage to a public school employee and service on the State Board. Insofar as the General Assembly has deemed the benefits of having a public school employee on the State Board to outweigh the greater risk of a conflict of interest, it would be inconsistent with that legislative purpose to prohibit the appointed public school employee from serving on the State Board simply because his or her spouse was a public school employee. Second, where, as here, parts of a statute are in conflict the latter enacted parts are ordinarily deemed controlling. See In Re Guess, 324 N.C. 105, 376 S.E.2d 8 (1989). Third, to give the 1985 amendment precedence over the 1989 amendment would produce the illogical and arbitrary result that all public school employees are eligible for appointment to the State Board except those few whose spouses are also public school employees. See Sheffeld v. Consolidated Foods, 302 N.C. 403, 276 S.E.2d 422 (1981) (literal reading of statutes should be avoided if it produces an illogical or arbitrary result). In sum, it is our opinion that Mr. Davis was properly appointed to the State Board of Education even though his wife is also employed by the public schools.

The second Board member, Lowell Thomas, was appointed to the State Board in March, 1995 and confirmed by the General Assembly on July 19, 1995. He is not now and never has been a public school employee. Mr. Thomas' wife was not employed by any school system at the time his appointment to the State Board was confirmed. However, she was subsequently employed by the Caldwell County Schools in a part time locally funded position and remains in that position today.

In our opinion by virtue of the express provisions of the 1985 amendment to G.S. 115C-10, Mr. Thomas became ineligible for continued membership on the State Board the moment his wife began employment with the Caldwell County Public Schools following his confirmation. The fact that her employment is only half-time is of no consequence for the statutory prohibition extends to employees generally without regard for whether they are full-time, three-quarter or half-time employees.

When Mr. Thomas' spouse accepted employment with the Caldwell Public Schools he is deemed by operation of law to have resigned his position and thus to have created a vacancy on the State Board. See, e.g., Atkinson v. Fortner, 236 N.C. 264, 72 S.E.2d 592 (1952) (applying prohibition against double office holding). Under G.S. 115C-10 that vacancy may be filled by the Governor for the remainder of the term without legislative confirmation. If Mr. Thomas' spouse is not employed by any local school system at the time the vacancy is filled, Mr. Thomas would be eligible to fill that vacancy.

Sincerely,

Andrew A. Vanore, Jr.
Chief Deputy Attorney General

Edwin M. Speas, Jr.
Senior Deputy Attorney General