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

The State Board of Education chair asked about two members whose spouses worked for local schools. G.S. 115C-10 allowed at most one public school employee to serve on the Board, while also barring spouses of public school employees. The AG applied those provisions to the members' different circumstances. Source

Eddie Davis III: Davis was appointed in April 1993 to the public-school-employee seat. His wife also worked for the Durham public schools. Although the spouse bar could disqualify him if read literally, the AG concluded that the 1989 amendment allowing one public school employee also allowed that member to serve when their spouse was a public school employee. The opinion says Davis "was properly appointed to the State Board of Education even though his wife is also employed by the public schools." Source

Lowell Thomas: Thomas was appointed in March 1995 and confirmed by the General Assembly on July 19, 1995. His wife later took a part-time, locally funded position with Caldwell County Schools. The AG concluded that Thomas became ineligible when she began that job. The spouse bar applied regardless of whether her job was full-time or part-time. The opinion says he was "deemed by operation of law to have resigned" and created a vacancy. Source

Currency note

This opinion was issued in June 1997. Check the current text of G.S. 115C-10 and later authority before using it for an appointment today.

Background and statutory framework

The opinion recounts two amendments to G.S. 115C-10. A 1985 amendment prohibited appointment of a public school employee paid from state or local funds or that person's spouse. A 1989 amendment allowed "not more than one public school employee paid from state or local funds" to serve as an appointive Board member. Source

For Davis, the AG read the later allowance together with the spouse restriction. The opinion reasons that disqualifying only public school employees whose spouses also worked in schools would be an "illogical and arbitrary result." That reasoning concerned the single employee seat Davis occupied. Source

For Thomas, the opinion applied the spouse restriction directly. It says the Governor could fill the resulting vacancy for the remainder of the term without legislative confirmation. Thomas himself would be eligible to fill it if his spouse was no longer employed by a local school system when the vacancy was filled. Source

Common questions

Did the opinion say Davis's appointment was confirmed by the General Assembly?

No. It says Davis was appointed in April 1993 and concludes he was properly appointed despite his wife's public school employment. The legislative confirmation it mentions is Thomas's, on July 19, 1995. Source

Does a part-time school job count under the spouse restriction?

Yes, in the situation addressed. The opinion says the restriction applies to employees "without regard for whether they are full-time, three-quarter or half-time employees." Thomas's wife had taken a half-time, locally funded position. Source

Could Thomas serve again if his wife left the school job?

The opinion says he would be eligible to fill the vacancy if his spouse was not employed by any local school system when the Governor filled it. It does not say he would automatically regain the seat. Source

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