Can a North Carolina county board of commissioners directly appropriate county funds to a charter school for building construction or other capital projects?
Plain-English summary
Thomas B. Griffin, a Kinston attorney, asked the AG whether a NC county board of commissioners could appropriate county funds to a charter school for capital outlay projects (building construction, major renovations, equipment, and the like). The AG answered no.
The legal framework. NC follows Dillon's Rule: counties have only the powers the General Assembly explicitly grants them. The AG cited two leading cases. Harris v. Board of Commissioners, 274 N.C. 343 (1968), and Hughey v. Cloninger, 297 N.C. 86 (1979), both confirm that NC counties are creatures of the legislature with no inherent or implied powers beyond what is conferred by statute.
What the Charter School Act says about funding. The Act, codified at G.S. § 115C-238.29A et seq., contains a specific funding architecture in § 115C-238.29H:
- The State Board of Education allocates certain State funds to charter schools.
- The local school administrative unit (LEA) where the child resides must transfer to the charter school "an amount equal to the per pupil local current expense appropriation" for the fiscal year.
Nothing in this architecture mentions counties. The flow is State to charter and LEA to charter, with no direct county-to-charter channel.
What Chapter 153A says. Chapter 153A is the general statute on county powers. The AG reviewed it and found no authorization for counties to fund charter schools, either for capital or for operating expenses.
Indirect support, allowed. The 1997 amendments to the Charter School Act did authorize one form of in-kind county-side support: under § 115C-238.29E(e), "a local board of education may provide a school facility to a charter school free of charge" if the charter school takes on maintenance and insurance. And under § 115C-238.29F(h), the local board may contract with a charter school for bus transportation (with or without a fee).
But these are LEA actions, not county-commissioner actions. And they are in-kind facility provision and bus contracts, not direct cash appropriations.
Bottom line. A county that wants to support a charter school in its boundaries can lobby the LEA to provide a facility free of charge, or it can lobby the State legislature to give it explicit authority to appropriate funds directly. It cannot just write a check from the county general fund.
Currency note
This opinion was issued in 1998. 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 charter school funding statute has been amended multiple times since 1998. Several NC counties have explored direct charter funding through local-act mechanisms, and the General Assembly has periodically considered changes. Anyone analyzing a current funding question should look at the current text of § 115C-238.29H, any post-1998 amendments specifically authorizing county participation, and any subsequent AG opinions on charter school funding.
Common questions
Q: What is Dillon's Rule?
A: A canon of state-local-government law named for an 1872 Iowa Supreme Court decision by Judge John Forrest Dillon. It says local governments have only the powers expressly granted by the state, those fairly implied by express grants, and those necessarily incidental to express grants. NC is a Dillon's Rule state. Counties cannot exercise powers the legislature has not given them.
Q: Why didn't the legislature just authorize county funding when it created charter schools?
A: A political and policy choice. NC's charter school model was funded through the existing State-and-LEA system, on the theory that the per-pupil local current expense appropriation channeled through the LEA already represented the county's share. Allowing additional direct county funding could have created unequal access (rich counties supplement, poor counties cannot) and tension with the LEA structure.
Q: Can a county make a one-time donation or grant?
A: The opinion says no. The lack of statutory authority means counties cannot appropriate county money to a charter school in any form: capital, operating, one-time donation, multi-year grant.
Q: What about indirect support through the county sheriff or some other unit?
A: Anything that channels county money to the charter school directly hits the same statutory-authority wall. In-kind services (a county-provided facility, county-provided technology) would likely be analyzed the same way if they are county-funded.
Q: Is the LEA-provided facility a useful workaround?
A: It is the workaround the legislature affirmatively allowed. The LEA can give the charter school a building it owns, rent-free, in exchange for the charter taking on maintenance and insurance. The LEA's decision is its own; the county cannot direct it but can lobby it.
Q: What about private donations to a charter school in the county?
A: Private donations from individuals or businesses are unaffected by this opinion. The AG addresses only county-government appropriations.
Background and statutory framework
NC's Charter School Act of 1996 created a funding model that channeled per-pupil State and local current expense dollars to charter schools, but did not change the local fiscal architecture. Counties had long been the primary capital funder for traditional public schools through the LEA; the legislature did not extend that role to charter schools.
The architectural choice reflected a few policy concerns. First, the General Assembly was wary of creating competing local funding streams that could destabilize LEA budgeting. Second, allowing direct county appropriations could have inflamed political fights over local control of the new schools. Third, the legislature wanted to preserve State-level control over the charter school program through the State Board's allocation function.
The 1997 amendments added the in-kind facility provision and bus contract provisions as a way to channel some local support to charter schools without breaking the funding architecture. The LEA's discretion to provide a facility free of charge is meaningful, but it is not the same as a cash appropriation. A charter school cannot use it to fund non-facility expenses.
Citations
- N.C. Gen. Stat. § 115C-238.29A et seq. (Charter School Act)
- N.C. Gen. Stat. § 115C-238.29H (charter school funding: State allocation + LEA per-pupil transfer)
- N.C. Gen. Stat. § 115C-238.29E(e) (LEA may provide a school facility free of charge to charter school)
- N.C. Gen. Stat. § 115C-238.29F(h) (LEA may contract for bus transportation)
- N.C. Gen. Stat. Chapter 153A (general county powers, no charter funding authority)
- Harris v. Board of Commissioners, 274 N.C. 343, 163 S.E.2d 387 (1968) (counties have only delegated powers)
- Hughey v. Cloninger, 297 N.C. 86, 253 S.E.2d 898 (1979) (counties have only delegated powers)
Source
Original opinion text
April 15, 1998
Thomas B. Griffin, Esq.
Griffin & Griffin
P. O. Box 3062
Kinston, NC 28502-3062
Re: Advisory Opinion; Capital Outlay Funding for Charter Schools; G.S. 115C-238.29H
Dear Mr. Griffin:
You have requested the opinion of this office regarding whether a board of county commissioners may appropriate funds to charter schools for capital outlay projects. In our opinion boards of county commissioners do not have that authority.
It is well-settled that counties possess only those "powers and delegated authority as the General Assembly may deem fit to confer upon them." Harris v. Board of Commissioners, 274 N.C. 343, 163 S.E.2d 387 (1968); Hughey v. Cloninger, 297 N.C. 86, 89, 253 S.E.2d 898, 900 (1979). The Charter School Act, G.S. 115C-238.29A et seq., provides that the State Board shall allocate certain State funds to charter schools and that the "local school administrative unit in which the child resides shall transfer to the charter school an amount equal to the per pupil local current expense appropriations unit for the fiscal year." G.S. 115C-238.29H (emphasis added). There is no provision of the Charter School Act that authorizes a board of county commissioners to allocate county monies directly to charter schools, whether for capital needs or for operating expenses. A review of Chapter 153A likewise discloses no specific authorization for a board of county commissioners to fund a charter school. Thus under well-settled case law, the commissioners lack the authority to allocate funds to charter schools for capital outlay.
This does not mean that public funds may not be used to support charter schools. The Charter School Act, as amended during the 1997 session, specifically provides that "a local board of education may provide a school facility to a charter school free of charge" provided the charter school assumes responsibility "for the maintenance of and insurance for the school facility." G.S. § 115C-238.29E(e) (emphasis added). The Act goes on to permit local boards to contract with charter schools to provide bus transportation and to charge or not charge a fee for this service. G.S. 115C-238.29F(h).
We hope this response adequately addresses your inquiry. Please do not hesitate to contact us should you have further questions.
signed by:
Thomas J. Ziko
Special Deputy Attorney General
Laura E. Crumpler
Assistant Attorney General