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

An attorney asked whether a county board of commissioners could appropriate funds to a charter school for capital outlay. The AG answered that boards of county commissioners "do not have that authority." It cited cases stating that counties have the powers the General Assembly delegates to them. Source

The opinion describes the Charter School Act's funding provisions: the State Board allocated certain state funds and a local school administrative unit transferred a per-pupil share of local current-expense appropriations. The AG found no provision authorizing county commissioners to allocate county money directly to charter schools "whether for capital needs or for operating expenses," and no specific authority in Chapter 153A. Its conclusion addressed county allocations for capital outlay. Source

The letter separately noted two actions the Act allowed local school boards to take. A board could provide a school facility to a charter school free of charge if the charter school maintained and insured it; a board could also contract to provide bus transportation, with or without a fee. The opinion did not analyze county donations, grants through private organizations, or other proposed funding routes. Source

Currency note

This opinion was issued in April 1998 under the Charter School Act as then written. Review current statutes and any later authority for a present county funding proposal.

Background and statutory framework

The AG cited Harris v. Board of Commissioners, 274 N.C. 343, 163 S.E.2d 387 (1968), and Hughey v. Cloninger, 297 N.C. 86, 253 S.E.2d 898 (1979), for the rule that county powers come from the General Assembly. It then examined G.S. 115C-238.29H and Chapter 153A for a county funding power and found none for the requested capital appropriation. Source

Common questions

Could county commissioners directly pay a charter school's capital outlay under the law reviewed?

The AG said no. It found no statutory authority for commissioners to make that allocation. Source

Did the opinion decide whether a county could make a donation or multi-year grant by another route?

No. Its requested question was direct county funding for capital outlay. The letter does not analyze donations, private intermediaries, or a separate grant structure. Source

Could a local school board provide a facility to a charter school?

The opinion quotes the Act as permitting a local board of education to provide a school facility free of charge if the charter school assumed maintenance and insurance responsibility. That is an action by the local school board, not an authorization for county commissioners to make a direct appropriation. Source

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

• Landing page: https://ncdoj.gov/opinions/capital-outlay-funding-for-charter-schools/

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