When a North Carolina county tax collector resigns mid-term and the office is elective under local law, who fills the interim vacancy, and what process applies?
Plain-English summary
The Haywood County Tax Collector resigned effective September 1, 1998. She also withdrew her name from the November ballot. The Democratic Party Executive Committee nominated a replacement for the ballot under N.C.G.S. § 163-114 and recommended the same person fill the interim vacancy from September 1 through the first Monday in December (when the November winner would be sworn in).
Representative Charles Beall asked the AG two questions: who has the power to make the interim appointment, and what process should be followed?
Who appoints. The Board of County Commissioners. Two statutes support this:
- N.C.G.S. § 105-349 is the general statute on county tax collector appointment. It says the county governing body appoints the tax collector. Haywood County had a series of local acts (1929, 1933, 1935, 1937, 1941, 1957, 1971) making the position elective rather than appointive, but those local acts said nothing about how vacancies between elections should be handled.
- N.C.G.S. § 153A-76 gives boards of commissioners broad authority to create, change, abolish, and consolidate offices and positions, and to assign duties as needed for orderly county administration. The AG read this as implicit authority to fill the vacancy.
The AG also relied on a 1971 repealer clause in S.L. 1971 c. 806 (which enacted the modern version of § 105-349). The clause said the State statute was to be uniformly applicable, with private and local acts on tax collectors except those relating to selection (which is what Haywood's local acts addressed). Because the local acts only addressed selection by election, they did not conflict with the State rule on vacancy-filling, so the State rule applied.
What process to follow. The AG noted that NC has specific party-consultation processes for filling other elective county vacancies:
- Board of commissioners vacancies under § 153A-27.1(d): the board consults the county executive committee of the appropriate political party and appoints the person the party recommends, if recommended within 30 days.
- Sheriff vacancies under § 162-5.1: similar party-consultation procedure.
For a county tax collector, no equivalent statute exists, so the Board is not required to follow party consultation. But the AG said the Board may do so in its discretion. The Haywood Board could reasonably look at the analogous statutes and choose to consult with the Democratic Executive Committee (since the outgoing collector was a Democrat) before making the interim appointment.
The opinion is a tidy example of NC's mixed system of State default rules layered with county-specific local acts, and the AG's pattern of resolving conflicts by reading the local acts narrowly to do only what they expressly say.
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 relevant statutes (G.S. §§ 105-349, 153A-76, 153A-27.1, 162-5.1, 163-114) have been amended multiple times since 1998. NC also added more counties to the elected-tax-collector model and revised the State default rules around appointed tax collectors. Anyone working through a current vacancy should pull the current statutes and any post-1998 amendments to the relevant local act before relying on this analysis.
Common questions
Q: Why are some NC county tax collectors elected and others appointed?
A: The general statute (§ 105-349) makes the tax collector appointed by the county governing body. But a handful of counties have local acts overriding that default. Haywood County's local acts dated back to 1929 and made the collector an elected office. Local-act variation in NC county government is common, often reflecting historical political bargains between the legislature and individual counties.
Q: Why didn't the AG just defer to the local acts?
A: The local acts spoke only to how the collector is selected, which they answered as "by election." They did not address what happens if the office becomes vacant between elections. The AG read that silence narrowly: the local acts displace the State default only on the topics they cover.
Q: Could the Board ignore the party's recommendation?
A: Yes. The AG said the Board "may" follow the party-consultation procedure used for commissioner and sheriff vacancies, "in its discretion." It is not bound by the procedure or by the party's recommendation.
Q: What is N.C.G.S. § 163-114 about?
A: That statute lets a political party fill a vacancy on its general-election ballot if a nominee withdraws or dies. The party's executive committee nominates the replacement candidate. That ballot process is separate from the interim-appointment question.
Q: Could the outgoing tax collector influence who replaces her?
A: She has no statutory role in the appointment. The Board makes the call. As a practical matter, she might recommend, but the recommendation has no legal force.
Q: What happens at the end of the interim term?
A: The November election winner is sworn in on the first Monday in December. The interim appointee's authority ends at that point.
Background and statutory framework
NC county tax collectors are responsible for collecting property taxes and other county-level taxes. The collector is typically appointed by the county governing body under § 105-349, with the local-act exceptions noted above. The position is critical to county cash flow and to the integrity of the tax roll.
Haywood County's series of local acts (1929 to 1971) created and preserved its elected-tax-collector model. The 1971 statewide tax collector statute (§ 105-349) was passed with a careful carve-out for those local acts, but the carve-out was limited to selection. Vacancy mechanics defaulted back to State law.
The party-consultation procedure for commissioner and sheriff vacancies (§§ 153A-27.1(d), 162-5.1) reflects NC's general policy of preserving the political affiliation of an elected office during interim appointments. The AG opinion notes this pattern but emphasizes that the policy is not yet codified for tax collectors, so the Board has discretion rather than a duty.
The opinion fits a broader AG pattern of resolving NC's mixed system of State defaults plus local acts by reading the local acts narrowly. Where a local act is silent, the State default fills in.
Citations
- N.C.G.S. § 105-349 (general statute on county tax collector appointment by governing body)
- N.C.G.S. § 153A-27.1(d) (party consultation for vacant commissioner seat)
- N.C.G.S. § 153A-76 (general powers of boards of commissioners)
- N.C.G.S. § 162-5.1 (party consultation for vacant sheriff seat)
- N.C.G.S. § 163-114 (party committee nominates ballot replacement)
- Haywood County local acts: P.L. 1929, C. 212; P.L. 1933, C. 2; P.L. 1935, C. 226; P.L. 1937, C. 383; P.L. 1941, C. 460; S.L. 1957, C. 724; S.L. 1971, C. 806
Source
Original opinion text
August 5, 1998
The Honorable Charles Beall
North Carolina House of Representatives
300 N. Salisbury Street
Raleigh, North Carolina 27603-5925
RE: Advisory Opinion; Haywood County Board of Commissioners; N.C.G.S. §§ 105-349; 153A-27.1(d); 153A-76; 162-5.1; 163-114; Haywood County Tax Collector
Dear Representative Beall:
This responds to your letter of July 28, 1998, in which you ask for the opinion of this Office concerning the process for filling a vacancy in the position of Haywood County Tax Collector from September 1, 1998, until the position is filled by election in November, 1998, and the person elected takes office on the first Monday in December. (See, P.L. 1941, C. 460.)
The facts that give rise to your request, as set out in your letter, are as follows: The Haywood County Tax Collector, who is a Democrat, has resigned from the position effective September 1, 1998. She has also removed her name from the ballot as a candidate for re-election in the November election. Pursuant to N.C.G.S. § 163-114, the Haywood County Democratic Party Executive Committee has nominated an individual to run for the vacancy and has recommended the appointment of that same individual to fill the position on an interim basis. Since the election is not until November, there will be a gap of over three months between the resignation of the present Tax Collector and the election of a new Tax Collector. Your questions are who has the power to make an interim appointment to the position and what process should be followed in making the appointment.
The materials you provided include a memorandum to the Haywood County Board of Commissioners from County Attorney Leon M. Killian, III. Mr. Killian traces the history of the Haywood County Tax Collector and concludes that the Board should make the interim appointment. We agree.
The general law which provides for the appointment of county tax collectors is N.C.G.S. § 105-349. This statute provides that the governing body of a county appoints the tax collector. However, pursuant to a series of local laws enacted beginning in 1929, the Haywood County Tax Collector is elected. (See, P.L. 1929, C. 212; P.L. 1933, C. 2; P.L. 1935, C. 226; P.L. 1937, C. 383; P.L. 1941, C. 460; S.L. 1957, C. 724; S.L. 1971, C. 806, s. 1, p. 1162.) These local laws do not specify how the Haywood County Tax Collector will be selected in the event a vacancy occurs between elections. Mr. Killian cites N.C.G.S. § 153A-76 in support of his conclusion that the Board of Commissioners will make the interim appointment. That statute sets out the general powers of boards of commissioners to create, change, abolish and consolidate offices, positions, departments, boards, commissions, and agencies of county government, including imposing one or more duties on more than one office or on a single officer to promote orderly and efficient administration of county affairs. We agree with Mr. Killian that the power to appoint an interim Tax Collector is implicit in the language of this statute. N.C.G.S. § 105-349 also supports Mr. Killian's conclusion. Chapter 806 of the 1971 Session Laws, which enacted the original version of N.C.G.S. § 105-349, contains the following language in the repealer clause: "It is the intent of the General Assembly to make the provisions of this subchapter (being §§ 105-291 through 105-395, inclusive) uniformly applicable throughout the State, and to assure this objective all laws and clauses of laws, including private and local acts (except local acts relating to the selection of tax collectors), in conflict with the provisions of this subchapter shall, as of July 1, 1971, be and are hereby repealed." The local acts regarding the election of the Haywood County Tax Collector do not apply to the situation where there is a vacancy in the position before an election and therefore do not conflict with the State law in this regard. The State statute provides that the Board of Commissioners will make the appointment.
With regard to the process the Board should follow in making the interim appointment, we note that, while there is no specific statutory procedure for making an interim appointment to the elective office of Haywood County Tax Collector, there are specific statutory procedures for making interim appointments to other elective Haywood County offices. N.C.G.S. § 153A-27.1(d) provides that in the event of a vacancy on the board of commissioners:
If the member who vacated the seat was elected as a nominee of a political party, the board of commissioners, the chairman of the board, or the clerk of superior court, as the case may be, shall consult the county executive committee of the appropriate political party before filling the vacancy, and shall appoint the person recommended by the county executive committee of the political party of which the commissioner being replaced was a member, if the party makes a recommendation within 30 days of the occurrence of the vacancy.
N.C.G.S. § 162-5.1 provides that in the event of a vacancy in the office of sheriff:
…If the sheriff were elected as a nominee of a political party, the board of commissioners shall consult the county executive committee of that political party before filling the vacancy, and shall elect the person recommended by the county executive committee of that party, if the party makes a recommendation within 30 days of the occurrence of the vacancy….
While the Board is not required to follow this process in appointing the interim Tax Collector, it may do so in its discretion.
We trust that this advisory opinion fully answers your inquiry. Please let us know if you need additional assistance.
signed by:
Ann Reed
Senior Deputy Attorney General