If a NC county votes in 1998 to expand its board of commissioners from three to five, when does the expansion actually take effect, the next county election in 2000 or 2002 as the resolution said?

Plain-English summary

Madison County scheduled a November 1998 referendum on expanding its Board of Commissioners from three to five members. The county board's resolution said that, if voters approved the change, all five members would be elected at the November 2002 general election. The State Board of Elections chair asked when an approved change would actually take effect. Source

The AG applied N.C. Gen. Stat. § 153A-62, which called for nominating and electing commissioners at the "first succeeding primary and general election for county offices" after approval. The statute said the alteration would take effect on the first Monday in December after that general election. The opinion identifies the Register of Deeds election in 2000 and notes that the requester's letter also put Tax Collector on that ballot. Source

The AG concluded that an approved referendum would require the new board members to be elected in 2000, not 2002. It said the county board "has no authority to override the statutory language" through its resolution. The opinion does not discuss the wording of the ballot question. Source

Currency note

This opinion was issued in August 1998 about a proposed Madison County referendum. Check the current statute and election calendar for a present restructuring proposal.

Background and statutory framework

The opinion's timing analysis turns on the next election for county offices, rather than the later date chosen by the commissioners' resolution. It quotes § 153A-62 for both the election rule and the effective date on the first Monday in December. Source

Common questions

Could Madison County postpone electing the expanded board until 2002 under its resolution?

The AG said no. Because county offices were scheduled for election in 2000, the board could not override § 153A-62 by setting a 2002 election in its resolution. Source

What if voters did not approve the expansion?

The opinion addresses when an approved alteration would take effect. It gives no different governance change for a rejected referendum. Source

Did the AG decide the effect of any date printed on the ballot question?

No. The letter discusses the commissioners' resolution and the statute, but does not analyze ballot wording. Source

Citations from the opinion

• N.C. Gen. Stat. § 153A-62
• N.C. Gen. Stat. § 161-2
• N.C. Gen. Stat. § 163-1

Source

• Landing page: https://ncdoj.gov/opinions/effective-date-of-referendum/

Original opinion text

August 27, 1998

Mr. Larry Leake Chairman State Board of Elections 133 Fayetteville Street Mall Suite 100 Raleigh, NC 27601

Re: Advisory Opinion; Effective Date of Referendum; N.C. Gen. Stat. § 153A-62

Dear Chairman Leake:

You requested an advisory opinion on when a referendum on reorganizing the Board of Commissioners in Madison County, if approved, would be effective. The Madison County Board of Commissioners has adopted a resolution authorizing a referendum for the expansion of the Board from three members to five. This referendum will be held at the November, 1998, general election. The resolution provides that if the referendum is approved, all five members of the Board will be elected at large for four-year terms "at the November 2002 General Election."

Pertinent language in N.C. Gen. Stat. § 153A-62 provides: "Any approved alteration shall be the basis for nominating and electing the members of the board of commissioners at the first succeeding primary and general election for county offices held after approval of the alteration; and the alteration takes effect on the first Monday in December following that general election."(emphasis added). The clear import of this language is that the expansion of the Madison Board of Commissioners will be effective for the next general election after November, 1998, in which county offices are scheduled to be filled.

Under N.C. Gen. Stat. §§ 161-2 and 163-1, the office of Register of Deeds for the County of Madison is scheduled for election in the year 2000. Your letter indicates the office of Tax Collector is on the ballot as well. The Board of Commissioners has no authority to override the statutory language mandating that the referendum will take effect at the next election for county offices. Thus, it is our opinion that the referendum, if approved, will become effective in the year 2000 and not 2002, and the election of the new members of the Board may not be posponed until 2002.

You may have additional questions about how to achieve the desired change in governance structure in light of this opinion. Please feel free to contact us if you need additional assistance.

signed by:

Ann Reed, Senior Deputy Attorney General Administrative Division

Susan K. Nichols, Special Deputy Attorney General