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, in the western NC mountains, wanted to grow its Board of Commissioners from three members to five. The Board had passed a resolution scheduling a referendum at the November 1998 election. The resolution had a curious extra: it said that if voters approved the expansion, all five members would be elected at the November 2002 general election. The 2002 timing would have meant Madison County operated under the old three-member structure for four more years even though voters had just approved the new structure.

State Board of Elections Chairman Larry Leake asked the AG whether the resolution's 2002 timing could stand against the controlling statute. Senior Deputy AG Ann Reed and Special Deputy AG Susan K. Nichols read the statute as flatly inconsistent with the resolution. G.S. § 153A-62 provided:

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.

The "first succeeding primary and general election for county offices" was the trigger. After the November 1998 referendum, the next election in which county offices were on the ballot was November 2000 (Madison County had the Register of Deeds, under § 161-2, and the Tax Collector on the 2000 ballot per Leake's letter). That was the election at which the new five-member structure had to be elected. The resolution's attempt to push the effective date to 2002 conflicted with the statute and was void as written.

The opinion was a short, clean reading of the statute. The Board of Commissioners had no authority to override the statutory effective date. If the voters approved expansion in November 1998, the county would elect a five-member board in November 2000. The new members would take office on the first Monday in December 2000.

The AG closed by offering further assistance if the State Board had follow-up questions about the mechanics of getting from the November 1998 vote to a five-member board ready to take office in December 2000.

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. G.S. § 153A-62's wording remains broadly the same, but specific election dates, county-officer terms, and the interaction with the State Board's modern election calendar have moved over the years.

Background and statutory framework

Why counties alter their commissions. NC counties have wide latitude under Chapter 153A to restructure their governance. Common alterations include changing the number of commissioners (often from three to five or from five to seven), changing the method of election (at-large vs. district vs. mixed), and changing the length of terms. The General Assembly's design gives counties room to grow into modern governance forms while preserving uniform statutory procedures.

The § 153A-62 mechanism. Under § 153A-62, the existing commission could place an alteration question on the ballot by resolution. If voters approved, the new structure took effect automatically at the next election for county offices. No further legislative action was needed. The Board of Commissioners' resolution was the operative instrument before the vote; after the vote, the statute did the work.

The "first succeeding . . . election for county offices" trigger. This phrase tied the effective date to the next regular county-office election. Counties have offices on the ballot in every even-numbered year (under § 163-1's quadrennial setup), so the effective date typically came up either at the next two-year cycle or the cycle after, depending on which offices were up. The Register of Deeds (G.S. § 161-2) was elected to four-year terms, with cycles set by statute; the Tax Collector cycle was likewise statutorily fixed.

Madison County's 2000 county-office election. Madison's Register of Deeds and Tax Collector were both up for election in 2000. That made 2000 the "first succeeding primary and general election for county offices" after the November 1998 referendum. The statute mandated that election as the trigger. The Board of Commissioners could not, by resolution, push the effective date forward to 2002.

Why a board might want to delay. The opinion did not address the political background, but the practical reason for delaying is straightforward: a 2000 effective date would have required all five seats to be on the 2000 ballot, including incumbents whose terms were not normally up until later. Delaying to 2002 would have let some incumbents serve out their natural terms before the new five-member structure took over. The AG's reading foreclosed that workaround.

The first-Monday-in-December effective date. Under § 153A-62, the alteration took effect "on the first Monday in December following that general election." So a 2000 general election would have produced new commissioners taking office in early December 2000. The new commissioners would have served whatever terms the alteration prescribed.

The Board's lack of override power. The opinion's bottom line was the lack of any home-rule override authority. NC counties are creatures of state statute. A county board's resolution cannot conflict with a controlling statute. The AG saw no ambiguity in § 153A-62's text and no statutory grant of discretion to the county board to adjust the timing.

Common questions

Q: What if Madison County voters rejected the expansion?

A: The whole question became moot. The opinion's conclusion turned on what happened "if approved."

Q: Could the General Assembly have enacted a special law to allow Madison County to delay until 2002?

A: Yes, in principle. The legislature could have enacted a local act overriding the general rule for Madison. The AG opinion addressed only the existing statutory framework; it did not foreclose a legislative fix.

Q: What happened to incumbent commissioners whose terms ran past 2000?

A: The opinion did not address that question. In practice, statutes governing alterations typically provide that all seats are deemed up at the trigger election, ending mid-term unless transitional language preserves incumbencies. The Board would have needed to read the specific implementing language carefully.

Q: Could a county board ever set an effective date later than the statute?

A: Not by resolution. The AG saw the statutory effective date as mandatory.

Q: Did the AG address what happens if the referendum question itself stated the 2002 date?

A: Yes, implicitly. The AG concluded the statutory effective date controlled "regardless" of what the resolution or the ballot question said. The Board's choice of language did not change the statutory outcome.

Q: Was this opinion specific to Madison County or general guidance?

A: It was a Madison-specific advisory opinion, but the statutory analysis applied to any county pursuing alteration under § 153A-62.

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