Can an outgoing Speaker of the NC House make appointments to a state board that don't take effect until after he leaves office, locking in his choices over the new Speaker's preferences?
Plain-English summary
Speaker Harold Brubaker was the outgoing Speaker of the NC House on December 31, 1998. On that day, he made appointments to the NC Travel and Tourism Board for two-year terms scheduled to start January 1, 1999. The new Speaker, James B. Black, took office January 1, 1999 and inherited a Board with Brubaker's last-day appointees already locked in. Black asked the AG whether the appointments were valid. The AG said no.
The statute's structure. G.S. 143B-434.1(d) ties each member's term of office to the term of the person who appointed them. The Secretary of Commerce, the Director of the Division of Travel and Tourism, and certain other ex-officio members serve "while they hold their respective offices." Members appointed by the Governor "serve during his or her term of office." Members appointed by the General Assembly serve "two-year terms beginning on January 1 of odd-numbered years and ending on December 31 of the following year." The two-year cadence matches the two-year cycle of the General Assembly and of the Speaker's office.
Why this matters. The legislature wired the appointments to the appointers' own terms so that each new Governor, each new Speaker, and each new President Pro Tempore would have the chance to put their own people on the Board. That principle is incompatible with letting a Speaker on his last day in office choose appointees who will serve under the next Speaker. If lame-duck appointments worked, the new Speaker would be stuck with the predecessor's appointees for two years and could not exercise his own statutorily granted appointment power until 2001.
The general legal principle. The AG cited 63C Am. Jur. 2d, Public Offices and Employees, § 88: "a public officer or public body having a power of appointment cannot forestall the rights and prerogatives of a successor by making a prospective appointment to fill an office when the appointee's term is not to begin until the appointing power's own term has expired." That is the general rule across U.S. law: prospective appointments that extend beyond the appointing authority's term are void.
Result. Brubaker's December 31, 1998 appointments to terms starting January 1, 1999 were void. Black, as the new Speaker, was free to make his own appointments for those same five seats.
Currency note
This opinion was issued in 1999. 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 general principle (lame-duck appointing authorities cannot lock up successor's appointment power) remains a stable rule of NC and broader U.S. public-officer law. The Travel and Tourism Board has gone through several restructurings since 1999 (most NC tourism functions are now in the Economic Development Partnership of NC, a public-private structure). The specific seats and term structure may have changed. The 1999 opinion's principle survives the structural changes.
Common questions
Q: Why did the statute structure terms to track the Speaker's term?
A: Because the legislature wanted each new political leader to have appointment power. Co-extensive terms achieve that. Without the tie, a Speaker who served one term could lock in two years of board control through last-day appointments, then leave office.
Q: Could the outgoing Speaker have made the appointments earlier?
A: For a term beginning while he was still Speaker, yes. The problem is the timing: appointments for a term beginning after the Speaker's own term ended. That violates the prospective-appointment rule.
Q: What about resignations or deaths mid-term?
A: A Speaker who resigns or dies mid-term creates a vacancy in his appointment power. Whether mid-term Speaker-appointed board members continue to serve, or whether the successor Speaker can replace them, depends on the precise statute. G.S. 143B-434.1(d) here ties term to "term of office," so an early end of the appointing Speaker's term should accelerate the end of his appointees' terms; the new Speaker can re-appoint.
Q: Did the appointees know their appointments were void?
A: The opinion does not say. As a practical matter, lame-duck appointees often serve in good faith until challenged. The 1999 AG opinion provides the formal basis for the new Speaker to inform them that they were not validly appointed and to seat replacements.
Q: Can the new Speaker just leave the seats empty?
A: The statute does not require that he fill them immediately, but appointing authorities generally do. Empty seats reduce the Board's quorum and complicate its work.
Q: Does this apply to other NC boards?
A: The reasoning applies to any NC board whose statute ties appointment terms to the appointing authority's term. Some statutes work differently. The clearest cases for AG-style intervention are those where the statute uses the "terms shall begin on January 1 of [appointer's term-start year]" formulation, as G.S. 143B-434.1(d) does.
Background and statutory framework
The NC Travel and Tourism Board was a 27-member advisory body charged with promoting NC as a travel destination. The 27 seats were a mix of ex officio (Secretary of Commerce, Director of Travel and Tourism, presidents of major tourism trade associations) and appointive (Governor, General Assembly, Speaker, President Pro Tempore).
The legislature wired in appointment-term symmetry: each appointing authority's appointees would have terms tied to that authority's tenure. The result was that each new Governor, Speaker, and President Pro Tempore got their own appointees rotating in at the start of their respective term. The drafters had clearly thought about lame-duck mischief: the language tying appointee terms to appointer terms exists specifically to prevent prospective lockouts of the successor.
The 1998 to 1999 transition was the first real test. Speaker Harold Brubaker (Republican) was leaving; Speaker-elect Jim Black (Democrat) was incoming with a different political composition of the House. The five Speaker-appointed Board seats were politically contestable. Brubaker's last-day appointments were apparently an effort to extend his political reach beyond his Speakership.
The AG opinion put a clean end to that maneuver. The opinion does not reach the political merits but applies the general rule of public-officer law: prospective appointments past one's own term are void. The opinion is short and emphatic because the rule is well-settled.
This kind of opinion is unusual in being directly tied to a partisan transition, but the legal principle is non-partisan: the same rule would apply if a Democratic outgoing Speaker tried to lock in appointments past his own term to a Republican successor.
Citations
- N.C. Gen. Stat. § 143B-434.1 (NC Travel and Tourism Board)
- N.C. Gen. Stat. § 143B-434.1(c) (Speaker appoints five members for two-year terms)
- N.C. Gen. Stat. § 143B-434.1(d) (terms of Board members; co-extensive with appointing authority)
- 63C Am. Jur. 2d, Public Offices and Employees, § 88 (rule against prospective appointments past appointing authority's term)
Source
- Landing page: https://ncdoj.gov/opinions/appointments-to-office/
Original opinion text
February 17, 1999
The Honorable James B. Black
Speaker of the House of Representatives
Room 2304, Legislative Building
Raleigh, NC 27601-2808
RE: Advisory Opinion; Appointments to Public Office; G.S. § 143B-434.1
Dear Speaker Black:
Pursuant to G.S. § 143B-434.1(c) and (d), the Speaker of the House appoints five members of the North Carolina Travel and Tourism Board ("the Board") for two year terms. By recent letter you requested our opinion regarding the proper application of this statute. In particular, you asked whether your predecessor as Speaker acted within his authority when he appointed persons to the Board on December 31, 1998, for two-year terms beginning January 1, 1999. In our opinion, those appointments were not valid appointments.
The terms of office of the twenty-seven members of the Board are established by G.S. § 143B-434.1(d). It provides:
The members of the Board shall serve the following terms: the Secretary of Commerce, the Director of the Division of Travel and Tourism, the Chairperson of the Travel and Tourism Coalition, the President of the Travel Council of North Carolina, and the President of North Carolina Citizens for Business and Industry shall serve on the Board while they hold their respective offices. Each member of the Board appointed by the Governor shall serve during his or her term of office. The members of the Board appointed by the General Assembly shall serve two-year terms beginning on January 1 of odd-numbered years and ending on December 31 of the following year. The first such term shall begin on January 1, 1991, or as soon thereafter as the member is appointed to the Board, and end on December 31, 1992. All other members of the Board shall serve a term which consists of the portion of calendar year 1991 that remains following their appointment or designation and, thereafter, two-year terms which shall begin on January 1 of an even-numbered year and end on December 31 of the following year. The first such two-year term shall begin on January 1, 1992, and end on December 31, 1994. (Emphasis added).
It will be observed that by these words the terms of all twenty-seven Board members begin and end simultaneously with the terms of office of their appointing authority. Thus, the Secretary of Commerce, and certain other enumerated officers, serve on the Board "while they hold their respective offices," and are then replaced by their successors in office. The members of the Board appointed by the Governor "serve during" the Governor's "term of office," and are replaced by the next Governor. The members of the Board appointed by the General Assembly or by the Speaker and President Pro Tempore serve for terms identical to the terms of the members of the General Assembly, i.e. "from January 1 of odd-numbered years [to] December 31 of the following year," and are then replaced by the next General Assembly, Speaker or President Pro Tempore.
In structuring the terms of office for members of the Board in this manner, the General Assembly obviously intended to assure that each new Governor, new Speaker and new President Pro Tempore would have the opportunity to make his or her own appointments to the Board and not be bound by the appointments of their predecessors. The actions of the former Speaker in appointing persons on December 31, 1998, to serve on the Board during your two-year term as Speaker were in direct contradiction to the General Assembly's intent as expressed in G.S. § 143B-434.1(d), and, in our opinion, those appointments are unauthorized and void. This conclusion is fully consistent with general legal principles. See, 63C Am. Jur. 2d, Public Offices and Employees, § 88 ("a public officer or public body having a power of appointment cannot forestall the rights and prerogatives of a successor by making a prospective appointment to fill an office when the appointee's term is not to begin until the appointing power's own term has expired").
Very truly yours,
Edwin M. Speas, Jr.
Chief Deputy Attorney General
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