Can the Governor reappoint Environmental Management Commission members to consecutive terms, and if not, are the Commission's decisions still legally binding?

Plain-English summary

On March 9, 2000, EMC members Daniel Besse, Will Fowler, and David Moreau were sworn in for their second consecutive terms on the Environmental Management Commission. Someone (William Holman) raised the question: was that even legal? The EMC's enabling statute, § 143B-283(b), says only that "[a]t the expiration of each member's term, the Governor shall replace the member with a new member of like qualifications." The word "replace" sounded to some readers like a prohibition on reappointment.

Senior Deputy AG Daniel C. Oakley, Special Deputy AG Francis W. Crawley, and Assistant AG Amy R. Gillespie answered with a layered analysis.

Issue 1: Reappointment. § 143B-283(b) is ambiguous because it does not expressly prohibit reappointment. The General Assembly knew exactly how to write a term limit when it wanted one: "Except for the person filling position number five, no member of the Commission shall serve more than two complete consecutive three-year terms" (§ 143B-299(b), Sedimentation Control Commission); "No member shall serve more than two consecutive terms" (§ 143B-301.12(c), Well Contractors Certification Commission); "shall serve no more than two full two-year terms" (§ 143B-313.2(b), Parks and Recreation Authority). The contrast with § 143B-283(b)'s silence is telling. Where the legislature has not expressly imposed a term limit, the court should not impose one by inference. The AG relied on State v. N.C. Automobile Rate Administrative Office and Polaroid Corp. v. Offerman for the principle that executive interpretation of an ambiguous statute is "strongly persuasive." Since 1986, governors of both parties had reappointed EMC members (Governor Martin reappointed four members, including three Hunt appointees; Governor Hunt reappointed three members, including two Martin appointees and one legislative appointee). That bipartisan reappointment practice over more than a decade carried substantial interpretive weight.

Issue 2: Holdover. Even if § 143B-283(b) somehow forbade reappointment, the NC Constitution and statute would protect Besse, Fowler, and Moreau as holdover commissioners. Article VI, § 10 of the NC Constitution provides: "In the absence of any contrary provision, all officers in this State, whether appointed or elected, shall hold their positions until other appointments are made or, if the offices are elective, until their successors are chosen and qualified." § 128-7 codifies the same idea: "All officers shall continue in their respective offices until their successors are elected or appointed, and duly qualified." Because Besse, Fowler, and Moreau had been properly qualified and duly appointed initially, they continued to hold their seats lawfully until other appointments were made, regardless of any reappointment defect.

Issue 3: Validity of Commission actions. Even if their offices were defective, their official actions would still be valid. Armstrong v. McInnis established that "[a] person who by proper authority is admitted and sworn into a public office is a de facto officer, even if he or she is later determined to have been in office unlawfully." Waite v. Santa Cruz defined a de facto officer as "one whose title is not good in law, but who is in fact in the unobstructed possession of an office and discharging its duties in full view of the public, in such manner and under such circumstances as not to present the appearance of being an intruder or usurper." § 128-6 confirms: a person admitted and sworn in is "rightfully in such office until, by judicial sentence, upon a proper proceeding, he shall be ousted therefrom." State v. Porter and People ex rel. Duncan v. Beach confirm that the de facto officer's actions are valid as to third persons until the officer is ousted by proper proceeding. So even if a challenger successfully argued that Besse, Fowler, or Moreau were not validly reappointed, the Commission's decisions during their service would stand.

Bottom line. The three reappointments were valid under § 143B-283(b). If a court found otherwise, the three would continue to hold over under the Constitution. And regardless of either, the Commission's actions would be valid as actions of de facto officers.

Currency note

This opinion was issued in 2000. 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. § 143B-283 may have been amended to clarify reappointment rules. The holdover and de facto officer doctrines remain stable, but check current case law before relying on the specific cases cited here.

Background and statutory framework

EMC's composition. The Environmental Management Commission was constituted by 1973 N.C. Sess. Laws, 1974 Session, c. 1262, s. 20. The Governor appoints 13 of its members under § 143B-283(a), with each appointee required to have specific expertise: a licensed physician with environmental health training, someone connected to the Commission for Health Services or local board of health, an agricultural specialist, a registered engineer with water-supply or pollution-control expertise, a fish and wildlife conservation expert, a hydrogeologist, three "public at large" pollution-control advocates, an industrial manufacturing pollution expert, a municipal/county pollution control expert, an air-pollution scientific expert, and a freshwater/estuarine/marine biological or ecological scientist. The structure ensures a broad professional mix.

The "replace" language. § 143B-283(b) provides: "At the expiration of each member's term, the Governor shall replace the member with a new member of like qualifications." The word "replace" is ambiguous in this context. It could mean the Governor must put a new person in, or it could mean the Governor must fill the seat (which could include the prior incumbent).

Other statutes with explicit term limits. The opinion cites three for contrast:
- § 143B-299(b) (Sedimentation Control): "no member of the Commission shall serve more than two complete consecutive three-year terms."
- § 143B-301.12(c) (Well Contractors Certification): "No member shall serve more than two consecutive terms."
- § 143B-313.2(b) (Parks and Recreation Authority): "shall serve no more than two full two-year terms."

When the General Assembly wants to limit reappointment, it uses clear language. § 143B-283(b)'s "replace" language is not that.

Executive interpretation deference. When a statute is ambiguous, the executive branch's longstanding construction carries weight. State v. N.C. Auto Rate; Polaroid v. Offerman. The bipartisan reappointment practice since 1986 reinforced the AG's reading.

Holdover doctrine.
- N.C. Const. Article VI, § 10: officers hold over until successors are appointed and qualified.
- § 128-7 codifies the same rule.

Holdover is the default unless the statute creating the office says otherwise.

De facto officer doctrine.
- Armstrong v. McInnis: a person admitted and sworn into office is a de facto officer even if title is later found defective.
- Waite v. Santa Cruz (adopted by NC in Smith v. Carolina Beach): defines de facto officer as one in unobstructed possession of office discharging duties in full view of the public.
- § 128-6: a de facto officer is rightfully in office until ousted by judicial sentence.
- State v. Porter: actions of a de facto officer are valid as to third persons.
- People ex rel. Duncan v. Beach: a quo warranto proceeding is the proper vehicle to challenge a de facto officer's title.

Common questions

Q: Why does NC let governors reappoint commissioners without explicit statutory authority?

A: The General Assembly has chosen, statute by statute, whether to allow reappointment. Where the statute is silent, the executive branch has read silence as permitting reappointment. The AG endorsed that reading for the EMC, supported by twenty-plus years of bipartisan executive practice.

Q: Could the governor reappoint the same member indefinitely?

A: Under the AG's analysis, yes, unless the statute specifically limits terms. § 143B-283(b) imposes no numerical cap. Three other commission statutes do impose caps. The General Assembly knows how to limit terms and chose not to here.

Q: What is the holdover rule for, exactly?

A: The holdover rule (Constitution Article VI, § 10 and § 128-7) prevents gaps in government when appointments expire. Without it, an expired term would create an immediate vacancy, possibly leaving boards or commissions inquorate at critical moments. The holdover lets the existing officer continue until a successor is in place.

Q: How is the de facto officer doctrine relevant here?

A: Even if a court eventually held that Besse, Fowler, or Moreau were not validly reappointed, their official actions while serving would still be valid. The doctrine protects third parties who rely on public officers' decisions. A permit issued by a de facto Commission member is enforceable; a fine imposed is collectible. The remedy for a defective appointment is ouster (via quo warranto), not invalidation of past acts.

Q: Could someone challenge an EMC member's title?

A: Yes, through a quo warranto proceeding under § 128-6 and People ex rel. Duncan v. Beach. The challenger asks the court to declare the appointment invalid and oust the officer. Past actions remain valid as actions of a de facto officer.

Q: Did the reappointed EMC members have to be 'replaced' in any sense?

A: The AG's reading is that "replace" in § 143B-283(b) just means "fill the seat at the expiration of the term." That filling can include the incumbent. The qualification requirement ("new member of like qualifications") is satisfied by an incumbent who, by definition, has the qualifications already.

Citations from the opinion

• N.C. Const. Article VI, § 10
• N.C. Gen. Stat. §§ 128-6, 128-7, 143B-283, 143B-283(a), 143B-283(b), 143B-299(b), 143B-301.12(c), 143B-313.2(b)
• 1973 N.C. Sess. Laws, 1974 Session, c. 1262, s. 20
• State v. N.C. Automobile Rate Administrative Office, 294 N.C. 60, 241 S.E.2d 324 (1978)
• Polaroid Corp. v. Offerman, 349 N.C. 290, 507 S.E.2d 284 (1998), cert. denied, 526 U.S. 1098, 143 L.Ed.2d 671 (1999)
• Armstrong v. McInnis, 264 N.C. 616, 142 S.E.2d 670 (1965)
• Waite v. Santa Cruz, 184 U.S. 302 (1902)
• Smith v. Carolina Beach, 206 N.C. 834, 175 S.E. 313 (1934)
• People ex rel. Duncan v. Beach, 294 N.C. 713, 242 S.E.2d 796 (1978)
• State v. Porter, 272 N.C. 463, 158 S.E.2d 626 (1968)

Source

• Landing page: https://ncdoj.gov/opinions/lawfulness-of-environmental-management-commission-members-offices-and-actions-of-commissions/

Original opinion text

Reproduced from the NCDOJ landing page. The linked landing page is authoritative.

Re: Advisory Opinion: Lawfulness of Environmental Management Commission (EMC) Members' Offices and Actions of Commission; N.C.G.S. § 143B-283.

Dear Mr. Holman:

Thank you for your inquiry whether it is unlawful for members of the Environmental Management Commission (EMC) to be appointed to consecutive terms and whether an unlawfully sitting member invalidates the Commission's actions. Your questions arise from the recent reappointments of three EMC members by the Governor.

The Environmental Management Commission was constituted by the General Assembly in 1974. 1973 N.C. Sess. Laws, 1974 Session, c. 1262, s. 20. The General Assembly required that the Governor's thirteen appointees be drawn from specific professions and have specific areas of expertise, so that the EMC would be composed of members who collectively possess a broad range of environmental knowledge and perspectives. The appointees must consist of:

(1) One who shall be a licensed physician with specialized training and experience in the health effects of environmental pollution;
(2) One who shall, at the time of appointment, be actively connected with the Commission for Health Services or local board of health or have experience in health sciences;
(3) One who shall, at the time of appointment, be actively connected with or have had experience in agriculture;
(4) One who shall, at the time of appointment, be a registered engineer with specialized training and experience in water supply or water or air pollution control;
(5) One who shall, at the time of appointment, be actively connected with or have had experience in the fish and wildlife conservation activities of the State;
(6) One who shall, at the time of appointment, have special training and scientific expertise in hydrogeology or groundwater hydrology;
(7) Three members interested in water and air pollution control, appointed from the public at large;
(8) One who shall, at the time of appointment, be actively employed by, or recently retired from, an industrial manufacturing facility and knowledgeable in the field of industrial air and water pollution control;
(9) One who shall, at the time of appointment, be actively connected with or have had experience in pollution control problems of municipal or county government;
(10) One who shall, at the time of appointment, have special training and scientific expertise in air pollution control and the effects of air pollution; and
(11) One who shall, at the time of appointment, have special training and scientific expertise in freshwater, estuarine, marine biological, or ecological sciences.

G.S. § 143B-283(a). In order to ensure that the EMC membership continues to represent these specific professions and areas of knowledge, the General Assembly provided, "At the expiration of each member's term, the Governor shall replace the member with a new member of like qualifications." G.S. § 143B-283(b).

I. G.S. § 143B-283(b) Does Not Prohibit Reappointment of Members to the Environmental Management Commission.

On March 9, 2000, EMC members Daniel Besse, Will Fowler, and David Moreau were sworn in for their second consecutive terms of office on the Commission. You have asked whether G.S. § 143B-283(b) prohibits the reappointment of these EMC members for a second term of office. We believe it does not.

Section 143B-283(b) is ambiguous as to reappointments because it lacks express language prohibiting reappointments, which is present in several other statutes to guide the Governor. In several instances, the General Assembly has chosen to limit terms of service for members of environmental commissions. In these cases, it has done so through express language. For example, G.S. § 143B-299, which governs the selection of members of the Sedimentation Control Commission, provides, "Except for the person filling position number five, no member of the Commission shall serve more than two complete consecutive three-year terms." G.S. § 143B-299(b). Similarly, G.S. § 143B-301.12, which governs the selection of members of the Well Contractors Certification Commission, provides, "No member shall serve more than two consecutive terms." G.S. § 143B-301.12(c). See also G.S. § 143B-313.2(b) (Members of North Carolina Parks and Recreation Authority "shall serve no more than two full two-year terms.") It is apparent that when the General Assembly intends to restrict terms of environmental commission service, it does so through clear and unambiguous language. Accordingly, when the General Assembly has not expressly enacted such a restriction, one should not be read into the statute.

Deference is due to an executive interpretation of an ambiguous statute. "The construction of statutes adopted by those who execute and administer them is evidence of what they mean." State v. N.C. Automobile Rate Administrative Office, 294 N.C. 60, 67, 241 S.E.2d 324, 329 (1978). The interpretations of those who execute the laws are "strongly persuasive" and "entitled to 'due consideration.'" Polaroid Corp. v. Offerman, 349 N.C. 290, 302, 507 S.E.2d 284, 293 (1998), cert. denied, 526 U.S. 1098, 143 L.Ed.2d 671 (1999) (citations omitted). Historically, the executive branch has interpreted § 143B-283 to allow EMC members to be reappointed to their seats for a second term. In fact, our research indicates that since 1986, seven other EMC members have been reappointed. These reappointments have been made by governors of both parties. Governor Martin reappointed four members, including three Hunt appointees, and Governor Hunt reappointed three members, including two Martin appointees and one legislative appointee. This traditional practice of reappointment, which has been followed by administrations of both parties, is persuasive evidence that G.S. § 143B-283 allows reappointments of EMC members.

II. The North Carolina Constitution Allows Members to Hold Over in Office.

In the case of Commissioners Besse, Fowler, and Moreau, Article VI, Section 10 of the North Carolina Constitution also applies. It provides:

In the absence of any contrary provision, all officers in this State, whether appointed or elected, shall hold their positions until other appointments are made or, if the offices are elective, until their successors are chosen and qualified.

N.C. Const., Article VI, Section 10. This constitutional mandate is reflected in G.S. § 128-7, which states that "[a]ll officers shall continue in their respective offices until their successors are elected or appointed, and duly qualified." Under these "hold-over" provisions, commission members remain in office until other appointments are made. Regardless of their ability to be reappointed, since Commissioners Besse, Fowler, and Moreau were properly qualified and duly appointed to the Commission at the time of their initial appointments, under Article VI, Section 10 and G.S. § 128-7 they may continue to hold their positions "until other appointments are made." Because Governor Hunt has not appointed others to their positions, they continue to be lawful "hold-over" commission members.

III. Actions Taken by a Commission with Unlawful Members are Nonetheless Valid.

Even if it were found that a commission member holds office unlawfully, actions taken by the Commission during the member's time of service are valid. A person who by proper authority is admitted and sworn into a public office is a de facto officer, even if he or she is later determined to have been in office unlawfully. Armstrong v. McInnis, 264 N.C. 616, 142 S.E.2d 670 (1965). A de facto officer is "one whose title is not good in law, but who is in fact in the unobstructed possession of an office and discharging its duties in full view of the public, in such manner and under such circumstances as not to present the appearance of being an intruder or usurper." Waite v. Santa Cruz, 184 U.S. 302, 323, 46 L.Ed. 552, 566 (1902), adopted by Smith v. Carolina Beach, 206 N.C. 834, 175 S.E. 313 (1934).

Because they have been appointed by the Governor pursuant to G.S. § 143B-283 and sworn into office, the three members are, at a minimum, de facto officers.

G.S. § 128-6 provides that a de facto officer has the authority to discharge the duties of the office until he or she is removed in accordance with statutory procedure:

Any person who shall, by the proper authority, be admitted and sworn into any office, shall be held, deemed, and taken, by force of such admission, to be rightfully in such office until, by judicial sentence, upon a proper proceeding, he shall be ousted therefrom, or his admission thereto be, in due course of law, declared void.

See People ex rel. Duncan v. Beach, 294 N.C. 713, 242 S.E.2d 796 (1978). In particular, until a de facto officer is ousted by proper procedure, his or her acts are valid as to third persons. State v. Porter, 272 N.C. 463, 158 S.E.2d 626 (1968). Therefore, actions of a Commission partially composed of de facto officers would also be valid actions.

We hope we have answered your questions. Please contact us should further inquiries arise.

Signed by:

Daniel C. Oakley, Senior Deputy Attorney General
Francis W. Crawley, Special Deputy Attorney General
Amy R. Gillespie, Assistant Attorney General

cc: Dr. David Moreau, Members of EMC