Can the Governor of North Carolina appoint people who already work for the state to the State Board of Education, or are state employees disqualified the way they are from the UNC Board of Governors?
Plain-English summary
When a Governor of North Carolina nominates someone to the State Board of Education ("SBOE"), the nomination needs to clear two layers: the statute that defines who can serve, N.C.G.S. § 115C-10, and Senate confirmation by joint session. In May 2001, the Governor's Office asked the Attorney General to settle a question that had come up in connection with a specific nomination: does § 115C-10 prohibit state employees in general from serving on the Board?
The AG read the statute and answered no. Section 115C-10 specifies a particular set of disqualifications and stops there. It says (1) no more than one "public school employee paid from State or local funds" can serve as an appointive member at a time, (2) no "spouse of any public school employee paid from State or local funds" can serve at all, and (3) no employee of the Department of Public Instruction or any spouse of such an employee can serve at all. Everyone else, including state employees who do not work in public schools or DPI, is eligible.
The opinion then made the comparison that nailed the answer down. N.C.G.S. § 116-7, which governs the composition of the UNC Board of Governors, explicitly disqualifies all state employees and their spouses from serving on that Board. The General Assembly clearly knew how to write a blanket state-employee exclusion when it wanted to. It chose not to do so in § 115C-10. The textual contrast makes the statutory silence meaningful: state-employee status is not, by itself, a barrier to SBOE service.
The Governor may therefore appoint any number of state employees to the State Board of Education, subject only to the explicit § 115C-10 disqualifications (the public school employee cap and the DPI/public school employee spouse exclusions) and to General Assembly confirmation in joint session.
Currency note
This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The composition of the State Board of Education was significantly affected by Article IX, Section 4 of the North Carolina Constitution and by the 2016 Cooper v. Berger litigation over executive-branch appointment powers. The General Assembly has also amended § 115C-10 since 2001. Anyone analyzing eligibility for SBOE service today should consult the current version of § 115C-10, current constitutional provisions, and the post-2016 case law on appointment powers.
Background and statutory framework
The structure of N.C.G.S. § 115C-10 as it stood in 2001. The State Board of Education consists of the Lieutenant Governor (ex officio), the State Treasurer (ex officio), and 11 appointed members. The appointive members are selected by the Governor, subject to confirmation by the General Assembly in joint session. Eight of the appointed members come from each of the eight educational districts; three are appointed at large. Appointments are for eight-year terms in four staggered classes. Vacancy appointments are made by the Governor for the unexpired term and are not subject to confirmation.
The four disqualifications written into § 115C-10. The statute creates four narrow disqualifications. First, only one public school employee paid from state or local funds may serve as an appointed member at any one time. Second, no spouse of any such public school employee may serve as an appointed member. Third, no employee of the Department of Public Instruction may serve as an appointed member. Fourth, no spouse of any DPI employee may serve as an appointed member.
These disqualifications are surgically targeted at the conflicts the General Assembly considered most acute. Public school employees and their spouses are constrained because the SBOE sets policy that directly affects their pay, working conditions, and supervisors. DPI employees and their spouses are constrained because DPI is the operational arm under the SBOE's policy direction; an SBOE member who worked for DPI would essentially be overseeing himself. The General Assembly wrote these conflicts into the statute as bright-line rules.
What the statute does not say. The statute does not list state employees generally as disqualified. State employees who do not work in public schools and are not DPI employees fall outside the disqualifications. The 2001 opinion concludes that this is intentional, and the comparison with § 116-7 supports that conclusion.
The § 116-7 comparison and the expressio unius principle. Section 116-7 governs the UNC Board of Governors. It explicitly disqualifies all state employees and their spouses, in addition to other specific exclusions. The General Assembly is presumed to act intentionally and consistently with itself; when it includes a blanket state-employee exclusion in one statute and omits the same exclusion from a sister statute, the omission is read as deliberate. This is the standard expressio unius est exclusio alterius canon, though the opinion does not invoke the Latin label.
Why the General Assembly might have wanted a different rule for the SBOE. The UNC Board of Governors oversees the seventeen-campus state university system, which is itself a major state employer and a frequent subject of executive-branch policy. The blanket state-employee exclusion guards against capture by other parts of state government. The SBOE oversees K-12 public schools, which are funded by the state but administered through local boards and DPI. The General Assembly likely considered that the K-12 system's lesser entanglement with broader state operations did not warrant the same blanket exclusion. State employees from agencies unrelated to public schools may bring useful expertise (budgeting, intergovernmental relations, regulatory analysis) without raising the conflicts that the targeted § 115C-10 disqualifications address.
The Governor's appointment discretion within the statutory frame. The opinion says the Governor "has the authority to appoint any number of State employees to the State Board of Education," subject to the explicit § 115C-10 exclusions and to legislative confirmation. "Any number" is a deliberate phrasing: it confirms that there is no implicit cap on state-employee membership. The Governor could, in principle, fill all 11 appointive seats with state employees (so long as none was a DPI employee, none was a spouse of a DPI employee, and no more than one was a public school employee paid from state or local funds with the appropriate spouse status).
The interplay with Senate confirmation. The SBOE statute requires confirmation "by the General Assembly in joint session." That is a practical check on the Governor's appointment power. Even if a nominee is statutorily eligible under § 115C-10, the General Assembly can decline to confirm. So in practice, the universe of state-employee nominees who can actually be seated is narrower than the universe of nominees who are statutorily eligible. But that is a political constraint, not a legal one.
The post-2016 separation-of-powers context. The 2001 opinion addressed a Governor's interpretation of an existing statute, not a constitutional challenge. North Carolina jurisprudence on executive appointment powers has shifted significantly since the McCrory v. Berger and Cooper v. Berger lines of cases starting in 2016. Those cases generally affirm the Governor's constitutional authority to control appointments to executive-branch boards. The SBOE structure (Governor appoints, General Assembly confirms) is one of the older mechanisms in this area, and is reasonably well-settled. The 2001 opinion's narrow statutory reading is not affected by those later cases, but anyone working with current SBOE appointments should be aware of the constitutional overlay.
Common questions
Q: Can a state employee serve on the State Board of Education in North Carolina?
A: Yes, unless the person falls within one of the four disqualifications in N.C.G.S. § 115C-10: employee of the Department of Public Instruction, spouse of a DPI employee, public school employee paid from state or local funds beyond the one-seat cap, or spouse of any public school employee paid from state or local funds. State employees from agencies unrelated to public schools are eligible.
Q: What about a person who works for a state agency that is somehow tangentially related to education?
A: The statute disqualifies only Department of Public Instruction employees and public school employees by name. A state employee at another agency that happens to interact with the education system (for example, an analyst at the Office of State Budget and Management who reviews education appropriations) is not disqualified by § 115C-10. The Governor and the General Assembly may, of course, weigh tangential conflicts when deciding whether to nominate or confirm such a person, but those are policy considerations, not statutory disqualifications.
Q: Can a teacher serve on the State Board of Education?
A: Only one public school employee paid from state or local funds may serve as an appointed member of the SBOE at a time. So one teacher is allowed; a second teacher would not be eligible while the first is still on the Board. The teacher's spouse, by contrast, is not eligible at all under § 115C-10's spousal disqualification.
Q: How is this different from the rules for the UNC Board of Governors?
A: The UNC Board of Governors is governed by N.C.G.S. § 116-7, which explicitly excludes all state employees and their spouses from service on that Board. The State Board of Education statute, § 115C-10, has no equivalent blanket exclusion. The General Assembly evidently wanted to keep the universe of potential SBOE nominees broader than the universe of potential UNC Board of Governors nominees.
Q: Who confirms SBOE appointments?
A: The General Assembly, in joint session. Section 115C-10 makes this confirmation a prerequisite for an appointed member to take office. Vacancy appointments by the Governor for unexpired terms are exceptions; those are not subject to confirmation.
Q: How long is a State Board of Education term?
A: Eight years, in four staggered classes. Three appointive members come from the at-large pool and one from each of the eight educational districts, for 11 appointive seats total. Two ex officio seats (Lieutenant Governor and State Treasurer) bring the Board to 13 members.
Citations
Statutes
- N.C.G.S. § 115C-10 — composition of the State Board of Education; Lieutenant Governor and State Treasurer ex officio; 11 members appointed by the Governor with General Assembly confirmation; disqualifications for DPI employees, their spouses, public school employees paid from state or local funds (more than one), and their spouses.
- N.C.G.S. § 116-7 — composition of the UNC Board of Governors, including explicit disqualification of all state employees and their spouses.
Source
- Landing page: https://ncdoj.gov/opinions/appointments-to-the-state-board-of-education-state-employees/
Original opinion text
REPLY TO: Thomas J. Ziko
Education Section
Tele: (919) 716-6920 FAX: (919) 716-6764
May 15, 2001
Franklin E. Freeman, Jr.
Senior Assistant for Governmental Affairs
Office of the Governor
Administration Building, Suite 101
116 W. Jones Street
Raleigh, North Carolina 27603-8001
Re: Advisory Opinion; Appointments to the State Board of Education; State Employees; G.S. § 115C-10.
Dear Mr. Freeman:
You have recently inquired as to whether there are any laws which limit the Governor's authority to appoint State employees to the State Board of Education. The composition of the State Board of Education is determined in accordance with G.S. § 115C-10. That statute states, in pertinent part:
The State Board of Education shall consist of the Lieutenant Governor, the State Treasurer, and 11 members appointed by the Governor, subject to confirmation by the General Assembly in joint session. Not more than one public school employee paid from State or local funds may serve as an appointive member of the State Board of Education. No spouse of any public school employee paid from State or local funds and no employee of the Department of Public Instruction or his spouse, may serve as an appointive member of the State Board of Education. Of the appointive members of the State Board of Education, one shall be appointed from each of the eight educational districts and three shall be appointed as members at large. Appointments shall be for terms of eight years and shall be made in four classes. Appointments to fill vacancies shall be made by the Governor for the unexpired terms and shall not be subject to confirmation.
As you can see, G.S. § 115C-10 does limit the number of public school employees who can serve on the State Board of Education and actually prohibits spouses of public school employees and employees or spouses of employees of the Department of Public Instruction from serving on the Board at all. However, the statute neither prohibits State employees in general from serving on the State Board of Education nor limits the number of State employees who may serve on the Board. Furthermore, the fact that the statute specifically prohibits employees of the Department of Public Instruction from serving on the State Board of Education is a clear indication that the General Assembly did not intend to prohibit employees of other State agencies from serving on the Board. In this respect, G.S. § 115C-10 differs from G.S. § 116-7 which explicitly prohibits all State employees or their spouses from serving on the Board of Governors of the University of North Carolina.
In light of the plain language of the statute, it is our opinion that the Governor has the authority to appoint any number of State employees to the State Board of Education and the State employees so appointed and confirmed have the right to serve on the Board, provided they are not employees of the Department of Public Instruction.
We trust that this advisory opinion removes any questions you have regarding the Governor's authority to appoint State employees to the State Board of Education. If you have other questions on this subject, please do not hesitate to contact us.
Very truly yours,
Grayson G. Kelley
Senior Deputy Attorney General
Thomas J. Ziko
Special Deputy Attorney General