When the NC General Assembly changed the appointing authority for public members of the State Board of Mortuary Science from the Governor to a mix of Governor, Speaker, and President Pro Tempore, can the legislature also use a specific appointment to displace an existing Governor's appointee mid-term, even if the new appointee is a licensee whom the general statute would otherwise bar?
Plain-English summary
In 2001, the General Assembly rewrote N.C.G.S. § 90-210.18(b) to split the appointing power for the three public members of the State Board of Mortuary Science: one each from the Governor, the President Pro Tempore of the Senate, and the Speaker of the House. To stagger the terms, the legislature provided that the existing Governor-appointed terms would expire on rolling dates (2002, 2003, 2004), and that subsequent appointments would go to the new authorities. A second session law in the same legislative cycle (S.L. 2001-486) actually made two of the new legislative appointments directly: Windell Daniels (recommended by the President Pro Tempore) and George Parrott (recommended by the Speaker).
The Board's Executive Director raised four objections to the Parrott appointment, which Terrence Sullivan forwarded to the AG. Senior Deputy AG Ann Reed (with Assistant AG P. Bly Hall) walked through each:
Was Parrott legally appointed? Yes. The General Assembly itself appointed him in § 1A.27 of S.L. 2001-486 for a term running January 1, 2002 through December 31, 2003. The legislature was the appointing authority, and the legislation does the appointing directly.
Did he replace an existing Board member? Yes, the Governor's appointee whose term would have run through December 31, 2003. The AG used a structural reading: the rewritten statute gives the three appointing sources one slot each, and the staggered-term scheme runs out cleanly only if Parrott takes the 2003-expiring seat. The alternative would temporarily expand the Board to four public members, which nothing in the legislation supports.
Can the legislature replace an existing Board member whose term has not yet expired? Yes. There is no property right in a public office under modern NC law (Mial v. Ellington overruled the 19th-century cases recognizing such a right; Penny v. Salmon, Crump v. Snead confirmed the modern rule). The legislature, having created the Board, can recompose it as it sees fit. Article I, § 32 (no exclusive emoluments) and Article II, § 24 (local/private/special-acts limits) do not block the appointment.
Is Parrott qualified, given that he is a licensee and § 90-210.18(b3) bars licensees from serving as public members? Yes. The specific provision (the act-of-the-legislature appointment in S.L. 2001-486) controls over the general statutory eligibility rule, per Food Stores v. Board of Alcoholic Control. The AG also dismissed the Executive Director's reliance on Governor Easley's Executive Order No. 1: by its own terms, EO 1 does not apply to appointments enacted by the General Assembly and signed into law by the Governor.
Currency note
This opinion was issued in 2002. 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 Board of Mortuary Science's organic statute has been amended since 2002, the appointing structure may have changed again, and the conflict-of-interest framework in the executive branch has evolved (EO 1 was superseded by later orders). The core constitutional propositions about legislative power over its own creatures and the absence of property rights in public office are durable, but anyone working on a current appointments dispute should verify the current statutes and current case law.
Background and statutory framework
No property right in public office. NC has followed Mial v. Ellington (1903) for over a century in holding that public office is not personal property. Penny v. Salmon (1940), Crump v. Snead (1999), and others all reaffirm. That means the legislature can change appointing authority, remove the position, or replace an incumbent without due-process problems for the incumbent.
The line for constitutional offices. The General Assembly cannot alter features that the NC Constitution prescribes for constitutionally created offices. The Board of Mortuary Science is purely a legislative creation, so the legislature has full latitude.
Specific over general. Food Stores v. Board of Alcoholic Control holds that when one statutory provision is specific and another is general, the specific controls. A direct legislative appointment of a named individual is the most specific form of statutory enactment, and it overrides general qualifications rules.
Limits on Governor's executive orders. Executive orders bind the executive branch's own discretionary appointments. They do not constrain the General Assembly's appointing power. Governor Easley's EO 1 expressly said so.
Exclusive emoluments analysis. Article I, § 32 of the NC Constitution bars exclusive emoluments unless the benefit promotes general welfare and the legislature had a reasonable basis to conclude so. The AG applied the Peacock v. Shinn / Crump v. Snead test and found the Parrott appointment met both prongs: it implemented the new appointing structure without delay and balanced the appointment sources.
Common questions
Q: Could a Board member sue to keep his seat against a legislative replacement?
A: He could file a complaint, but Mial v. Ellington and subsequent cases would almost certainly foreclose any property-right or due-process claim. The legislature's plenary authority over a creature of statute is well established.
Q: Does this rule apply to all NC regulatory boards?
A: It applies to legislatively created boards. Constitutional offices (Governor, Lt. Governor, judges, etc.) have constitutional protections that limit legislative reorganization. Statutory boards are at the legislature's pleasure.
Q: Why does a specific legislative appointment override a general eligibility statute?
A: Because the legislature, in enacting the specific appointment, is exercising its own judgment as appointing authority and effectively waiving the general rule in this instance. The Food Stores canon ensures that the more targeted provision controls.
Q: What if the Governor had vetoed S.L. 2001-486?
A: The Governor signed the act. If he had vetoed, the General Assembly could have overridden, and the result would be the same. Either way, an enacted appointment statute carries legislative authority.
Citations
Statutes and constitutional provisions:
- N.C.G.S. § 90-210.18(b) (appointing authority, as amended by S.L. 2001-294)
- N.C.G.S. § 90-210.18(b3) (general bar on licensees serving as public members)
- S.L. 2001-294, § 12 (staggered terms)
- S.L. 2001-486, §§ 1.31, 1A.27, 2.3 (Daniels and Parrott appointments; amendment to specify GA-on-recommendation appointment)
- N.C. Const. art. I, § 32 (no exclusive emoluments)
- N.C. Const. art. II, § 24 (limits on local/private/special acts)
Cases:
- State ex rel. Martin v. Preston, 325 N.C. 438, 385 S.E.2d 473 (1989) (plenary legislative power)
- Mial v. Ellington, 134 N.C. 131, 46 S.E. 961 (1903) (overrules 19th-century property-right cases)
- Penny v. Salmon, 217 N.C. 276, 7 S.E.2d 559 (1940) (no vested right in public office)
- Crump v. Snead, 134 N.C. App. 353, 517 S.E.2d 384, cert. denied, 351 N.C. 101 (1999)
- State ex rel. Martin v. Melott, 320 N.C. 518, 359 S.E.2d 783 (1987) (legislature may choose appointing authority)
- Peacock v. Shinn, 139 N.C. App. 487, 533 S.E.2d 842 (2000) (exclusive emoluments two-part test)
- Food Stores v. Board of Alcoholic Control, 268 N.C. 624, 151 S.E.2d 582 (1966) (specific controls general)
Source
Original opinion text
S.L. 2001-294, effective December 1, 2001, amended G.S. § 90-210.18(b) to change the method of appointing public members of the State Board of Mortuary Science from three appointments made by the Governor to one appointment by the Governor, one by the President Pro Tempore of the Senate, and one by the Speaker of the House. To stagger the terms of the public members, Section 12 of S.L. 2001-294 extended one existing public member's term to December 31, 2002, specified that the President Pro Tempore was to appoint a replacement for a second public member whose term expired December 31, 2001, and went on to provide, "The public member of the board whose term expires December 31, 2003, shall be appointed by the Speaker of the House of Representatives." These provisions of S.L. 2001-294 were in turn amended by Section 2.3 of S.L. 2001-486 to replace the language specifying appointments directly by the President Pro Tempore and the Speaker with language specifying appointments by the General Assembly on recommendation of the President Pro Tempore and the Speaker, effective December 16, 2001.
S.L. 2001-486, in Section 1.31, appointed Mr. Windell Daniels to the Board for a term beginning on January 1, 2002, and expiring on December 31, 2004, on recommendation of the President Pro Tempore, and in Section 1A.27 appointed Mr. George S. Parrott to a term beginning on January 1, 2002, and expiring December 31, 2003, on recommendation of the Speaker.
The Board's Executive Director has questioned the effectiveness of Mr. Parrott's appointment.
Has George S. Parrott been legally appointed to the Board?
The General Assembly appointed George S. Parrott to the Board in Section 1A.27 of S.L. 2001-486. The term was specified in the act as beginning January 1, 2002, and expiring December 31, 2003. Therefore, it is our opinion that Mr. Parrott, by legislative enactment, has a position on the Board for the specified term.
Did George S. Parrott replace an existing public member on the Board?
It is our opinion that Mr. Parrott replaced the existing public member who was appointed by the Governor to serve a term expiring December 31, 2003.
Effective December 16, 2001, the General Assembly gave itself authority to make two public member appointments to the Board, and in the same session law it made two appointments for terms to begin January 1, 2002. The result of S.L. 2001-294 and S.L. 2001-486 is that the Board has one public member appointed by the Governor, serving a term expiring on December 31, 2002, whose successor the Governor will appoint; a second public member, Mr. Parrott, appointed by the General Assembly on the recommendation of the Speaker, serving a term expiring on December 31, 2003, whose successor will be similarly appointed; and a third public member, appointed by the General Assembly on the recommendation of the President Pro Tempore, serving a term expiring on December 31, 2004, whose successor will be similarly appointed. The terms are staggered, and each appointment source has a representative as of January 1, 2002.
The legislation does not specifically address the status of the public member appointed by the Governor to serve a term expiring December 31, 2003, but we conclude that Mr. Parrott replaces him. The usual term of a Board member is three years; Mr. Parrott's appointment is for two years. His term expires on December 31, 2003, the date this other Board member's term would normally have expired. Replacing this other Board member with Mr. Parrott results in three public members appointed according to the newly enacted provisions. Otherwise, the result would be four members, one of whom would be an "extra" Governor's appointee. Nothing in the legislation indicates an intent to temporarily increase the size of the Board.
The Board's Executive Director has suggested that the language in Section 12 of S.L. 2001-294, as amended, providing for staggered terms of public members, should be interpreted as postponing the General Assembly's authority to fill the position of this other Board member whose term expires December 1, 2003. However, that is not what Section 12 says, and the amendment to G.S. § 90-210.18 changing the appointing authority was effective, as amended, on December 16, 2001, without limitation. The General Assembly certainly knows how to specify when it intends a change in appointing authority to take effect at the expiration of a given term. See, e.g., 1991 Sess. Laws, c. 739, s. 34; see also 1995 Sess. Laws, c. 490, s. 65.
Can the General Assembly replace an existing Board member whose term has not yet expired?
There is no property right in membership on the Board, and the General Assembly may dispossess an incumbent member and replace him with its own appointee if it so chooses.
"All power which is not expressly limited by the people in our State Constitution remains with the people, and an act of the people through their representatives in the legislature is valid unless prohibited." State ex rel. Martin v. Preston, 325 N.C. 438, 448-49, 385 S.E.2d 473, 478 (1989). Although there are several 19th century cases that recognized some sort of property right to public office, these cases were overruled by Mial v. Ellington, 134 N.C. 131, 46 S.E. 961 (1903), which recognized the right of the General Assembly to create new offices of superintendent of roads and supervisor of roads in Wake County that effectively replaced plaintiff's office of supervisor of roads in Raleigh. Since Mial, other opinions have continued to recognize that there is no property right in a public office. See, e.g., Penny v. Salmon, 217 N.C. 276, 7 S.E. 2d 559 (1940) ("the right to office is no longer a property right, and there can be no vested right therein which would prevent the Legislature from dealing with it as public policy requires"); Crump v. Snead, 134 N.C. App. 353, 517 S.E. 2d 384, cert. denied, 351 N.C. 101, 541 S.E.2d 143 (1999). With no property right involved, there is no due process issue or impairment of contract issue that would prevent the General Assembly from replacing the Governor's appointee to the Board with its own.
Although the General Assembly cannot alter features prescribed in the North Carolina Constitution for constitutionally created offices, the Board is not a constitutionally created office, but is instead a legislatively created body. As such, the General Assembly has authority to deal with its composition and its members' terms as the General Assembly sees fit. See Penny v. Salmon, 217 N.C. 276, 7 S.E. 2d 559; Crump v. Snead, 134 N.C. APP. 353, 517 S.E. 2d 384. It can provide an appointing authority different from the Governor. See State ex rel. Martin v. Melott, 320 N.C. 518, 359 S.E.2d 783 (1987).
Additionally, the appointment of Mr. Parrott does not seem to be an exclusive or separate emolument prohibited under Article I, Section 32 of the North Carolina Constitution. In general, our courts have applied a two-part test to an exemption or benefit: (1) whether the exemption or benefit is intended to promote the general welfare rather than the benefit of the individual, and (2) whether there is a reasonable basis for the legislature to conclude that the granting of the exemption or benefit serves the public interest. See Peacock v. Shinn, 139 N.C. App. 487, 533 S.E.2d 842 (2000); see also Crump v. Snead, 134 N.C. APP. 353, 517 S.E. 2d 384, cert. denied, 351 N.C. 101, 541 S.E.2d 143 (1999). Mr. Parrott's appointment appears to meet that test by implementing the change in appointing authority without particular delay or imbalance between the different appointing authorities while at the same time providing for staggered terms.
Finally, even if the appointment is taken as special legislation, it is not included in the list of prohibitions on local, private, or special acts in Article II, Section 24, of the North Carolina Constitution.
Is George S. Parrott qualified to serve as a public member of the Board?
In correspondence subsequent to the initial inquiry, the Executive Director of the Board indicates that Mr. Parrott is licensed by the Board and asks whether this disqualifies him from serving as a public member of the Board pursuant to G.S. § 90-210.18(b3), which provides: "The public members of the Board may neither be licensed under this Article nor employed by a person who is."
In our opinion, Mr. Parrott's appointment by the General Assembly is valid, notwithstanding the statutory prohibition against licensees serving as public members of the Board. One legislature cannot bind another legislature except where constitutional rights are involved, and as we pointed out above, there is no property right in membership on the Board. Mr. Parrott was appointed to this position by the legislature in Section 2.3 of S.L. 2001-486, which became effective December 16, 2001. Where the legislature enacts two provisions, one of which is special or particular and the other general, the specific provision will control over the general. S.L. 2001-486 was enacted after G.S. § 90-210.18(b), but even if that were not the case, the rule that the specific controls the general is applicable without regard to respective dates of passage. Food Stores v. Board of Alcoholic Control, 268 N.C. 624, 628-629, 151 S.E.2d 582, 586 (1966). Thus, the specific language appointing Mr. Parrott contained in S.L. 2001-486 controls over the general statutory provisions regarding public appointees.
The Executive Director further states that Mr. Parrott cannot serve as a member of the Board because his "personal interests" reveal a "potential conflict of interest," which disqualify him from serving as a public member of the Board under Governor Michael F. Easley's Executive Order No. 1. The Executive Director does not specify what these "personal interests" may be, and in any event Executive Order No. 1 by its terms does not apply to appointments made by act of the General Assembly and signed by the Governor into law.
In conclusion, it is our opinion that George S. Parrott has been appointed by legislative enactment to the Board of Mortuary Science for a term beginning January 1, 2002, and expiring December 31, 2003, and that Mr. Parrott replaces the public member of the Board who was appointed to this term by the Governor.
Sincerely,
Ann Reed
Senior Deputy Attorney General
P. Bly Hall
Assistant Attorney General