When a holdover board member resigns from the NC Centennial Authority, do the remaining members fill the vacancy or does the legislature?

Plain-English summary

The Centennial Authority is the regional sports and entertainment authority that operates major venues in the Raleigh area. Its governing board is appointed by the General Assembly, four members on recommendation of the Speaker of the House and four on recommendation of the President Pro Tempore of the Senate, all for four-year terms.

One board member's four-year term expired July 1, 2003. The legislature did not act to reappoint or replace him. Under the NC Constitution's holdover rule (Art. VI, § 10), the incumbent continued in office "until other appointments are made." Then, after holding over for a few months, he resigned.

The Authority's counsel asked: who fills this seat now?

The AG's answer: the remaining board members, not the legislature. Section 160A-480.3(b) divides the appointment power. The legislature appoints to four-year terms and reappoints at term-end ("Successors shall be appointed in the same manner for four-year terms"). But the statute also says "Vacancies occurring in the membership of the authority shall be filled by the remaining members."

The key analytical move was distinguishing between a held-over term and a vacancy:

• During the holdover, the incumbent is filling an extended term of his original office. The legislature can end the holdover at any time by appointing a successor.
• When the incumbent resigns mid-holdover, the office becomes vacant. The vacancy-filling rule kicks in, and the remaining members appoint someone to serve the unexpired portion of the four-year term that began July 1, 2003.

The person appointed by the remaining members serves until the legislature acts to appoint a full four-year-term member. Once the legislature acts, the new appointee begins a fresh four-year term running to July 1, 2007.

The opinion is signed by Grayson G. Kelley (Senior Deputy AG) and Thomas J. Ziko (Special Deputy AG).

Currency note

This opinion was issued in 2003. 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 Centennial Authority's enabling statute has been amended over the years. Any current vacancy question should be analyzed under the current text of § 160A-480.3 and any controlling court decisions.

Common questions

Q: What is the holdover rule?
A: NC Const. art. VI, § 10 provides that a state officer continues in office after the expiration of their term until a successor is "elected or appointed and qualified." The rule prevents gaps in office and is common in state constitutions.

Q: Can a holdover incumbent be removed by the appointing authority before resigning voluntarily?
A: The holdover continues until a successor is appointed. The appointing authority's power to end the holdover is exercised by making the appointment. Removal is a separate question governed by the statute that created the office.

Q: Why does the General Assembly appoint to the Centennial Authority?
A: The Centennial Authority's enabling act vested the General Assembly with appointment power. This is unusual but constitutional: the legislature can vest appointment power in itself, executive officers, or a public body's own members.

Q: Could the Centennial Authority's remaining members refuse to appoint anyone?
A: The opinion does not address that scenario. The statute is permissive ("shall be filled"), not requiring action within a specific timeframe. Practical operations might suffer if the seat stays empty.

Q: How long does the remaining-member appointee serve?
A: Until the legislature appoints to the full four-year term that began July 1, 2003. Once the legislature acts, the legislative appointee begins a fresh four-year term to July 1, 2007.

Q: Does this rule apply to other public authorities with split appointment regimes?
A: The analysis turns on the specific statutory language. Some authorities give the appointing body sole power including vacancy-filling; others split it the way § 160A-480.3 does. Each statute has to be read separately.

Background and statutory framework

The Centennial Authority was created by the General Assembly in 1995 (Act of July 19, 1995, ch. 458) to operate a regional sports and entertainment facility. The Authority's board structure was designed to balance legislative oversight (initial appointments and term-end reappointments) with operational continuity (remaining members fill mid-term vacancies).

The split-appointment design is a governance compromise. Legislative-only appointment power would leave the Authority's board vulnerable to political stalemates. Sole-member power would weaken legislative oversight. Splitting them produces both legislative control over the full four-year cycles and board capacity to fill gaps.

The AG's opinion is essentially a clean reading of the statute, plus the holdover-versus-vacancy distinction that determines which appointment regime applies in a given situation. The same analytical framework appears in many NC statutes governing boards and commissions, and the AG opinion is useful precedent for similar questions.

Citations

• N.C.G.S. § 160A-480.3 (Centennial Authority, appointments and vacancies)
• N.C. Const. art. VI, § 10 (holdover rule)
• Act of July 19, 1995, ch. 458, 1995 N.C. Sess. Laws 1277 (Centennial Authority enabling act)
• 63C Am. Jur. 2d, Public Officers and Employees, §§ 121, 149, 151 (1997)

Source

• Landing page: https://ncdoj.gov/legal-services/archived-opinions/

Original opinion text

REPLY TO: Grayson G. Kelley
(919) 716-6900 FAX: (919) 716-6763

October 21, 2003

Jeffrey P. Gray
Holt York McDarris & High L.L.P.
Post Office Box 2060
Raleigh, North Carolina 27602

Re: Advisory Opinion; Centennial Authority; Vacancies; N.C.G.S. § 160A-480.3 (2001)

Dear Mr. Gray:

The Centennial Authority ("Authority") was established by the General Assembly to operate a regional sports and entertainment facility. Act of July 19, 1995, ch. 458, sec. 4, 1995 N.C. Sess. Laws 1277, 1288. Your law firm is counsel for the Authority. On behalf of the Authority by letter dated October 8, 2003, you requested our opinion regarding the power to fill a vacancy on the Authority's governing board.

The method of appointment and terms of the members of the Authority's governing board are prescribed by N.C.G.S. § 160A-480.3(b). Four (4) of the members of that board are appointed by the General Assembly upon recommendation of the Speaker of the House of Representatives for four-year terms and four (4) other members are appointed by the General Assembly upon recommendation of the President Pro Tempore of the Senate for four-year terms. The term of office of one of the legislative appointees expired on July 1, 2003. Because the legislature has not yet made a new appointment to fill this expired term of office, the incumbent member of the board "held-over" until recently when he resigned. A question has been raised about whether the power to fill the vacancy created by this resignation rests with the legislature or the remaining members of the Authority. As counsel for the Authority, you are of the opinion that the power to fill this vacancy until the legislature makes a new appointment rests with the remaining members of the Authority's board. We agree.

The General Assembly has chosen to divide the power to appoint and reappoint the members of the governing board of the Authority from the power to fill vacancies. Accordingly, N.C.G.S. § 160A-480.3(b) provides that the legislature will appoint the initial members of the governing board and that their "[s]uccessors shall be appointed in the same manner for four-year terms." Conversely, that statute provides that "[v]acancies occurring in the membership of the authority shall be filled by the remaining members."

In practice this division of power means that upon the expiration of the term of office of the member in question on July 1, 2003 the General Assembly had the power to reappoint the incumbent for a new four-year term or to appoint another person to a new four-year term. When, as here, the power to appoint is not immediately exercised, the incumbent "holds over," i.e., continues in office "until other appointments are made." N.C. Const., art. VI, § 10. An appointee who holds over beyond the term of his office is not filling a vacant position, rather, he is filling an extended term of his office. See, generally, 63C Am. Jur. 2d, Public Officers and Employees, §§ 121 and 149 (1997). On the other hand, an incumbent who is holding over cannot be compelled to continue in office until his successor is appointed. Thus, if an appointee who is holding over beyond the expiration of his term of office resigns a vacancy is created, which vacancy is filled as provided in N.C.G.S. § 160A-480.3(b) "by the remaining members" of the Authority's governing board.

Had the holdover incumbent not resigned, he would have served until his successor was appointed by the General Assembly. In our opinion, the person appointed to fill the vacancy created by the resignation of the member holding over stands in the place of that member. Thus, the person appointed to fill the vacancy will only serve until the legislature fills the four-year term which began on July 1, 2003. The person appointed by the legislature to this term will then serve until July 1, 2007. See 63C Am. Jur. 2d., Public Officers and Employees, § 151 (1997) ("a holdover does not change the length of the term but merely shortens the term of the succeeding office").

We trust that our views will be of assistance to you and Authority.

Very truly yours,

Grayson G. Kelley
Senior Deputy Attorney General

Thomas J. Ziko
Special Deputy Attorney General

GGK/TJZ/sf