When a legislative appointee to NC Centennial Authority holds over past his term and then resigns, who fills the vacancy?
Plain-English summary
The Centennial Authority's counsel asked the AG who had the power to fill a vacancy on the Authority's governing board when a legislative appointee held over past his term and then resigned.
The AG agreed with counsel: the remaining members of the Authority filled the vacancy. The General Assembly created the Centennial Authority in 1995 to run a regional sports and entertainment facility. The enabling statute, N.C.G.S. § 160A-480.3(b), assigned two different powers to two different bodies:
- Appointment of members and their successors. The General Assembly appointed eight members. Four came on the Speaker's recommendation, four on the President Pro Tempore's recommendation, all for four-year terms. Successors were appointed in the same manner.
- Filling vacancies. "Vacancies occurring in the membership of the authority shall be filled by the remaining members."
That division mattered when the facts got complicated. The member's term expired July 1, 2003. The General Assembly did not reappoint him or pick a replacement. Under N.C. Const. art. VI, § 10, the incumbent "held over" until other appointments were made. Then he resigned. The AG drew the line carefully: a holdover incumbent is not filling a vacancy, he is filling an extended term. But once he resigned, a vacancy did exist, and the vacancy provision in § 160A-480.3(b) governed.
The remaining members' appointee would only fill the gap until the General Assembly appointed someone to the full four-year term that began July 1, 2003. The legislature's appointee would then serve until July 1, 2007. The remaining-members appointment was a stopgap, not a fresh four-year term.
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 may have been amended since 2003. Anyone with a current question about Authority board appointments should pull the current version of § 160A-480.3.
Common questions
Q: What is the difference between a holdover and a vacancy?
A: A holdover incumbent is still in office, just past the formal end of his term, waiting for a successor. He is not in a vacant seat; he is in an extended term. A vacancy is created when the office becomes empty (death, resignation, removal). Different rules apply to filling each.
Q: Could the holdover have been forced to keep serving?
A: No. The AG noted that a holdover cannot be compelled to continue in office. When this holdover resigned, a vacancy was created.
Q: How long did the appointee chosen by the remaining members serve?
A: Only until the General Assembly appointed someone to the four-year term that began July 1, 2003. The legislature's eventual appointee would then serve out the unexpired part of the term, ending July 1, 2007.
Q: Why did the legislature divide appointment from vacancy-filling?
A: The opinion did not explore policy. Reading the statute as written, the legislature kept the political-appointment power for itself but pushed vacancy-filling down to the board so the authority could keep functioning between legislative sessions.
Background and statutory framework
The Centennial Authority was created by Session Law 1995 ch. 458 § 4 to run a regional sports and entertainment facility (the arena now known as Lenovo Center / PNC Arena in Raleigh). The eight-member governing board was wholly a legislative appointment.
N.C.G.S. § 160A-480.3(b) split the appointment and vacancy powers:
- Initial and successor four-year appointments: General Assembly.
- Vacancy-filling: remaining members of the Authority.
The constitutional backdrop was N.C. Const. art. VI, § 10, which provides that, absent contrary provisions, all officers continue in their positions until other appointments are made or, for elective offices, until successors are chosen and qualified. That is the legal source of the "holdover" doctrine.
The AG cited the general public-officer treatises (63C Am. Jur. 2d, Public Officers and Employees, §§ 121, 149, 151) for two propositions: (1) a holdover fills an extended term, not a vacancy, and (2) "a holdover does not change the length of the term but merely shortens the term of the succeeding office." That second rule explained why the legislative appointment, when it came, would only run to July 1, 2007.
The opinion was signed by Senior Deputy Attorney General Grayson G. Kelley and Special Deputy Attorney General Thomas J. Ziko.
Citations
- N.C.G.S. § 160A-480.3 (Centennial Authority enabling statute)
- N.C.G.S. § 160A-480.3(b) (appointment and vacancy provisions)
- N.C. Const. art. VI, § 10 (holdover rule for officers)
- 63C Am. Jur. 2d, Public Officers and Employees, §§ 121, 149, 151 (1997)
- Act of July 19, 1995, ch. 458, § 4, 1995 N.C. Sess. Laws 1277, 1288 (Authority creation)
Source
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 the Authority.
Very truly yours,
Grayson G. Kelley
Senior Deputy Attorney General
Thomas J. Ziko
Special Deputy Attorney General
GGK/TJZ/sf