When someone is appointed to fill a vacancy on the Brunswick County (NC) Board of Education, do they serve the rest of the original term or only until the next election?

Plain-English summary

Two lawyers, one for the Brunswick County Commissioners and one for the Brunswick County Board of Education, jointly asked the AG how long an appointed school board member should serve. Brunswick County elects its school board on a partisan basis under a 1981 local act, but no local act tells the county how to fill a vacancy or how long the replacement should serve.

The AG's bottom line: the appointee serves only until the next election of school board members, and the remaining unexpired term is then filled by election. The reasoning is a guided tour of NC school-governance history from 1966 to 1981 and an exercise in reading statutory text against legislative intent rather than literal cross-references.

The story:

• Pre-1967. County boards of education were appointed by the General Assembly, not elected. G.S. § 115-19 (1966). Vacancies were filled in two stages: the county political party of the vacating member named someone for the period until the next legislative session, and the General Assembly itself filled the remainder. G.S. § 115-24 (1966); State ex rel. Atkins v. Fortner, 236 N.C. 264 (1952).
• 1967 uniform act. 1967 N.C. Sess. Laws c. 972 switched to elected boards (partisan or nonpartisan) and rewrote G.S. § 115-24 so that all vacancies were filled by the remaining members of the board with appointees serving "until the next election of members of such board, at which time the remaining unexpired term of the office in which the vacancy occurs shall be filled by election."
• 1969 amendments. 1969 N.C. Sess. Laws c. 1301 made nonpartisan elections the general rule. Partisan elections continued only where authorized by local act. The vacancy rule in old G.S. § 115-24 stayed in place, still pegged to G.S. § 115-19.
• 1981 recodification. 1981 N.C. Sess. Laws c. 423 moved G.S. § 115-19 to § 115C-37(a) and G.S. § 115-24 to § 115C-37(f). The cross-reference inside § 115C-37(f) was mechanically updated from § 115-19 to § 115C-37(a). At that moment, § 115C-37(f) was still the only vacancy-fill statute and still applied to all elected boards.
• 1981 partisan-vacancy fix. On the same effective date, 1981 N.C. Sess. Laws c. 763 created a brand-new statute, § 115C-37.1, applying specifically to partisan-elected boards listed in subsection (d). That statute requires the appointing body to honor the recommendation of the political party of the vacating member, but says nothing about the length of the appointee's term. Brunswick County is on the § 115C-37.1(d) list.

The textual anomaly: after the recodification, § 115C-37(f) (the general vacancy rule) cross-references § 115C-37(a), which is now the nonpartisan election method. Read literally, the general vacancy rule would only apply to nonpartisan boards, leaving partisan boards without any rule on how long their appointees serve.

The AG treated that as an unintended drafting artifact of the recodification. Legislative intent, traced back to 1967, has always been that appointed board members serve only until the next election. The AG also leaned on Rodwell v. Rowland, the NC Supreme Court's pre-1968 statement that appointees should not hold elective offices any longer than necessary before voters can choose their own.

The answer for Brunswick: appointees fill vacancies until the next election of the board, then voters elect someone for the remainder of the unexpired term.

Currency note

This opinion was issued in 2004. 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 statutory cross-references in N.C.G.S. § 115C-37 and § 115C-37.1 have been touched by the General Assembly multiple times since 2004, and counties affected by these provisions should pull the current consolidated text before relying on this opinion.

Background and statutory framework

Why the AG had to dig into legislative history. When a statute's plain text leads to a result the legislature almost certainly did not intend (a vacancy rule that covers only half the boards it logically should), NC courts look to legislative history to determine intent. The AG's job was to identify the unintended consequence of three rounds of unrelated amendments and recodifications and to read the statute as the legislature intended.

The role of Rodwell v. Rowland. The 1905 NC Supreme Court decision in Rodwell articulated a foundational principle of NC election law: that the people should be permitted to choose their elective officers "at the earliest opportunity that can be afforded." The AG cites Rodwell to confirm that the general legislative pattern favoring short appointee terms aligns with the State Constitution's design.

Why partisan and nonpartisan boards should be treated the same. Nothing in the legislative history suggests the General Assembly meant to give partisan-board appointees longer terms than nonpartisan-board appointees. The opposite is true: 1981 N.C. Sess. Laws c. 763 was a uniformity statute, designed to bring partisan boards into a parallel framework. The anomaly in cross-references is best read as a drafting glitch, not a policy choice.

Common questions

Q: What happens at the election that fills the vacancy?

A: Voters elect someone to serve the remaining unexpired portion of the original term, not a fresh full term. So if a member dies one year into a four-year term, the appointee serves until the next election (perhaps 8 to 14 months away), and the elected replacement then serves the remaining roughly two-and-a-half years of the original term.

Q: Does the appointing body have to choose someone from the vacating member's political party?

A: Yes, when § 115C-37.1 applies. Section 4 of 1981 N.C. Sess. Laws c. 763 specifically requires the appointing board to choose the person recommended by the political party executive committee of the vacating officer when the seat being filled was a partisan one.

Q: What if a county has its own local act on how to fill school board vacancies?

A: A controlling local act overrides the general law. The AG was careful to note "absent controlling local acts" twice in the opinion. Counties with their own local-act vacancy procedures (like Pasquotank under 1967 N.C. Sess. Laws c. 29) follow those rather than § 115C-37(f) or § 115C-37.1.

Q: Was this opinion contradicted by any later opinion or court ruling?

A: The opinion is from 2004. As with any AG opinion, it could be modified by subsequent legislation, later AG opinions, or judicial interpretation. Treat it as the AG's view as of 2004, not as binding present-day authority.

Citations

Statutes and session laws:
- N.C. Gen. Stat. § 115C-37 (county boards of education)
- N.C. Gen. Stat. § 115C-37(a) (nonpartisan election method)
- N.C. Gen. Stat. § 115C-37(f) (vacancy procedure)
- N.C. Gen. Stat. § 115C-37.1 (partisan vacancy procedure)
- N.C. Gen. Stat. § 115C-37.1(a), (d) (uniform procedure and applicability list)
- G.S. § 115-19 (1966) (predecessor election statute)
- G.S. § 115-24 (1966) (predecessor vacancy statute)
- 1967 N.C. Sess. Laws c. 972 (1967 uniform school board election act; secs. 2, 6, 7)
- 1969 N.C. Sess. Laws c. 1301 (1969 omnibus amendments; secs. 2, 4)
- 1981 N.C. Sess. Laws c. 423, sec. 1 (1981 recodification)
- 1981 N.C. Sess. Laws c. 763 (uniform partisan-vacancy procedure)
- 1981 N.C. Sess. Laws c. 802, sec. 9 (Brunswick County partisan election)
- Chapter 163 of the General Statutes (primary elections framework)

Cases:
- State ex rel. Atkins v. Fortner, 236 N.C. 264, 72 S.E.2d 594 (1952) (two-stage pre-1967 vacancy procedure)
- Rodwell v. Rowland, 137 N.C. 617, 50 S.E. 319 (1905) (constitutional preference for early elections to fill elective offices)

Source

• Landing page: https://ncdoj.gov/opinions/term-of-appointments-to-fill-vacancies-on-brunswick-county-board-of-education/

Original opinion text

B. Joseph Causey, Jr.
P.O. Drawer 168
Shallotte, North Carolina 28459

Huey Marshall
P.O. Box 249
Bolivia, North Carolina 28422

Re: Advisory Opinion; Term of Appointments to Fill Vacancies on Brunswick County Board of Education; N.C. Gen. Stat. §§ 115C-37 and 37.1 (2003).

Dear Gentlemen:

As counsel to the Brunswick County Commissioners and the Brunswick County Board of Education, you have recently written to request an opinion regarding the term of office of persons appointed to fill vacancies on the Brunswick County Board of Education.

Pursuant to a local act effective July 3, 1981, the Brunswick County Board of Education is elected on a partisan basis. 1981 N.C. Sess. Laws c. 802, sec. 9. However, no local act affecting the Brunswick County Board of Education describes how vacancies are to be filled or whether the persons appointed to fill vacancies on the board are to serve for the remainder of the term of the person who created the vacancy or only until the next election of board members.

Absent controlling local legislation, the filling of vacancies on local boards of education is governed by G.S. § 115C-37 (2003) or G.S. § 115C-37.1 (2003). The answer to your inquiry requires a review and understanding of the legislative histories of those statutes.

Prior to 1967, county boards of education were appointed by the General Assembly. G.S. § 115-19 (1966). Vacancies in those appointed boards of education were filled in two stages. G.S. § 115-24 (1966). The first stage of the vacancy ran from the date of the vacancy to the next regular session of the General Assembly. The second stage ran for the remainder of the unexpired term. See, State ex rel. Atkins v. Fortner, 236 N.C. 264, 268, 72 S.E.2d 594, 597 (1952). The executive committee of the political party of the member causing the vacancy had authority to fill the first stage of the vacancy and the General Assembly had authority to fill the second stage. If the executive committee did not act in thirty days, the power to fill the first stage vacancy passed to the State Board of Education. G.S. § 115-24 (1966).

In 1967, the General Assembly passed "AN ACT TO CREATE A UNIFORM SYSTEM FOR THE NOMINATION AND ELECTION OF MEMBERS OF COUNTY BOARDS OF EDUCATION IN ALL THE COUNTIES OF THE STATE." (1967 N.C. Sess. Laws c. 972) That Act rewrote then G.S. §115-19 to require:

The members of the County Board of Education in each county that does not on the effective date of this Act elect its members by vote of the people, shall be elected in one of the following ways:

(1) On a partisan basis in the same manner as members of the General Assembly; or
(2) On a non-partisan basis at the time of the primary election for the nomination of candidates for the General Assembly.

1967 N.C. Session Laws c. 972, sec. 2.

That same Act rewrote then G.S. § 115-24 to provide:

All vacancies in the membership of the Boards of Education whose members are elected pursuant to the provisions of G.S. 115-19 by death, resignation or other causes shall be filled by appointment by the remaining members of the Board, of a person to serve until the next election of members of such Board, at which time the remaining unexpired term of the office in which the vacancy occurs shall be filled by election.

1967 N.C. Sess. Laws c. 972, sec. 6.

Therefore, as of July 1, 1969, the effective date of that Act, the General Assembly had expressly provided that all vacancies on boards of education, whether those boards were elected in partisan or non-partisan elections, were to be filled by appointment by the remaining members of the board. Persons so appointed were to serve until the next election of members of such board, at which time the remaining unexpired term of the office in which the vacancy occurred was to be filled by election.

In 1969, the General Assembly passed "AN ACT ELIMINATING CERTAIN INCONSISTENCIES BETWEEN THE OMNIBUS SCHOOL BOARD APPOINTMENT ACT AND THE GENERAL STATUTES, AND CLARIFYING THE PROCEDURE FOR ELECTION OF COUNTY BOARDS OF EDUCATION IN 1970." Section 2 of that Act rewrote G.S.§ 115-19 to read, in pertinent part:

G.S. 115-19. How elected. The County Boards of Education shall be elected on a nonpartisan basis at the time of the primary election in 1970 and biennially thereafter. The names of the candidates shall be printed on the ballots without reference to any party affiliation and any qualified voter residing in the county shall be entitled to vote such ballots. Except as otherwise provided herein, the election shall be conducted according to the provisions of Chapter 163 of the General Statutes then governing primary elections.

1969 N.C. Sess. Laws c. 1301, sec. 2.

Section 4 of the Act provided "All laws and clauses of laws in conflict with this Act are repealed, except local acts providing for the election of county boards of education by the people." 1969 N.C. Sess. Laws c. 1301, sec. 4. Therefore, as of July 2, 1969, the effective date of the Act, the general statutes required all county boards of education to be elected in nonpartisan elections; only counties with local acts which provided for election by the people could conduct partisan school board elections. The process for filling vacancies on school boards and the term of persons appointed to fill such vacancies continued to be controlled by G.S. § 115-24. That statute continued to refer to G.S. § 115-19, which after the 1969 amendment, only permitted nonpartisan elections.

In 1981, G.S. § 115-19 was recodified as G.S. § 115C-37(a) and G.S. § 115-24 was recodified as G.S. § 115C-37(f). 1981 N.C. Sess. Laws c. 423, sec. 1. Consistent with the recodification, the reference in G.S. § 115C-37(f) (formerly G.S. § 115-24) to G.S. § 115-19 was changed to G.S. § 115C-37(a). At the time the recodification was ratified, May 20, 1981, G.S. § 115C-37(f) remained the sole, general method for filling vacancies on boards of education.

However, on the date the recodification became effective, July 1, 1981, the General Assembly ratified 1981 N.C. Sess. Laws c. 763, "AN ACT TO PROVIDE THAT WHEN VACANCIES OCCUR IN THE OFFICES OF COUNTY COMMISSIONER, SHERIFF, REGISTER OF DEEDS, CORONER, OR PARTISAN SCHOOL BOARD RACES, THE APPOINTING BOARD OR PERSON MUST APPOINT THE PERSON RECOMMENDED BY THE POLITICAL PARTY EXECUTIVE COMMITTEE OF THE VACATING OFFICER, AND BY REQUIRING A DISTRICT BAR TO NOMINATE CANDIDATES FOR DISTRICT COURT JUDGES OF THE SAME PARTY OF THE VACATING JUDGE." Section 4 of that Act amended 1981 N.C. Sess. Laws c. 423 to add a new section, G.S. § 115C-37.1.

G.S. § 115C-37.1(a) provides a uniform procedure for filling vacancies on certain listed county boards of education which are elected by public or local act on a partisan basis. This Act became effective on July 1, 1981, the same date as 1981 N.C. Sess. Laws c. 423.

The passage of this Act meant that, as of July 1, 1981, the State for the first time had a general provision for filling vacancies in the membership of county boards of election which were elected on a partisan basis and were specified in the statute. G.S. § 115C-37.1 is now specifically applicable to the Brunswick County Board of Education, G.S. § 115C-37.1(d), but neither G.S. § 115C-37.1 nor any local acts affecting the Brunswick County Board of Education specify whether the persons appointed to fill vacancies on the board are to serve for the remainder of the term of the person who created the vacancy or only until the next election of board members.

Although G.S. § 115C-37(f), by reference to G.S. § 115C-37(a), appears to be restricted to county boards of education elected on a non-partisan basis, the legislative history demonstrates that this limitation is an anomalous and unintentional consequence of unrelated amendments and recodifications of G.S. § 115C-37(a).

Based on the legislative history of G.S. § 115C-37(a) and 37(f) recited above, it is our opinion that, absent controlling local acts, it has always been the intent of the General Assembly that the persons appointed to vacancies on local boards of education are to serve until the next election of members of such board, at which time the remaining unexpired term of the office in which the vacancy occurred is to be filled by election. This opinion is consistent with former G.S. § 115-24 (1966), G.S. § 115-24 (1967) and the present G.S. § 115C-37(f), all of which indicate a legislative intent to limit the term of persons appointed to fill vacancies on boards of education to the time between the occurrence of the vacancy and the next election of the body empowered to make the interim appointment. Furthermore, our opinion is consistent with the Supreme Court's observation regarding the fundamental principles of representative government. See Rodwell v. Rowland, 137 N.C. 617, 622, 50 S.E. 319, 321 (1905) ("the leading idea of the Constitution of 1868, as amended by the Convention in 1875, [is] that appointees to elective offices should not hold their places any longer than is required for the people again to exercise their right of choosing such officers at the polls, and that they should be permitted to do so at the earliest opportunity that can be afforded for that purpose.")

Therefore, it is our opinion that persons appointed to vacancies on the Brunswick County Board of Education are to serve until the next election of members of such board, at which time the remaining unexpired term of the office in which the vacancy occurred must be filled by election.

Very truly yours,

Grayson G. Kelley
Chief Deputy Attorney General

Thomas J. Ziko
Special Deputy Attorney General

cc: Alison Schafer
Robert Joyce