When the NC General Assembly later passes a general law about school board vacancies, does it override an older local act that set its own rules for one specific district?

Plain-English summary

The Elizabeth City-Pasquotank Board of Education was created in 1967 by a special local act (1967 N.C. Sess. Laws c. 29) that consolidated the prior Elizabeth City and Pasquotank County school boards. Section 3 of that act says vacancies on the consolidated board are filled by the remaining members "for the complete unexpired term within 30 days after vacancy occurs."

Three months later in 1967, the General Assembly passed a general law (1967 N.C. Sess. Laws c. 972, now N.C.G.S. § 115C-37) creating a uniform statewide system for nominating and electing county boards of education. The general law's vacancy provision says appointed replacements serve only "until the next election of members of the board," not the whole unexpired term.

Board counsel Tony Hornthal asked the AG which rule controlled in Pasquotank County. The answer: the local act. Chief Deputy AG Grayson Kelley and Special Deputy AG Thomas Ziko applied the longstanding NC rule that a general law does not repeal a prior local act unless the general law plainly manifests an intent to repeal it, even if the general law contains the boilerplate "all laws in conflict are repealed" clause. The cardinal principle is legislative intent, and three signals pointed to the local act surviving:

1. The general law expressly excluded "vote-by-the-people" districts. Section 7 of the 1967 general act said the act did not apply to county boards of education that already used election by the people as of the act's effective date. The Elizabeth City-Pasquotank Board was a vote-by-the-people district under its own act.
2. The 1976 Court of Appeals reached the same answer on similar facts. In Fogle v. Gaston County Board of Education, the court held that the same 1967 general law did not repeal a Gaston County local act with terms "virtually identical" to the Pasquotank one. Both provided for election by the people, so both fell within the Section 7 exclusion.
3. The General Assembly itself acted as though the local act still applied. In 1977, the legislature amended the Pasquotank local act to extend the vacancy-fill deadline from 30 days to 60 days. Amending an act 10 years after its supposed repeal would not have made sense if the General Assembly thought c. 29 was dead.

Result: in Pasquotank County, when a board seat opens, the remaining members appoint a replacement who serves the full unexpired term.

The opinion also flagged a small technical question. The Elizabeth City-Pasquotank Board is, strictly speaking, a "city-county board of education" rather than a "county board of education." See N.C.G.S. § 115C-5(5). The AG noted the distinction but said the answer would be the same either way.

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 boundary between local acts and the general school-governance code in N.C.G.S. Chapter 115C has shifted multiple times since 2004, and any school board considering a vacancy appointment should check both its own local act (and any amendments to it) and the current text of § 115C-37 before acting.

Background and statutory framework

The patchwork problem. North Carolina has historically governed local school boards through a mix of general statutes (Chapter 115C) and county- or district-specific local acts. Local acts often set their own rules about board size, election method, partisan vs. nonpartisan elections, terms, and how vacancies are filled. When the General Assembly periodically enacts general school-governance reforms, the question is always whether the new general law overrides every prior local act or only fills in gaps.

The default rule of statutory construction. In NC, the default presumption is against implied repeal of a local act by a later general law. The general law must plainly manifest a legislative intent to override the local act. Charlotte v. Kavanaugh established this rule and Durham v. Manson reaffirmed it. A boilerplate "all conflicting laws repealed" clause in the general act is not enough.

The 1967 vacuum-style exception. The 1967 general act (c. 972) deliberately did not apply to vote-by-the-people districts. Section 7 carved them out. That made the implied-repeal question easy here: the general act did not even purport to cover a district whose members were already elected by the people, and the Pasquotank board had been since the Mar. 8, 1967 local act.

Legislative ratification of survival. The 1977 amendment to the Pasquotank local act is the kind of evidence courts treat as legislative ratification: by amending the local act, the General Assembly demonstrated its own belief that the act was still operative.

Common questions

Q: What is the practical difference between the local-act rule and the general-law rule?

A: Under the local act, an appointed replacement serves the full remainder of the vacating member's term. Under the general law (N.C.G.S. § 115C-37(f)), an appointee serves only until the next election. So a vacancy created two years into a four-year term means two more years of appointed service under the local act, but only months until the next regular school board election under the general law.

Q: Is this a one-off Pasquotank rule, or a pattern across NC school boards?

A: It is a pattern. Many NC school boards operate partly under local acts that override the general rules. Each board's counsel has to compare its specific local act with the relevant section of Chapter 115C. The 1976 Fogle decision shows that this same fight has played out in Gaston County, and almost certainly elsewhere.

Q: Did anyone challenge the AG's conclusion in court?

A: The AG opinion is not a court ruling and does not bind a future court. But it is consistent with the Court of Appeals' published decision in Fogle, which is binding precedent for similar facts.

Q: What if the local act has been amended several times? Which version applies?

A: The current text of the local act as amended. The 1977 amendment extended the vacancy-fill window from 30 to 60 days. Counsel for any board operating under a local act should pull the current consolidated text from the session laws or the General Assembly's local-acts compilation.

Citations

Statutes and session laws:
- 1967 N.C. Sess. Laws c. 29 (Elizabeth City-Pasquotank Board of Education consolidation, Mar. 8, 1967)
- 1967 N.C. Sess. Laws c. 972, sec. 7 (general school-board election act, June 28, 1967)
- 1977 N.C. Sess. Laws ch. 8 (Feb. 11, 1977 amendment to local act)
- N.C.G.S. § 115C-37 (general law on county boards of education)
- N.C.G.S. § 115C-37(f) (vacancy procedures under general law)
- N.C.G.S. § 115C-5(5) (definition including city-county boards)
- N.C.G.S. § 115-24 (predecessor general statute, repealed)

Cases:
- Polaroid Corp. v. Offerman, 349 N.C. 290, 507 S.E.2d 284 (1998) (legislative intent as cardinal principle)
- Charlotte v. Kavanaugh, 221 N.C. 259, 20 S.E.2d 97 (1942) (general law does not repeal local act absent plain intent)
- Durham v. Manson, 21 N.C. App. 161, 204 S.E.2d 41 (1974) (boilerplate repealer clause insufficient)
- Fogle v. Gaston County Board of Education, 29 N.C. App. 423, 224 S.E.2d 677 (1976) (applying the rule to a parallel Gaston County local act)

Source

• Landing page: https://ncdoj.gov/opinions/vacancy-on-elizabeth-city-pasquotank-county-board-of-education/

Original opinion text

May 6, 2004

L.P. Hornthal, Jr.
Hornthal, Riley, Ellis & Maland, L.L.P.
Post Office Box 220
Elizabeth City, North Carolina 27907-0220

Re: Advisory Opinion; Vacancy on the Elizabeth City – Pasquotank Board of Education; 1967 N.C. Sess. Laws c. 29; N.C.G.S. § 115C-37 (2003).

Dear Tony:

As counsel for the Elizabeth City – Pasquotank Board of Education (the Board), you wrote on April 29, 2004, to request an opinion regarding the procedures for filling vacancies on the Board and the term of office of persons selected to fill such vacancies.

The Board was created by an Act of Mar. 8, 1967, ch. 29, 1967 N.C. Sess. Laws 66 ("AN ACT TO PROVIDE FOR THE REORGANIZATION AND CONSOLIDATION OF THE ELIZABETH CITY BOARD OF EDUCATION AND THE PASQUOTANK COUNTY BOARD OF EDUCATION AND TO CREATE AND ESTABLISH ONE ADMINISTRATIVE BOARD FOR ALL OF THE PUBLIC SCHOOLS IN PASQUOTANK COUNTY") (the "Act"). In addition to providing for the election of it members by a vote of the people, Section 3 of the Act specifically provides that:

All vacancies in the membership of the Elizabeth City – Pasquotank Board of Education by reason of death, resignation or removal from township shall be filled by the remaining members of said Board from area (sic) of residence where vacancy occurs for the complete unexpired term within 30 days after vacancy occurs.

Subsequent to the ratification of the Act, the General Assembly passed and ratified An Act of June 28, 1967, ch. 972, 1967 N.C. Sess. Laws 1394 ("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"). That Act, currently codified as N.C.G.S. § 115C-37, generally addresses the procedures for filling vacancies and the term of office of persons appointed to fill vacancies on county boards of education elected in nonpartisan elections. N.C. Gen. Stat. § 115C-37(f) (2003). It provides that persons appointed to fill vacancies on elected county boards of education shall serve only until the next election of members of the board. That Act, however, did not specifically address or repeal any provisions of the Act creating the Elizabeth City – Pasquotank Board of Education. In fact, 1967 N.C. Sess. Laws c. 972, sec. 7, states that it does not apply to county boards of education that as of the date of the Act used a vote by the people as the method for selecting their members.

We note that the Elizabeth City – Pasquotank Board of Education is nominally a "city-county board of education," not a "county board of education." See, N.C. Gen. Stat. § 115C-5-(5) (defining the terms "local board" or "board" to include county boards of education, city boards of education and "city-county boards of education"). Our opinion, however, is not dependent on addressing the significance, if any, of that distinction in this context.

The cardinal principle of statutory construction is to ensure accomplishment of the legislative intent. E.g., Polaroid Corp. v. Offerman, 349 N.C. 290, 297, 507 S.E.2d 284, 290 (1998). To aid in the accomplishment of that objective, it is a general rule of statutory construction that subsequent general legislation does not repeal a local act unless the subsequent act plainly manifests the legislature's intent to repeal the local act. Charlotte v. Kavanaugh, 221 N.C. 259, 263, 20 S.E.2d 97, 99 (1942); Durham v. Manson, 21 N.C. App. 161, 164-165, 204 S.E.2d 41, 43-44 (1974). These principles of statutory construction are not altered by the fact that a statute, such as the case with 1967 N.C. Sess. Laws c. 972, contains recitation that it repeals all laws or clauses of laws in conflict with the statute. Charlotte v. Kavanaugh, 221 N.C. at 263.

In Fogle v. Gaston County Board of Education, 29 N.C. App. 423, 224 S.E.2d 677 (1976), the Court of Appeals applied those rules of statutory construction to hold that 1967 N.C. Sess. Laws c. 972 (then codified as N.C.G.S. § 115-24) did not repeal an existing local act which provided, in terms virtually identical to those contained in the Act, that vacancies on the Gaston County Board of Education were to be filled for the complete unexpired term of the vacating member. The Court reasoned, in part, that because the existing local act provided for the election of the Gaston County Board of Education, 1967 N.C. Sess. Laws c. 972, sec. 7, explicitly excluded Gaston County from coverage of the general law.

Applying these rules and precedents to the acts in question, it is our opinion that the subsequent general act, 1967 N.C. Sess. Laws c. 972 (N.C.G.S. § 115C-37), did not repeal or amend the preceding local act, 1967 N.C. Sess. Laws c. 29, because the subsequent general act did not plainly manifest the General Assembly's intent to repeal the earlier local act. For example, the subsequent general law makes no specific reference to the local act. Furthermore, the General Assembly's intent not to repeal all local acts is manifest in 1967 N.C. Sess. Laws c. 972, sec. 7, which specifically states that the general law does not apply to county boards of education which used election by the people as the method for selecting their members as of the date of the Act.

Moreover, this interpretation is consistent with the General Assembly's decision in 1977, ten years after it enacted N.C.G.S. § 115C-37, to amended the Act to extend the time for filling the vacancy from thirty (30) days to sixty (60) days. An Act of Feb. 11, 1977, ch. 8 1977 N.C. Sess. Laws 4 ("AN ACT TO CHANGE THE TERMS OF THE ELIZABETH CITY – PASQUOTANK BOARD OF EDUCATION MEMBERS TO FOUR YEARS AND TO ALLOW SIXTY DAYS TO FILL VACANCIES"). Clearly, in 1977, the General Assembly believed that 1967 N.C. Sess. Laws c. 29 continued to govern the filling of vacancies on the Board.

Based on this analysis, it is our opinion that 1967 N.C. Sess. Laws c. 29 remains the controlling law for the Board. Therefore, any vacancies on the Board are to be filled by the remaining members of the Board and the persons so selected are to serve the complete unexpired term of the member whose death, resignation or disqualification from office created the vacancy.

Very truly yours,

Grayson G. Kelley
Chief Deputy Attorney General

Thomas J. Ziko
Special Deputy Attorney General

cc: Donald Wright
Susan Nichols
Allison Schafer