A current NC school district employee won an election to that same school board. State law says board members can't also be employees. He won't retire until February. Can he take office in December anyway, and if not, who gets the seat?

Plain-English summary

The Nash-Rocky Mount Board of Education governs a merged school district created by the 1991 Nash-Rocky Mount Merger Act (1991 N.C. Sess. Laws c. 391). A current employee of that school district won a November 2004 election to a seat on the same Board of Education. He told the district he wouldn't retire until February 2005, three months after the December swearing-in.

The problem: § 115C-37(g) of the general statutes prohibits a board member from also being a Board of Education employee. The candidate had to resign his employment before taking the oath of office. The county attorney asked the AG for guidance on what to do.

The AG worked through four sub-questions:

1. Which statute controls, the General Statute or the Nash-Rocky Mount Local Act? Both, on different points. NC's rule is that when a local act conflicts with a general statute, the local act wins as a later, more specific enactment. But where they don't conflict, both apply. Here, the Local Act says board members take office on "the second Monday in December following their election," which is consistent with § 115C-37(d). The Local Act also says board members must be "qualified voters and residents of the district from which he or she seeks to be elected," which adds to (but doesn't replace) the general statute's § 115C-37(g) prohibition on being a board employee.

2. Can the candidate take the oath while still a district employee? No. § 115C-37(g) flatly prohibits a board member from holding employment with the board. He cannot qualify until he resigns.

3. Does his failure to qualify create a vacancy? Yes. NC defines a public-office "vacancy" as the absence of an incumbent with the legal right to exercise the office's functions (State ex rel. Atkins v. Fortner). The cause of vacancy here is the candidate's inability to take the oath because of his continued employment, which arises on the date he was supposed to qualify (the second Monday in December following the election).

4. Can he later qualify by resigning? Yes, but only by appointment, not by virtue of his election. Once he resigns, he's eligible to be one of the people the remaining board members appoint to fill the seat. He just can't fill the seat by walking in and taking the oath after the December meeting.

A critical drafting point: the Nash-Rocky Mount Local Act says vacancies are filled "for the unexpired term" by board appointment. The general statute (§ 115C-37(f)) says vacancies are filled by appointment only "until the next election." Those provisions conflict. Under Fletcher v. Collins and Carr v. Little, the later, more specific Local Act controls. So if the Nash-Rocky Mount Board appoints him to the vacancy, his appointment runs for the full unexpired four-year term, not just until the next election.

Until the board makes that appointment, the prior incumbent stays in office under N.C. Const. art. VI, § 10 ("all officers in this State... shall hold their positions until other appointments are made or, if the offices are elective, until their successors are chosen and qualified").

Signed by Chief Deputy AG Grayson Kelley and Special Deputy AG Thomas Ziko.

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 general statute § 115C-37 has been amended since 2004. Local acts governing specific merged school districts may also have been updated. Anyone applying this opinion to a current situation should pull the current text of § 115C-37, check the specific local act governing the relevant school board, and review later cases on the "vacancy versus failure to qualify" line.

Common questions

Q: Does the rule against board members being employees apply across NC?
A: Yes, § 115C-37(g) is in the general statutes and applies to all local boards of education unless a local act says otherwise. None of the local acts the AG considered actually carved out the rule.

Q: When does NC consider an office vacant?
A: Per State ex rel. Atkins v. Fortner, an office is vacant when there is no incumbent with the legal right to exercise its functions. A failure to qualify on the day prescribed for qualification creates a vacancy on that day.

Q: If the elected candidate doesn't qualify, can he still sit on the board?
A: Only by appointment to the resulting vacancy. He cannot acquire the office through the election once he has missed the qualification deadline. His failure to qualify is exactly what created the vacancy that the board now has to fill.

Q: Who holds the seat between the failed qualification and the appointment?
A: The prior incumbent, under N.C. Const. art. VI, § 10's "holdover" rule. Public officers in NC continue to hold their positions until successors are chosen and qualified, regardless of whether their term has technically expired.

Q: How does this differ if a non-Nash-Rocky Mount district has the same problem?
A: § 115C-37(f) (general statute) says appointments fill vacancies only "until the next election." So in a non-merged district, a board-appointed successor would have to run at the next election to keep the seat. In Nash-Rocky Mount, the Local Act gives an appointed successor the full unexpired term without going to the voters.

Q: Could the candidate have done anything differently?
A: Yes. He could have resigned his employment effective before the second Monday in December. The opinion specifically flags that a resignation by the December organizational meeting would have let him take the oath as the elected member.

Background and statutory framework

North Carolina has 115 local school administrative units, governed by boards of education that combine county and city districts under various local acts of the General Assembly. The general statutes (Chapter 115C) set baseline rules. Local acts override where they conflict.

Section 115C-37 has long contained two provisions that bumped into each other in this case:
- Subsection (d): New members take the oath at a December meeting following the election.
- Subsection (g): A board member cannot simultaneously be employed by the board.

For elected members who are already district employees, these provisions force a timing decision: resign before the December meeting, or lose the seat. The General Assembly clearly meant to prevent the obvious conflict of interest that would arise from a board member voting on his or her own employment, salary, or supervisor.

The Nash-Rocky Mount Local Act (1991 N.C. Sess. Laws c. 391) is one of dozens of local acts governing merged school administrative units. NC has merged city and county school districts repeatedly since the 1970s; each merger came with its own local act. These acts are usually similar to the general statute but include district-specific rules on terms, vacancies, and election mechanics.

The unexpired-term-versus-next-election distinction in this opinion has practical consequences. If the merged-district rule controls, the appointed successor doesn't have to face voters until the original term ends — sometimes years later. If the general statute controls, the successor must seek voter approval at the next available election. Communities reasonably differ on which is the better policy, and the AG's role here was just to read the local act as the legislature wrote it.

Citations

• N.C.G.S. § 115C-37 (election of local board members)
• N.C.G.S. § 115C-37(d) (December oath)
• N.C.G.S. § 115C-37(f) (vacancy filling, general statute)
• N.C.G.S. § 115C-37(g) (board member cannot be a board employee)
• 1991 N.C. Sess. Laws c. 391, §§ 11, 12 (Nash-Rocky Mount Local Act)
• N.C. Const. art. VI, § 10 (officers hold until successors qualified)
• N.C. Const. art. VI, § 7 (oath of office)
• Fletcher v. Collins, 218 N.C. 1 (1940) (statutory reconciliation)
• State Board of Agriculture v. White Oak-Buckle Drainage Dist., 177 N.C. 222 (1919)
• Carr v. Little, 188 N.C. 100 (1924) (local act controls over general statute)
• State ex rel. Atkins v. Fortner, 236 N.C. 264 (1952) (vacancy defined)
• People ex rel. Duncan v. Beach, 294 N.C. 713 (1978)
• Spruill v. Bateman, 162 N.C. 588 (1913)

Source

• Landing page: https://ncdoj.gov/opinions/vacancy-on-board-of-education-election-of-unqualified-candidate/

Original opinion text

1. Are vacancies on the Board of Education to be filled in accordance with 1991 N.C. Sess. Laws c. 391 or N.C.G.S. § 115C-37?

N.C.G.S. § 115C-37 generally governs the election of members to local boards of education. However, in 1991, the General Assembly enacted "AN ACT TO PROVIDE FOR THE MERGER AND CONSOLIDATION OF THE SCHOOL ADMINISTRATIVE UNITS IN NASH COUNTY AND THE CITY OF ROCKY MOUNT" (1991 N.C. Sess. Laws c. 391) ("the Nash-Rocky Mount Local Act" or "the Act") which merged the Nash County and the City of Rocky Mount Boards of Education and created the Nash-Rocky Mount Board of Education. Sections 11 and 12 of the Nash-Rocky Mount Local Act specifically address the process for electing members to the Board of Education.

While a local act is generally considered an exception to a General Statute, laws on the same subject must be construed to avoid conflict. Fletcher v. Collins, 218 N.C. 1, 6-7, 9 S.E.2d 606, 610 (1940). "Where two statutes on the same subject, or on related subjects, are apparently in conflict with each other they are to be reconciled, by construction, so far as may be, on any fair hypothesis, and validity and effect given to both, if this can be done without destroying the evident intent and meaning of the later act." State Board of Agriculture v. White Oak-Buckle Drainage Dist., 177 N.C. 222, 226, 98 S.E. 597, 599 (1919) (quoting Black's Interpretation of Laws (1896), p. 60, sec. 32). However, where the statutes conflict, the later enacted local act is considered an exception to the general statute and is given precedence. Carr v. Little, 188 N.C. 100, 111, 123 S.E. 625, 630 (1924).

N.C.G.S. § 115C-37(d) provides:

Each county board of education shall hold a meeting in December following the election. At that meeting, newly elected members of the board of education shall qualify by taking the oath of office prescribed in Article VI, Sec. 7 of the Constitution.

The Nash-Rocky Mount Local Act states in pertinent part: "Persons elected to the Nash-Rocky Mount Board of Education shall take office on the second Monday in December following their election. . . ." 1991 N.C. Sess. Laws c. 391, sec. 11(a). There is no conflict between N.C.G.S. § 115C-37(d) and the Nash-Rocky Mount Local Act; the Nash-Rocky Mount Local Act is simply more specific than the General Statute. Therefore, new members of the Board of Education must qualify for office by taking the oath at a meeting held on the second Monday in December following their election.

2. If he remains an employee of the Board of Education, can the candidate take the oath of office as required by N.C.G.S. § 115C-37(d)?

No.

N.C.G.S. § 115-37(g) requires any person elected to a local Board of Education who is also employed by the Board of Education to resign such employment before taking office. The Nash-Rocky Mount Local Act does not reiterate that qualification but does require a member to be a "qualified voter and resident of the district from which he or she seeks to be elected." 1991 N.C. Sess. Laws c. 391, sec. 11(b). Again, there is no conflict between the General Statute and the Nash-Rocky Mount Local Act; the Act simply imposes an additional qualification on a candidate's eligibility to serve on the Board of Education. Moreover, the General Assembly expressly provided that members of the Board of Education were to be elected as provided in Chapter 115C of the General Statutes. 1991 N.C. Sess. Laws c. 391, sec. 11(a). There being no conflict between the Nash-Rocky Mount Local Act and the General Statute, both must be given effect. Consequently, N.C.G.S. § 115C-37(g) requires the candidate to resign his employment with the Board of Education before taking his seat on the Board of Education.

3. If the candidate cannot "take office on the second Monday in December following [his] election" as required in § 11(a) of the Nash-Rocky Mount Local Act, does his failure to take the oath create a vacancy on the Board of Education?

Yes.

Because he is an employee of the Board of Education, N.C.G.S. § 115C-37(g) requires the candidate to resign his employment before taking office. The oath of office is required by N.C.G.S. § 115C-37(d) in order to qualify for the office. Although the candidate has stated he will retire in February 2005, his planned retirement date is three months after the date the Nash-Rocky Mount Local Act requires him to take office, i.e., "the second Monday in December following [his] election. . . ." 1991 N.C. Sess. Laws c. 391, sec. 11(a). Therefore, if he does not change his plans, the candidate will be unable to take the oath of office and assume office at the December 2004 meeting of the Board of Education.

A public office is vacant when it is without an incumbent who has the legal right to exercise its functions. State ex rel. Atkins v. Fortner, 236 N.C. 264, 269, 72 S.E.2d 594, 597 (1952). A vacancy in the office "occurs at the time of the happening of the event which is the cause of the vacancy." Id. In this case, if the candidate does not resign from employment, the cause of the vacancy will be the candidate's ineligibility to take the required oath the "second Monday in December following [his] election" (1991 N.C. Sess. Laws 391, §11(a)) due to his continued employment with the Nash-Rocky Mount Board of Education. N.C.G.S. § 115C-37(g). Therefore, it is our opinion that, absent a change in the candidate's plans, a vacancy on the Board of Education will occur on the second Monday in December following the election.

4. Can the candidate qualify to take his office on the Board of Education by resigning from his employment with the Board of Education at some time after the date fixed for taking the oath?

Yes.

After he resigns his employment, the candidate will qualify for appointment to a vacancy on the Board but he will not qualify to hold that office by virtue of his election.

Because the candidate is "disqualified to act, there must be a resort to the process of filling the office, in case of a vacancy." People ex rel. Duncan v. Beach, 294 N.C. 713, 718, 242 S.E.2d 796, 799 (1978), quoting Spruill v. Bateman, 162 N.C. 588, 589, 77 S.E. 768, 768 (1913). The Nash-Rocky Mount Local Act provides that vacancies on the Board of Education shall be filled as follows:

All vacancies occurring in the Nash-Rocky Mount Board of Education by reason of death, resignation, removal from residence from the district from which elected or for any cause whatsoever, shall be filled by the remaining members of said Board by appointing a member from the voting district created by the vacancy for the unexpired term. 1991 N.C. Sess. Laws 391, §12 (emphasis added).

In contrast to this provision of the Nash-Rocky Mount Local Act, N.C.G.S. § 115C-37(f) states that vacancies are to 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 office in which the vacancy occurs shall be filled by election.

Because the Nash-Rocky Mount Local Act conflicts with the general statute, the Nash-Rocky Mount Local Act controls. Fletcher v. Collins, 218 N.C. 1, 6-7, 9 S.E.2d 606, 610 (1940). Therefore, vacancies on the Board of Education are to be filled for the remainder of the unexpired term. Although the Nash-Rocky Mount Local Act does not provide a time limit for filling such vacancy, the law does obligate the remaining members of the Board of Education to fill the vacancy. See Advisory Opinion, G.S. § 115C-67; G.S. § 115C-68.3; Obligation to Fill a Vacancy on the Cabarrus County Board of Education; Op. Atty. Gen. N.C. (July 16, 1993).

If the candidate resigns or retires from employment with the Board of Education after the organizational meeting on the second Monday in December, he will become qualified to take the oath of office. Although qualified to take the oath, the candidate will not become eligible to assume the office as an elected member because he will not possess the "legal right to exercise the functions of the . . . office in controversy" until after the event which triggers a vacancy in the office has already occurred. State ex rel. Atkins v. Fortner, 236 N.C. 264, 270, 72 S.E.2d 594, 598 (1952). Once he has resigned his employment with the Board of Education, however, he may be appointed by the remaining members of the Board of Education to fill the unexpired term, pursuant to § 12 of the Nash-Rocky Mount Local Act.

We note that, while the candidate's failure to qualify to hold a position on the Board of Education creates a vacancy on the Board, the incumbent Board member continues to hold office by virtue of Article VI, Section 10 of the North Carolina Constitution which provides that "all officers in this State, whether appointed or elected, shall hold their positions until other appointments are made or, if the offices are elective, until their successors are chosen and qualified."

In summary, it is our opinion that the candidate cannot take the oath of office required to assume his elected position on the Board of Education until such time as the candidate has resigned from employment with the Board of Education. If the candidate fails to resign by the time of the organizational meeting on the second Monday in December following the election, as required by the Nash-Rocky Mount Local Act, his failure to qualify will create a vacancy on the Board of Education. The remaining members of the Board of Education must fill the vacancy by appointing a member from the voting district created by the vacancy for the unexpired term. Until such time that remaining members appoint a replacement, the incumbent shall remain in office. If the candidate resigns his employment with the Board and qualifies to take the oath of office before the remaining members of the Board of Education appoint a new member, the candidate will be eligible to be appointed by the Board of Education for the remainder of the unexpired term.

Very truly yours,

Grayson G. Kelley
Chief Deputy Attorney General

Thomas J. Ziko
Special Deputy Attorney General