North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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July 5, 1978 Education; Superintendent; Duration of contract of employment of new superintendent where vacancy occurs in the office of superintendent.

Subject:

 

Requested By: John W. Hardy, Attorney for the Guilford County Board of Education

 

Question: Where the superintendent resigns before the end of his contract period, or a vacancy occurs in the superintendency for whatever reason, may the Board of Education extend to the new superintendent a two or four year contract?

 

Conclusion: Yes. Where a vacancy occurs in the office of the superintendent, the vacancy may be filled on a temporary basis, or it may be filled for a specific two or four year period.

 

The former superintendent of the Guilford County schools submitted his resignation effective June 30, 1978, with one year remaining on his contract. The question arises whether the new superintendent may be hired for a two or four year term, or is the Board restricted to offering the new superintendent a contract of only one year, which is the period remaining on the former superintendent's contract.

G.S.
115-55 provides in pertinent part: "In case of vacancy by death, resignation or otherwise in the office of a county or city superintendent, such vacancy shall be filled by the county or city board of education in which such vacancy appears."
G.S.
115-39 provides in pertinent part:

"Such superintendent shall take office on the following July 1 and shall serve for a term of two or four years or until his successor is elected and qualified. The superintendent shall be elected for a term of either two or four years, which term shall be in the discretion of the county board of education."

Construing G.S. 115-39 and 115-55, particularly those portions of each statute above quoted, it would appear that the superintendent of a county school administrative unit shall serve a term of two or four years, or until his successor is elected and qualified, and that in choosing a successor the board of education has the discretion in electing the successor for either two or four years. To interpret these statutes in such a way that would restrict a board of education from contracting with a successor to a resigning superintendent for any period of time greater than the length of time remaining on his unexpired contract, would create a difficult situation in employing such a successor. For example, in the event a superintendent died while in office leaving six months on

his contract, one can readily see that a qualified person would be very reluctant to enter into a contract for six months without any assurance that he could obtain a new contract for either two or four years. It is our opinion that the language contained in either G.S. 115-39 or 115-55 does not require such an interpretation and in fact does give a board of education sufficient discretion to fill a vacancy with a new contract term of either two or four years.

The conclusion stated herein does not in any way affect or overturn an earlier opinion issued by this Office and reported in 40 N.C.A.G.R. 261, wherein it was concluded that a local board of education does not have the authority, with the superintendent's consent, to terminate the superintendent's current contract of employment prior to the specified termination date set out in the contract and to thereafter enter into a new contract of employment as superintendent with the same individual. The opinion rendered today deals only with a situation where a vacancy occurs in the office of superintendent and a new contract is entered into with an individual other than the previous superintendent.

Rufus L. Edmisten Attorney General

Andrew A. Vanore, Jr., Senior Deputy Attorney General