North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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REPLY TO: Thomas J. Ziko Education Section Telephone: (919) 716-6920 FAX: (919) 716-6764

February 19, 1999

Clay Tee Hines Director, Legal Affairs North Carolina Community College System 200 West Jones Street Raleigh, NC 27603-1379

Re: Advisory Opinion; Election and Terms of Community College Trustees; De Facto Trustees; G.S. § 115D-12

Dear Ms. Hines:

On behalf of President Lancaster and the North Carolina Community College System, you have written to request this office’s opinion on several issues related to the election and terms of community college trustees. Your questions and our opinions follow.

Question: May a local board of education or the Governor select a county commissioner to serve as a community college trustee?

Answer: Yes.

G.S. § 115D-12 governs the election of community college trustees. That statute provides that the board of trustees of a community college shall be comprised of four groups of individuals:

(1) “Group One” is composed of four trustees elected by the board of education of the public school administrative unit located in the administrative area of the institution; (2) “Group Two” is composed of four trustees elected by the board of commissioners of the county in which the institution is located; (3) “Group Three” is composed of four trustees appointed by the Governor; and (4) “Group Four” is composed of the president of the student government or the chairman of the executive board of the student body of the college.

The authority of the board of county commissioners to elect “Group Two” trustees is expressly limited by G.S. § 115D-12(a) which provides: “No more than one trustee from “Group

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Two” may be a member of a board of county commissioners.” The statute, however, is silent regarding the authority of a local board of education or the Governor to appoint other county commissioners to the board of trustees. The question thus arises whether that silence should be viewed as an absence of authority on the part of the Governor or a local board of education to appoint a county commissioner to a board of trustees. Because disqualification for appointment to public office should not lightly be inferred, it would be inappropriate to view that silence as a lack of authority. Accordingly, we construe that silence to mean that county commissioners are among those citizens the Governor and local board of education may appoint to a board of trustees of a community college.

Question: May more than one county commissioner serve on the board of trustees of a community college?

Answer: Yes.

As noted above, there is nothing that prohibits a local board of education or the Governor from appointing county commissioners to the board of a community college. Therefore, in theory as many as nine county commissioners could serve on the board of a community college -- four “Group One” trustees selected by the local board of education, one “Group Two” trustee selected by the county commissioners and four “Group Three” trustees selected by the Governor.

Question: May the board of county commissioners or the Governor appoint a member of the local board of education to the board of trustees?

Answer: Yes.

G.S. § 115D-12(a) does forbid a local school board from electing “a member of the board of education or any person employed by the board of education to serve as a trustee.” However, nothing in G.S. § 115D-12 prohibits the Governor or a board of county commissioners from appointing members of a local board of education to the board of trustees of a community college. Thus, for the same reason we concluded that local boards of education and the Governor may appoint county commissioners to the board of trustees, we also conclude that the Governor and boards of county commissioners may appoint members of local boards of education to the board of trustees. See also G.S. 115C-47(g) (“[m]embership on a board of education is . . . an office that . . . may be held concurrently with any appointive office . . . but any person holding an elective office shall not be eligible to serve as a member of a local board.”)

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Question: If a trustee is elected to the board of county commissioners may he or she continue to serve as a trustee if another commissioner is already serving as a trustee?

Answer: Yes.

As noted above, G.S. § 115D-12 does not disqualify county commissioners or members of local boards of education from serving on the board of trustees of a community college. Therefore, there is nothing that prohibits a member of the board of education or more than one county commissioner from serving on the board of trustees of a community college, provided they are selected or elected by the Governor or by a board that has the authority to elect them.

Question: May an appointing authority limit the terms of its trustees to less than the statutory four-year term?

Answer: No.

G.S. § 115D-13(b) specifically provides that all present trustees “shall be appointed for four-year terms.” It is our opinion that this statute mandates a four-year term for all trustees and the appointing authorities do not have the power to reduce that statutory term.

Question: If a person is elected or appointed to a board of trustees in violation of G.S. § 115D12, what are the consequences of his or her participation in board activities?

Answer: His acts are valid as to the public and third persons until he is legally removed from office.

G.S. § 128-6 provides:

Any person who shall, by the proper authority, be admitted and sworn into any office, shall be held, deemed, and taken, by force of such admission, to be rightfully in such office until, by judicial sentence, upon a proper proceeding, he shall be ousted therefrom, or his admission thereto be, in due course of law, declared void.

In enacting this statute, the General Assembly expressly approved of the legal doctrine of de facto office. Thus, even though a person is not a de jure trustee, i.e., legally appointed or elected, if he is sworn and admitted into office by a proper authority, the law recognizes him as a de facto trustee and he may exercise all the powers of trustee until he resigns or is legally removed from the office. People ex rel. Duncan v. Beach, 294 N.C. 713, 242 S.E.2d 796 (1978); Armstrong v. McInnis, 264 N.C. 616, 142 S.E.2d 670 (1965).

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Question: Are there limitations that apply to exercises of the power to appoint county commissioners or local school board members to boards of trustees of community colleges?

Answer: Yes.

Article VI, § 9 of the State Constitution and G.S. § 128-1 forbid any person from holding more than one “office or place of trust or profit” except as provided by G.S. § 128-1.1 or by another statute. Pursuant to G.S. § 128-1.1 persons are generally authorized to hold concurrently two appointive offices or “places of trust or profit” in state or local government and persons holding one elected office in state or local government are authorized to hold one appointive office or “place of trust or profit” in state or local government. See also G.S. § 115D-16 (declaring that the office of community college trustee may be held concurrently with one elective office or one other appointed office or place of trust or profit). County commissioners and local school board members both hold elective offices within the meaning of the double office holding statute. See G.S. § 128-1.1(d). Thus, when a person serving as a county commissioner or member of a local board of education is appointed to a board of trustees of a community college, that person has exhausted the offices and place of trust or profit under state or local government that the person lawfully may hold.1 If such person is subsequently appointed or elected to another public office or place of trust or profit, he or she would be deemed by operation of law to have resigned from one of the two offices previously held. See In re Yelton, 223 N.C. 845, 28 S.E.2d 567 (1944).

Question: Are there limitations that apply to persons holding office both as a county commissioner and as a trustee of a community college in exercising the duties of those officers?

Answer: Perhaps.

The common law doctrine of incompatible offices exists independently of the double office holding and conflict of interest statutes, see State v. McHone, 243 N.C., 234 (1953), and is based on the principle that the holder of a public office must “discharge his or her duties with undivided loyalty.” 3 McQuillen, Municipal Corporation. § 12.67. “Two offices are said to be incompatible when the holder cannot in every instance discharge the duties of both” without compromising the obligation of undivided loyalty. Id. Incompatibility, and the risk of compromised loyalty, may exist where one office is subordinate to another so that one exercises authority over the other. Id.

1 There is one exception to this rule. In accordance with G.S. § 128-1.2, if a board of county commissioners appoints one of its members to serve on a community college board of trustees, the appointed member is deemed to be serving in that office as part of his duties as a county commissioner and the appointment is not considered a separate office for purposes of dual office holding.

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With respect to funding, the office of trustee of a community college may be subordinate to the office of county commissioner. For example, the annual budget developed by the board of trustees of a community college must be reviewed and approved by the board of county commissioners. The county commissioners’ power of approval includes the power to approve the budget proposed by the trustees in whole or in part and to prescribe the manner of expenditures. G.S. §§ 115D-54 and -55. In at least some instances, the pursuit of both these responsibilities at the same time would appear incompatible.2 A community college trustee’s duty is to pursue the college’s best interests as he perceives them; a county commissioner’s duty is to pursue the best interests of the county as a whole.

We are not prepared, however, to conclude that these differences in duties disqualify a person from serving simultaneously as a county commissioner and community college trustee. Such issues are primarily matters of policy for the General Assembly. When it enacted that provision of G.S. § 115D-12(a) which permits the board of county commissioners to appoint a county commissioner to the board of a community college, the General Assembly necessarily concluded that it is appropriate for at least one county commissioner to serve as a community college trustee. Nevertheless, prudence suggests that a person serving as a county commissioner and community college trustee should bear in mind his obligation always to give his undivided loyalty to both the county and to the college. When an issue arises where such a commissioner/trustee cannot exercise the power of one office without neglecting with the duty he owes to the other office, he should abstain from taking action on the issue.

Very truly yours,

Grayson G. Kelley Senior Deputy Attorney General

Thomas J. Ziko Special Deputy Attorney General

2 Similar concerns about divided loyalties arise when a person serves simultaneously as a member of a local school board and as a community college trustee. The interests of the school board and the board of trustees in obtaining as much local funding from the board of commissioners as possible are competing, if not incompatible, interests.