North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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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 L.P. Hornthal, Jr. May 6, 2004 Page 2

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.

L.P. Hornthal, Jr. May 6, 2004 Page 3

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