Elections, County Commissioners; Filling of Vacancy in Certain Situations

Subject:

Elections, County Commissioners; Filling of Vacancy in Certain Situations

Requested By:

Edward H. Johnston, Jr.
County Attorney, Scotland County

Question:

If a county commissioner who is holding office in the first two years of a four-year terms dies on a date following the close of the filing period for the upcoming primary and general election, how are party nominees to be selected for the purpose of running in the next general election?

Conclusion:

Absent any applicable provision of law the situation should be governed by N.C. Gen.Stat. § 163-115.

Scotland County is one of those counties where vacancy on the County Board of Commissioners is governed by the provisions of N.C. Gen.Stat. § 153A-27. (Vacancies on the Board of Commissioners of certain other counties are filled according to the provisions contained in N.C. Gen.Stat. § 153A-27 which relates to the inquiry addressed in this Opinion reads as follows:

"If the member being replaced was serving a two-year term, or was in the last two years of a fouror six-year term, the appointment to fill the vacancy is for the remainder of the unexpired term. Otherwise, the term of the person appointed to fill the vacancy extends to the first Monday in December next following the first general election held more than thirty days after the day the vacancy occurs; at that general election a person shall be elected to the seat vacated, either to the remainder of the unexpired term or, if the term has expired, to a full term."

No inquiry has been posed as to the proper manner of appointment of a member to fill the vacancy which currently exists on the Scotland County Board of Commissioners. The issue presented derives from the fact that the member who will be appointed to fill the vacancy will hold office only until the first Monday in December following the upcoming statewide general election in November of 1984, with no provision of the General Statutes addressing itself to the manner in which nominees are to be selected for election to that same office in November.

At the outset, we should note that since the General Assembly has made its intentions clear that a new county commissioner is to be elected in the November election, there is no room to conclude that, in the absence of a provision for placing party nominees on the general election ballot, we should entertain any suggestion that normal "holdover" consideration could apply, with the effect of leaving the current appointee in office until the expiration of the full term of the individual he has succeeded.

Therefore, following a thorough consideration of the issue by this office, the Institute of Goverment, the State Board of Elections, and the Association of County Commissioners, and in light of the agreement of us all as to the only proper method of responding to this inquiry, we conclude that the provisions of N.C. Gen.Stat. § 163-115 should control, pending clarification by the General Assembly.

N.C. Gen.Stat. § 163-115 reads in full as follows:

"If a vacancy occurs in the office of the clerk of superior court, otherwise than by expiration of the term, or if the people fail to elect, the vacancy shall be filled as provided in Sec. 9(3) of Article IV of the North Carolina Constitution. If the vacancy occurs after the time for filing notice of candidacy in the primary has expired in a year when a regular election is not being held to elect a clerk of superior court by expiration of term, then the county executive committee of each political party shall nominate a candidate whose name shall appear on the general election ballot. The candidate elected in the general election shall serve the unexpired portion of the term of the person causing the vacancy.

"In the event a special election is called to fill a vacancy in the State’s delegation in the United States House of Representatives, the provisions of G.S. 163-13 shall apply.

"If a vacancy occurs in an elective State or district office (other than member of the United States House of Representatives) during the period opening 10 days before the filing period for the office ends and closing 30 days before the ensuing general election, a nomination shall be made by the proper executive committee of each political party as provided by G.S. 163-114, and the names of the nominees shall be printed on the general election ballots, unless the ballots have already been printed when the nominations are made, in which case the provisions of G.S. 163139 shall apply."

If the last paragraph of N.C. Gen. Stat. § 163-115 simply included a reference to elective county offices, then the statute on its face would clearly be dispositive of the issue. Although this is not the case, N.C. Gen. Stat. § 163-114, to which the former statute refers, does refer to the nomination for the purposes of the general election of candidates by the county executive committee of the party of a nominee who becomes ineligible or disqualified before an ensuing general election. Elective county offices are among those offices to which the provisions of N.C. Gen.Stat. § 163-114 apply. In the absence of any other provision from which we can obtain any guidance whatsoever, and in light of the fact that the General Assembly clearly intended for an election to occur in November for the office in question, we know of no alternative other than to conclude that the provisions of N.C. Gen. Stat. § 163-115 should apply to the situation before us until such time as guidance is provided by the General Assembly or by the Courts.

It should be noted that this is not the first occasion on which this office has been required to use the methods and procedures of certain elections sections enacted for one purpose in order to provide a reasonable solution to a problem arising from a different factual situation. On those occasions when we have done so, we have done so with a great deal of hesitation, but with the realization that, absent any other source of guidance, we should do so for temporary purposes. Our Opinion shall remain in effect only until such time as it is superceded by action of either the

General Assembly or the Courts.

RUFUS L. EDMISTEN
ATTORNEY GENERAL

James Wallace, Jr.
Deputy Attorney General for Legal Affairs