September 11, 1995
Mr. Bob Etheridge Superintendent of Public Instruction Education Building Raleigh, NC
Re: Advisory opinion; G.S. 115C-21; Contractual Powers of the State Superintendent of Public Instruction
Dear Mr. Etheridge:
On September 8, 1995, you asked for our opinion about the extent of your authority to supervise and administer the public school system in light of amendments to G.S. 115C-19 and 21 by the 1995 Session of the General Assembly. Chapter 72, 1995 Session Laws. You are particularly concerned about your power to make contracts.
In answering your question, it is helpful to bear in mind the role of the Superintendent. Under the Constitution and laws of this State, the Superintendent of Public Instruction is the "chief administrative officer" of the State Board of Education. N.C. Const. Art. IX, Sec. 4(2); G.S. 115C-19. In that role it is the duty of the Superintendent to implement all decisions made by the General Assembly or the State Board, whether those decisions are made in the form of laws enacted by the General Assembly or policies, rules, contracts or grants adopted by the State Board. The duty to implement laws, policies, rules, contracts and grants does not, however, carry with it the power to make policies, rules, contracts or grants. To the extent that power may exist, it arises only from laws enacted by the General Assembly or delegations of authority made by the State Board.
The General Assembly, to our knowledge, has never conferred on the Superintendent the power to make policies or rules independent of the State Board, though it has from time to time given the Superintendent the independent power to make contracts and other decisions, including the power to contract with persons to serve as employees of the Department of Public Instruction. See, e.g., former G.S. 115C-21(c)(1) giving the Superintendent the power to "enter into contracts for operations of the Department of Public Instruction." Those independent powers, however, were eliminated by the General Assembly by the enactment of Chapter 72 of the 1995 Session Laws.
Similarly, the State Board of Education, to our knowledge, has never delegated power to the State Superintendent to make policies or rules. Like the General Assembly, however, the State Board has from time to time delegated power to the Superintendent to make certain contracts. For example, Policy 02A105 adopted by the State Board on September 7, 1989 delegates to the Superintendent the power to "make and execute contracts for and on behalf of the State Board for the purchase of goods, supplies, materials or services when the total value of the contract is less than $25,000."
Nothing in legislation recently enacted by the General Assembly, particularly Chapter 72 of the 1995 Session Laws, changes the basic role of the Superintendent. The Superintendent does not
make policies or rules; the Superintendent implements the policies and rules adopted by the State
Board. The Superintendent does not generally have the power to make contracts or the power to
award or accept grants. That power rests with the Superintendent only as prescribed by the
General Assembly or delegated by the State Board. To our knowledge, the State Board has not
delegated to the Superintendent the power to award or accept any grants. As noted above,
however, the State Board in 1989 delegated to the Superintendent the power to "make and
execute" contracts of less than $25,000. In our opinion that delegation of power remains in effect
and was not altered or repealed by the 1995 amendment to G.S. 115C-21. To the contrary, G.S.
115C-21(a)(5) as amended simply reiterates the principle that the State Board may delegate
powers to the Superintendent.
As you know, the State Board is considering, but has not yet adopted, a new policy delegating
powers to the Superintendent, including the power to make and execute certain contracts. That
new policy will determine the scope of the Superintendent’s power to make contracts or make
other final decisions in the future. Until then, however, the 1989 delegation of power to make
and execute contracts of less than $25,000 remains in effect.
Andrew A. Vanore, Jr.
Chief Deputy Attorney General
Edwin M. Speas, Jr.
Senior Deputy Attorney General