June 3, 1997
Dr. Jay Robinson Chairman State Board of Education Education Building Raleigh, North Carolina
Re:Advisory Opinion; G.S. 115C-10; Public School Employees and Spouses of Public
School Employees on State Board of Education
Dear Dr. Robinson:
It has very recently come to your attention that two members of the State Board of Education may not properly hold their offices under G.S. 115C-10 in light of the fact that their spouses are employed by local boards of education. By letter dated June 2, 1997, you explained the facts relating to the two Board members and asked for our opinion about their status.
We will first review the history of G.S. 115C-10 to determine the meaning the General Assembly intended that statute to have and then apply that meaning to the facts you have provided to determine the status of the two Board members.
Though there is obvious potential for tension between membership on the governing body of the State’s public school system and simultaneous employment by a local school system, see State v. McHone, 243 N.C. 231, 90 S.E. 536 (1953) (discussing doctrine of incompatible offices), there was no statutory limitation on the eligibility of local school system employees for appointment to the State Board of Education prior to 1985. Effective July 1, 1985, however, the General Assembly amended G.S. 115C-10 to provide that "no public school employee paid from state or local funds or his spouse" could subsequently be appointed to the State Board either for a full term or to fill a vacancy. 1985 Sess. Laws ch. 479, § 36. Four years later the General Assembly determined that the benefit of having one public school employee serve as a member of the State Board outweighed the potential tension between simultaneous State Board membership and public school employment. To that end, the General Assembly enacted Chapter 46 of the 1989 Session Laws which amended G.S. 115C-10 to provide that "not more than one public school employee paid from state or local funds may serve as an appointive member of the State Board of Education." As amended in 1985 and 1989, G.S. 115C-10 provides in pertinent part:
Not more than one public school employee paid from state or local funds may serve as an appointive member of the State Board of Education. No spouse of any public school employee paid from state or local funds and no employee of the Department of Public Instruction or his spouse may serve as an appointive member of the State Board of Education.
With this background we turn to the facts you have provided us regarding the two State Board members in question. Eddie Davis, III was appointed to the State Board of Education in April, 1993. He was employed by the Durham Public Schools at that time and was appointed to fill the one seat on the State Board for a public school employee authorized by the 1989 amendment to
G.S. 115C-10. Mr. Davis’ wife was also employed by the Durham County Schools at the time of his appointment, and remains so employed. Thus, the question regarding Mr. Davis is whether that part of G.S. 115C-10 prohibiting a spouse of a public school employee from serving on the State Board applies to Mr. Davis.
Reading G.S. 115C-10 literally would result in the conclusion that Mr. Davis was ineligible for appointment to the State Board in 1993 and remains ineligible today by virtue of his wife’s employment with the Durham Public Schools. We believe, however, that such a reading is contrary to the General Assembly’s intention and should not be adopted. See State v. Blacksback, 314 N.C. 232, 333 S. Ed. 2d 2 U.S. (1985) (statutes must be construed to accomplish the General Assembly’s intention).
Legislative intent is ascertained by reference to the purpose of the statute as a whole, the law as it prevailed prior to the statute, and the end to be accomplished. In Re Banks, 295 N.C. 236, 239-40, 244 S.E.2d 386, 389 (1978); State v. Partlow, 91 N.C. 550 (1984). Viewed in this light it is in our opinion that the General Assembly intended by the 1989 amendment to G.S. 115C-10 to authorize one public school employee to serve on the State Board even if his or her spouse is also a public school employee. At least three principles of statutory construction support this reading. First, even though the general legislative purpose for the 1985 amendment to G.S. § 115-10 is the avoidance of potential conflicts of interest, it is clear that the General Assembly believed that the benefits of having at least one public school employee on the State Board outweighed the potential conflicts associated with that person’s public school employment. Obviously, the potential conflict between public school employment and service on the State Board is inherently greater than the potential conflicts between marriage to a public school employee and service on the State Board. Insofar as the General Assembly has deemed the benefits of having a public school employee on the State Board to outweigh the greater risk of a conflict of interest, it would be inconsistent with that legislative purpose to prohibit the appointed public school employee from serving on the State Board simply because his or her spouse was a public school employee. Second, where, as here, parts of a statute are in conflict the latter enacted parts are ordinarily deemed controlling. See In Re Guess, 324 N.C. 105, 376 S.E.2d 8 (1989). Third, to give the 1985 amendment precedence over the 1989 amendment would produce the illogical and arbitrary result that all public school employees are eligible for appointment to the State Board expect those few whose spouses are also public school employees. See Sheffeld v. Consolidated Foods, 302 N.C. 403, 276 S. Ed. 2d 422 (1981) (literal reading of statutes should be avoided if it produces an illogical or arbitrary result). In sum, it is our opinion that Mr. Davis was properly appointed to the State Board of Education even though his wife is also employed by the public schools.
The second Board member, Lowell Thomas, was appointed to the State Board in March, 1995 and confirmed by the General Assembly on July 19, 1995. He is not now and never has been a public school employee. Mr. Thomas’ wife was not employed by any school system at the time his appointment to the State Board was confirmed. However, she was subsequently employed by the Caldwell County Schools in a part time locally funded position and remains in that position
today.
In our opinion by virtue of the express provisions of the 1985 amendment to G.S. 115C-10, Mr.
Thomas became ineligible for continued membership on the State Board the moment his wife
began employment with the Caldwell County Public Schools following his confirmation. The
fact that her employment is only half-time is of no consequence for the statutory prohibition
extends to employees generally without regard for whether they are full-time, three-quarter or
half-time employees.
When Mr. Thomas’ spouse accepted employment with the Caldwell Public Schools he is deemed
by operation of law to have resigned his position and thus to have created a vacancy on the State
Board. See, e.g., Atkinson Fortner, 236 N.C. 264, 72 S.E.2d 592 (1952) (applying prohibition
against double office holding). Under G.S. 115C-10 that vacancy may be filled by the Governor
for the remainder of the term without legislative confirmation. If Mr. Thomas’ spouse is not
employed by any local school system at the time the vacancy is filled, Mr. Thomas would be
eligible to fill that vacancy.
Sincerely,
Andrew A. Vanore, Jr.
Chief Deputy Attorney General
Edwin M. Speas, Jr.
Senior Deputy Attorney General