July 16, 1993
Ms. Leslie R. Stacks Womble, Carlyle Sandridge & Rice 3300 One First Union Center 301 South College Street Charlotte, North Carolina 28202-6025
Re: Advisory opinion; G.S. § 115C-67; G.S. § 115C-68.3; obligation to fill a vacancy on the Cabarrus County Board of Education
Dear Ms. Stacks:
The Cabarrus County and Concord City school systems recently merged. The merger plan was adopted under G.S. § 115C-67 and provides that the Cabarrus County Board of Education (the merged board) shall be comprised of seven members. In December of 1992, however, one member of the merged board resigned, thereby reducing the membership to six. The plan provides:
In the event of a vacancy on the merged board by reason of death, resignation or other cause, the remaining members of the merged board shall appoint a person to serve until the next election of members of such board, at which time, the remaining unexpired term of the office in which the vacancy occurs shall be filled by election.
Despite the mandatory language of this provision, in January of 1993 the remaining six members of the merged board approved a motion which provides that the merged board not appoint a person to fill the vacancy and that the board will remain a six-member board until the next school board election in 1994. On behalf of the merged board you have asked whether the plan requires the merged board to attempt to fill the vacancy.
The plan specifically provides that in the event of a vacancy the merged board "shall appoint a person to serve until the next election of members of such board." This language is mandatory and has the force of a law enacted by the General Assembly. G.S. § 115C-67 (upon final approval a merger plan "shall be deemed to have been made by authority of law"); G.S. § 115C
68.3 (certain merger plans, including the Concord/Cabarrus plan, "are ratified and considered to have been adopted by act of the General Assembly"). Local school boards, of course, are obligated to comply with acts of the General Assembly. Thus, the merged board is obligated to fill the vacancy.
You have also asked whether the merged board has a duty to continue to attempt to fill a vacancy if its initial efforts are unsuccessful. The mandatory terms of the plan indicate that the board has a continuing duty to fill the vacancy even if its initial efforts are unsuccessful. Consistent with their oaths of office (G. S. § 115C-37(d); Art. VI, sec. 7 of the Constitution), the members of the board are legally bound to fully discharge the duties of their office and should not abandon their efforts to fill a vacancy until they have fulfilled the obligations of that oath.
Finally, given the fact that the merged board is currently comprised of an even number of
members, you have asked how the board might fulfill its obligation to fill a vacancy in the event
of a deadlock. The plan contains no provision for breaking ties on those occasions where the
votes of the members of the merged board are evenly split; nor does any statute or precedent
provide a general procedure by which deadlocks are to be resolved. Absent statutory or judicial
guidance, the merged board itself should adopt rules for breaking deadlocks on those occasions
where the board is legally obligated to act.
If you have any further questions regarding these issues, please do not hesitate to write again. We
apologize for the delay in providing you with a written response to your inquiry.
Edwin M. Speas, Jr.
Senior Deputy Attorney General
Thomas J. Ziko
Special Deputy Attorney General