July 28, 1993
Kenneth Harris, Chairman State Board of Education Education Building Raleigh, N.C. 27607
RE: Advisory Opinion; State Board of Education Power to Act Through Proxies; G.S. 115C11(d)
Dear Mr. Harris: You have asked whether the State Board of Education has the power to allow members to appoint proxies to cast their votes or to participate on their behalf in the State Board’s deliberations and discussions. For the reasons stated below, it is our opinion that the State Board does not have that power.
In analyzing this question it is necessary to distinguish between the power to permit voting by proxy and the power to permit proxies to participate in the Board’s discussions and deliberations. It is also necessary to distinguish between the powers of the eleven appointed members of the Board and the Board’s two ex officio members, the Lieutenant Governor and the State Treasurer.
- G.S.
- 115C-11(d) specifically forbids the Board from permitting "voting by proxy." This prohibition plainly applies to deny the Board the power to permit its eleven appointed members to vote by proxy. It also applies to deny the Board the power to permit the Lieutenant Governor and Treasurer to vote by proxy. The Lieutenant Governor and Treasurer, unlike the appointed members of the Board, do possess independent statutory powers. These powers, in some instances, include the power to assign subordinates to attend meetings of boards of which they are ex officio members and to act on their behalf. See 55 NCAG 116 (1986). This, however, is not one of those instances; none of their independent powers override the specific prohibition in
- G.S.
- 115C-11(d) against "voting by proxy" by members of the State Board. In the case of the Lieutenant Governor, no statute authorizes an assignment of power. The Treasurer does have the discretionary power to "authorize a deputy to perform any duties pertaining to the office." G.S. 147-75. This general discretionary power, however, is not sufficient to override the specific prohibition against "voting by proxy." See Food Stores v. Board of Alcoholic Control, 268 N.C. 624, 151 S.E.2d 582 (1966) (to the extent of any conflict specific statutes control over general statutes); see also 29 CJS, Elections,§ 201(1) (In the absence of a specific statute to the contrary "voting is regarded as a non-delegable public trust.")
Our conclusion that the Board may not permit members to appoint proxies to participate in the Board’s discussions and deliberations is based on similar reasoning. All thirteen members of the Board exercise the constitutional power to "supervise and administer the free public school system." N.C. Const. Art. IX, § 5. Deliberations and discussions by the Board leading to the exercise of constitutional, as contrasted with statutory powers, cannot be assigned to another person except as specifically authorized by the General Assembly. See 55 N.C.A.G. 116 (1986). The General Assembly has not authorized such assignments.
In sum, our opinion is that the State Board of Education may not authorize any of its members to
appoint proxies to cast their votes or to participate in the Board’s discussions and deliberations.
Edwin M. Speas, Jr.
Senior Deputy Attorney General
Thomas J. Ziko
Special Deputy Attorney General