Method of Appointment of Members of County Boards of Social Services

Subject:

Requested By: Stephen M. Schoeberle Burke County Staff Attorney

Questions: (1)

Does N.C.G.S. § 108A-3(b) require that all of the other four (4) members of a five member County Board of Social Services be present when the Board selects the fifth member?

(2)

Does N.C.G.S. § 108A-3(b) require that the other four (4) members be unanimous in their selection of the fifth member?

Conclusions: (1)

No.

(2)

Yes.

Article 1 of Chapter 108A provides for county administration of various social services programs. Part 1 of this Article specifies the creation and manner of operation of the county Boards of Social Services. A county board of social services may consist of three members or five members. § 108A-2. The method of appointment of the members of the county board of social services is set out in § 108A-3. If a county has determined to have a five member board, the method of appointment of the members is governed by subsection (b) of this statute. Under this subsection, two members of the board will be appointed by the county board of commissioners and two members will be appointed by the Social Services Commission. The selection of the fifth member is specified as follows: ". . . the four [members] so appointed shall select the fifth member. If the four are unable to agree upon the fifth member, the senior regular superior court judge of the county shall make the selection." § 108A-3(b).

The methodology of the selection of the fifth member of the board is not particularized in the statute. However, since voting or selecting a fifth member to fill this vacant position is an "action" of a public body, the selection must comply with Article 33C of Chapter 143 governing meetings of public bodies. See, Publishing Co. v. Board of Education, 29 N.C. App. 37, 223 S.E.2d 580 (1976). This Article provides that actions must be conducted openly. § 143-318.9. A public body may not consider or fill a vacancy among its own membership except in an open meeting. § 143-318.11(8). Outside of enumerated exceptions, official meetings of a public body "shall be open to the public, and any person is entitled to attend such a meeting." § 143318.10(a). In addition to meeting by assemblage of persons, meetings may be held by use of conference telephone or other electronic means opened to the public. § 143-318.13(a). In addition to spoken votes, voting may take place by signed written ballots available for public inspection. § 143-318.13(b). Thus, there is no directive in § 108A-3(b) or prohibition in Chapter 143 that would mandate the presence of all four members of the Social Services Board at the time of selection of the fifth member so long as the public meetings requirements are fulfilled.

Although all four members of the Social Services Board need not be present at the meeting to select the fifth member, there must be a unanimous decision by all four members with no dissent at the time of the selection. The provisions of § 108A-3(b) which provide for the selection of a fifth member clearly state that a senior regular superior court judge of the county shall make the selection "[i]f the four are unable to agree upon the fifth member . . . ." Where language of a statute is clear and unambiguous, there is no room for construction and it must be given its plain and definite meaning without the interpolation or implication of provisions not contained therein. Preston v. Thompson, 53 N.C. App. 290, 280 S.E.2d 780, appeal dismissed, review denied, 304

N.C. 392, 289 S.E.2d 833 (1981). In the absence of any statutory language permitting selection of the fifth member by a majority vote or a vote by less than four members, the plain language of this statute mandates that all four members of the Board must participate and must agree in the selection of the fifth member. If the four cannot agree or if one or more do not participate in the selection of the fifth, then selection is made by a superior court judge as provided by statute.

LACY H. THORNBURG Attorney General

Catherine C. McLamb Assistant Attorney General