July 30, 1998 HAND-DELIVERED
The Honorable John R. Gamble, Jr.
N.C. House of Representatives Room 416-B, Legislative Office Building Raleigh, North Carolina 27601-1096
RE: Advisory Opinion; Legislators Serving as Members of the Board of Directors of the N.C. Partnership for Children, Inc., a Private, Non-profit Corporation; Article I, Section 6 of the N.C. Constitution
Dear Representative Gamble:
You request our opinion whether legislators may constitutionally serve as members of the Board of Directors of the N.C. Partnership for Children, Inc. (hereinafter "Partnership"). For reasons which follow, it is our opinion that the Separation of Powers provision of the N.C. Constitution precludes legislators from serving as members of the Board of Directors of the Partnership.
THE PARTNERSHIP
The N.C. Partnership for Children, Inc., is a private, non-profit corporation created pursuant to Chapter 55A of the General Statutes of North Carolina. The Articles of Incorporation of the Partnership (copy attached) were filed with the Secretary of State on March 31, 1993. As proposed in its Articles of Incorporation, the primary purpose of the Partnership is "to create and implement a comprehensive, outcome-focused plan to enrich the lives of children through highquality early childhood education, health care, and related services by bringing together families, communities, churches, businesses, non-profit organizations, foundations, and the state and local governments to pursue innovative, collaborative strategies that make better use of existing resources and build on the experience and expertise of communities and existing institutions." The names and addresses of the initial Board of Directors of the Partnership were:
- Charles Robin Britt, 101 Blair Drive, Raleigh, NC 27603;
- Jonathan B. Howes, 512 N. Salisbury Street, Raleigh, NC 27604; and
- Jane Smith Patterson, Office of the Governor, 116 W. Jones Street, Raleigh, NC 27603
When the Articles of Incorporation were filed on March 31, 1993, Mr. Britt was the Secretary of the N.C. Department of Human Resources (now called The Department of Health and Human Services), and Mr. Howes was the Secretary of the N.C. Department of Environment, Health and Natural Resources (now called The Department of Environment and Natural Resources).
Three months after the Partnership was incorporated, the General Assembly enacted Part 10B of Chapter 143B of the General Statutes, entitled "Early Childhood Initiatives." See, Chapter 321, Section 254(a), 1993 Sess. Laws. The purpose of the General Assembly in enacting the Early Childhood Initiatives is set forth in N.C.G.S. § 143B-168.11(1993), as follows: "It is the intent of the General Assembly, upon consultation with the Governor, to support through financial and other means, the N.C. Partnership for Children, Inc., a nonprofit corporation which has as its mission the development of a comprehensive, long-range strategic plan for early childhood development and the provision, through public and private means, of high-quality early childhood education and development services for children and families."
The 1993 General Assembly appropriated $20 million to the Partnership for the 1993-94 fiscal year, and $28 million for the 1994-95 fiscal year. As a condition for receiving funds appropriated to the Partnership, the 1993 General Assembly set forth in N.C.G.S. § 143B-168.12(1993) a number of specific mandates, including establishing the number of members of the Board of Directors of the Partnership and who among various state officials including the Governor, President Pro Tempore of the Senate and Speaker of the House would appoint the entire membership of the Board of Directors. As a further condition for receiving funding, the Partnership was required to adopt procedures for its operations "that are comparable to those of Article 33C of Chapter 143 of the General Statutes, the Open Meetings Law, and Chapter 132 of the General Statutes, the Public Records Law . . . ." Id. The Partnership was also required to be subject to annual audit by the State Auditor. These are among a number of requirements the Legislature put on the Partnership as conditions for receiving state funds.
The 1995 General Assembly increased the membership of the Board of Directors from 33 to 39 members. The six additional members added to the Board of Directors were: The President Pro Tempore of the Senate, or a designee; The Speaker of the House of Representatives, or a designee; The Majority Leader of the Senate, or a designee; The Majority Leader of the House of Representatives, or a designee; The Minority Leader of the Senate, or a designee; and The Minority Leader of the House of Representatives, or a designee. See, Chapter 324, Section 27A, 1995 Sess. Laws; N.C.G.S. § 143B-168.12(a)(1995).
The 1996 General Assembly appropriated $10,150,000 to the Partnership for the 1996-97 fiscal year. See, Chapter 18, Section 24.29(b) of the 1996 (2nd Extra Session) Sess. Laws. The 1997 General Assembly appropriated $22,258,625 to the Partnership for the 1997-98 fiscal year and $25,298,838 for the 1998-99 fiscal year. See, Chapter 443, Sections 11.55(e) and 11A.105, 1997 Sess. Laws.
The Wallace v. Bone Decision
In State ex rel. Wallace v. Bone, 304 N.C. 591 (1982), our Supreme Court held that the Separation of Powers provision of our Constitution prohibits members of the General Assembly, regardless of how or by whom appointed, from serving on any board or commission which exercises a part of the administrative or executive sovereign power of the state. As the Bone Court unanimously stated, " . . . the legislature cannot constitutionally create a special instrumentality of government to implement specific legislation and then retain some control over the process of implementation by appointing legislators to the governing body of the instrumentality." 304 N.C. at 608.
Although the Partnership is a private, non-profit corporation, it is crystal clear that it was created for the sole purpose of administering the Early Childhood Initiatives program enacted by the General Assembly in 1993. The General Assembly has appropriated over $100 million to the Partnership since 1993, and has conditioned the receipt of those appropriations upon the Partnership’s agreement to, among other things, comply with the state’s Open Meetings Law, the Public Records Law, and annual audits by the State Auditor’s Office. Most importantly, the Legislature has set the structure and composition of the Board of Directors of the Partnership, which must include legislators. "In the words of Richard Cardinal Cushing, ‘When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.’" City of New York v. Clinton, 985 F.Supp. 168, 179 (D.D.C. 1998).
It is beyond question, therefore, that the N.C. Partnership for Children, Inc. is "a special instrumentality of government" which was created to implement specific legislation which the General Assembly may not retain any control over by appointing legislators to the governing body of the Partnership.
signed by:
Andrew A. Vanore, Jr. General Counsel