February 17, 1999
The Honorable James B. Black Speaker of the House of Representatives Room 2304, Legislative Building Raleigh, NC 27601-2808
RE: Advisory Opinion; Appointments to Public Office; G.S. § 143B-434.1
Dear Speaker Black:
Pursuant to G.S. § 143B-434.1(c) and (d), the Speaker of the House appoints five members of the North Carolina Travel and Tourism Board (“the Board”) for two year terms. By recent letter you requested our opinion regarding the proper application of this statute. In particular, you asked whether your predecessor as Speaker acted within his authority when he appointed persons to the Board on December 31, 1998, for two-year terms beginning January 1, 1999. In our opinion, those appointments were not valid appointments.
The terms of office of the twenty-seven members of the Board are established by G.S. § 143B-434.1(d). It provides:
The members of the Board shall serve the following terms: the Secretary of Commerce, the Director of the Division of Travel and Tourism, the Chairperson of the Travel and Tourism Coalition, the President of the Travel Council of North Carolina, and the President of North Carolina Citizens for Business and Industry shall serve on the Board while they hold their respective offices. Each member of the Board appointed by the Governor shall serve during his or her term of office. The members of the Board appointed by the General Assembly shall serve two-year terms beginning on January 1 of odd-numbered years and ending on December 31 of the following year. The first such term shall begin on January 1, 1991, or as soon thereafter as the member is appointed to the Board, and end on December 31, 1992. All other members of the Board shall serve a term which consists of the portion of calendar year 1991 that remains following their appointment or designation and, thereafter, two-year terms which shall begin on January 1 of an even-numbered year and end on December 31 of the following year. The first such The Honorable James B. Black February 17, 1999 Page 2
two-year term shall begin on January 1, 1992, and end on December 31, 1994. (Emphasis added).
It will be observed that by these words the terms of all twenty-seven Board members begin and end simultaneously with the terms of office of their appointing authority. Thus, the Secretary of Commerce, and certain other enumerated officers, serve on the Board “while they hold their respective offices,” and are then replaced by their successors in office. The members of the Board appointed by the Governor “serve during” the Governor’s “term of office,” and are replaced by the next Governor. The members of the Board appointed by the General Assembly or by the Speaker and President Pro Tempore serve for terms identical to the terms of the members of the General Assembly, i.e. “from January 1 of odd-numbered years [to] December 31 of the following year,” and are then replaced by the next General Assembly, Speaker or President Pro Tempore.
In structuring the terms of office for members of the Board in this manner, the General Assembly obviously intended to assure that each new Governor, new Speaker and new President Pro Tempore would have the opportunity to make his or her own appointments to the Board and not be bound by the appointments of their predecessors. The actions of the former Speaker in appointing persons on December 31, 1998, to serve on the Board during your two-year term as Speaker were in direct contradiction to the General Assembly’s intent as expressed in G.S. § 143B-434.1(d), and, in our opinion, those appointments are unauthorized and void. This conclusion is fully consistent with general legal principles. See, 63C Am. Jur. 2d, Public Offices and Employees, § 88 (“a public officer or public body having a power of appointment cannot forestall the rights and prerogatives of a successor by making a prospective appointment to fill an office when the appointee’s term is not to begin until the appointing power’s own term has expired”).
Very truly yours,
Edwin M. Speas, Jr.
Chief Deputy Attorney General
EMSjr/jt