Appointments to the State Board of Mortuary Science

REPLY TO: Ann Reed Administrative Div. (9l9) 716-6800 FAX (919) 716-6755

August 14, 2002

Terrence D. Sullivan Director of Research, Research Division North Carolina General Assembly 300 N. Salisbury Street Raleigh, North Carolina 27603-5925

Re: Advisory Opinion: Appointment to the State Board of Mortuary Science, S.L. 2001-294; S.L. 2001-486; G.S. §90-210.18(b); North Carolina Constitution, Article I, Section 32 and Article II, Section 24

Dear Mr. Sullivan:

You have asked for our opinion regarding whether SL 2001-486, Section 1A-27, was legally effective to appoint George S. Parrott as a public member of the Board of Mortuary Sciences, and, if so, what is Mr. Parrott’s term.

Background

S.L.

2001-294, effective December 1, 2001, amended G.S. §90-210.18(b) to change the method of appointing public members of the State Board of Mortuary Science from three appointments made by the Governor to one appointment by the Governor, one by the President Pro Tempore of the Senate, and one by the Speaker of the House. To stagger the terms of the public members, Section 12 of S.L. 2001-294 extended one existing public member’s term to December 31, 2002, specified that the President Pro Tempore was to appoint a replacement for a second public member whose term expired December 31, 2001, and went on to provide, “The public member of the board whose term expires December 31, 2003, shall be appointed by the Speaker of the House of Representatives.” These provisions of S.L. 2001-294 were in turn amended by Section 2.3 of S.L. 2001-486 to replace the language specifying appointments directly by the President Pro Tempore and the Speaker with language specifying appointments by the General Assembly on recommendation of the President Pro Tempore and the Speaker, effective December 16, 2001.

S.L.

2001-486, in Section 1.31, appointed Mr. Windell Daniels to the Board for a term beginning on January 1, 2002, and expiring on December 31, 2004, on recommendation of the President Pro Tempore, and in Section 1A.27 appointed Mr. George S. Parrott to a term beginning on January 1, 2002, and expiring December 31, 2003, on recommendation of the Speaker.

Terrence D. Sullivan Page 2 August 14, 2002

The Board’s Executive Director has questioned the effectiveness of Mr. Parrott’s appointment.

Has George S. Parrott been legally appointed to the Board?

The General Assembly appointed George S. Parrott to the Board in Section 1A.27 of S.L. 2001-486. The term was specified in the act as beginning January 1, 2002, and expiring December 31, 2003. Therefore, it is our opinion that Mr. Parrott, by legislative enactment, has a position on the Board for the specified term.

Did George S. Parrott replace an existing public member on the Board?

It is our opinion that Mr. Parrott replaced the existing public member who was appointed by the Governor to serve a term expiring December 31, 2003.

Effective December 16, 2001, the General Assembly gave itself authority to make two public member appointments to the Board, and in the same session law it made two appointments for terms to begin January 1, 2002. The result of S.L. 2001-294 and S.L. 2001-486 is that the Board has one public member appointed by the Governor, serving a term expiring on December 31, 2002, whose successor the Governor will appoint; a second public member, Mr. Parrott, appointed by the General Assembly on the recommendation of the Speaker, serving a term expiring on December 31, 2003, whose successor will be similarly appointed; and a third public member, appointed by the General Assembly on the recommendation of the President Pro Tempore, serving a term expiring on December 31, 2004, whose successor will be similarly appointed. The terms are staggered, and each appointment source has a representative as of January 1, 2002.

The legislation does not specifically address the status of the public member appointed by the Governor to serve a term expiring December 31, 2003, but we conclude that Mr. Parrott replaces him. The usual term of a Board member is three years; Mr. Parrott’s appointment is for two years. His term expires on December 31, 2003, the date this other Board member’s term would normally have expired. Replacing this other Board member with Mr. Parrott results in three public members appointed according to the newly enacted provisions. Otherwise, the result would be four members, one of whom would be an “extra” Governor’s appointee. Nothing in the legislation indicates an intent to temporarily increase the size of the Board.

The Board’s Executive Director has suggested that the language in Section 12 of S.L. 2001294, as amended, providing for staggered terms of public members, should be interpreted as postponing the General Assembly’s authority to fill the position of this other Board member whose term expires December 1, 2003. However, that is not what Section 12 says, and the amendment to

G.S. §90-210.18 changing the appointing authority was effective, as amended, on December 16, 2001, without limitation. The General Assembly certainly knows how to specify when it intends a Terrence D. Sullivan Page 3 August 14, 2002

change in appointing authority to take effect at the expiration of a given term. See, e.g., 1991 Sess. Laws, c. 739, s. 34 (the act changed various appointments made by the Lieutenant Governor to appointments by the President Pro Tempore; s. 34 provides, “This act applies to any appointments for terms beginning on or after January 1, 1993, and also applies to the filling of any unexpired terms where the term began before that date but the vacancy occurs on or after that date.”); see also 1995 Sess. Laws, c. 490, s. 65 (this act also changes appointing authorities and has similar applicability language).

Can the General Assembly replace an existing Board member whose term has not yet expired?

There is no property right in membership on the Board, and the General Assembly may dispossess an incumbent member and replace him with its own appointee if it so chooses.

“All power which is not expressly limited by the people in our State Constitution remains with the people, and an act of the people through their representatives in the legislature is valid unless prohibited.” State ex rel. Martin v. Preston, 325 N.C. 438, 448-49, 385 S.E.2d 473, 478 (1989). Although there are several 19th century cases that recognized some sort of property right to public office, these cases were overruled by Mial v. Ellington, 134 N.C. 131, 46 S.E. 961 (1903), which recognized the right of the General Assembly to create new offices of superintendent of roads and supervisor of roads in Wake County that effectively replaced plaintiff’s office of supervisor of roads in Raleigh. Since Mial, other opinions have continued to recognize that there is no property right in a public office. See, e.g., Penny v. Salmon, 217 N.C.276, 7 S.E. 2d 559 (1940) (“the right to office is no longer a property right, and there can be no vested right therein which would prevent the Legislature from dealing with it as public policy requires”); Crump v. Snead, 134 N.C. App. 353, 517 S.E. 2d 384, cert. denied, 351 N.C. 101, 541 S.E.2d 143 (1999). With no property right involved, there is no due process issue or impairment of contract issue that would prevent the General Assembly from replacing the Governor’s appointee to the Board with its own.

Although the General Assembly cannot alter features prescribed in the North Carolina Constitution for constitutionally created offices, the Board is not a constitutionally created office, but is instead a legislatively created body. As such, the General Assembly has authority to deal with its composition and its members’ terms as the General Assembly sees fit. See Penny v. Salmon, 217 N.C.276, 7 S.E. 2d 559; Crump v. Snead, 134 N.C. APP. 353, 517 S.E. 2d 384. It can provide an appointing authority different from the Governor. See State ex rel. Martin v. Melott, 320 N.C. 518, 359 S.E.2d 783 (1987).

Additionally, the appointment of Mr. Parrott does not seem to be an exclusive or separate emolument prohibited under Article I, Section 32 of the North Carolina Constitution. In general, our courts have applied a two-part test to an exemption or benefit: (1) whether the exemption or benefit is intended to promote the general welfare rather than the benefit of the individual, and (2) whether there is a reasonable basis for the legislature to conclude that the granting of the exemption Terrence D. Sullivan Page 4 August 14, 2002

or benefit serves the public interest. See Peacock v. Shinn, 139 N.C. App. 487, 533 S.E.2d 842 (2000); see also Crump v. Snead, 134 N.C. APP. 353, 517 S.E. 2d 384, cert. denied, 351 N.C. 101, 541 S.E.2d 143 (1999). Mr. Parrott’s appointment appears to meet that test by implementing the change in appointing authority without particular delay or imbalance between the different appointing authorities while at the same time providing for staggered terms.

Finally, even if the appointment is taken as special legislation, it is not included in the list of prohibitions on local, private, or special acts in Article II, Section 24, of the North Carolina Constitution.

Is George S. Parrott qualified to serve as a public member of the Board?

In correspondence subsequent to the initial inquiry, the Executive Director of the Board indicates that Mr. Parrott is licensed by the Board and asks whether this disqualifies him from serving as a public member of the Board pursuant to G.S. §90-210.18(b3), which provides: “The public members of the Board may neither be licensed under this Article nor employed by a person who is.”

In our opinion, Mr. Parrott’s appointment by the General Assembly is valid, notwithstanding the statutory prohibition against licensees serving as public members of the Board. One legislature cannot bind another legislature except where constitutional rights are involved, and as we pointed out above, there is no property right in membership on the Board. Mr. Parrott was appointed to this position by the legislature in Section 2.3 of S.L. 2001-486, which became effective December 16, 2001. Where the legislature enacts two provisions, one of which is special or particular and the other general, the specific provision will control over the general. S.L. 2001-486 was enacted after G.S. §90-210.18(b), but even if that were not the case, the rule that the specific controls the general is applicable without regard to respective dates of passage. Food Stores v. Board of Alcoholic Control, 268 N.C. 624, 628-629, 151 S.E.2d 582, 586 (1966). Thus, the specific language appointing Mr. Parrott contained in S.L. 2001-486 controls over the general statutory provisions regarding public appointees.

The Executive Director further states that Mr. Parrott cannot serve as a member of the Board because his “personal interests” reveal a “potential conflict of interest,” which disqualify him from serving as a public member of the Board under Governor Michael F. Easley’s Executive Order No.

1. The Executive Director does not specify what these “personal interests” may be, and in any event Executive Order No. 1 by its terms does not apply to appointments made by act of the General Assembly and signed by the Governor into law.

In conclusion, it is our opinion that George S. Parrott has been appointed by legislative enactment to the Board of Mortuary Science for a term beginning January 1, 2002, and expiring December 31, 2003, and that Mr. Parrott replaces the public member of the Board who was