August 27, 1998
Mr. Larry Leake Chairman State Board of Elections 133 Fayetteville Street Mall Suite 100 Raleigh, NC 27601
Re: Advisory Opinion; Effective Date of Referendum; N.C. Gen. Stat. § 153A-62
Dear Chairman Leake:
You requested an advisory opinion on when a referendum on reorganizing the Board of Commissioners in Madison County, if approved, would be effective. The Madison County Board of Commissioners has adopted a resolution authorizing a referendum for the expansion of the Board from three members to five. This referendum will be held at the November, 1998, general election. The resolution provides that if the referendum is approved, all five members of the Board will be elected at large for four-year terms "at the November 2002 General Election."
Pertinent language in N.C. Gen. Stat. § 153A-62 provides: "Any approved alteration shall be the basis for nominating and electing the members of the board of commissioners at the first succeeding primary and general election for county offices held after approval of the alteration; and the alteration takes effect on the first Monday in December following that general election."(emphasis added). The clear import of this language is that the expansion of the Madison Board of Commissioners will be effective for the next general election after November, 1998, in which county offices are scheduled to be filled.
Under N.C. Gen. Stat. §§ 161-2 and 163-1, the office of Register of Deeds for the County of Madison is scheduled for election in the year 2000. Your letter indicates the office of Tax Collector is on the ballot as well. The Board of Commissioners has no authority to override the statutory language mandating that the referendum will take effect at the next election for county offices. Thus, it is our opinion that the referendum, if approved, will become effective in the year 2000 and not 2002, and the election of the new members of the Board may not be posponed until 2002.
You may have additional questions about how to achieve the desired change in governance structure in light of this opinion. Please feel free to contact us if you need additional assistance.
signed by:
Ann Reed Senior Deputy Attorney General Administrative Division
Susan K. Nichols
Special Deputy Attorney General