August 17, 1994
Mr. George T. Mann, Administrator Credit Union Division North Carolina Department of Commerce 1110 Navaho Drive, Suite 300 Raleigh, NC 27609
Re: Advisory Opinion — Election of Credit Union Directors under G.S. §§ 54-109.31(b) and 54109.35(a)
Dear Mr. Mann:
This will respond to your request of Mr. Henry T. Rosser for an opinion from this office concerning certain issues with respect to the election of directors under North Carolina credit union law. Please accept our apology for the delay in this matter.
You have asked us whether or not a state chartered credit union may adopt by-law procedures for the election of directors which preclude members from voting on such directors at the annual meeting. Together with your request you enclosed sample by-law procedures which provide that ninety days prior to the scheduled date of the annual meeting a nominating committee, appointed by the Chairman of the Board, will select at least one member for each board vacancy, including an unexpired term vacancy. Forty-five days prior to the annual meeting nominations are closed from both the nominating committee and the membership at large.
Next, thirty days prior to the annual meeting the secretary must deliver a ballot to each voting member of the credit union. Members are then given two weeks to return the ballots which are opened and counted by a tellers’ committee and the results reported to the members at the annual meeting. At the meeting no nominations may be made from the floor; the only action taken with regard to the election of directors is the report by the tellers’ committee.
From this information, it appears to us that the specific legal issue is whether under North Carolina credit union law a member may, through a by-law provision, be prohibited from the right to vote for directors at an annual meeting. For the reasons set forth below, we are of the opinion that credit union by-law provisions cannot deny a member the right to vote at the annual meeting.
DISCUSSION OF THE ISSUE
In examining this issue we were unable to locate any North Carolina case authority on point, nor did we find any relevant decisions from other jurisdictions. Also, there was very little discussion of this subject matter in any of the bank and financial law treatises. Credit unions are organized as nonprofit corporations under Chapter 54 of the General Statutes; they are not subject to the North Carolina Business Corporation Act, Chapter 55, nor the Nonprofit Corporation Act, Chapter 55A. We, therefore, must simply construe what we believe to be the applicable provisions of Chapter 54 of the General Statutes.
North Carolina credit union law is codified in Articles 14A through 14L of Chapter 54 of the North Carolina General Statutes. G.S. § 54-109.3 requires the Administrator of Credit Unions to prepare form articles of incorporation and by-laws consistent with these articles which may be used by incorporators for their guidance. In particular, G.S. § 54-109.3(5) requires that the articles of incorporation and by-laws to provide: the date of the annual meeting; the manner in which members shall be notified of meetings; the manner of conducting the meetings; the number of members which constitute a quorum at the meetings, and the regulations as to voting. (Emphasis added).
While the above statutory language appears to give a credit union substantial authority to establish voting procedures for the election of directors, this authority is, in our view, limited by
G.S. §§ 54-109.31(b) and 54-109.35(a). The latter section of law very specifically provides that a board of directors, being at least five in number, is ". . . to be elected at the annual members’ meeting by and from the members." (Emphasis added). Equally important, G.S. § 54-109.31(b), while prohibiting voting by proxy, provides that ". . . a member may vote by absentee ballot if the by-laws of the credit union so provide." (Emphasis added). Based on these provisions of law, it is our opinion that a credit union by-law provision may authorize a member to vote by absentee ballot but it cannot deny a member the right to appear and cast his vote at the annual meeting.
CONCLUSION
When statutory language is clear and unambiguous, there is no room for judicial construction and courts must give such statutes their plain and definite meaning. Courts are without power to interpolate, or superimpose provisions and limitations not contained in the statutes. See, 27 NC Index, Statutes § 28 (1994). We are of the opinion that the provisions of G.S. §§ 54-109.31(b) and 54-109.35(a) are clear an unambiguous. We, therefore, conclude that a credit union by-law provision, while authorizing absentee voting, cannot prohibit a member from voting on the election of directors at an annual meeting.
We trust this adequately responds to your inquiry. However, if we may be of further assistance, please do not hesitate to let us know.
Ann Reed Senior Deputy Attorney General
L. McNeil Chestnut
Assistant Attorney General