August 5, 1998
The Honorable Charles Beall North Carolina House of Representatives 300 N. Salisbury Street Raleigh, North Carolina 27603-5925
RE: Advisory Opinion; Haywood County Board of Commissioners; N.C.G.S. §§105-349; 153A27.1(d); 153A-76; 162-5.1; 163-114; Haywood County Tax Collector
Dear Representative Beall:
This responds to your letter of July 28, 1998, in which you ask for the opinion of this Office concerning the process for filling a vacancy in the position of Haywood County Tax Collector from September 1, 1998, until the position is filled by election in November, 1998, and the person elected takes office on the first Monday in December. (See, P.L. 1941, C. 460.)
The facts that give rise to your request, as set out in your letter, are as follows: The Haywood County Tax Collector, who is a Democrat, has resigned from the position effective September 1, 1998. She has also removed her name from the ballot as a candidate for re-election in the November election. Pursuant to N.C.G.S. §163-114, the Haywood County Democratic Party Executive Committee has nominated an individual to run for the vacancy and has recommended the appointment of that same individual to fill the position on an interim basis. Since the election is not until November, there will be a gap of over three months between the resignation of the present Tax Collector and the election of a new Tax Collector. Your questions are who has the power to make an interim appointment to the position and what process should be followed in making the appointment.
The materials you provided include a memorandum to the Haywood County Board of Commissioners from County Attorney Leon M. Killian, III. Mr. Killian traces the history of the Haywood County Tax Collector and concludes that the Board should make the interim appointment. We agree.
The general law which provides for the appointment of county tax collectors is N.C.G.S. §105
349. This statute provides that the governing body of a county appoints the tax collector. However, pursuant to a series of local laws enacted beginning in 1929, the Haywood County Tax Collector is elected. (See, P.L. 1929, C. 212; P.L. 1933, C. 2; P.L. 1935, C. 226; P.L. 1937, C. 383; P.L. 1941, C. 460; S.L. 1957, C. 724; S.L. 1971, C. 806, s. 1, p. 1162.) These local laws do not specify how the Haywood County Tax Collector will be selected in the event a vacancy occurs between elections. Mr. Killian cites N.C.G.S. §153A-76 in support of his conclusion that the Board of Commissioners will make the interim appointment. That statute sets out the general powers of boards of commissioners to create, change, abolish and consolidate offices, positions, departments, boards, commissions, and agencies of county government, including imposing one or more duties on more than one office or on a single officer to promote orderly and efficient administration of county affairs. We agree with Mr. Killian that the power to appoint an interim Tax Collector is implicit in the language of this statute. N.C.G.S. §105-349 also supports Mr. Killian’s conclusion. Chapter 806 of the 1971 Session Laws, which enacted the original version of N.C.G.S. §105-349, contains the following language in the repealer clause: "It is the intent of the General Assembly to make the provisions of this subchapter (being §§105-291 through 105395, inclusive) uniformly applicable throughout the State, and to assure this objective all laws and clauses of laws, including private and local acts (except local acts relating to the selection of tax collectors), in conflict with the provisions of this subchapter shall, as of July 1, 1971, be and are hereby repealed." The local acts regarding the election of the Haywood County Tax Collector do not apply to the situation where there is a vacancy in the position before an election and therefore do not conflict with the State law in this regard. The State statute provides that the Board of Commissioners will make the appointment.
With regard to the process the Board should follow in making the interim appointment, we note that, while there is no specific statutory procedure for making an interim appointment to the elective office of Haywood County Tax Collector, there are specific statutory procedures for making interim appointments to other elective Haywood County offices. N.C.G.S. §153A27.1(d) provides that in the event of a vacancy on the board of commissioners:
If the member who vacated the seat was elected as a nominee of a political party, the board of commissioners, the chairman of the board, or the clerk of superior court, as the case may be, shall consult the county executive committee of the appropriate political party before filling the vacancy, and shall appoint the person recommended by the county executive committee of the political party of which the commissioner being replaced was a member, if the party makes a recommendation within 30 days of the occurrence of the vacancy.
N.C.G.S. §162-5.1 provides that in the event of a vacancy in the office of sheriff:
…If the sheriff were elected as a nominee of a political party, the board of commissioners
shall consult the county executive committee of that political party before filling the
vacancy, and shall elect the person recommended by the county executive committee of
that party, if the party makes a recommendation within 30 days of the occurrence of the
vacancy….
While the Board is not required to follow this process in appointing the interim Tax Collector, it may do so in its discretion.
We trust that this advisory opinion fully answers your inquiry. Please let us know if you need additional assistance.
signed by:
Ann Reed Senior Deputy Attorney General