Increase in the Number of Commissioners

December 21, 1999

William I. Millar Attorney at Law PO Drawer 1018 Waynesville NC 28786

Thomas S. Stukes Smith Helms Mulliss & Moore, L.L.P. Post Office Box 21927 Greensboro NC 27420

RE: Advisory Opinion: Increase in the Number of Commissioners Serving on the Board of Commissioners of Haywood Regional Medical Center; N.C. Gen. Stat. §§ 131E16 and -18.

Dear Mr. Millar and Mr. Stukes:

On behalf of Haywood Regional Medical Center, a hospital authority located in Haywood County, North Carolina (“the Hospital Authority”), you have asked whether the Haywood County Board of County Commissioners has the authority to increase the number of the Hospital Authority’s commissioners.

STATEMENT OF THE FACTS

On April 21, 1997, pursuant to Part B of Article 2 of Chapter 131E of the North Carolina General Statutes (“the Hospital Authorities Act”), the Haywood County Board of County Commissioners found by Resolution that it was “in the interest of the public health and welfare to create a hospital authority.” The Chairman of the Board of County Commissioners appointed eight persons to serve as the hospital authority’s initial commissioners. Pursuant to N.C. Gen. Stat. § 131E-19, those eight commissioners submitted an Application for Incorporation as a Hospital Authority to the Office of the Secretary of State of North Carolina. On May 28, 1997, the Secretary of State issued a certificate of incorporation to the eight commissioners under the name of Haywood Regional Medical Center. The Hospital Authority is a public body and a body corporate and politic. It operates a general acute care hospital in Clyde in Haywood County, North Carolina. A question has arisen as to whether the Board of County Commissioners has the authority to increase the number of the Hospital Authority’s commissioners. Paragraph 11 of the resolution that created the William I. Millar Thomas S. Stukes December 21, 1999 Page 2

Hospital Authority provides that “[t]he number of members to the Board of Commissioners of the Hospital Authority shall not be changed except by resolution of the Haywood County Board of Commissioners.”

ANALYSIS

The Hospital Authorities Act specifies that:

There shall be not less than six and not more than thirty commissioners. Upon a

finding that it is in the public interest, the commissioners may adopt a resolution

increasing or decreasing the number of commissioners by a fixed number.

N.C. Gen. Stat § 131E-18 (a) (emphasis added). As used in the Hospital Authorities Act, the term “commissioner” means “one of the members of a hospital authority appointed in accordance with the provisions of this Part.” N.C. Gen. Stat. § 131E-16 (6). In contrast, the phrase “board of county commissioners” means “the legislative body charged with governing the county.” N.C. Gen. Stat. § 131E-16 (1). Because N.C. Gen. Stat. § 131E-18 (a) refers to “the commissioners” rather than to “the board of county commissioners”, it expressly grants the authority to expand the number of a hospital authority’s commissioners to the hospital authority’s commissioners themselves rather than to the board of county commissioners. Had the legislature intended otherwise, it would have used the phrase “the board of county commissioners” rather than the phrase “the commissioners.”

As noted above, the Haywood County Board of County Commissioners specified in Paragraph 11 of the Resolution that created the Hospital Authority that “[t]he number of members to the Board of Commissioners of the Hospital Authority shall not be changed except by resolution of the Haywood County Board of Commissioners.” For the reasons given below, this reservation of power is a nullity and has no force and effect.

The North Carolina Court of Appeals has said that “a county has no inherent power, but may exercise only those powers prescribed by statute and those necessarily implied by law.” In re Easement in Fairfield Park, 90 N.C.App. 303, 308, 368 S.E.2d 639 (1988). The General Assembly has specified in the Hospital Authorities Act the manner in which the size of a hospital authority’s board of commissioners may be changed. It has not given the various county boards of county commissioners the authority to change the statutory procedure. Furthermore, this power is not necessarily implied by the powers actually given to the counties. Consequently, the Haywood County Board of County Commissioners had no authority to reserve to itself the authority to change the size of the Hospital Authority’s Board of Commissioners.

As an aside, we note that a hospital authority board may change the number of commissioners on the hospital board only upon a finding that the change is in the public interest.

William I. Millar Thomas S. Stukes December 21, 1999 Page 3

We assume that a hospital board will give great weight to the Board of County Commissioners’ view of the public interest. Furthermore, we note that, although the hospital board has the sole authority to change the number of commissioners on the board and the hospital board nominates new commissioners, the authority to appoint new commissioners is vested in the chairman of the board of county commissioners or the full board, depending on the size of the county. See N.C. Gen. Stat. §131E-18 (d) and (g).

CONCLUSION

For the foregoing reasons, we conclude that the Haywood County Board of County Commissioners does not have the authority to increase the number of the Hospital Authority’s commissioners.

Sincerely,

Ann Reed Senior Deputy Attorney General

James A. Wellons Special Deputy Attorney General

OPINION TRANSMITTAL MEMORANDUM
Administrative Division

[ X ] Advisory Opinion [ ] Formal Opinion

131E-16 and -18. APPROVED BY: _________________________ Section Head Date: ___________________ APPROVED BY: _________________________ Division Head Date: __________________

Location of Opinion on Computer: F:datawphrfileswellonsopinionshaywood Location of Summary on Computer: F:datawphrfileswellonsopinionshaywood

OPINION SUMMARY

SUBJECT: Increase in the Number of Commissioners Serving on the Board of Commissioners of Haywood Regional Medical Center; N.C. Gen. Stat. §§ 131E-16 and -18.

DATE: December 21, 1999

AUTHOR: James A. Wellons Special Deputy Attorney General

SUMMARY: N.C. Gen. Stat. § 131E-18 expressly grants the authority to expand the number of a hospital authority’s commissioners to the hospital authority’s commissioners themselves rather than to the board of county commissioners.

The resolution of the Haywood County Board of County Commissioners that provides that “[t]he number of members to the Board of Commissioners of the Hospital Authority shall not be changed except by resolution of the Haywood County Board of Commissioners” is a nullity and has no force and effect.