Members of the Council of State who are Ex Officio Members

Subject:

Requested By: The Honorable James E. Long Commissioner of Insurance

Question: Whether the members of the Council of State who are ex officio members of Boards and Commissions may authorize delegates or subordinates to attend the meetings of, be counted as part of the quorum of, and vote on matters before those Boards and Commissions?

Conclusion: Council of State members may delegate their statutory duties and powers to attend meetings of, be counted as part of the quorum of, and vote on matters before Boards and Commissions of which they are ex officio members.

The membership of the Council of State is defined by the North Carolina Consitution, Article III, Section 8 to include the Governor, Lieutenant Governor, the Secretary of State, the State Auditor, the State Treasurer, the Superintendent of Public Instruction, the Attorney General, the Commissioner of Agriculture, the Commissioner of Labor and the Commissioner of Insurance. All these officers are executive officers of North Carolina. G.S. 147-3. Except for the express constitutional powers and duties of the Governor and Lieutenant Governor, the powers and duties of the individual members of the Council of State are prescribed by law. North Carolina Constitution, Article III, Sections 6 and 7(2).

In addition to the statutory and common law powers and duties of the Council of State members, the General Asembly has enacted laws creating various boards and commissions, generally within the Executive Branch, membership on which it has conferred on one or more Council of State members, ex officio. See e.g., North Carolina Capital Planning Commission, N.C.G.S. Chapter 143B, Article 9, Part 3.

Ex officio means:

From office; by virtue of the office; without any other warrant or appointment than that resulting from the holding of a particular office.

blacks Law Dictionary, Page 661 (4th Edition, 1968).

The method of conferring a statutory duty on a public officer (i.e., ex officio conferral as opposed to direct appointment) is not dispositive of the incumbent’s ability to delegate that duty. Rather, a public officer’s ability to delegate any of his statutory powers and duties is, in the absence of contrary statutory law, limited by the nature of the duty in question. See generally, 2 Am. Jur. 2d, Administrative Law § 221.

It has been suggested that Council of State members may not send delegates or subordinates to Board meetings to carry out their ex officio duties because in voting on matters before the Boards the delegates or subordinates would be impermissibly exercising the discretion of the principal officer.

While it is true that as a general matter of law a public officer may not delegate discretionary duties (as opposed to purely ministerial duties), see generally 63A Am. Jur. 2d, Public Officers § 301, that rule appears to have been applied mainly to situations where a discretionary decision is to be made solely by that officer. To the extent that a Board, by its action, exercises discretion, the single vote of a Council of State member’s delegate on that Board would not appear to be within the scope of the general rule. Additionally, the rule may not even apply where the action is taken through a subordinate, there being no true delegation as would occur if the delegee is otherwise outside the control of the delegating officer. See, Shrieveport Engraving Company v. United States, 143 Fed. 2d 222 (5th Cir. 1944). See also, 2 Am. Jur. 2d, Administrative Law §

224.

Similarly, the delegation of legislative or judicial powers, nothing else appearing, is not permitted as a general rule. We are not aware that any of the Boards in question exercise judicial or true legislative power. Indeed, North Carolina case law would appear to find grave constitutional questions in such an exercise. Rather, the Boards of interest here all appear to be Executive Branch entities on which Council of State members serve as executive officers of the State. Of course, the delegation of executive power is a very common occurrence. See generally, 2 Am. Jur. 2d, Administrative Law §§ 221 – 226.

Even if the vote of a delegate or subordinate on one of the Boards in question were deemed to be an exercise of discretion, that exercise is permissible where the nature of the power or duty conferred on the principal officer is such as to imply a power to delegate. Such an implication would appear to arise when delegation is a practical and reasonable necessity and where it does not appear that the source of the authority, in this case the General Assembly reposed special trust in the personal exercise of the power or duty by the principal officer. See Shrieveport, supra. The matters coming on for consideration before the Boards in question are often not within the executive officer’s usual sphere of expertise. Rather, it appears that the General Assembly’s purpose may likely have been in insuring the input of the various departments and branches of State government and to insure that these departments are knowledgeable of the work of the various Boards. In this context, the method of conferral takes on significance, for it would seem far more likely that when the press of events makes it impossible or impracticable for a member of the Council of State to personally perform all the duties of his office, the General Assembly would intend that the enumerated duties of office receive personal attention prior to ex officio duties.

Therefore, even in the absence of direct statutory authority, it is our opinion that Council of State members may, either by delegates or by designated subordinates, exercise their ex officio duty to attend Executive Boards and Commissions and power to vote on matters before those bodies.

Of course, the General Assembly has expressly approved the delegation of duties by most Council of State members. This approval appears to extend to all statutory duties of office without distinction between enumerated and ex officio duties. These statutes are:

G.S.

147-36.1 (Secretary of State)

G.S.

147-64.10 (State Auditor)

G.S.

147-75 (State Treasurer)

G.S.

114-4.4 (Attorney General)

G.S.

58-7.1 (Commissioner of Insurance)

G.S.

147-12(8) expressly authorizes the Governor to delegate ex officio duties. The reason for this distinction with regard to the Governor would appear to issue from the fact that many of the Governor’s non-ex officio duties and powers are constitutionally fixed.

The Lieuteant Governor, the Superintendent of Public Instruction, the Commissioner of Agriculture and the Commissioner of Labor are neither expressly empowered nor expressly forbidden to delegate duties or powers. It might be argued that where the General Assembly has expressly sanctioned delegation of statutory duties for some Council of State members, it’s failure to do so for others implies an intention to forbid delegation by those others under the theory of inclusio unius est exclusio alterius. In this regard it is noteworthy that the General Assembly has given blanket authority for delegation by principal department heads. G.S. 143B

10. We perceive nothing in the nature of the offices of Commissioner of Agriculture, Superintendent of Public Instruction and Commissioner of Labor or in the statutory duties of the office of the Lieutenant Governor that would give rise to such an intent. Therefore, and in view of the express statutory approval of delegation of statutory duties by the other executive officers of this State from the Governor down to the level of department head, the failure of the General Assembly to expressly authorize delegation by the four officers above named is merely a casus omissus and no negative inference should be drawn therefrom.

As implied or alluded to hereinabove, there are or may be statutory or other limitations to the general ability of Council of State members to delegate powers and duties of their office. For example, the Attorney General must personally approve consent judgments. G.S. 114-2.2. Similarly, while the Lieutenant Governor and the State Treasurer are ex officio members of the State Board of Education, Article IX, Sec. 4(1), N.C. Constitution, and G.S. 115C-10, G.S. 115C-10, that same article provides that "no voting by proxy may be permitted." N.C.G.S. 115C11(d). Additionally, where the general statutes expressly provide for delegation of authority to a specifically named subordinate officer, e.g. a Chief Deputy, the statute would control and any other delegation would likely be impermissable. Also, a duty imposed or a power granted expressly by the Constitution is so fundamental as to be non-delegable absent express constitutional warrant. Hence, the Governor could not delegate the pardon power, the Lieutenant Governor could not delegate his power to preside in the Senate (other than the delegation which is constitutionally sanctioned), and the members of the Council of State could not attend meetings of the Council by proxy.

In summary, those members of the Council of State who have statutory authority to delegate duties may, in conformity with such statutes, attend and vote at meetings of Boards of which they are ex officio members through delegates or designated subordinates. The remaining members of the Council of State may make similar delegations or designations where, in the member’s judgment, other duties necessitate his absence and the statute creating his ex officio membership does not express or clearly imply an intent of the General Assembly that the powers of such membership be exercised personally.

Lacy H. Thornburg Attorney General

Donald R. Teeter Associate Attorney General