August 1, 1994
Honorable William T. Graham Commissioner of Banks 430 N. Salisbury Street
P. O. Box 29512 Raleigh, North Carolina 27626
RE: Advisory Opinion; The State Banking Commission; Presiding Officer of Meetings of the State Banking Commission in the Absence of the State Treasurer; N.C.G.S. §53-92
Dear Commissioner Graham:
We reply to your letter of July 26 requesting our opinion whether the State Treasurer may appoint a non-Banking Commission member to preside in his absence over a meeting of the State Banking Commission. We assume that your request was precipitated by the fact that the State Treasurer designated the Assistant State Treasurer to preside over a recent meeting of the State Banking Commission. As you point out in your letter, your review of the minutes of the Banking Commission meetings since its creation in 1931 has shown that when the State Treasurer is absent, either the Commissioner of Banks has presided or the State Treasurer has requested a banking commission member to preside.
For reasons which follow, it is our opinion that the State Treasurer may appoint one of his assistants to preside over a meeting of the Banking Commission. However, the State Treasurer may not appoint a person to preside who is neither a member of the Commission, the Commissioner of Banks, nor an assistant employed by the Office of State Treasurer.
- N.C.G.S.
- §53-92 provides that the State Treasurer is an ex officio member of the State Banking Commission, is chairman of the Commission, and is counted to determine whether a quorum is present at a Commission meeting. That statute also provides that the Commissioner of Banks shall act as the Executive Officer of the Banking Commission. Black’s Law Dictionary (Deluxe 4th Edition, 1951) defines ex officio as follows: "From office; by virtue of the office; without any other warrant or appointment than that resulting from the holding of a particular office."
- N.C.G.S.
- §147-75 provides in pertinent part that "[t]he treasurer may authorize a deputy to perform any duties pertaining to the office."
In a formal opinion issued by this office on June 18, 1986, we concluded that "Council of State members may delegate their statutory duties and powers to attend meetings of, be counted as a part of the quorum of, and vote on matters before Boards and Commissions of which they are ex officio members." See, 55 NCAG 116 (1986). We enclose a copy of the 1986 opinion for your convenience.
It is clear, therefore, since the State Treasurer is by statute designated Chairman of the Banking Commission, the State Treasurer may appoint the Assistant State Treasurer to preside in his absence over a meeting of the Banking Commission. However, should the State Treasurer choose
to appoint someone other than an employee and deputy of the Office of State Treasurer to chair a Commission meeting, that person would have to be either a member of the Commission or the Commissioner of Banks.
We trust that this answers your inquiry. Should you have any questions, please contact us.
Andrew A. Vanore, Jr. Chief Deputy Attorney General
John R. McArthur
Chief Counsel