Reappointment to County Board of Social Services

Subject:

Requested By: Mr. Willie E. Sloan Chairman Brunswick County Board of Social Services

Questions: (1)

When a board of county commissioners purports to appoint each of two currently serving members of a county board of social services to serve the "unexpired term" of the other, do such appointments fall within the purview of N.C.G.S. § 108A-6?

(2)

May a member of a county board of social services, who was the subject of the purported appointment referred to above and who has served six consecutive years as a board member, be reappointed to serve an additional term on the board when the member is not also a county commissioner?

Conclusions: (1)

No.

(2)

No.

The Brunswick County Board of Social Services (BSS) consists of five members. Pursuant to

N.C.G.S. § 108A-3(b) [formerly § 108-9], two members of the BSS are appointed by the Brunswick County Board of County Commissioners, two members are appointed by the North Carolina Social Services Commission, and the four members so appointed select the fifth member. All appointments are for terms of three years. N.C.G.S. § 108A-4, formerly § 108-10.

It appears that the Brunswick County Board of County Commissioners traditionally has appointed one of its own members, known as the "county commissioner member," to fill one BSS position and has appointed a citizen who is not a county commissioner to fill the other position. The latter is known as the "citizen member."

Member A was appointed to the BSS in October, 1977 to fill the unexpired term of a former citizen member whose term expired June 30, 1978. Member A was reappointed as the citizen member for the term beginning July 1, 1978.

Member B, a county commissioner, was appointed as the county commissioner member for a term beginning July 1, 1977. During 1978, Member A was elected to the Board of County Commissioners, but Member B was not reelected. Accordingly, consistent with its tradition, the Board of County Commissioners, at its meeting of December 18, 1978, purported to appoint Member B to fill Member A’s "unexpired term" as the citizen member and to appoint Member A to fill Member B’s "unexpired term" as the county commissioner member of the BSS.

Subsequently, Member B was reappointed to the BSS for a term beginning July 1, 1980, which was the expiration of his initial term of appointment. Member A, likewise, was reappointed to the BSS at the expiration of his term for a new term beginning July 1, 1981.

The current term of Member B expires on June 30, 1983, at which time he will have served on the BSS, without interruption, for six consecutive years, which is the equivalent of two consecutive three year terms. Member B is not currently a county commissioner.

N.C.G.S. § 108A-4 states, in pertinent part:

"No member may serve for more than two consecutive terms. Notwithstanding the previous sentence, the limitation on consecutive terms does not apply if the member of the social services board was a member of the board of county commissioners at any time during the first two consecutive terms, and is a member of the board of county commissioners at the time of reappointment."

The prohibition of the statute and the exception thereto are clear. No person may serve more than two consecutive terms as a member of a county board of social services unless:

(1)

He was a county commissioner at some time during his first two consecutive terms on the BSS; and

(2)

He is a county commissioner at the time of his appointment to his third or other additional consecutive term as a member of the BSS.

Under certain circumstances, consideration must be given to N.C.G.S. § 108A-6 in determining what constitutes two consecutive terms. That statute reads:

"Appointments to fill vacancies shall be made in the manner set out in G.S. 108A-3. All such appointments shall be for the remainder of the former member’s term of office and shall not constitute a term for the purposes of G.S. 108A-4."

The questions presented upon these facts, then, is whether N.C.G.S. § 108A-4 prohibits the reappointment of Member B to another term on the BSS beginning July 1, 1983 or whether his service on the BSS from December 18, 1978 through June 30, 1980 constituted serving the unexpired term of another member and, under N.C.G.S. 108A-6, did not constitute a term for the purposes of N.C.G.S. 108A-4.

We conclude that N.C.G.S. § 108A-6 does not apply under the facts presented and that the reappointment of Member B to a new term beginning July 1, 1983 would violate the provision of

N.C.G.S. § 108A-4 prohibiting a member from serving more than two consecutive terms.

Member B was a county commissioner at the time of his initial appointment to the BBS for a term beginning July 1, 1977. His term of office as a county commissioner expired in 1978, however, and he was not reelected. He is not now a county commissioner nor does it appear that he will be at the expiration of his current term on the BSS. Under these circumstances, he does not fall within the exception to the prohibition set forth in N.C.G.S. § 108A-4.

The purported appointment of Member B by the Board of County Commissioners on December 18, 1978 to fill the "unexpired term" of Member A does not fall within the purview of N.C.G.S. § 108A-6. That statute concerns "[a]ppointments to fill vacancies" "for the remainder of the former member’s term of office".

Member A was appointed on July 1, 1978 for a three year term expiring on June 30, 1981. The statutory precondition for service on the BSS is that the members "be bona fide residents of the county from which they are appointed to serve". N.C.G.S. § 108A-3(c). Subsection (a) of that statute permits, but does not require, the appointment of a county commissioner to the BSS. Thus, the election of Member A to the Board of County Commissioners in 1978 did not affect his service on the BSS in any way. His position as a member of the BBS did not become vacant, and he continued to serve until the expiration of his term on June 30, 1981, at which time he was reappointed.

Since Member A’s position on the BBS was not vacant on December 18, 1978, the purported appointment of Member B to fill Member A’s "unexpired term" was a nullity. Indeed, it appears most likely that the county commissioners intended to simply redesignate Member A and Member B as the "county commissioner member" and the "citizen member," respectively, rather than to appoint each to the other’s "unexpired term." This construction is supported by the fact that had Member B been actually appointed to serve Member A’s term, his appointment would have terminated at the end of Member A’s term of office, i.e., June 30, 1981. Instead, Member B was reappointed for a term beginning July 1, 1980, which was the end of the initial term to which he had been appointed on July 1, 1977. The same, of course, is true of Member A — he was reappointed at the end of the term for which he had originally been appointed, not at the end of Member B’s term.

Finally, it would subvert the clear intent of both N.C.G.S. §§ 108A-4 and 108A-6 to conclude that, by virtue of the purported appointment of each member to serve the other’s term and by operation of N.C.G.S. § 108A-6, neither Member A nor Member B served a term of office under

N.C.G.S. § 108A-4. Such a conclusion would permit a board of county commissioners to perpetrate their appointees in office by simply reappointing each to serve the other’s "unexpired term" at appropriate times during their tenure on the social services board. In that event, each member would always complete the term of the other, and neither member would ever be subject to the prohibition of N.C.G.S. § 108A-4. We do not believe that the General Assembly intended such a result.

RUFUS L. EDMISTEN Attorney General

Henry T. Rosser Assistant Attorney General