February 15, 1980 Mental Health; Area Mental Health, Mental Retardation and Substance Abuse Authorities; Replacement of Member of Area Mental Health, Mental Retardation and Substance Abuse Board.
Subject:
Requested By: Mr. Grady B. Stott Attorney for Gaston County Board of Commissioners
Question: In a two county area mental health, mental retardation and substance abuse authority, consisting of counties A and B, may the county commissioner who has been appointed to the area board by the Board of County Commissioners of county A unilaterally remove another member of that area board who happens to be from county A, or is it necessary that the removal have the concurrence of the county commissioner who has been appointed to the area board by the county Commissioner of county B?
Conclusion: The concurrence of both county commissioners serving on the area board is required in order to remove the member.
G.S. 122-35.39, inter alia, provides:
"(c) In areas consisting of more than one county, each board of county commissioners within the area shall appoint one commissioner as a member of the area mental health, mental retardation, and substance abuse board. These members shall appoint the other members.
(d) The group of county commissioners authorized to make appointments to the area board shall appoint new members to the area mental health, mental retardation, and substance abuse board to fill vacancies occurring on the board prior to the expiration of the appointed term of office. Such appointments shall be for the remainder of the unexpired term of office. (1977, c. 568, s.l; c. 679, s.7; 1979, c. 358, ss. 5, 23.).
Additionally, G.S. 122-35.40(c) prescribes the term of appointment for members of the area boards but contains the following significant language:
"However, nothing contained herein shall prevent the county commissioners from replacing board members at any time pursuant to G.S. 122-35.39."
It should be noted that the county commissioner from county A who is serving as a member of the area board serves on the area board in an ex-officio capacity to his position as a county commissioner of county A. (G.S. 122-35.40(c)). It should further be noted that the present question does not deal with the replacement of this county commissioner from county A who is so serving as a member of the area board in an ex-officio capacity. Of course, that individual can only be replaced by the Board of County Commissioners who appointed him, i.e., the Board of County Commissioners of county A.
As affecting the question posed, the statutes make it very clear that it would require the concurrence of both the county commissioners from counties A and B who are serving ex-officio as area board members in order to validly appoint all of the other members of the area board. The same arithmetical computation relied upon for appointment would mandate that the concurrence of both of the county commissioners from counties A and B serving ex-officio on the area board is required in order to replace any other non-commissioner member of the area board regardless of the county of residence of the member being replaced.
Rufus L. Edmisten Attorney General
William F. O’Connell Special Deputy Attorney General