August 1, 1994
Charles Bullock Division of Soil and Water Conservation
N.C. Department of Environment, Health and Natural Resources
P.O. Box 27687 Raleigh, N.C. 27611-7687
RE: Advisory Opinion: Richmond Soil and Water Conservation District request for advisory opinion regarding residency requirements for appointed supervisors; G.S. § 139-7.
Dear Mr. Bullock,
Two supervisors of the Richmond Soil and Water Conservation District have written to the Attorney General to request the opinion of this office on the requirements of G.S. § 139-7 for appointed supervisors. A copy of this opinion request is attached. Steve Bennett has also requested an opinion on this question. It should be noted at the outset that the statute in question has been amended since the last time this question was asked by the Soil and Water Conservation Division in December of 1978.
In May of 1979, the General Assembly enacted House Bill 1102 entitled "An Act Relating to Membership on Soil and Water Conservation District Boards." See 1979 N.C. Sess. Laws, c. 519, s.2. This act amended the existing law and clarified the requirement that appointive members of a Soil and Water Conservation District Board of Supervisors must be "from the district" which they are appointed to represent. An earlier memorandum dated January 2, 1979 from Dan Oakley to Grady Lane on this subject is no longer useful in this regard since it predates the legislative change: to the extent that the advice in that memorandum conflicts with this one, it is to be disregarded.
The essential question presented is what does "from the district" mean in this context. While this prepositional phrase is not as precisely defined as "resident of" or some similar phrase, it certainly indicates the legislative intent to require that supervisors be residents of the nominating district. As a preposition, "from" expresses a relationship to a place of origin and the "district" has a precise legal meaning under the Act. It is our opinion that, read together, "from the district" means that the appointee’s place of origin must be within the district’s boundaries. One way to read this requirement is that the appointed supervisor was born within the district, but such an interpretation would likely be constitutionally invalid since it would prohibit people’s freedom to travel and deprive equal protection of the laws to non-native residents of the district. The requirement could also possibly mean that one must own property within the district boundaries to qualify for appointment, but the North Carolina Constitution prohibits property ownership as a qualification for office. The only logical and consistent way to read this requirement is that it requires residency or domicile within the district. Thus, it is our opinion that any appointment of a person not a resident within the district and upon recommendation of the district board to the Soil and Water Conservation Commission is outside the powers of either body.
It should be noted that the North Carolina Constitution requires that elected supervisors be eligible to vote for the office which they are running. See N.C. Constitution Article VI, Section 8.
In order to be eligible to vote in any election, a person must have been a N.C. resident for one year prior to the election and a resident of the particular district for at least 30 days prior to the election. See N.C. Constitution Article VI, Section 2. The General Assembly is presumed to know that the N.C. Constitution requires that elected supervisors be residents and eligible voters within the county or district of representation. The Soil Conservation Districts Law uses the language "from the county or counties in the district" to describe the elective supervisors. See
G.S. § 139-7. The General Assembly added the "county or counties" language to require that where a multi-county district is involved, an elected supervisor must be "from" the county of his election. Because the General Assembly used the same preposition "from" to describe the relationship of elected officials to the district as it did for appointed officials, it is our opinion that the General Assembly’s intent was to require that supervisors be residents of the district to which they are appointed. Under the facts as presented, the supervisor in question was not eligible to vote in the district involved, nor did he reside there. Under these facts, it is our opinion that the nonresident is ineligible to serve as a supervisor under the Soil Conservation Districts Law.
Daniel C. Oakley Senior Deputy Attorney General
James P. Longest, Jr.
Associate Attorney General