March 16, 1994
The Honorable William H. Ritchie, Jr. Mayor, Town of River Bend 45 Shoreline Drive New Bern, NC 28562
Re: Advisory Opinion; River Bend Town Charter; N.C.G.S. § 160A-101 through 160A-111; Mayor’s Vote.
Dear Mayor Ritchie:
The following is in response to the request for an opinion set out in your letter dated February 22, 1994 regarding provisions in the charter of the town of River Bend concerning the mayor’s vote. The charter was adopted under the procedures of Article 1A of Chapter 160A, N.C.G.S. § 160A6 through 160A-10. Those statutes established a procedure for the creation of municipalities through the Municipal Board of Control. Article 1A was repealed in 1982 and the Municipal Board of Control went out of existence at that time.
As set out in your letter the relevant portion of the charter provides as follows: Article III: The Mayor shall serve a two year term and shall have the right to vote only where there is a tie vote excluding his vote or where the issue is the appointment of officers. The Mayor shall have no right to break a tie vote in which he participates. Your letter states that there is a desire to change the charter "to provide for the vote of the mayor consistent with the provisions of N.C.G.S. § 160A-101(8)" which reads as follows: § 160A-101. Optional forms. Any city may change its name, or alter its form of government by adopting any one or combination of the options prescribed by this section: . . . . (8) Selection of mayor: a. The mayor shall be elected by all the qualified voters of the city for a term of not less than two years nor more than four years. b. The mayor shall be selected by the council from among its membership to serve at its pleasure. Under option a. the mayor may be given the right to vote on all matters before the council, or he may be limited to voting only to break a tie. Under option b. the mayor has the right to vote on all matters before the council. In both cases the mayor has no right to break a tie vote in which he participated.
Your letter, in essence, requests an opinion as to whether the charter may be amended by ordinance pursuant to N.C.G.S. §160A-102 to delete the provisions authorizing the mayor to vote with regard to the appointment of officers. It is the opinion of this office that the procedures set out in Part 4 of Article 5 of Chapter 160A, N.C.G.S. § 160A-101 through 160A-111 (hereinafter "Part 4"), may be used to amend the charter to make the change under consideration.
N.C.G.S. § 160A-101 provides a list of options set out in subdivisions (1) through (9) and allows cities to pick and choose among those options. The statute delegates to the municipal level the authority to modify charter provisions relating to the operation of the city, and there is nothing to indicate that the General Assembly intended that Part 4 be narrowly construed. See also N.C.G.S. § 160A-4. As first enacted, N.C.G.S. § 160A-101(8) did not contain the unnumbered paragraph following paragraph b. The unnumbered paragraph was added by Section 19 of Chapter 426 of the 1973 Session Laws. Its main impact appears to be to express the logical principle that if the mayor is selected from those elected to the governing council, it is necessary for him to vote on all issues to ensure representation of his constituency. When the mayor is elected separately by all voters there is not the same consideration and it appears that the General Assembly determined that the eligibility of the mayor to vote could be decided at the local level. In other words, where the individual selected as mayor was elected as a representative of a portion of the city voters, the mayor must be able to represent those voters on the governing board, but where the mayor is elected separately by all the voters either option set out in the first sentence of the unnumbered paragraph in N.C.G.S. § 160A-101(8) may be chosen. The fact that using the procedures of Part 4 would not result in any change in the method of selection or term of the mayor should not preclude the use of the procedures of Part 4 to allow the city to choose one of the other options set out in N.C.G.S. § 160A-101(8).
In response to the request for suggestions of how to word the ordinance, it might be prudent to have the resolution of intent and the ordinance contain the precise text of the revised Article III of the charter so that it will include the direction that the mayor shall be elected by all the qualified voters of the city for a term of two years.
It is our further opinion that the fact that the charter came into existence through the actions of the Municipal Board of Control which has ceased to exist because of the repeal of Article 1A of Chapter 160A does not in any way reduce the availability of Part 4 to modify the town’s charter,
N.C.G.S. § 160A-3.
Charles J. Murray Special Deputy Attorney General
Ann Reed
Senior Deputy Attorney General