August 1, 1995
Paul H. Ridge Ridge, Holley & Morris
P.O. Drawer 148 Graham, NC 27253-0148
Re: Advisory Opinion; School Merger Agreement; Powers of Interim Board
Dear Mr. Ridge:
A question has been raised about the power of the Interim Board of Education for the Alamance-Burlington School System to enter into an agreement proposed by Joseph Sinclair, the Superintendent of the existing Burlington City School System, prescribing his status and employment with the Alamance-Burlington School System beginning July 1, 1996. On behalf of Jack G. Watts, Chairman of the Interim Board, you have asked for our opinion about this question.
Based on our examination of the terms of the merger plan prepared by the Alamance County Board of Commissioners and approved by the State Board of Education, the provisions of the agreement proposed by Dr. Sinclair and pertinent statutory and legal principles, we have concluded that the Interim Board has the power under the law to enter into the agreement proposed by Dr. Sinclair, if it so chooses. The reasons for our conclusion are as follows:
- The merger plan has the force and effect of law and should be construed in the same manner as any other law creating and empowering local school boards. See G.S. 115C-67 which states that merger plans, upon approval by the State Board, "are deemed to have been made by law and shall not be changed or amended except by an act of the General Assembly."
- Section III of the merger plan sets forth a non-exclusive list of the powers and duties of the Interim Board between July 1, 1995 and June 30, 1996. Fairly read, Section III gives the Interim Board the power to take the actions necessary or appropriate to fulfill its duty to prepare for implementation of the actual merger effective July 1, 1996, except for modifications to existing student attendance areas. The duty to prepare for implementation includes the power to act as well as plan. See, e.g., Sections IIIA and D giving the power to hire a superintendent and to approve the 1996-97 budget request for the merged system.
- Under Section III-C, one of the specific duties of the Interim Board is "to prepare for the transfer of all . . . contracts, obligations . . . to the merged system effective July 1, 1996."
- Section V of the merger plan in effect gives Dr. Sinclair a contract with the merged system at least at his present salary beginning July 1, 1996 and continuing for a minimum of two years.
- The duty of the Interim Board under Section III-C to prepare for the transfer of contracts and obligations effective July 1, 1996 carries with it the power to agree to Dr. Sinclair’s request to modify or limit the contract rights conferred on Dr. Sinclair by Section V, though it does not carry with it the power to expand those rights. (The power to expand those rights would rest with the merged board which assumes power on July 1, 1996.) The proposed contract with Dr.
Sinclair appears only to modify or limit Dr. Sinclair’s rights under Section V and not to expand
those rights. Thus, in our opinion the Interim Board has the power to enter into the proposed
contract as a part of its power to prepare for the transfer of contracts on July 1, 1996.
Andrew A. Vanore, Jr.
Chief Deputy Attorney General
Edwin M. Speas, Jr.
Senior Deputy Attorney General