Use of proxy votes at Area Mental Health, Mental Retardation Meetings

Subject:

Requested By: Mr. Mansfield Elmore Area Director Lee-Harnett Mental Health Center

Question: Is it permissible to use proxy votes at meetings of Area Mental Health, Mental Retardation and Substance Abuse Boards?

Conclusion: No.

As described in G.S. 122-35.36(2), and Area Mental Health, Mental Retardation and Substance Abuse Board is:

"A group of persons appointed by the county commissioners pursuant to the provisions of this Article to serve as the governing body of the area mental health, mental retardation and substance abuse authority."

Such authority is the unit which serves as the comprehensive planning, budgeting, implementing and monitoring group for community based mental health, mental retardation and substance abuse programs. See G.S. 122-35-36(1). The membership of this board can extend up to twenty-five (25) members. See G.S. 122-35.40. As a result of the number of members permitted, together with the nature of the qualifications required for such members, it appears that difficulties are frequently encountered in obtaining a quorum of members present at board meetings so as to enable the transaction of business. This problem has precipitated the question posed.

Article 2F of Chapter 122 contains no provision authorizing the designation of a proxy or the use of a proxy vote at board meetings. The general rule is that, absent specific statutory authorization, a member of a board of this nature may not authorize another person to perform his function.

McQuillin, Municipal Corporations, 3rd Edition Revised, Section 12.126 contains the following informative language on this score:

"In the discharge of their duties the officers cannot go beyond the law nor delegate powers involving the exercise of judgment and discretion."

Further, this point is described at greater length in Mechem, A Treatise on the Law of Public Offices and Officers, as follows:

"In those cases in which the proper execution of the office requires, on the part of the officer, the exercise of judgment or discretion, the presumption is that he was chosen because he was deemed fit and competent to exercise that judgment and discretion, and, unless power to substitute another in his place has been given to him, he cannot delegate his duties to another . . .

Wherever these boards and officers are vested with discretion and judgment, to be exercised in behalf of the public, the board or officer must exercise it in person and can not, unless expressly or impliedly authorized to do so, delegate it to others . . .

The members composing the board have no power to act as a board except when together in session. They then act as a body or unit . . . The public for whom they act, have the right to their best judgment after free and full discussion and consultation among themselves of and upon the public matters entrusted to them in the session provided for . . ." Id., §§ 567, 577.

Rufus L. Edmisten Attorney General

William F. O’Connell Special Deputy Attorney General