The Peaceful and Orderly Transfer of Power: Answers to Questions About Organizational Meetings and Swearing In New Board Members

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Frayda Bluestein

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After each county and city election there is a transition period during which newly-elected officers have not yet been installed and outgoing officers are still in power. This blog post answers questions about what happens during this transitional period, when new officers are sworn in, and what business takes place at the organizational meeting.

What authority do outgoing board members have and for how long do they have it?

Outgoing board members remain in office and retain all of their authority until the newly-elected members take office. Once the local board of elections certifies the results of the election, the winners are officially elected. They take office at the time and place set out in the statutes (described below) and they become qualified to exercise the duties of the office once they take the oath of office. The state constitution and several state statutes make clear that the outgoing board members hold over in office until their successors are appointed or qualified. See, G.S. 160A-62, 128-7. N.C. Const. Art. VI, Sec. 10.

When may or must the newly-elected board members take the oath of office?

State laws delineate when new members must be installed. The county statute, G.S. 153A- 26, calls for newly-elected county officers to be sworn in on the first Monday in December following the general election. County elected officials are to “assemble at the regular meeting place of the board of commissioners,” on this date to take the oath. The statute does not require this to occur in a meeting.  For cities, G.S. 160A-68(b) directs the council to set the date and time of the “organizational meeting,” which may be held any time after the election results are certified, but no later than the first regular meeting of the council in December. At the organizational meeting the mayor and council members are to qualify by taking the oath of office. If the council fails to fix the date of the organizational meeting, the statute provides that it will be held on the date and at the time of the first regular meeting in December.

These provisions, in effect, determine when the terms for outgoing members end and when those of the newly-elected members begin, and as such, they establish the process for the orderly transition of power.

What if a board member is not present to take the oath at the statutorily mandated place and time?

The county statute specifically provides that a person who is not present at that time may take the oath at a later time. The city statute is silent on this question, but it seems reasonable to assume that a person who does not attend the organizational meeting may be sworn in at a later time. Administration of the oath of office does not require board action, so a person who misses the official swearing in does not have to wait for another board meeting to take the oath. It is important to note, however, that state law prohibits a board member from undertaking any of the duties of the office prior to taking the oath of office. See G.S. 128-5 (violation subjects the officer to a $500 forfeiture), G.S. 153-26, G.S. 160A-61, and G.S. 14-229 (misdemeanor for acting as officer prior to qualifying for office). In addition, the outgoing board member will hold over in the office until the new member qualifies to carry out the duties of the office by taking the oath. See G.S. 128-7.

May newly elected board members take the oath of office before the time and date set according to the statutes?

There is no statutory authority for taking the oath early but it’s possible that it would be valid to do so. Although the oath qualifies the person to carry out the duties of the office, a board member cannot begin to do so until her term of office begins. As noted earlier, the statutes define the end of the last term and the beginning of the next one. So even if it is legally possible to take the oath of office early, the oath will have no legal effect until the person’s term of office actually begins.

Newly-elected city board members are to take the oath at the organizational meeting. What if there is no quorum at that meeting? May the newly-elected board members take the oath anyway?

The statute doesn’t address this question, but it seems to me that the answer must be “yes.” Outgoing members should not have the ability to delay (by failing to attend the meeting) the transfer of power and in effect, extend their own terms in office. The newly-elected members cannot count toward the quorum until they are sworn in and so it is the existing board that is responsible for scheduling and convening the meeting. It seems to me that at least by the time of the first regular meeting in December, the new members must be given the opportunity to take the oath even if there are insufficient members of the outgoing board to constitute a quorum.

What there is no quorum on the first Monday in December when the newly-elected county commissioners are to take the oath office?

That’s not a problem because the county statute doesn’t specify that the oath must be administered at a meeting. Even if it is the board’s practice to administer the oath in a meeting, there is no legal requirement to do so.  Following the installation of the new members, however, there is a need for a quorum as the newly-constituted  board will have to choose a chair and vice-chair, as discussed further below.

Who has the authority to decide who will administer the oaths of the new members?

The statutes do not address this, but it seems that the new board member could choose. I don’t know of any authority for the mayor or board members to impose their choice on the newly elected members. The official who administers the oath, of course, must be legally qualified to do so.

What oaths must board members take and who may administer them?

See David Lawrence’s earlier blog post on this question.

What if a mayor or board member wishes to have a swearing-in event followed by a reception? May or must the unit pay for the cost of this?

Plans for administering the oaths are typically arranged by the outgoing board, so alternative arrangements would likely have to be agreed to by that board. If an event is to be paid for with public funds, it would be up to the board (either new or old, depending upon when the decision is made) to authorize this expense and there is certainly no obligation to do so. Whether it constitutes a proper use of public funds may depend upon the invitation list. A group limited to contributors to the mayor’s campaign may not be appropriate, but a broad selection of civic leaders or employees would reflect a city-wide purpose, rather than a purely personal or political one, which would justify the use of public funds.

What business may or must be taken at the organizational meeting?

As with any other meeting, the outgoing board has the ultimate legal authority to set the agenda for the meeting at which the new members are to be sworn in. The statutes are specific, however, about things that must be done in the organizational meeting, in addition to administering the oath to new members. The city statute (G.S. 160A-70) requires the board to select a mayor pro tem at the organizational meeting. In a city that chooses the mayor from among the members of the board, the organizational meeting would be the time to make that selection. As noted earlier, there is no requirement for newly-elected county commissioners to take the oath at the organizational meeting. A separate county statute (G.S. 153A-39) requires the board to choose a chair (unless the chair is selected by the voters) and vice-chair on the first Monday in December in even-numbered years and at the first regular meeting in December in odd-numbered years.

If the outgoing board has business it wishes to complete, it may convene the meeting and complete that business and then swear in new officers and hand over the meeting to the “new” board. This is a common practice. An outgoing board may also swear in the new officers at the beginning of the meeting and allow the “new” board to take up the old and new business as it sees fit. Either of these approaches is legal and the decision about how to proceed is up to the outgoing board since only that board has authority to convene the meeting and to decide when the oaths will be taken.

Isn’t the old board required to complete its old business, such as approving minutes and taking action on matters that the newly-elected board members weren’t involved with?

No. Despite the formality and significance of the transfer of power, it is important to understand that the board is a continuous legal entity and may take action on any matter regardless of the individuals who serve as members. So the newly-elected board members, once sworn in,  may legally vote on matters that are in progress, and may even approve minutes of meetings they did not attend. (In the case of a quasi-judicial matter, it might be necessary for the new board to review the evidence before making a decision.) Of course, both the new and outgoing members may prefer that the old board wrap up its work, and new members may wish to consult with former members before approving minutes of meetings they didn’t attend. (For more on this, see Approving Minutes of Meetings You Didn’t Attend.) But again, it is up to the outgoing board to decide what matters it wishes to take up before the newly-elected members are installed.

Are there any limitations on what the “lame duck” board members can do following the election and before new members take office?

I’ve written two blog posts about his, which you can read here and here.

Must the attorney, clerk, or any other employee or official be reappointed and sworn in at each organizational meeting?

No. As noted above, since the board is a continuous legal body, its employees continue to be employed unless they are terminated. The election of new members to the board does not have any effect on their status as employees or as officers.

What if the newly-elected board members constitute a majority of the board and wish to meet together prior to taking office. Does this trigger the requirements of the open meetings law?

No. Until they take office, these individuals are private citizens (assuming they are not incumbents), and they are free to meet without giving notice to the public or allowing other board members to attend. A mix of incumbent and not-yet-sworn newly-elected members could legally meet in private, as long as the incumbents in attendance do not constitute a majority of the current board. This may seem to undermine the purpose and policy behind the open meetings law, since members-elect who constitute a majority might reach agreement about actions they will take once they are in office. The fact is, however, that the law doesn’t cover this type of meeting because the group involved does not meet the definition of a public body. In the absence of any judicial interpretation extending the law to these types of meetings, there is no basis for concluding that the law would apply.

May the current board invite members-elect to its board meetings to provide a smooth transition and briefing on pending matters?

Yes, except that members-elect may not attend a closed session that involves confidential or privileged information. For example, closed sessions regarding personnel matters or consultation with the attorney would not be appropriate for members-elect to attend. Until they are officially in office, the newly-elected members are not within the attorney-client privilege and do not have legal access to confidential personnel information.

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