In the last election, a new majority was elected to the city council. They want to appoint new members to the board of adjustment and to the parks and recreation commission. It’s not that the current members aren’t doing a good job. It’s just that the new majority has in mind some folks who they think will do a better job. Can the council simply remove the current members and appoint new ones? The answer depends on whether they were appointed for a term, whether the term is established under state or local law, and whether the council has authority to abolish the board in question. Read on to learn about two key rules that apply to removing people from office.
The First Removal Rule: The power to appoint includes the power to remove at will.
A common law (that is, court made) rule is that “in the absence of all constitutional or statutory provision for the removal of …public officers, the power of removal is incident to the power of appointment, and is discretionary and may exercised without notice or hearing.” Kinsland v. Mackey, 217 N.C. 508 (1940), 4 McQuillin Mun. Corp. § 12:310 (3d ed.), 91 A.L.R. 1097. This means that unless a law says otherwise, the person (or body) who has authority to make an appointment also has the authority to remove the appointed person, for any reason or no reason, at any time.
The Second Removal Rule: If a law requires that an appointment is for a specified term, removal must be for cause.
The North Carolina Supreme Court has ruled that public officers do not have a property right in their office. Mial v. Ellington, 134, N.C. 131 (1903). By this the court means that the legislative body that created the office itself is free to eliminate the office and the person holding it has no legal grounds for limiting the discretion of the legislative body to do so. (Of course, this does not apply to an office provided for in the constitution.)
When it comes to simply removing someone from the office (as opposed to eliminating the office itself), the general rule is that if a law provides that the person is appointed for a term, then the person may be removed only for cause (that is – some evidence of failure or inability to adequately perform the duties of the office), and must be given notice, and an opportunity to be heard. Stephens v. Dowell, 208 N.C. 555 (1935). As stated in State ex rel. Raslavsky v. Bonvouloir, 355 A.2d 275, 278 (Conn. 1974), “Where the term or tenure is fixed for a definite period of time, however, the power to remove at will cannot be implied and such appointee may be removed only for cause and not without notice and an opportunity to be heard. The authorities apparently are in accord that an appointment for a definite term carries with it the right to serve the full period unless sooner removed for cause.” See also, 4 McQuillin Mun. Corp. § 12:314 (3d ed.).
If the law that establishes the term also provides that the appointee serves at the pleasure of the board, or otherwise indicates an intention to preserve the discretion to remove at will, the “for cause” requirement does not apply. See, Brennan v. Town of Colchester, 730 A.2d 601, 603 (1999) (no cause required when statute sets a term but authorizes removal “at any time” by appointing body.)
Applying the Rules: Locally created boards.
Let’s apply these rules to the two boards described in the introduction. We’ll start with the parks and recreation board. Cities are authorized but not required to establish parks and recreation commissions. (G.S. 160A-354.) Since there is no state law that requires members of these boards to be appointed for a term, they may be removed at will, for any reason or no reason, at any time.
What if the resolution appointing the members of the commission specified terms of three years? Are the members still considered to be removable at will? I think they are. In the Kinsland case, cited earlier, a person was appointed as tax collector under a charter provision that authorized the appointment but did not specify a term of office. The initial appointment was by resolution, which specified a term of two years, and was renewed by resolution for a second term of two years. After the renewal but before the two years expired, the city appointed someone else to be tax collector. In a lawsuit to determine who rightfully held the office, the North Carolina Supreme Court applied the First Removal Rule described above, and concluded that the tax collector served at will and could be summarily removed. What about the two-year term? The court held that “the implied power of the appointing authority to remove at pleasure an officer whose term of office is not prescribed by law cannot be contracted away so as to bind the appointing authority to retain an appointee for a fixed period.” Kinsland at 600. Indeed, the court ultimately held that in such a case, a person may be removed expressly with notice, or implicitly, though the appointment of another person to the office.
Well, what if the city adopts an ordinance creating the parks and recreation commission, and the ordinance provides that members of the commission are appointed for three-year terms? An ordinance is a law, so does it limit the council’s discretion to remove members mid-term? I think this is an open question of law in North Carolina. Consistent with Kinsland, one could argue that the council retains its implicit authority to remove members. On the other hand, in another context, courts have ruled that there’s a difference between a resolution and an ordinance when it comes to due process rights. In Pittman v. Wilson County, (839 F. 2d 229, 4th Cir. 1988) the federal appeals court that has jurisdiction over North Carolina ruled a that local government personnel policy that is adopted as an ordinance creates a property interest, and therefore, due process rights for employees, including termination only for cause. In absence of an ordinance, employees are considered “at will” – meaning they may be fired for any reason or no reason. It’s possible that North Carolina courts would see a parallel with the employment context and rule that a term in an appointed office established by local ordinance creates a due process right to removal only for cause. As noted earlier, however, there is no property right in an office, and perhaps the appointing authority is free to amend its ordinance in order to exercise its inherent authority to remove appointees.
A local government that wishes to create terms of office, but also wants to retain discretion to remove members, should include language in the ordinance providing that members serve at the pleasure of the board and can be removed in the board’s discretion, even in the middle of a term.
Applying the Rules: Statutorily created boards.
Now let’s apply the removal rules to the board of adjustment. North Carolina city governing boards are authorized to create a board of adjustment, but they also have the option of assigning the board of adjustment duties to another board, or they may exercise those powers themselves. If they do create a board of adjustment, the state statute requires that members of the board serve for terms of three years. (G.S. 160A-388) In this case, under the Second Removal Rule, the discretion to remove is restricted. Members may be removed only for cause and are entitled to notice and an opportunity to be heard.
A Possible Way Around the Second Removal Rule
There is another option for removing the members. Remember that a person does not have a property right in the continued existence of the office. And since the creation of a board of adjustment and a parks and recreation commission is completely optional, the city can abolish each of these boards and create new boards with new members. It’s not a particularly elegant solution, but this method was approved in Board of Adjustment of the Town of Swawnsboro v. Town of Swansboro, 334 N.C. 421 (1993). Note that this only works if the the board is one that the city is not required to appoint.