The Peaceful and Orderly Transfer of Power: Answers to Questions About Organizational Meetings

Following city and county elections 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 rules govern the conduct and business that takes place in the organizational meeting. 

What authority do outgoing board members have and for how long do they have it? The state constitution and various state statutes make clear that board members, whether elected or appointed, 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. Newly-elected board members and reelected incumbents are qualified once the local board of elections certifies the results of the election and they take the oath of office. Outgoing board members remain in office and retain all of their authority until their successors take the oath. When may or must the board members take the oath of office? For cities, G.S. 160A-68(b) provides that “at the organizational meeting” the mayor and councilmen are to qualify by taking the oath of office. The statute 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. 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. 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. Qualification for county officers, in contrast to city officers, is not dependent upon the scheduling of the organizational meeting. What oaths must board members take and who may administer them? See David Lawrence's earlier blog post on this question. What if a board member does not attend the swearing in 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 statutes are 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. It is important to note that swearing in does not require board action, so a person who misses the official swearing in does not have to wait for another meeting to take the oath. May newly elected board members take the oath of office before the time and date set according to the statutes? No. There is no statutory authority for taking the oath early. Furthermore, since the transfer of power from outgoing to incoming board members occurs at the moment of taking the oath, it would be inappropriate for the newly elected members to unilaterally usurp the remaining days of their predecessors’ terms. In this sense, the statutorily mandated times for taking the oath of office are an important part of the orderly transfer of power. They provide certainty by defining the end of the last term and the beginning of the next one. What if there is no quorum at a city’s scheduled organizational meeting? May the newly elected board members take the oath anyway? The city statutes don't address this question, but it seems to me that the answer must be "yes." Just as board members elect should not be able to usurp authority prematurely, as noted above, it seems to me that outgoing members should not have the authority to delay (by failing to attend the organizational 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 it is the existing board that is responsible for setting the time and place of the meeting. As noted above, this is only an issue for cities, since the city statute says the oath is to be taken “at the organizational meeting.” It seems to me that at least by the time of the first regular meeting in December, the city statute must be interpreted to allow the new members to take the oath even if there are insufficient members of the outgoing board to constitute a quorum. What is the order of business at the organizational meeting? As with any other meeting, the board has the ultimate legal authority to set its agenda. 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. Some units actually end the meeting with the old business, install the new officers, and then the new board convenes the “organizational meeting” as a separate meeting. A 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. Any 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. But doesn't the old board have to complete its old business, such as approving minutes and taking action on matters that the new 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 new board members may legally vote on matters that are in progress, and may approve minutes of meetings they did not attend. Of course, both the new and outgoing members may prefer for the old board to wrap up its work, and in the case of minutes may wish to consult with each other on the approval of minutes. But again, this is a matter for the outgoing board to decide when it sets the agenda for the organizational meeting. Does either the mayor or the outgoing board have the authority to decide who will administer the oaths of the new members? The statutes do not address this, but I believe it’s the elected official’s choice. I don’t know of any authority for the mayor or board to impose its choice on the newly elected members. 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 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? It is 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. Are there any limitations on what the “lame duck” board members can do following the election and before new members take office? I wrote two blog posts about his, which you can read here and here. 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. A mix of incumbent and non-incumbent members could legally meet in private, as long as the incumbents 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 reason to assume 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, unless the meeting is a closed session that involves confidential or privileged information. For example, meetings regarding personnel matters or consultation with the attorney would not be appropriate for members elect to attend. Until they are officially in office, the new members are not within the attorney-client privilege and do not have legal access to confidential personnel information.