Baxter v. DANNY NICHOLSON, INC.

Justice BRADY

concurring in the result only.

I agree with the ultimate holding of the majority opinion, but write further to clarify important constitutional principles and to emphasize the importance of the continuity in government that is essential for a stable and ordered society. I begin with an analysis of the relevant constitutional provisions because the “North Carolina Constitution expresses the will of the people of this State and is, therefore, the supreme law of the land.” In re Martin, 295 N.C. 291, 299, 245 S.E.2d 766, 771 (1978) (citation omitted).3

*838The North Carolina Constitution distinguishes between elected and appointed officials when providing for continuity of service in government offices. Article VI, Section 10 states: “In the absence of any contrary provision, all officers in this State, whether appointed or elected, shall hold their positions until other appointments are made or, if the offices are elective, until their successors are chosen and qualified.” N.C. Const. art. VI, § 10 (emphasis added). This provision establishes that elected officials must be chosen through the appropriate elective processes “and qualified.” Id. (emphasis added). Conversely, under the Constitution an appointed official holds the position until another appointment is made. See State ex rel. Martin v. Preston, 325 N.C. 438, 449, 385 S.E.2d 473, 479 (1989) (“In interpreting our Constitution — as in interpreting a statute — where the meaning is clear from the words used, we will not search for a meaning elsewhere.” (citing Elliott v. State Bd. of Equalization, 203 N.C. 749, 753, 166 S.E. 918, 920-21 (1932))). Although the Constitution contains a host of other qualifications for certain elected officials, no other qualifications for appointed officials are constitutionally mandated. See, e.g., N.C. Const. art. Ill, § 2 (listing qualifications for election to the office of Governor or Lieutenant Governor); id. art. IV, § 22 (listing qualifications for elected justices and judges).

The majority opinion cites Baker v. Martin, 330 N.C. 331, 410 S.E.2d 887 (1991) for the proposition that the General Assembly may add qualifications not found in the Constitution to the holding of appointed offices. See id. at 341-42, 410 S.E.2d at 893. This Court in Baker recognized that “[u]nless the Constitution expressly or by necessary implication restricts the actions of the legislative branch, the General Assembly is free to implement legislation as long as that legislation does not offend some specific constitutional provision.” Id. at 338-39, 410 S.E.2d at 891-92 (emphasis added). I agree with “this general principle of constitutional interpretation,” id. at 339, 410 S.E.2d at 892, although I find that when the taking of the oath is the issue under consideration, the Constitution expresses when that event occurs. The Constitution makes the oath a prerequisite to “entering upon the duties of an office” for appointed officials. N.C. Const. art. VI, § 7 (“Before entering upon the duties of an office, a person elected or appointed to the office shall take and subscribe the following oath: . .”). Moreover, this Court has long recognized that “[p]ublic officers are usually required to take an oath,” but the oath is a “mere incident[], and constitute[s] no part of the office.” State ex rel. Clark v. Stanley, 66 N.C. 59, 63 (1872) (emphasis added). As such, *839when the taking of the oath is considered, it appears the Constitution provides that an appointed official holds the office to which he has been appointed first and then subsequently takes the oath, not as a qualification to being appointed to the office, but merely as a prerequisite to commencing the duties of the post. This view is in line with the statutory penalty recognized for someone who exercises the duties of an office before taking a required oath. See N.C.G.S. § 128-5 (2009) (requiring the taking of the oath “before entering on the duties of the office,” but not requiring the oath as an added qualification to holding an appointed office). Thus, exercising the duties of the office before taking the oath cannot invalidate those acts, although doing so may subject the official to the possibility of the statutory penalties. See Vance S. Harrington & Co. v. Renner, 236 N.C. 321, 327, 72 S.E.2d 838, 842 (1952) (explaining that “failure to take an oath of office” may subject one to a penalty but would not invalidate official acts performed before taking the oath). In light of these constitutional considerations, N.C.G.S. § 11-7, which requires the oath for elected and appointed State officials, mandates a precursor to carrying out the duties of an appointed post but does not make the oath an added qualification to being appointed to an office.

Alongside the relevant constitutional provisions, this Court has long recognized that “sound public policy ... is against vacancies in public offices and require [s] that there should always be some one in position to rightfully perform these important official duties for the benefit of the public.” State ex rel. Markham v. Simpson, 175 N.C. 146, 148, 175 N.C. 135, 137, 95 S.E. 106, 107 (1918). The General Assembly has codified this public policy, stating: “All officers shall continue in their respective offices until their successors are elected or appointed, and duly qualified.” N.C.G.S. § 128-7 (2009). Interpreting section 128-7 in such a way that it corresponds with the Constitution, see Sessions v. Columbus Cty., 214 N.C. 634, 638, 200 S.E. 418, 420 (1939) (explaining that when possible, “[reconciliation is a postulate of constitutional as well as of statutory construction” (citation omitted)), results in the view that the phrase “duly qualified” in regard to appointed officials taking the oath means “duly qualified to enter upon the duties of the office.”

Turning to the case sub judice, “[t]he Industrial Commission is primarily an administrative agency of the State.” Hanks v. S. Pub. Utils. Co., 210 N.C. 312, 319, 186 S.E. 252, 257 (1936) (citation omitted). Members of the Commission are public officers. See Stanley, 66 *840N.C. at 63. When Mr. McDonald was appointed as a member of the Industrial Commission on 2 February 2007, under the Constitution and by statute, his appointment was effective immediately for purposes of holding the office. N.C. Const. art. VI, § 10; see also N.C.G.S. § 97-77 (2009) (stating that “[t]he Governor shall appoint the members of the [Industrial] Commission,” implying immediate efficacy to the appointment). Moreover, as explained above, the Constitution provides the taking of the oath for appointed officials as a prerequisite to entering upon the duties of the position and not as a qualification to being appointed to office or for holding an office. The fact that Mr. McDonald did not attempt to enter upon the duties of his office before he took the oath on 9 February 2007 means he complied with Article VI, Section 7 of the Constitution and avoided the possibility of the penalties mentioned in N.C.G.S. § 128-5. Moreover, Mr. Bolch “continued in [his] respective office[]” under the statutory authority established in N.C.G.S. § 128-7 — which provides continuity in government — until Mr. McDonald was qualified to enter upon the duties of his office after taking the oath on 9 February 2007.

Mr. Bolch’s authority, although valid as a statutory holdover official, could have been displaced by the actions of the newly appointed Mr. McDonald before Mr. McDonald took the oath. See Renner, 236 N.C. at 327, 72 S.E.2d at 842. For reasons that do not require elaboration here, an official may need to begin making some decisions and performing certain duties immediately upon appointment out of necessity and for the'good of the public, regardless of whether the oath has been administered at that point. The important principle of continuity in governance means that, even before taking the oath, a newly appointed official may need to make hiring or firing decisions or other administrative determinations that will enable him to “hit the ground running” as soon as the oath is taken. In this case, however, the employer introduced no evidence that Mr. McDonald entered into the performance of his duties of the office of commissioner before taking the oath. Consequently, the 5 February 2007 opinion and award of the Full Commission bearing Mr. Bolch’s signature is valid, as the majority opinion recognizes.

Out of concern for clarifying the unique and paramount role of the Constitution in this matter and in order to stress the importance of continuity in government offices, I respectfully concur with the holding of the majority.

. Indeed, the Preamble to our Constitution affirms:

We, the people of the State of North Carolina, grateful to Almighty God, the Sovereign Ruler of Nations, for the preservation of the American Union and the existence of our civil, political and religious liberties, and acknowledging our dependence upon Him for the continuance of those blessings to us and our posterity, do, for the more certain security thereof and for the better government of this State, ordain and establish this Constitution.

N.C. Const, pmbl.