Fate of House Bill 17 may not be decided until 2017

Gov. Pat McCrory has nearly 30 days to decide what to do with House Bill 17, which would remove some appointment powers from Democratic Gov.-elect Roy Cooper.

McCrory’s term expires Dec. 31, as do the terms of some members of the General Assembly. But the governor has several options.

When the legislature’s in session, a governor has 10 days to sign a bill into law, veto it, or allow it to become law without his signature. But when the General Assembly adjourns “sine die,” as it did Friday, the N.C. Constitution gives the governor 30 days to decide on a bill.

H.B. 17 is on McCrory’s desk. The bill reduces the number of political appointments Cooper can make from 1,500 to 425. It implements a constitutional provision requiring the governor’s Cabinet appointments to receive Senate confirmation, and it removes the governor’s authority to appoint members to boards of trustees at UNC campuses.

It also reconfigures the duties of the State Board of Education and the superintendent of public instruction — changes that have raised concerns by members of the state board.

Under Article IX of the N.C. Constitution, the SBE’s role is to “supervise and administer the free public school system, and the educational funds provided for its support. …” The superintendent is “the secretary and chief administrative officer of the State Board of Education.”

As Carolina Journal reported earlier, H.B. 17 would shift many supervisory duties to the superintendent. For example, the legislation would allow incoming Superintendent Mark Johnson to hire and fire SBE staffers, and also would allow him to select the SBE’s local superintendent and student advisors, a task that’s now left to the governor. Republican Johnson defeated incumbent Democrat June Atkinson in the November election.

“We [don’t like] the fact that we would have nothing to say about the top of administrators in the department,” Cobey told CJ. “We believe we have the right to determine that, since the superintendent is our chief administrative officer, and we are charged in the constitution with supervising and administering a free public school system.”

North Carolina’s constitution also states that the SBE “shall make all needed rules and regulations in relation thereto, subject to laws enacted by the General Assembly.”

However, the SBE is on strong footing to challenge the constitutionality of the bill should it pass the state senate and be signed into law, Cobey said.

The SBE has scheduled a meeting Tuesday, most likely to decide its legal options if the bill becomes law.

What eventually happens with H.B. 17 has a lot to do with timing, said Gerry Cohen, a Raleigh attorney who for decades was the General Assembly’s chief bill writer. He wrote the veto provisions in the N.C. Constitution, and he served as general counsel to the General Assembly.

If McCrory fails to act by year’s end, the decision on H.B. 17 falls to Cooper, who has said he plans to take the oath of office Jan. 1. Cooper, who would have until Jan. 15 to act, has criticized lawmakers publicly for their moves to curtail his power.

The N.C. Constitution requires the governor to reconvene the General Assembly if he vetoes a bill after lawmakers have adjourned sine die. Lawmakers can then vote to override the governor’s veto. The N.C. Constitution requires a three-fifths majority of all members present and voting in both chambers to override a veto.

Again, timing comes into play.

If McCrory quickly vetoes the bill, the current General Assembly could reconvene by year’s end. But if McCrory waits, or if Cooper vetoes the bill after the first of the year, the legislature would reconvene in January with the lawmakers elected Nov. 8.

The N.C. Constitution says, “If the date of reconvening the session occurs after the expiration of the terms of office of the members of the General Assembly, then the members serving for the reconvened session shall be the members for the succeeding term.”

“He [McCrory] could veto the bill and let Cooper decide when to call them back,” Cohen said.

Republicans have supermajorities in both chambers of the General Assembly — in the current General Assembly and the one elected Nov. 8. Republicans would have enough members to override a veto if all members of the party support an override.

But that’s a big “if.” GOP leaders would need nearly unified caucuses in both houses and almost full attendance of their members to guarantee an override vote.

The bill passed the General Assembly by a near party-line vote, 61-23 in the House and 24-13 in the Senate, with many members absent or not voting in both chambers. One Republican, Wake County Sen. John Alexander, voted against the bill in the Senate. One Democrat, Bladen County Rep. William Brisson, voted for the bill in the House.

Meantime, McCrory on Friday signed Senate Bill 4, which, among other things, reconfigures the State Board of Elections and county boards so the governor’s party won’t have a majority. The new law gives the state board eight members — four Democrats and four Republicans — and county boards four members — two Democrats and two Republicans. Previously, the governor’s party held a 3-2 majority on the state board and a 2-1 majority on county boards.