§ 159B-9. Creation of a joint agency; board of commissioners. - North Carolina Statutes

§ 159B‑9.  Creationof a joint agency; board of commissioners.

(a)        The governing boards of two or more municipalities may byresolution or ordinance determine that it is in the best interests of themunicipalities in accomplishing the purposes of this Chapter to create a jointagency as prescribed herein for the purpose of undertaking the planning,financing, development, acquisition, construction, reconstruction, improvement,enlargement, betterment, operation and maintenance of a project or projects as analternative or supplemental method of obtaining the benefits and assuming theresponsibilities of ownership in a project.

In determining whether or not creation of a joint agency for suchpurpose is in the best interests of the municipalities, the governing boardsshall take into consideration, but shall not be limited to, the following:

(1)        Whether or not a separate entity may be able to finance thecost of projects in a more efficient and economical manner;

(2)        Whether or not better financial market acceptance may resultif one entity is responsible for issuing all of the bonds required for aproject or projects in a timely and orderly manner and with a uniform creditrating instead of multiple entities issuing separate issues of bonds;

(3)        Whether or not savings and other advantages may be obtainedby providing a separate entity responsible for the acquisition, construction,ownership and operation of a project or projects; and

(4)        Whether or not the existence of such a separate entity willfoster the continuation of joint planning and undertaking of projects, and theresulting economies and efficiencies to be derived from such joint planning andundertaking.

If each governing board shall determine that it is in the best interestof the municipality to create a joint agency to provide power and energy to themunicipality as provided in this Chapter, each shall adopt a resolution orordinance so finding (which need not prescribe in detail the basis for thedetermination), and which shall set forth the names of the municipalities whichare proposed to be initial members of the joint agency. The governing board ofthe municipality shall thereupon by ordinance or resolution appoint onecommissioner of the joint agency who may, at the discretion of the governing board,be an officer or employee of the municipality.

Any two or more commissioners so named may file with the Secretary ofState an application signed by them setting forth (i) the names of all theproposed member municipalities; (ii) the name and official residence of each ofthe commissioners so far as known to them; (iii) a certified copy of theappointment evidencing their right to office; (iv) a statement that eachgoverning board of each respective municipality appointing a commissioner hasmade the aforesaid determination; (v) the desire that a joint agency beorganized as a public body and a body corporate and politic under this Chapter;and (vi) the name which is proposed for the joint agency.

The application shall be subscribed and sworn to by such commissionersbefore an officer or officers authorized by the laws of the State to administerand certify oaths.

The Secretary of State shall examine the application and, if he findsthat the name proposed for the joint agency is not identical with that of anyother corporation of this State or of any agency or instrumentality thereof, orso nearly similar as to lead to confusion and uncertainty, he shall receive andfile it and shall record it in an appropriate book of record in his office.

When the application has been made, filed and recorded as hereinprovided, the joint agency shall constitute a public body and a body corporateand politic under the name proposed in the application. The Secretary of Stateshall make and issue to the commissioners executing the application acertificate of incorporation pursuant to this Chapter under the seal of theState, and shall record the same with the application. The certificate shallset forth the names of the member municipalities.

In any suit, action or proceeding involving the validity or enforcementof, or relating to, any contract of the joint agency, the joint agency, in theabsence of establishing fraud in the premises, shall be conclusively deemed tohave been established in accordance with the provisions of this Chapter uponproof of the issuance of the aforesaid certificate by the Secretary of State. Acopy of such certificate, duly certified by the Secretary of State, shall beadmissible in evidence in any such suit, action or proceeding, and shall be conclusiveproof of the filing and contents thereof.

Notice of the issuance of such certificate shall be given to all of theproposed member municipalities by the Secretary of State. If a commissioner ofany such municipality has not signed the application to the Secretary of Stateand such municipality does not notify the Secretary of State of the appointmentof a commissioner within 40 days after receipt of such notice, suchmunicipality shall be deemed to have elected not to be a member of the jointagency. As soon as practicable after the expiration of such 40‑dayperiod, the Secretary of State shall issue a new certificate of incorporation,if necessary, setting forth the names of those municipalities which haveelected to become members of the joint agency. The failure of any proposedmember to become a member shall not affect the validity of the corporateexistence of the joint agency.

(b)        After the creation of a joint agency, any other municipalitymay become a member thereof upon application to such joint agency after theadoption of a resolution or ordinance by the governing board of themunicipality setting forth the determination and finding prescribed inparagraph (a) of this G.S. 159B‑9, and authorizing said municipality toparticipate, and with the unanimous consent of the members of the joint agencyevidenced by the resolutions of their respective governing bodies. Anymunicipality may withdraw from a joint agency, provided, however, that allcontractual rights acquired and obligations incurred while a municipality was amember shall remain in full force and effect.

(c)        The powers of a joint agency shall be exercised by or underthe authority of, and the business and affairs of a joint agency shall bemanaged under the direction of, its board of commissioners. However, all or aportion of those powers and the management of all or any part of the businessand affairs of a joint agency may be exercised by an executive committeecreated pursuant to G.S. 159B‑10. The board of commissioners shall consistof commissioners appointed by the respective governing boards of themunicipalities which are members of the joint agency. Each commissioner shallhave not less than one vote and may have in addition thereto such additionalvotes as the governing boards of a majority of the municipalities which aremembers of the agency shall determine. Each commissioner shall serve at thepleasure of the governing board by which the commissioner was appointed. Eachappointed commissioner before entering upon his duties shall take and subscribeto an oath before some person authorized by law to administer oaths to executethe duties of his office faithfully and impartially, and a record of each suchoath shall be filed with the governing board of the appointing municipality andspread upon its minutes. The governing board of each of the municipalities mayappoint up to two alternate commissioners to act in lieu of its appointedcommissioner when the appointed commissioner is unable for any reason to attendmeetings of the board of commissioners or any committee thereof, and thegoverning board shall designate them as first or second alternate commissioner.Each alternate commissioner shall serve at the pleasure of the governing bodyby which that commissioner was appointed and shall take, subscribe to and filean oath in the same manner as prescribed for regularly appointed commissioners.Such alternate commissioner when acting in lieu of the regularly appointedcommissioner shall be deemed to be the commissioner of such municipality, andshall have the rights, powers and authority of the regularly appointedcommissioner, including any committee function of said commissioner, other thansuch commissioner's position as an officer pursuant to paragraph (d) of thisG.S. 159B‑9. A certificate entered into the minutes of the board ofcommissioners of a joint agency by the clerk or other custodian of the minutesand records of the governing body of a municipality, appointing commissionersand alternate commissioners and reciting their appointments, shall constituteconclusive evidence of their appointment. The offices of commissioner,alternate commissioner, or officer of a joint agency are hereby declared to beoffices which may be held by the holders of any office, place of trust orprofit in addition to and concurrently with those offices permitted by G.S. 128‑1.1and other offices permitted by other General Statute.

(d)        The board of commissioners of the joint agency shallannually elect one of the commissioners as chairman, another as vice‑chairman,and another person or persons, who may but need not be commissioners, astreasurer, secretary, and, if desired, assistant secretary and assistanttreasurer. The office of treasurer or assistant treasurer may be held by thesecretary or assistant secretary. The board of commissioners may also appointsuch additional officers as it deems necessary. The secretary or any assistantsecretary of the joint agency shall keep a record of the proceedings of thejoint agency, and the secretary shall be the custodian of all records, books,documents and papers filed with the joint agency, the minute book or journal ofthe joint agency and its official seal. Either the secretary or the assistantsecretary of the joint agency may cause copies to be made of all minutes andother records and documents of the joint agency and may give certificates underthe official seal of the joint agency to the effect that such copies are truecopies, and all persons dealing with the joint agency may rely upon such certificates.

(e)        A majority of the commissioners of a joint agency then inoffice shall constitute a quorum. A vacancy in the board of commissioners ofthe joint agency shall not impair the right of a quorum to exercise all therights and perform all the duties of the joint agency. Any action taken by thejoint agency under the provisions of this Chapter may be authorized byresolution at any regular or special meeting, and each such resolution may takeeffect immediately and need not be published or posted. A majority of the voteswhich the commissioners present are entitled to cast shall be necessary andsufficient to take any action or to pass any resolution, provided that suchcommissioners present are entitled to cast a majority of the votes of allcommissioners of the board.

(f)         No commissioner of a joint agency shall receive anycompensation for the performance of his duties hereunder, provided, however,that each commissioner may be paid his necessary expenses incurred whileengaged in the performance of such duties. (1975, c. 186, s. 1; 1977, c. 385, ss. 3, 4; 1979, c. 102; 1983, c.574, s. 3; 1985, c. 243, s. 1; 1995, c. 412, s. 5.)