North Carolinians deserve more information about the State Treasurer’s bout with COVID-19

State Treasurer Dale Folwell

Let’s make it clear at the outset that everyone should be pulling for State Treasurer Dale Folwell to make a swift and complete recovery from COVID-19 and that no one is blaming him for falling ill.

As the disease continues its rampage through American society, almost everyone is at risk even when taking significant precautions.

It’s also true that hindsight is 20/20. While one wishes that Folwell had been more alert and cautious and not decided to head back to work after returning from a trip to an undisclosed location with his son with illness symptoms he dismissed as a typical cold or allergy, fallible humans often make mistakes. What’s more, while others in his office have subsequently tested positive for the illness as well, we do not know at this point if they worked with or were exposed to Folwell. (As a side note, one fervently hopes that, wherever he and his son went on their trip, Folwell notified as many people as possible with whom he came in contact.)

All that said, this situation raises some important legal issues about which North Carolinians deserve some additional information.

First and foremost is the matter of whether Folwell is actually exercising his constitutional and statutory duties or is even capable of doing so at this critical time for investment markets. Folwell is the sole overseer of a huge, multi-billion dollar public pension fund and has responsibility for a state health plan that serves more than 700,000 members. Raleigh’s News & Observer reported on Monday that Folwell has not responded to a text inquiry and a spokesperson said he was “under the care of doctors.” We do not know exactly what that means.

As the same N&O story also reported:

“[On March 26] Folwell said he could not answer a call from [the paper] because of the severity of his symptoms. ‘I am really focused on saving my energy by not talking which (agitates) my cough and lungs,’ Folwell said in a text message directing further questions to [Treasury Department spokesperson Frank] Lester.

On Sunday [March 29], Folwell did not answer a text message seeking an update on his condition.

Lester said Monday that Folwell remains sick and under the care of doctors. When asked if Folwell was hospitalized he said he had no further information he could provide. Lester said he is relying on Folwell’s family to tell him what they’re comfortable with the public knowing….

Lester said there is no succession plan while Folwell is out sick but that Chief of Staff Chris Farr has been leading the office.”

If Folwell is truly incapacitated, this raises important matters of state law. As a prominent North Carolina attorney recently pointed out in an email to Policy Watch, Article III, Section 7, Subsection 5 of the state constitution says the following:

(5) Acting officers.  During the physical or mental incapacity of any one of these officers [including the state Treasurer] to perform the duties of his office, as determined pursuant to this Section, the duties of his office shall be performed by an acting officer who shall be appointed by the Governor.
In addition, General Statue 147(a)(3) (which deals with the Governor’s right to fill vacancies in other offices) states in relevant part:

The Governor may determine (after such inquiry as the Governor deems appropriate) that any of the officers referred to in this paragraph is physically or mentally incapable of performing the duties of the office. The Governor may also determine that such incapacity has terminated.

In other words, while it’s heartening to know that someone is minding the store during his illness, Folwell doesn’t appear to be empowered under state law to simply designate such a person. That power resides with the governor.
What’s more, with the plague of COVID-19 likely to be felt in our state for some time, it’s entirely plausible that another constitutional officer could fall ill and it would appear to be a worrisome precedent that is being set if the governor has not been involved in selecting an acting officer as state law appears to require.

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