On Friday, November 17, 2023, the NC Chamber received a letter from Governor Roy Cooper. Sadly, it was initially delivered to the media and then to our organization. As such, on Friday afternoon, we issued a brief statement observing Governor Cooper’s accusations to be both meritless and beneath the dignity of his office.

Unfortunately, we have no choice but to now respond more fully to provide greater public clarity on how some of his nominations have been received generally and, more specifically, by the broader business community. That letter is as follows and was sent to Governor Cooper this evening.

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November 19, 2023

The Honorable Roy Cooper
Governor of North Carolina
20301 Mail Service Center
Raleigh, North Carolina 27699-0301

Via e-mail to:  josh.peacock@nc.gov

Dear Governor Cooper,

The NC Chamber is in receipt of your letter dated Friday, November 17, 2023. It is sadly notable that your Friday correspondence was initially delivered to the media and then to our organization. As such, on Friday afternoon, we issued a brief statement observing that your accusations of our organization’s lack of support for diversifying the leadership positions of state government to be both meritless and beneath the dignity of your office. Unfortunately, we have no choice but to now respond more fully to provide greater public clarity on how some of your nominations have been received generally and, more specifically, by the broader business community.

At the outset, the NC Chamber is profoundly disappointed regarding the decaying state of discourse and civility laid bare by communications such as your letter. Having worked tirelessly and effectively to secure a promising future for the entirety of North Carolina’s business community – and always doing so without regard to identity – being wrongly and arrogantly lectured to by the state’s chief executive with outrageous claims of racism is enormously hurtful and dispiriting. It was a moment our team will never forget and one we trust you will not repeat.

Imagine, further, working thoughtfully across North Carolina’s diverse business sectors as a coalescing force to better facilitate interests as divergent as lenders and borrowers, buyers and sellers of everything from manufactured goods and agricultural products to health care, and even the regulated and the regulators. Our efforts on these and myriad other fronts are for the sake of fostering and achieving enduring legislative and policy outcomes that benefit free enterprise and our state’s job creators and residents. Yet for undertaking this work with integrity, transparency, and purpose, you have publicly attacked our organization, suggesting we collude with another branch of government to deny the fruits of those benefits to a certain racial class. Taken in its best light, your commentary is simply and patently wrong. In its worst light, it is malevolent and libelous.

Your inappropriate assertion that the NC Chamber staff is in any way, intentionally or not, racially motivated is extraordinarily misplaced, highly offensive, and completely without merit. We are inclusive in every respect; our people are of the highest personal and moral character. Our work is tedious and tiring, but we are honored to do it on behalf of a best-in-class group of volunteer leaders, business owners, and the people of North Carolina. Consistent with our mission and core values, we will not be dissuaded by those who seek to distract us from ensuring that only the most qualified and committed candidates for any appointed office ultimately hold it.

Your predecessors, both Republican and Democrat, have consistently expressed frustration with the divided power in state government. That is nonetheless precisely how the system is designed, and for good reason. Nominations from one branch, with confirmations from another, sometimes reveal a stark tension. It is the same system in which the NC Chamber must operate, often engaging in shuttle diplomacy between arms of government, and, increasingly, even within the same arm. We are proud of the way we conduct ourselves, including our process of candidate evaluation for some of our state’s most pivotal and significant roles, particularly in divided government and a closely watched and challenging political environment.

Your correspondence suggests that the NC Chamber has endeavored to wrongfully block the confirmation of numerous Black nominees to judicial or quasi-judicial roles across state government. While we acknowledge your observation that the “Chamber is known to play an outsized role in supporting or rejecting the confirmation” of some nominees, and our “substantial influence on the General Assembly” – the essence of your commentary, contained in your November 17 letter, is simply misplaced. More specifically, noticeably absent from your letter and observations are any acknowledgement of your role in the confirmation process, or any description of the effort or political capital you have invested to have your nominees confirmed. You also provided no context to the circumstances under which some of your nominations were submitted and the actual reasons they likely were not confirmed. Accordingly, a summary of those circumstances is respectfully provided here.

The Board of Review

You noted that six consecutive Black nominees for the North Carolina Board of Review were not confirmed during 2021 and 2022. However, your letter conveniently ignores that the nominee that was ultimately confirmed is Black. With the clear and unwavering support of the NC Chamber and other business organizations, her confirmation was secured in each legislative chamber with unanimous votes. As a result, the Board now consists entirely of women, two of whom are Black. To be clear, all three members of the Board are your appointees.

To add additional specificity to the facts and circumstances regarding your failed Board of Review nominations, it is vital to note that each faced headwinds in their nominations having absolutely nothing to do with race. Three of the nominees that happened to be attorneys indicated that if they were confirmed, they would nonetheless maintain their distant law practices. Despite the inherent conflict of interest and ethical concerns raised by this stance, these individuals were put forward by your office. Respectfully, the NC Chamber does not believe that service on a Board that, for example in 2021 had 7,000 pending appeals, is a part-time job. The fact that the current annual salary for a Board of Review member is over $148,000 and increases to $153,000 in FY2023-24 leaves little room to suggest otherwise.

Another of your nominees was the former Chair of the House Democratic Caucus. It does not strain the imagination to suggest that the nominee possessed a host of personal relationships with the very members of the House and Senate who were considering his nomination. The NC Chamber will leave it to reasonable minds to consider whether it might have been those relationships, rather than any action or inaction by the NC Chamber, which led to this failed confirmation. It is worth noting, too, that this particular nominee voted against overriding Governor Perdue’s veto of the very legislation that created the Board of Review in 2011, and also voted against overriding Governor McCrory’s veto of the landmark legislation that reformed the state’s unemployment insurance program in 2014 and drastically improved North Carolina’s business climate.  It is wholly disingenuous to assert that an individual who opposed the now bedrock foundations of the state’s unemployment law should be hired and paid by the taxpayers to enforce them.

Yet another failed nominee had recently completed a contentious bid to oust a sitting House member during the 2020 election cycle. Had you queried the House caucus about whether they would support his nomination, specifically the member he challenged and campaigned against, you may have been better informed on the likelihood of his success. The NC Chamber has been unable to locate a single recent example of a legislative candidate of one party, who unsuccessfully challenged a sitting legislator of a different party, confirmed by the General Assembly for a salaried position the following year.

Another nominee had served in state government and was, according to our research, opposed by powerful members of the General Assembly with whom he had worked for being unresponsive and difficult to engage. It is curious this sort of information did not come to your attention prior to his nomination. The Chamber’s support would have been futile. This nomination was likely doomed from the start. Finally, at least one more of your nominees was not opposed by the Chamber, nor were we ever consulted about her nomination by you or the General Assembly, and she is now a member of the North Carolina Court of Appeals.

Also relevant to the foregoing discussion are the provisions of N.C.G.S. § 96.15.3.  More specifically, that statute dictates that if a nomination for the Board of Review is not acted upon by the General Assembly within 30 days, the nomination is effectively null. One might reflect on this provision and conclude that the law’s intent was to encourage open collaboration and communication between the executive and legislative branches. It would therefore probably be wise to invest time in discussing and vetting nominees prior to lobbing their names to Jones Street.

The role of the Board of Review is important. The NC Chamber will continue to thoughtfully review nominees and express either our support or, alternatively, concerns regarding candidates who are unwilling to fully commit to the efficient and effective function and operation of that body. Both employees and employers in our state deserve that and more. In no instance will we apply a race-based litmus test to a nominee, nor have we ever done so in the past.

The Industrial Commission

Your allegations regarding a lack of support of Black nominees to the North Carolina Industrial Commission is even more vexing. According to our research, of your last six nominations to the Commission, only two were Black, and the NC Chamber joined with other business organizations to fully support their confirmation. Indeed, all six of your most recent nominees were confirmed unanimously by the General Assembly.

For the avoidance of doubt, however, that is not to say that the NC Chamber has always supported your nominees to the Commission. In 2018, the business community supported the reappointment of an accomplished female commissioner who had been appointed by Governor Perdue and who had been unanimously legislatively confirmed on two prior occasions. Instead, you nominated a deputy commissioner whose bid was opposed by eighteen business associations and trade groups. That opposition was based on a blind review of over 300 cases in which the nominee had authored opinions. He happened to be a white male. A different 2018 nominee, who happened to be Black, received the endorsement of the same coalition of business groups, based on the same objective review, and was confirmed by the General Assembly on the very same day the white male’s nomination failed.

Following the failed nomination, you nominated another white male whose confirmation the business community also opposed. On the same day his confirmation vote failed in the House, the General Assembly moved to confirm one of your nominees as a Special Superior Court Judge. That Special Superior Court Judge happens to be Black.

It is difficult to find resonance in your specious allegation that the Chamber has any sort of pattern or practice of selectively opposing Black nominees to the Industrial Commission. As ever, we will continue to act with integrity, not political expediency, and support candidates of any race who are qualified and prepared to seriously attend to the matters of the Commission.

The North Carolina Business Court

As you know, the NC Chamber believes an effective and efficient Business Court is part of our state’s competitive advantage. The NC Chamber made no secret about its refusal to endorse your 2022 nominee to the Business Court. A lengthy letter explaining our hesitations is attached. Notwithstanding our efforts to collaborate with you and your staff to nominate a more viable candidate, you ignored our concerns and submitted the nomination of an individual whose positions have conflicted directly with those taken by the business community in numerous matters over the years. Today, that nominee continues to serve as General Counsel of the Department of Revenue, which lost yet another tax case in the Business Court recently. Undeterred, the Department has appealed to the Supreme Court, where the NC Chamber has filed an amicus brief opposing its position. Objective observers will readily conclude that our concerns are valid, and that they have absolutely nothing to do with the former candidate’s race or ethnicity.

Regarding this year’s nominee, who we appear to be fortunate to have never litigated against, she is extraordinarily impressive. The NC Chamber typically values years of experience litigating before the Business Court when vetting a nominee, yet we would humbly suggest that her nomination might have still been on a pathway to success had you engaged more constructively this past legislative session to secure it.

It is also well-chronicled that a long-serving and highly regarded Supreme Court Justice recently resigned to seek your party’s nomination for Governor. He also happens to be Black. Not only have you swiftly endorsed his opponent, who is not Black, you also appointed a non-minority to fill his open seat on the Supreme Court.

As your Gubernatorial term concludes, the NC Chamber is hopeful that you will use this time to thoughtfully build bridges through effective communication and collaboration. We make that commitment every day. We are proud of our role in helping North Carolina maintain its reputation as the nation’s number one state for business; we hope to work together to maintain that momentum. That will not happen if we level dispirited accusations without earnestly engaging in the more energy-consuming task of agreeing to disagree amicably, particularly when it relates to the qualifications and full commitment, not the immutable characteristics, of those being considered for the high calling of serving our state.

Sincerely,

Gary J. Salamido
President and CEO

c:         NC Chamber Board
NC Chamber Cornerstone Members