Appointments Resources. North Carolina General Statutes. UNC-CH School of Government publications - Dual Office Holding. What is an "officer?" Appendix. Resource. North Carolina General Statutes.
§ 128 1.1. Dual office holding allowed.
(a) Any person who holds an appointive office, place of trust or profit in State or local government is hereby authorized by the General Assembly, pursuant to Article VI, Sec. 9 of the North Carolina Constitution, to hold concurrently 1 other appointive office, place of trust or profit, or an elective office in either State or local government.
(b) Any person who holds an elective office in State or local government is hereby authorized by the General Assembly, pursuant to Article VI, Sec. 9 of the North Carolina Constitution to hold concurrently 1 other appointive office, place of trust or profit, in either State or local government.
(c) Any person who holds an office or position in the federal postal system or is commissioned as a special officer or deputy special officer of the United States Bureau of Indian Affairs is hereby authorized to hold concurrently therewith 1 position in State or local government.
(c1) Where authorized by federal law, any State or local law enforcement agency may authorize its law enforcement officers to also perform the functions of an officer under 8 U.S.C. § 1357(g) if the agency has a Memorandum of Agreement or Memorandum of Understanding for that purpose with a federal agency. State and local law enforcement officers authorized under this provision are authorized to hold any office or position with the applicable federal agency required to perform the described functions.
(d) The term "elective office," as used herein, shall mean any office filled by election by the people when the election is conducted by a county board of elections under the supervision of the State Board of Elections. (1971, c. 697, s. 2; 1975, c. 174; 1987, c. 427, s. 10; 2006 259, s. 24(a); 2011 31, s. 13.)
Appendix. Resource. Joseph P. Knapp School of Government, University of North Carolina at Chapel Hill.
Wearing Several Hats: Multiple and Ex Officio Office-Holding
By Fleming Bell On April 20, 2010 @ 4:05 p.m. In Board Structure & Procedures, Ethics & Conflicts |
In an earlier blog , I discussed the meaning of “public office.” As promised, I will now examine multiple and ex officio office-holding.
North Carolina has long had a state policy against concentrating too much government power in the hands of 1 individual. Reflecting this concern, all of the state’s constitutions until 1971 banned the holding of more than 1 elective or appointed office at 1 time, and the current law generally limits any 1 person to 1 elective and 1 appointive office, or 2 appointive offices, at the same time. G.S. 128-1.1 .
Ex Officio Service. Perhaps because of the harshness of the pre-1971 rule, the courts developed the doctrine of ex officio office-holding, which is still important today. Even the current office-holding rules may still seem unduly restrictive at times, and that is where the ex officio concept comes into play.
Ex officio is a Latin term meaning “of or from the office.” A person holding one office is said to be serving ex officio in a second office if she or he holds the second by virtue of holding the first. For example, a city clerk might serve ex officio as the city’s finance officer, if the finance officer’s duties are included in the clerk’s job description, or a county commissioner might serve ex officio on the county’s airport authority if the commissioner’s duties are considered to include that service.
A person who holds an office ex officio has all of the same rights, powers, and obligations as any other office-holder. If the ex officio office is service on a board, the ex officio board member has the same right to vote as any other board member. There are only 2 differences between ex officio and “regular” office-holding. The first and obvious 1 is the method of appointment. The second difference is the subject of this blog-offices held ex officio are not counted for multiple office-holding purposes.
The statutes explicitly recognize the concept of ex officio service. For example, G.S. 130A-35(b) , and 130A-37(b) , require county commissioner representation on local boards of health. This additional service is part of the duties of office for the commissioner-members.
The most important statute allowing for ex officio service is G.S. 128-1.2 . It specifies that whenever a city council or a board of county commissioners appoints one of its members or certain other local officials to another board or commission, the individual appointed is considered to be serving on the other board as part of the person’s duties of office and is not to be considered to be serving in a separate office, unless the resolution of appointment provides otherwise.
An Illustration. An inquiry that I recently received illustrates how the rules for multiple and ex officio office-holding work. I was asked for advice about the following situation.
Mr. A is a member of the jurisdiction’s governing board. That is clearly one office. Mr. A is also active in a non-profit organization that promotes sporting activities in the community. The non-profit was formed by joint city-county action, it receives funding from both the city and the county, and its board of directors is appointed by the city and the county. Is that a second office for Mr. A?
The governing board is now thinking about appointing Mr. A to a tourism development authority that was authorized by a local legislative act. It is a public authority under the Local Government Budget and Fiscal Control Act. Would that be a third office?
Finally, Mr. A also serves as the governing board’s liaison to the planning board and as a member of the jurisdiction’s transportation advisory committee. Are these fourth and fifth offices? Is there a multiple office-holding violation?
Non-Profit Corporation Board. Non-profit corporation board members are generally not considered to be public officers, since they serve a private corporation rather than the government. Thus, they are generally not subject to multiple office-holding laws at all.
However, this situation is a bit different, in that there are significant ties between the non-profit and the city and county. In some cases, the courts have been willing to treat non-profits as government departments if they have sufficiently strong connections to the government. The fact that the non-profit’s board is appointed by the city and county, together with the roles of the city and county in creating and funding the non-profit, might lead a court to such a conclusion here.
Tourism Development Authority. A tourism development authority member probably holds a public office, especially if the authority has the power to do such things as hire staff, budget and spend money, contract, hold title to property, and sued and be sued. Public offices are positions that involve the exercise of a portion of the sovereign’s power, and the exercise of discretion in carrying out the types of tasks listed probably qualifies.
Liaison to the Planning Board. While the position of liaison is no doubt quite important, carrying out this assignment likely does not involve the exercise of significant independent decision-making power or discretion, so the position is most likely not a public office.
Transportation Advisory Committee. Members of advisory groups are not public officers, since they, like the liaison, do not have discretionary decision-making powers. They only give advice.
Conclusions. Without the law on ex officio office-holding, I would conclude that Mr. A (1) holds 1 elective office (board member); (2) probably holds 1 appointive office (member of the board of a non-profit corporation with substantial ties to the government); and (3) holds 2 advisory positions that are not public offices (planning board liaison and transportation advisory committee member). I would caution that Mr. A was probably already holding the maximum of 2 public offices, and could not be appointed to another office (tourism development authority member) without giving up one of the 2 current offices. I could not be completely sure of this answer, however, since I would not know definitely how a court would treat the non-profit board membership.
In the midst of this uncertainty, the ex officio statute, G .S. 128-1.2 , comes to the rescue. Recall that under its provisions, whenever a governing board appoints one of its members to another board, that member is considered to be serving in the other position as part of the member’s duties of office as a governing board member and not to be holding a separate office, unless the appointment resolution provides otherwise.
Because of the doctrine of ex officio office-holding as expressed in this statute, Mr. A can hold a position on the tourism development authority as part of his duties as a governing board member. In addition, Mr. A need not be concerned about whether the non-profit corporation that promotes sporting activities might be considered to be a part of the government. Even if membership on the non-profit’s board were found to be a public office, Mr. A could serve on the board ex officio.
What’s a “Public Office”?
By Fleming Bell On February 17, 2010 at 1:27 p.m. In Board Structure & Procedures, Ethics & Conflicts, Open Government |
What’s a “Public Office”?
I am often asked to explain what it means to hold a public office. The questioner is sometimes trying to decide whether a particular person must take an oath, which is required of public office-holders. Or, the person may be trying to determine whether certain positions may be held simultaneously under North Carolina’s constitutional and statutory multiple office-holding restrictions.
North Carolina’s case law on office-holding is both venerable and extensive. Indeed, most of the rules that we follow today were originally developed in the late 1800s and the early 1900s.
Interest in office-holding probably arose because of a provision in North Carolina’s pre-1971 constitutions that allowed a person to hold only 1 “office or place of trust or profit” at a time. (“Office” and “place of trust or profit” have basically the same meaning.) Perhaps because of this rule’s strictness, questions often arose about 2 issues.
First, it was important to know the meaning of the term “office or place of trust or profit” because the ban did not apply to positions that were not such “offices” or “places.” Second, questions arose about the distinction, if any, between holding an office and performing the duties of an office as part of the responsibilities of another office, in order to avoid violating the ban. This practice is called ex officio office-holding. Both of these issues remain important today, even though the present multiple office-holding rules are somewhat more liberal.
In this post, I will explore the meaning of the term “public office,” and will explain generally what are and are not public offices.
In a later post, I will examine North Carolina’s rules about holding multiple public offices, including the doctrine of ex officio office-holding.
If this subject interests you, you may also wish to consult David Lawrence’s earlier posts on oaths (Oaths of Office: How Many and By Whom?  and Filing oaths of office ) and on city and county attorneys as public officers (City and County Attorneys as Public Officers - Possible Downsides , and City and County Attorneys as Public Officers - A Possible Upside ).
Several factors must be taken into account in deciding whether a particular position is a public office. Does the position in question involve the exercise of independent decision-making power on behalf of the state or a duly constituted state subdivision such as a city or county, rather than being merely advisory? Is that power given by constitution or statute and does its exercise involve the carrying out of an important part of the executive, legislative, or judicial functions of government? Does the occupier of the position have significant legal power to make enforceable decisions concerning people’s life, liberty, or property? Affirmative answers to 1 or more of these questions are a good indication that the position under consideration is indeed a public office.
Although most public officers are required to take oaths and most receive a salary or fees, these items “are mere incidents and constitute no part of the office.” If no salary or fees are involved, “it is a naked office-honorary-and is supposed to be accepted merely for the public good.” Further, a public office does not have to be continuing in nature. An office could involve doing only 1 act or it could be held for several years. State ex rel. Clark v. Stanley, 66 N.C. 60, 63-64 (1872).
The dividing line between public offices and public employment generally is often hard to draw. In 1 case, the North Carolina Supreme Court explained that “[t]he true test of a public office seems to be that it is parcel of the administration of government, civil or military, or is itself created by the law-making power.” Eliason v. Cooper, 86 N.C. 236, 240-41 (1882) In another decision, it stated that an office involves “a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public, by which it is distinguished from employment or contract.” State ex rel. Barnhill v. Thompson, 122 N.C. 493, 495-96, 29 S.E. 720, 721 (1898).
Here are 2 other examples. One case involved a person who served on the Raleigh Board of Aldermen at the same time that he was employed as the night watchman for the federal courthouse under an appointment from the United States Treasury department. The supreme court concluded that while the position of alderman was a public office, the position of night watchman was not. It explained that the watchman was “employed in a specific service having none of the attributes to raise it to the dignity of the constitutional disqualification.” Doyle v. Aldermen of Raleigh, 89 N.C. 133, 135-36 (1883).
In a later case, the court concluded that the city government position of sinking fund commissioner was an office, rather than a “mere public employment,” due to several characteristics of the position. It “was not of a temporary character, and the duties were continuous and not intermittent. The incumbent was required to perform continuous public service for a definite period and of a very responsible character.” Borden v. City of Goldsboro, 173 N.C. 661, 662, 92 S.E. 694, 695 (1917).
Unfortunately, most parts of these definitions are not particularly useful. A great many public jobs are concerned in some way with the administration of government. Most are permanent rather than temporary, with continuous, non-intermittent duties. All public positions by their very nature involve public service and are exercised for the benefit of the public. And what specific attributes raise a public position to the “dignity” of a public office? Do not all public positions derive their legitimacy from the sovereign and hence involve “sovereign functions”?
Public offices are positions that involve significant responsibility and discretion under the law. The 1 characteristic that might provide a useful distinction is the last 1 mentioned in the cases above: public offices involve public service of “a very responsible character.” This trait of great responsibility may well be what the Eliason court had in mind when it explained that a portion of a country’s (or state’s) sovereignty attaches for the time being to a public office. Eliason v. Cooper, 86 N.C. at 239-40. Perhaps another way to state the same idea is to say that public officers have a good deal of independent decision-making power involving the exercise of discretion.
Thus, the fact that someone holds a public job does not alone make that person a public officer for multiple office-holding purposes. But the more discretion, responsibility, and power to make decisions that a position involves, the more likely that courts will see that position as a public office rather than as “mere employment.” And this may be particularly true if the position involves the relatively direct exercise of the State’s authority.
The position of city or county manager provides a good example. Managers can be characterized as public officers due to the amount of independent discretion that they exercise, discretion that they have been delegated by the state. See Leete v. County of Warren, 341 N.C. 116, 119, 462 S.E.2d 476, 478 (1995) (county manager); State ex rel. Grimes v. Holmes, 207 N.C. 293, 298, 176 S.E. 746, 748 (1934) (city manager); and Ratcliff v. County of Buncombe, 663 F. Supp. 1003, 1009-10 (W.D.N.C. 1987) (county manager) for examples of how the courts have treated the manager position.
A 1965 supreme court case supports this view. In that case, the court examined the question of whether police chiefs and police officers are public officers or public employees for purposes of G.S. 14-230 , which deals with willful failure by public officers to discharge official duties. The court pointed out that what determines a police officer’s status is “the nature and extent of his duties and responsibilities with which he is charged under the law.” In language similar to that found in multiple office-holding cases, it referred to the position’s creation by the sovereign power and its exercise of part of that power as distinguishing an office from employment. State v. Hord, 264 N.C. 149, 155, 141 S.E.2d 241, 245 (1965) (citation omitted). The court held that duly appointed chiefs of police, as well as police officers, are public officers rather than mere employees within the meaning of G.S. 14-230. Id.
In determining whether a position is an office, North Carolina’s courts will look at whether the powers attached to the position are those of a public office, not at whether those powers are actually being exercised. If the position has the powers of an office, it is an office. Similarly, the term of the position is unimportant.
Positions that do not actually involve the exercise of sovereign power but are merely advisory are not public offices. No matter how wise or extensive 1’s advice may be, nor how much it is listened to by others, a position is not a public office if 1 can only advise and not decide.
Thus, for example, the members of a local planning board are not public officers if they only make recommendations to the governing body concerning re-zonings and subdivision plats. But if the planning board is given the responsibility of approving subdivision plats, so that a plat cannot be recorded in the register of deeds office without that approval, the position of planning board member is probably an office. Decisions about governmental recognition of a particular scheme for dividing land involve discretion and the exercise of a fair amount of sovereign governmental power.
A position that involves the wielding of significant legal control over people’s lives is generally a public office. This test for a public office is suggested by the last example. As noted above, if I want to record a subdivision plat, I may be required by law to go to the planning board for its approval. As another example, certain types of transactions will not be recognized in a court of law unless the parties’ signatures are notarized. The notary public is a public officer, N.C. Constitution, art. VI, § 9(2) ; State ex rel. Attorney-General v. Knight, 169 N.C. 333, 353, 85 S.E. 418, 428 (1915), just as the members of a planning board with plat approval authority probably are. Both types of officials may have received that designation as much because of the legal power that they have over people’s lives as because of the amount of independent discretion that they exercise.