North Carolina Department of Justice
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Reply to: William R. Miller Environmental Division Tel: 919-716-6600 Fax: 919-716-6767

August 19, 2003

Daniel C. Oakley, General Counsel Department of Environment and Natural Resources 1601 Mail Service Center Raleigh, NC 27699-1601

Re: Advisory Opinion: Authority to hold appointed position on Community College Board of Trustees pursuant to N.C. Gen. Stat. § 115D-16 in addition to dual-offices held pursuant to N.C. Gen. Stat. §128-1.1

Dear Mr. Oakley:

You have requested our opinion, on behalf of the Department’s Parks and Recreation Authority, whether a member of the Parks and Recreation Authority, appointed to that office pursuant to N.C. Gen. Stat. § 143B-313.2, who concurrently holds an appointment as trustee of a community college, may also hold a third public office, specifically, an elective office in the local government of the Town of Lewisville. In our opinion, the answer is yes.

Section 9 of Article VI of the North Carolina Constitution provides that the responsibilities of self-government should be widely shared among the citizens of the State and that the potential abuse of authority inherent in the holding of multiple offices by an individual should be avoided. To this end, Section 9 prohibits the concurrent holding of any two elective offices. It also prohibits the concurrent holding of any two appointive offices or any combination of any elective and appointive offices “except as the General Assembly shall provide by general law.”

In N.C. Gen. Stat. § 128-1.1, the General Assembly provided that any person who holds

an appointive office in either State or local government may concurrently hold one other appointive office or an elective office in either State or local government. It also provides that any person who holds an elective office may concurrently hold an appointive office but not another elective office. Different provisions not germane here apply with regard to a person who holds an office or position with the federal government.

The General Assembly has supplemented the provisions of N.C. Gen. Stat. § 128-1.1 with

respect to community college trustees. N.C. Gen. Stat. § 115D-16, provides that the office of trustee of any community college is an office which an elected official may hold “in addition to and concurrently with those offices permitted by N.C. Gen. Stat.§ 128-1.1.” Since N.C. Gen. Stat. § 128-1.1 permits an elected official to hold concurrently an appointive office in State or August 19, 2003 Page 2

local government, the effect of N.C. Gen. Stat. § 115D-16 is to authorize an elected official who is concurrently a trustee of a community college to hold a third, appointive office concurrently. Consequently, we see no impediment to an appointed member of the Parks and Recreation Authority, who concurrently holds an appointment as trustee of a community college, holding a third, elective office in the local government of the Town of Lewisville. The result would be different if all of the positions were appointive, since N.C. Gen. Stat. § 115D-16 applies only to the holder of an elective office who also is a trustee of a community college. We note that the Institute of Government subscribes to this interpretation. See, A. Fleming Bell, II, Ethics, Conflicts, and Offices--A Guide for Local Officials, Appendix B, N.C. Institute of Government (1991).

We trust this Advisory Opinion will be of assistance to you in advising the Parks and Recreation Authority.

Sincerely,

James C. Gulick Senior Deputy Attorney General

William R. Miller Assistant Attorney General