July 29, 1987
Subject:
Education; School Employee Serving on Board of County Commissioners; Incompatibility of Duties.
Requested By:
Dr. Martin Eaddy, Superintendent, Lincoln County Schools
Question:
May a school employee who serves as a member of a board of county commissioners vote on the school board’s budget request?
Conclusion:
Though the issue is not free of doubt, we believe the employee is not prohibited from voting. There may be circumstances, however, when the school employee’s vote would violate the employee’s duty to vote in the public interest rather than his own interest. In those circumstances, the employee should abstain from voting.
A principal employed by the Lincoln County Schools is also a member of the Lincoln County Board of Commissioners. As Superintendent of the Lincoln County Schools you are concerned that a conflict may exist between the principal’s interests and his duty as a county commissioner to review and approve the Lincoln County Board of Education’s annual budget request. You have asked for our opinion.
Your request requires an examination of the common law rule against one person holding simultaneously incompatible offices. This rule is intended "to assure not only the actuality of undivided loyalty, but also the appearance thereof." 67 C.J.S., Officers, § 27. It has been recognized by our courts, but never applied to particular circumstances. Barnhill v. Thompson, 122 N.C. 493, 496, 31 S.E. 718 (1898); State v. McHone, 243 N.C. 231, 234, 90 S.E. 536 (1955). Apparently, the rule against holding incompatible offices is broader than the constitutional prohibition against double office holding so that a person might hold two public offices under our Constitution but nevertheless violate the incompatible offices rule. Barnhill v. Thompson, supra.
The courts have acknowledged that "it is extremely difficult to lay down any clear and comprehensive rule as to what constitutes incompatible offices." Weza v. Auditor General, 298 N.W.2d 368, 369 (Mich. 1941). See also, Barnhill v. Thompson, supra. Generally, however, two offices are held to be incompatible (1) if one office is subordinate, or subject to review or revision, by the second, or (2) if the functions of the two offices are inherently inconsistent and repugnant. See 67 C.J.S., Officers § 27; 63A Am. Jur.2d, Public Officers and Employees, §§ 78-81; 3 McQuillan, Municipal Corporations § 12.67 (3d ed. 1963).
We have found two cases dealing with the incompatibility of employment by a local school system and service on the board of the tax levying authority for the system. State v. Jeffery, 465 N.E.2d 413 (Ohio 1984) and Kaufman v. Pannuccio, 295 A.2d 642 (N.J. Super. 1972). In both cases the offices were found not incompatible, though the statutory relationship between the school systems and the tax levying authorities appear different than the relationship in North Carolina.
In North Carolina, boards of county commissioners review the local current expense and capital outlay budget requests of school boards each year, and have the power to disapprove all or a percentage of the entire request or to disapprove all or a percentage of discrete parts of the budget requests. G.S. 115C-429(b). The local current expense budget request includes many items (e.g., funds for supplies, salaries and salary supplements), as does the capital outlay request (e.g., funds for buildings, computers and furniture). Thus, when a school employee serves on a board of county commissioners and votes on the school board’s budget request, the employee oversees the amount of funds allocated to his employer, the school board, and may indirectly determine the level of his salary and the type and amount of supplies and equipment available to perform his work.
This relationship has some of the earmarks of incompatible offices. The school employee is subordinate to the board of education and the board of education is in turn subordinate to the board of county commissioners in regard to the amount of the local education budget. Further, there is at least the potential for tension between the employee’s personal interest in the level of his salary and other aspects of his employment, and his duty as a county commissioner to vote for the public’s benefit as he perceives it. See Avery County v. Braswell, 215 N.C. 270, 275, 1 S.E.2d 864 (1939).
Despite the possible incompatibility of holding office as county commissioner simultaneously with serving as a public school employee, the determination of which offices are incompatible is largely a public policy issue and is a determination best left with the General Assembly. Furthermore, the General Assembly has addressed similar issues in recent years with specific legislation declaring particular offices to be incompatible. (E.g., G.S. 115C-10 precluding a public school employee from serving as an appointive member of the State Board of Education; G.S. 115C-37(g) precluding an employee of a local board of education from serving simultaneously on that board). Likewise, the legislatures of other states have dealt specifically with this question. See Kaufman v. Pannuccio, 295 A.2d 642, 643
(N.J. Super. 1972).
In the absence of either legislative or clearer judicial guidance on the specific question before us, we are not prepared
to declare the offices of county commissioner and school employee incompatible. Neither are we inclined to conclude
that a school principal serving as a county commissioner may not vote on certain specified issues. Nevertheless, a
school employee serving on a board of county commissioners having funding responsibility for his school system
should constantly bear in mind that his duty is to vote the public’s interest as he perceives it, not his own interests.
Circumstances when the tension between the school employee’s interests and the public’s interest would be heightened
include specific votes on the parts of a budget request providing salary supplements and specific votes on other parts of
the budget requests directly relating to the employee. If a school employee determines that his personal interest
predominates over, or might appear to predominate over, the public’s interest in a given situation, the school employee
should request to be excused from voting.
In sum, while there is some indication that holding office as county commissioner simultaneously with employment by
the local school system constitutes incompatible office-holding, we are of the opinion that a declaration of
incompatibility should come from the legislature as a matter of public policy and not from this office. Until and unless
the legislature decides to act on this issue, however, a school employee serving as county commissioner should
exercise discretion and prudence in fulfilling his duties to the public, and should refrain from voting on any issues that
may suggest he is being less than loyal to the public interest.
LACY H. THORNBURG
Attorney General
Edwin M. Speas, Jr.
Special Deputy Attorney General
Laura E. Crumpler
Assistant Attorney General