Mental Health; Conflict of Interest

Subject:

Requested By: Sarah T. Morrow, M.D., M.P.H. Secretary Department of Human Resources

Questions: Can the Division of Mental Health, Mental Retardation and Substance Abuse Services accept an application for employment from a person currently serving as a member of the Commission for Mental Health, Mental Retardation and Substance Abuse Services?

 

1.  
2. Can current Division of Mental Health, Mental Retardation and Substance Abuse Services employees also serve as members of the Commission of Mental Health, Mental Retardation and Substance Abuse Services?

    

Conclusions: Yes

 

1.  
2. Yes

    

G.S. 14-234 is the basic statute dealing with conflict of interest by public officials. Intrinsically, that statute is intended to prevent any public official from making any contract for his own benefit under authority of his office. Lexington Insulation Company vs. Davidson County, 243

N.C. 252 (1955). Further, "Independently of any statute or precedent, upon the general principles of law and morality a member of an official board cannot contract with the body of which he is a member." Davidson v. Guilford County, 152 N.C. 437 (1910); also see Carolina Beach vs. Mintz, 212 N.C. 578 (1937); Snipes vs. Winston, 126 N.C. 374 (1900).

In keeping with these principles, this Office has found prohibited conflicts of interest in situations involving:

(a)

Employment of a county commissioner in the county finance office (40 N.C.A.G. 560 (1969));

(b)

Employment by a University of a Member of the Board of Trustees of that University (40

N.C.A.G. 55 (1969));

(c)

Employment of the Mayor of a town as the Town Superintendent (40 N.C.A.G. 563 (1969));

(d)

Appointment of a Member of a County Board of Elections as Executive Secretary to the

Board. (41 N.C.A.G. 577 (1971));

(e) Contracting of services by a member of an area mental health board to a program when that program is under contract with the area mental health authority (49 N.C.A.G. 6 (1979)) [Attention is also called to the multiple other opinions of the Attorney General involving similar situations which are cited at 49 N.C.A.G. 7.]

Reference to the provisions of Chapter 143B of the General Statute is necessary in order to adequately dispose of the present questions. Such Chapter provides that all management functions in the mental health, mental retardation and substance abuse areas are vested in the Department of Human Resources. G.S. 143B-137 and 138. As to the authority over and responsibility for the majority of the day to day functions statutorily allocated to the Department, these have been properly delegated to the Division of Mental Health, Mental Retardation and Substance Abuse Services. Included within these management functions are internal "planning, organizing, staffing, directing, coordinating, reporting and budgeting." G.S. 143B-10(e). Thus, the actual employment, assignment of duties and direct supervision of the prospective employee must be accomplished by the Division. G.S. 143B-10(c).

The Commission for Mental Health, Mental Retardation and Substance Abuse Services is vested with ". . . the power and duty to adopt, amend and repeal rules and regulations to be followed in the conduct of State and local mental health, mental retardation, alcohol and drug abuse programs including education, prevention, intervention, treatment, rehabilitation and other related services." G.S. 143B-147(a).

Specific examples of the types of regulatory and standard setting authority vested in the Commission are set forth in this statute. However, the Commissioner’s responsibilities do not extend to actual staffing or to the hiring of employees. Thus, this situation does not result in a public official’s contracting for his own benefit with a body of which he is a member so as to be violative of G.S. 14-234.

This Opinion addresses only the legality of such employment. In view of the broad regulatory authority vested in the Commission, it is a matter within the jurisdiction of the Division to determine the practicality of placing an employee in this rules making position. Further, it would seem that, in each individual case, consideration should be given to whether employment of the Commission member would result in placing him in a position inconsistent with his duties as either employee or Commission member.

RUFUS L. EDMISTEN Attorney General

William F. O’Connell Special Deputy Attorney General