Conflict of Interest; County Social Services Board

Subject:

Requested By: C. Preston Cornelius Senior Resident Superior Court Judge

Questions: Can the chairman of the county social services board, who is also a county commissioner, participate in discussions and vote at county commission meetings in matters pertaining to personnel and the operation of the county department of social services?

 

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2. Can a county commissioner who is also chairman of the county social services board present the department of social services budget to the county commissioners and thereafter participate and vote as a member of the county commissioners regarding the approval or disapproval of that budget?

    

Conclusions: Yes.

 

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2. Yes.

    

A member of the Iredell County Board of County Commissioners was appointed by the commissioners to be a member of the Iredell County Social Services Board. G.S. § 108A-3(a) specifically provides that the board of commissioners shall appoint one member of the county social services board "who may be a county commissioner." It is clear that the legislature intended to permit a county commissioner to serve as a member of the county social services board. In Iredell County the selected commissioner was subsequently elected (presumably by her fellow social services board members) to be the chairman of the social services board. There is nothing in Chapter 108A to suggest any impropriety with the "county commissioner member" also serving as chairman of the social services board.

Appointment of a county commissioner to be a member of the county social services board is a common practice in North Carolina. At the present time a county commissioner serves on the social services boards of Wake, Guilford and Durham counties. In past years a county commissioner has served on the Forsyth County social services board, although there is no such appointment at the present time. Special legislation permitted Mecklenburg County to create a social services board larger than five members. See House Bill 725, Chapter 625, ratified June 19, 1981; G.S. § 153A-77. At the present time the board of county commissioners in Mecklenburg County acts in a dual role, i.e., the county commissioners become the social services board when matters pertaining to the county department of social services arise.

North Carolina regulates dual-office holding. N.C. CONST., art. VI, § 9; G.S. § 128-1; G.S. § 128-1.1. G.S. § 128-1.2 specifically addresses county commissioners serving on other boards or commissions, i.e., whenever a board of county commissioners appoints one of its own members to another board or commission, the county commissioner so appointed is considered to be serving on such board or commission as a part of his or her office as a county commissioner.

With regard to voting, G.S. § 153A-44 states that the board may excuse a commissioner from voting, "but only upon questions involving his own financial interest or his official conduct." Thus, it is apparent that the legislature contemplates county commissioners serving on other boards and commissions as an extension of commissioner duties, and that such service will not ordinarily disqualify the commissioners from voting as commissioners. If a commissioner serving as a member of another board or commission is allowed to vote as a commissioner, it is only logical that such commissioner can also participate in discussions prior to voting.

It should be noted that there are no North Carolina cases that reasonably relate to this subject. However, cases from other jurisdictions support the logic of this conclusion. In the case of City of Riviera Beach v. Palm Beach County Solid Waste Authority, et al., 502 So.2d 1335, (1987), a county commissioner was also serving as a member of the county solid waste authority. After concluding that such service was merely an extension of the member’s duties as a county commissioner, which is already codified in North Carolina by G.S. § 128-1.2, the Florida court quoted the trial court judge:

In light of the numerous regulatory commissions and schemes necessitated by our growing complex society, any other holding would needlessly proliferate the numbers of persons required to act on local issues. Further, such a holding would frustrate the legislative scheme established by the waste management acts as set forth above, by requiring that those county commissioners who must serve on the local waste authority abstain on all votes concerning that authority.

City of Riviera Beach, 502 So.2d at 1336. This logic is compelling given the fact that county commissioners in North Carolina serve on numerous boards and commissions as part of their statutory duties as county commissioners. The common law rule prohibiting the holding of incompatible offices has been recognized by our courts. Despite the possibility of incompatible offices, the legislature has specifically addressed the matter in this case and its determination of such a public policy issue is controlling. 57 N.C.A.G. 33 (1987); State v. McHone, 243 N.C. 234, 90 S.E.2d 536 (1955); Barnhill v. Thompson, 122 N.C. 493, 29 S.E. 720 (1898).

Any situation in which a county commissioner has a personal economic interest would disqualify that commissioner from voting. G.S. § 153-A-44. Since the budget for the department of social services would not ordinarily involve an economic conflict of interest, there would be no basis for disqualifying a commissioner (who serves on the social services board) from presenting the budget and subsequently voting on its approval or disapproval. As set forth above, this is consistent with statutory law.

LACY H. THORNBURG Attorney General Robert J. Blum Assistant Attorney General