January 27, 1995
Senator Marc Basnight President Pro Tempore North Carolina General Assembly Raleigh, North Carolina 27601-2808
RE: Advisory Opinion; appointment of county manager to Property Tax Commission; conflict of interest; dual office holding; N.C.G.S.;105-290; 153A-82
Dear Senator Basnight:
You request our opinion with respect to several questions regarding nomination to the North Carolina Property Tax Commission. You first inquire whether an individual serving as a county manager may be appointed to the Commission "without presenting a conflict of interest?" If the appointment is permissible, you ask "what, if any, matters raised before the Commission," should the individual "abstain from deliberation and voting?"
The manager is the chief administrator of a county, responsible to the board of county commissioners for all departments within the county, and unless specifically restricted, possesses broad powers to hire and discipline employees. N.C.G.S. { 153A-82. A manager’s specific statutory duties include preparation of an annual budget, and compilation of a yearly report upon the county’s financial and administrative activities. Id.
The Property Tax Commission is a five member quasi-judicial body established to "hear and decide appeals from decisions concerning the listing, appraisal, or assessment of property" made by boards of county commissioners. N.C.G.S. { 105-290(b). In essence the Commission serves as the state-wide administrative body to resolve all appeals regarding assessment of ad valorem taxes by local units of government. Commission members take the normal constitutional oath required of appointed office-holders, but supplemented by the phrase "that I will not allow my actions as a member of the Property Tax Commission to be influenced by personal or political friendships or obligations." N.C.G.S. { 105-288(c).
Measured by traditional principles, we see no impermissible conflict of interest created by nominating an incumbent county manager to the Property Tax Commission. "Conflicts" prohibited are those created when an appointee makes a contract for his personal interest, under authority of his appointed office. N.C.G.S. { 14-234. Your questions do not presuppose such contracts.
N.C.G.S. { 128-1.1 permits individuals to concurrently occupy two appointed positions free of constitutional limitations. However, the statute does not abolish the common law doctrine prohibiting the holding of incompatible offices. State v. McHone, 243 N.C. 231, 234 (1955). Incompatibility arises where the functions of each office are "inherently inconsistent or repugnant." 3 McQuillen, Municipal Corporations, { 12.67. p. 345 (1990). The respective duties of county manager and Commission member do not suggest such fundamental antagonism. Consequently, strictly speaking, no legal disability precludes a county manager from being appointed to the Property Tax Commission.
The more troublesome question, however, concerns what Commission matters the appointee may deliberate. Of course he must disqualify himself from questions pertaining to any appeal to which his county is a party.
But his fiduciary duty of impartiality appears to extend farther. There may be "county" issues embedded in property tax appeals emanating from other counties. We doubt whether the member should deliberate challenges to governmental policies or practices which are also implemented in his county, and for which as its chief executive officer he is deemed to have validated and sanctioned. For example, recently in In Re Appeal of Phillip Morris U.S.A., 335 N.C. 227 (1993), the North Carolina Supreme Court reversed a decision of the Property Tax Commission involving Cabarrus County. The Commission had held that contingent fee contracts awarded private appraisal firms, and commonly used by counties throughout the state, violated public policy and were void. The appointee must be particularly sensitive to similar types of issues possibly implicating administrative practices in his home county. Unfortunately there is no clear test for when the impartiality demanded of Commission members may be compromised, and the appointee must exercise prudent judgment on an ad hoc basis.
We hope you find the foregoing helpful.
Reginald L. Watkins Senior Deputy Attorney General
George W. Boylan
Special Deputy Attorney General