November 14, 1997
Ms. Karen E. Gottovi
Director Division of Aging
N.C. Department of Health and Human Services
693 Palmer Drive
Raleigh, N.C. 27626-0531
SUBJECT: Advisory Opinion: Conflict of Interest – Employment as Director of Division of Aging and Membership on N.C. Parks and Recreation Authority, N.C. Gen. Stat. §128-1.1
Dear Ms. Gottovi:
The following opinion responds to your October 24, 1997 memorandum inquiring whether a conflict of interest, or other legal disability, arises as a result of your recent appointment as Director of the Division of Aging of the N.C. Department of Health and Human Services and concurrent membership on the N.C. Parks and Recreation Authority ("Authority"), which is staffed and administered by the N.C. Department of Environment and Natural Resources. We conclude that your recent appointment as Director of the Division of Aging does not present a legal disability to your membership on the Authority. However, in your capacity as an Authority member, you should recuse yourself from participating in any specific matter which directly or indirectly impacts your current employer, the N.C. Department of Health and Human Services, or its constituent divisions.
N.C. Gen. Stat. §128-1.1 permits individuals to concurrently occupy two appointed positions. However, that statute does not abolish the common law doctrine prohibiting the holding of incompatible offices. State v. McHone, 243 N.C. 231, 234 (1955). The doctrine of incompatibility prohibits a person from simultaneously holding a public office and an incompatible position of public employment. Incompatibility arises where the functions of each office are "inherently inconsistent or repugnant." 3 McQuillin, Municipal Corporations § 12.67 (1990).
Your respective duties as Director of the Division of Aging do not appear incompatible with your membership on the Authority. Your statutory duties as Director of the Division of Aging are set forth in N.C. Gen. Stat. §143B-181.1(a) and include, inter alia, reviewing existing programs for the aging and recommending improvements to the Governor and General Assembly; publishing and disseminating relevant information about aging; educating the community about needs, resources, and opportunities for the aging; and, administering the Home and Community Care Block Grant, which supports services for older adults. On the other hand, your statutory duties as an Authority member primarily include the allocation of funds for land acquisition, improvements, and other capital projects from the Parks and Recreation Trust Fund. See, N.C. Gen. Stat. §143B-313.1. The nature of your respective duties in both positions do not suggest fundamental antagonism. Therefore, we do not believe that your concurrent holding of the two positions presents any legal disability.
However, we do believe that the doctrine of incompatibility is applicable where your participation as an Authority member would directly or indirectly impact the N.C. Department of Health and Human Services or its constituent divisions. Therefore, if such situations arise during the course of your tenure on the Authority, we advise that you abstain from any such participation.
If you have any questions or need additional assistance, please let us know.
Daniel C. Oakley
Senior Deputy Attorney General
David W. Berry
Assistant Attorney General