February 21, 1997
Mr. Douglas L. Hall County Attorney County of Avery
P.O. Box 9 Newland, NC 28657
Re: Advisory opinion; County employee serving as county commissioner; conflict of interests.
N.C.G.S. §14-234; N.C.G.S. §153A-44.
Dear Mr. Hall:
The following opinion is in response to the request set out in your letter dated January 16, 1997 asking whether or not a conflict of interests exists in the following described situation.
The Electrical Inspector for Avery County also currently serves as a member of the Avery County Board of Commissioners. This gentlemen is the sole electrical inspector, and there is no chief inspector or head of the inspection department for this county. In his capacity as electrical inspector, his immediate supervisor is the County Manager, who, in turn, reports to the Avery County Board of Commissioners.
This office has opined that N.C.G.S. § 14-234(a) is applicable to an employment contract between a member of the governing board and a local government when it appears that the governing board has been involved in the contract process. We are advised that the Avery County Board of Comissioners has not been involved in the hiring of the county electrical inspector and all decisions with regard to that position have been made by the county manager without involvement by the Board. Therefore, in the absence of any involvement by the Board there does not appear to be a violation of N.C.G.S. 14-234.
However, the employment relationship between the individual and the county does create the possibilty of both direct and indirect conflicts of interests whenever any action by the county commissioners would have an impact on the position of county electrical inspector. When the potential for such a conflict arises, the individual should not act in his role as county commissioner. N.C.G.S. § 153A-44 states that a commissioner should be excused from any vote involving his "financial interests." Therefore, the individual should ask the board to excuse him from participating on any matter that has a direct impact on his position as county electrical inspector.
The doctrine of incompatibility of offices may also be relevant in certain circumstances. This doctrine addresses a situation where an individual is responsible for two sets of duties that cannot be performed without a real or potential conflict arising in the performance of one or both roles. In the context of the doctrine of incompatible offices, it is the nature and duties of the offices and positions that are controlling and not the status of the positions as offices or positions of employment.
The doctrine of incompatibility prohibits a person from simultaneously holding a public
office and an incompatible position of public employment. The doctrine applies where the
nature and duties of two offices are such as to render it improper from considerations of public policy for one person to discharge the duties of both.
3 McQuillin, Municipal Corporations § 12.67
It is our opinion that the doctrine of incompatibility is applicable where participation by the individual as county commissioner would have an indirect impact on his position as county electrical inspector. Therefore, the individual should abstain from any such participation.
In summary, the individual is not prohibited from serving in both positions, but should abstain from taking any action as a county commissioner that would have a direct or indirect effect on his position as county electrical inspector.
Ann Reed Senior Deputy Attorney General
Charles J. Murray
Special Deputy Attorney General