January 14, 1998
Mr. William R. Gilkeson Staff Attorney, N.C. General Assembly Suite 545, LOB Raleigh, NC 27603-5925
Re: Advisory opinion; Definition of city and county employee as including elected officials; political activities of local government elected officials and employees; N.C.G.S. §153A-99;
N.C.G.S. §160A-169.
Dear Mr. Gilkeson:
The following is in response to the request for an opinion set out in your correspondence dated October 21, 1997 asking whether the term "employee" as defined in N.C.G.S.§§ 153A-99 and 160A-169 extends to elected officials of cities and counties. Both statutes are identical save for the use of "county" in one and "city" in the other, and this opinion is applicable to both statutes.
The term "[e]mployee" is defined in subdivision (b)(1) of N.C.G.S.§ 153A-99 and in N.C.G.S. § 160A-169 to mean "any person employed by a county [city] or any department or program thereof that is supported, in whole or in part, by county [city]funds." While the definition does not directly address the point raised by your inquiry, it does support a broad application of the term "employee".
Your request for an opinion recognizes that in certain situations the terms "officers" and "employees"are intended to be mutually exclusive, whereas in other situations the term "employees" is intended to include all individuals employed in any status and would include officers. "Although an office is an employment, it does not follow that every employment is an office." McQuillin, The Law of Municipal Corporations, Vol. 3, § 12.30. See also, State v. Hord, 264 N.C. 149; 141 S.E.2d. 241 (1965). The context of a statute will dictate the interpretation to be given to the words used in the statute. Morecock v. Hood, 202 N.C. 321, 323, 162 S.E.2d 730, 731 (1932); 73 Am. Jur. 2d Statutes § 213 (1974).
There has been only one case that has addressed the issue raised by your request. In Carter v. Good et al., 951 F.Supp. 1235 (WDNC, 1996) the plaintiff alleged he was wrongfully dismissed from his position as a deputy sheriff by the defendant sheriff because of his support of the opponent of the defendant during an election campaign. The opinion rejected the defendant sheriff’s argument that he was not a county employee and that N.C.G.S. § 153A-99 was not applicable to the constitutionally created, elected office of sheriff. 951 F. Supp. at 1248, 1249.
We have found no North Carolina state court cases interpreting N.C.G.S. § 153A-99 or N.C.G.S. § 160A-169. However, two North Carolina cases with regard to disclosure of personnel files, which interpreted the word "employee" in N.C.G.S. § 153A-98 to apply to the appointed office of county manager and the elected office of sheriff, provide insight into the issue under consideration.
In Elkin Tribune, Inc. v. Yadkin County Bd. of Commissioners , 331 N.C. 735, 417 S.E.2d. 465 (1992), the question before the Court was the availability to the public of the names and applications of people applying for the position of county manager under the provisions of
- N.C.G.S.§ 153A-98, which refers only to "employees" and does not use the term "officer". The Court held that N.C.G.S. § 153A-98 was applicable to the applications for the office of county manager, even though the position of county manager clearly falls within the definition of the term "officer." N.C.G.S. § 153A-82. In the case of Durham Herald Co. v. County of Durham, 334 N.C. 677, 435 S.E.2d. 317 (1993), the Court concluded that applications for a vacancy in the position of sheriff also are governed by N.C.G.S.§ 153A-98. In the Durham case the plaintiff contended that because N.C.G.S. § 153A98 only governs the personnel records of "employees" it does not apply to the sheriff. The plaintiff’s argument relied on the fact that the office of sheriff is a constitutional office and an elected office whose duties are not controlled by the board of county commissioners. Citing the Elkin case, the Court rejected the plaintiff’s argument, noting that while there are differences between the appointed office of county manager and the elected office of sheriff which would be material in other contexts, the application of N.C.G.S. § 153A-98 does not turn on such distinctions. Also in the Durham case, the Court’s opinion contained quotations from Article 7 of Chapter 126 and N.C.G.S. § 143-318.11 relating to the disclosure of public records. Those statutory provisions use the term "employee" and the term "officer". The quotations of those statutes are significant to this discussion because they establish that the Court was advertent to the fact that the General Assembly used the terms "employee" and the term "officer" in contradistinction to each other but nevertheless held that the term "employee", when used by itself in N.C.G.S. § 153A-98, was broad enough to include elected officers. Finally, the Court stated that it was confident that the General Assembly intended N.C.G.S. § 153A-98 to apply to the position of sheriff.
Based on the preceding authority, we conclude that the provisions of N.C.G.S. § 153A-99 andN.C.G.S. § 160A-169 are applicable to elected officials of counties and cities.
Your correspondence also inquired as to other statutes which would prohibit the activities proscribed by subsection (e) of N.C.G.S. § 153A-99 and N.C.G.S. § 160A-169. Another statute that prohibits the same activity is N.C.G.S. § 14-92, which makes it a Class H felony for any officer, agent or employee of a local government to misapply the money or property of that local government.
signed by:
Ann Reed
Senior Deputy Attorney General
Charles J. Murray
Special Deputy Attorney General