Holding Three Public Offices Concurrently

Subject:

Requested By: E. Murray Tate, Jr. Hickory City Attorney

Question: Is a notary public a public officer, and if so, may the notary hold one appointive office with a city and one appointive office with a county concurrently.

Conclusion: A notary public is a public officer. A notary public may hold one other appointive or one other elective office concurrently. However, a notary may not hold three public offices concurrently.

The facts indicate a person is a notary public and also holds one appointive office with a city and one appointive office with a county. The question arises as to whether this person is holding three public offices in violation of Article VI, Sec. 9 of the North Carolina Constitution.

Article VI, Sec. 9 provides that the responsibilities of self-government be widely shared among the citizens of the State, and that the potential abuse of authority inherent in the holding of multiple offices by one person shall be avoided. No person holds any office under the United States, or any department thereof, or under any other state or government, shall be eligible to hold any elective office in this State.

Sec. 9 further provides that no person shall hold concurrently:

(1)

Any two offices in this State filed by election of the people.

(2)

Any two or more appointive offices, or any combination of elective and appointive offices, except as the General Assembly shall provide by general law.

Sec. 9 also contains an exception, to-wit: "The provisions of this Section shall not prohibit any . . . notary public . . . from holding concurrently another office under this State or the United States or any department thereof."

By general law, the General Assembly enacted G.S. 128-1.1, which authorizes any person who holds an appointive office in State or local government to hold concurently one other appointive or elective office. Also, any person who holds an elective office under either State or local government may hold concurrently one other appointive office under State or local government.

In North Carolina, a notary public is a public officer. Harris v. Watson, 201 NC 661, 161 SE 215 (1931); State v. Knight, 169 NC 333, 85 SE 418 (1915); Nelson v. Comer, 21 NC App. 636 (1974).

Although we find no North Carolina cases construing Article VI, Sec. 9 with respect to a notary, the advisory opinion of In Re Yelton, 223 NC 845, is helpful since it dealt with the similar exceptions to Article XIV, Sec. 7 of the Constitution of 1868 relating to dual office holding.

The language of the exception in Article VI, Sec. 9 clearly indicates that a notary public may hold another office concurrently. Thus, even if the General Assembly had not enacted G.S. 128-1.1, by force of the Constitution, a notary public could hold concurrently one other office without being in violation of the dual office prohibition of Se. 9. The General Assembly in G.S. 128-1.1 authorizes a person to hold two appointive offices or one elective and one appointive office concurrently.

Thus, we conclude that a person, pursuant to the exception contained in Article VI, Sec. 9 of the Constitution may hold concurrently the office of notary public and one other appointive office.

A person who holds the office of notary public may not hold concurrently two or more other offices since he would then hold more offices than is permitted by the Constitution.

For your information, we feel that since the person is holding more than two offices, that his attempt to accept the third office was void and he was neither a defacto or de jure officer in the third office. Edwards v. Board of Education, 235 NC 345, 70 SE 2d 170 (1952).

Rufus L. Edmisten Attorney General

James F. Bullock Senior Deputy Attorney General