January 19, 1995
The Honorable Teena S. Little 770 Fort Bragg Road Southern Pines, North Carolina 28387
RE: Advisory Opinion; Legislator Serving on State Board of Education; Article I, Section 6 and Article VI, Section 9 (1), N.C. Constitution
Dear Ms. Little:
You request our opinion whether you may continue your appointed position as a member of the State Board of Education after you take the oath of office as a member of the North Carolina State Senate. For reasons which follow, it is our opinion that the separation of powers provision of the N.C. Constitution plainly precludes a legislator from serving on the State Board of Education. Therefore, when you take the oath of office as a member of the North Carolina State Senate, your membership on the State Board of Education will automatically be terminated by operation of law.
There are two state constitutional provisions which must be examined to determine whether a legislator is prohibited from serving as a member of the State Board of Education: (1) the separation of powers provision, Article I, Section 6; and (2) the dual office holding provision, Article VI, Section 9 (1).
THE SEPARATION OF POWERS PROVISION
Article I, Section 6 provides: "The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other." In State ex rel. Wallace
v. Bone, 304 NC 591 (1982), the Supreme Court of North Carolina held that Article I, Section 6 must be strictly observed. Bone held unconstitutional a statute which placed four members of the legislature on the Environmental Management Commission ("EMC") on the ground that legislators could not concurrently exercise executive powers. In the aftermath of Bone then Attorney General Rufus Edmisten in 1982 issued a written opinion to then Speaker of the House Liston Ramsey that members of the legislature could not constitutionally serve on State Boards or Commissions that exercise a part of the administrative or executive sovereign power of the State. A copy of the February 1, 1982 opinion from Edmisten to Ramsey is attached.
Although Bone dealt with a statute creating a position for legislators on the EMC, the rationale used applies equally if a board or commission member is subsequently elected to the legislature. The rationale of Bone is that legislative and executive power cannot be concurrently vested in the same individual.
THE DUAL OFFICE HOLDING PROVISION
Article VI, Section 9 (1) provides, in pertinent part, that: "No person shall hold concurrently any two or more appointive offices or places of trust or profit, or any combination of elective and appointive offices or places of trust or profit, except as the General Assembly shall provide by general law." A seat on the State Board of Education is an appointive office and a seat in the legislature is an elective office. Therefore, election to the legislature would preclude serving on the State Board of Education, absent a statutory exception. The legislature has created a statutory exception that would arguably permit a legislator to serve on the State Board of Education.
N.C.G.S. 128-1.1(b) provides that: "Any person who holds an elective office in state or local government is hereby authorized by the General Assembly, pursuant to Article VI, Section 9 of the N.C. Constitution to hold concurrently one other appointive office, place of trust or profit, in either state or local government." However, it appears very doubtful that the General Assembly can modify the dual office holding restrictions of Article VI, Section 9 (1) in such a manner as to thereby create a direct violation of the separation of powers provision by concurrently placing executive power as a member of the State Board of Education in the hands of a member of the legislature. Bone, we believe, clearly held to the contrary.
CONCLUSION
The question then arises, as to which office must be vacated. Acceptance of the second office results in automatically vacating the first office. State ex rel. Barnhill v. Thompson, 122 NC 493 (1898); Whitehead v. Pittman, 165 NC 89 (1914); and State v. Cooke, 273 NC 377 (1968). The first office becomes vacant as of the date of acceptance of the second office. State ex rel. Atkins
v. Fortner, 236 NC 264 (1952). Therefore, as a member of the State Board of Education who was subsequently elected to the General Assembly, when sworn as a member of the legislature you would automatically, by operation of law, vacate your position as a member of the State Board of Education.
Should you have any questions, please feel free to contact us.
Andrew A. Vanore, Jr. Chief Deputy Attorney General