September 7, 1993 Mr. Philip A. Baddour, Jr. Attorney at Law 208 South William Street
P.O. Drawer 916 Goldsboro, NC 27533-0916
RE: Advisory opinion; N.C.G.S. §157-5; 160A-173
Dear Mr. Baddour: The following is in response to the request for an opinion set out in your letter dated August 5, 1993 as to whether an individual may serve as a commissioner of the Mount Olive Housing Authority and also serve as City Attorney. At the outset it should be noted that the following opinion relates only to the specific statutes involved and should not be considered to have any general application. Additionally, the opinion does not attempt to deal with either conflicts of interests or the common law principle of incompatibility of offices.
As you pointed out in your letter, N.C.G.S. § 157-5 relating to the appointment of a commission to govern housing authorities states that "No commissioner may be a city official." A threshold question is whether the term "official" is synonymous with officer, or whether in the context of the statute, it should be given a broader meaning, such as agent or representative. The term "official" is defined to mean "An officer; a person invested with the authority of an office." Black’s Law Dictionary, Rev’d Fourth Ed. (1968) p. 1237. In the absence of any authority to the contrary, the words of a statute should be given their usual meaning, Begley v. Employment Sec. Comm., 50 N.C. App. 432, 274 S.E.2d 370 (1981). No authority has been found to support the argument that the term "official" is broader than "officer". Therefore, for the purposes of the following discussion "official" is considered to be synonymous with "officer", and the issue will be resolved by a determination of whether the position of Mount Olive City Attorney is a public office.
In North Carolina the status of public office is determined primarily by the presence of two factors. First, the position must have a constitutional or statutory authorization and, second, the position must involve the exercise of some portion of the sovereign power.
To constitute an office, as distinguished from employment, it is essential that the position must have been created by the constitution or statutes of the sovereignty, or that the sovereign power shall have delegated to an inferior body the right to create the position in question. Anno. – Office and Employment – Distinction, 140 A.L.R. 1079.
An essential difference between a public office and mere employment is the fact that the duties of the incumbent of an office shall involve the exercise of some portion of the sovereign power. 42 Am. Jur., Public Officers, § 13, page 891; 93 A.L.R. 337 Anno. – Office and Employment-Distinction; Sixth Decennial Digest, 1946-1956, Vol. 24, Officers, Key Number 1, where the authorities are collected from 21 jurisdictions which support the above view, and none are cited to the contrary.
State v. Hurd, 264 N.C. 149, 155 (1964). See also 10 Strong’s N.C. Index (3rd) Public Officers § Because N.C.G.S. § 160A-173 clearly constitutes statutory authorization for the position of city attorney, the issue turns on presence of the second factor, i.e., does the position involve the exercise of some portion of the sovereign power. The only duty set out in N.C.G.S. § 160A-173 for a city attorney is to be the city council’s legal adviser, and it is assumed that the position of Mount Olive City Attorney involves no other duties or exercises of power beyond providing legal advice to the Mount Olive City Council.
No North Carolina case law could be found interpreting N.C.G.S. § 160A-173, and the case law from other jurisdictions on the issue of a city attorney as a public officer is divided, 3 McQuillin, Municipal Corporations § 12.31. The cases cited by McQuillin do not provide any helpful insight on the issue under consideration because they deal with distinguishable fact situations or with specific statutes that are not analogous to N.C.G.S. § 157-5. Similarly, the law encyclopedias contain no discussion on the specific issue of whether the rendering of legal advice by a city attorney constitutes the exercise of some portion of the sovereign power.
As noted previously, N.C.G.S. § 160A-173 states that the city attorney is to provide legal advice to the city council and lists no other duties or power. Assuming that there is no power or duty to act in a legislative, executive or judicial role, the responsibility of providing legal advice by itself would not constitute the exercise of sovereign power. In other words, the rendering of legal advice in and of itself is not the equivalent of enacting an ordinance, enforcing an ordinance or making a decision on a rezoning petition. While it is certainly true that a city would be foolhardy to do so, the undersigned are unaware of any principle that would prevent a city council from ignoring the legal advice of its attorney, i.e., without any legislative, executive or judicial powers the position of city attorney is purely advisory. Therefore, if there are no other duties or powers associated with the position, it is concluded that the position of Mount Olive City Attorney should not be considered a public office, and it would not be a violation of N.C.G.S. § 157-5 for the Mount Olive City Attorney to serve as a commissioner of the Mount Olive Housing Authority.
Charles J. Murray Special Deputy Attorney General
Ann Reed Senior Deputy Attorney General