North Carolina Department of Justice
North Carolina Department of Justice
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January 28, 1999

George B. Daniel, Chairman Legal Bylaws Committee The Centennial Authority 1520 Blue Ridge Road, Suite 201 Raleigh, North Carolina 27607

RE: Advisory Opinion; The Centennial Authority; The Facility Authority Act, Part 4 of Chapter 160A of the General Statutes

Dear Mr. Daniel:

You request our opinion on two questions. First, may the Wake County Board of Commissioners and the Raleigh City Council appoint their employees or officers (full-time employed manager and attorney) to the Centennial Authority? Second, if these employees may be appointed, may they participate in discussions and votes affecting their employers, the city and county?

For reasons which follow, the answer to both questions is “yes.”

The Centennial Authority was created by the General Assembly as a facility authority under Part 4 of Article 20 of Chapter 160A of the General Statutes. See, Chapter 458 of the 1995 Session Laws and N.C.G.S. §§ 160A-480.1 through 160A-480.15. Effective January 1, 1999, the membership of the Centennial Authority was increased from 13 to 17 members.1 The members are appointed as follows: eight are appointed by the General Assembly; four are appointed by the Wake County Board of Commissioners; four are appointed by the Raleigh City Council; and one is appointed jointly by the mayors of the cities in Wake County. See, N.C.G.S. § 160A-480.3(b). This same statute provides that “(n)either the board of commissioners nor the city council may appoint a member of its board to serve on the Authority.”

Although the General Assembly prohibited boards of county commissioners and city councils from appointing themselves to a facility authority, the General Assembly did not restrict

1The 1997 amendment, effective January 1, 1999, gave two additional appointments to both the Wake County Board of Commissioners and the Raleigh City Council. Chapter 68, 1997 Session Laws.

Mr. George B. Daniel January 28, 1999 Page 2

these public bodies from appointing their employees, agents or officers.

The only possible argument of which we are aware that would prohibit the county manager and city attorney from being appointed to the Centennial Authority is the common law prohibition against the holding of incompatible offices. This prohibition arises when one individual holds more than one office or position and the relationship between the offices or positions held creates a conflict in the duties so that one office or position cannot be exercised without infringing upon the exercise of the other office or position. See, State v. McHone, 243 N.C. 231, 234 (1955).

Incompatibility exists when one office or position is subservient to the other or where there is antagonism created by the offices or positions.

While incompatibility has been described as physical impossibility to perform the duties of both offices, it is not simply a physical impossibility to discharge the duties of both offices at the same time, it is an inconsistency in the functions of the two offices, as where one is subordinate to the other or where a contrariety and antagonism would result in the attempt by one person to discharge faithfully and impartially the duties of both. Two offices are said to be incompatible when the holder cannot in every instance discharge the duties of each. Incompatibility arises, therefore, from the nature of the duties of the offices, when there is an inconsistency in the functions of the two, where the functions of the two are inherently inconsistent or repugnant, as where antagonism would result in the attempt by one person to discharge the duties of both offices, or where the nature and duties of the two offices are such as to render it improper from considerations of public policy for one person to retain both. The true test is whether the two offices are incompatible in their natures, in the rights, duties or obligations connected with or flowing from them.

3 McQuillen, Municipal Corporations § 12.67. (Emphasis added).

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 McQuillen, Municipal Corporations § 12.67.

Mr. George B. Daniel January 28, 1999 Page 3

Because we are aware of no inherent conflicts between the duties and responsibilities of a county manager or a city attorney and the duties and responsibilities of a member of a facility authority, we believe that the offices are not incompatible. The bottom line, of course, is that the General Assembly, should it wish to prohibit a board of county commissioners or a city council from appointing its employees to a facility authority, it has the authority to do so. It did not do so here.

Having concluded that the county manager and city attorney may be appointed to the Centennial Authority, we next address whether these individuals would be prohibited from participating in discussions and votes which arguably could affect Wake County and Raleigh.

The Facility Authority Act directly addresses that issue in N.C.G.S. § 160A-480.3(g), as follows:

Conflicts. - If any member, officer, or employee of an Authority shall be:

(1)
Interested either directly or indirectly ; or
(2)
An officer or employee of or have an ownership interest in any firm or corporation, not including units of local government, interested directly or indirectly, in any contract with that Authority, the interest shall be disclosed to the Authority and shall be set forth in the minutes of the Authority. The member, officer, or employee having an interest shall not participate on behalf of the Authority in the authorization of such contract. Other provisions of law notwithstanding, failure to take any or all actions necessary to carry out the purposes of this subsection do not affect the validity of any bonds or notes issued under this Chapter. (Emphasis added).

Assuming for the sake of this discussion that the county manager or the city attorney was directly or indirectly interested on behalf of the county or city in a contract with the Authority, the General Assembly specifically excluded from the definition of “conflicts” an officer or employee of “units of local government.” See, N.C.G.S. § 160A-480.3(g)(2). It follows, therefore, that the managers and attorneys of the City of Raleigh and Wake County appointed to the Centennial Authority could participate in discussions and votes affecting the city and county.

We hope this is helpful. Should you require anything further, please contact us.

Very truly yours,

Andrew A. Vanore, Jr. General Counsel

Mr. George B. Daniel January 28, 1999 Page 4

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