Can a North Carolina public school principal who is also a county commissioner vote on the school board's budget request to the commission?

Plain-English summary

The Superintendent of Lincoln County Schools brought a difficult question to the AG. A principal employed by the Lincoln County school system was also serving as a member of the Lincoln County Board of Commissioners. The school board's annual budget request had to go to the county commissioners for review and approval under N.C.G.S. § 115C-429(b). Could the principal/commissioner vote on the school board's budget, or did the dual role create an incompatible-office problem?

Special Deputy Attorney General Edwin M. Speas, Jr. and Assistant Attorney General Laura E. Crumpler answered carefully: not free of doubt, but not prohibited. The school employee/commissioner may vote, except in specific circumstances where personal interest predominates and abstention is appropriate.

The common-law rule against holding incompatible offices is intended "to assure not only the actuality of undivided loyalty, but also the appearance thereof" (67 C.J.S., Officers, § 27). North Carolina courts have recognized the doctrine in passing (Barnhill v. Thompson, 1898; State v. McHone, 1955) but have not applied it in a fact pattern like this one. The doctrine, when applied, is broader than the constitutional prohibition against double office holding under Article VI of the North Carolina Constitution; a person could satisfy the constitutional rule and still violate the common-law incompatibility rule.

Two general tests determine incompatibility: (1) one office is subordinate to or subject to review by the other, or (2) the functions of the two offices are inherently inconsistent and repugnant.

Applying those tests to the principal/commissioner situation: the principal works for the school board. The school board submits its local current expense and capital outlay budget requests to the county commissioners under § 115C-429(b). The commissioners have the power to approve or disapprove the request in whole, in percentages, or in discrete parts. The local current expense budget covers salaries, salary supplements, supplies, and equipment. The capital outlay budget covers buildings, furniture, and computers. So when the principal votes as a commissioner on the school board's budget, he is voting on the funding pool that will pay his salary and provide his classroom equipment.

That has earmarks of incompatibility. The principal is subordinate to the school board, the school board is subordinate to the commissioners on funding, and the principal is therefore indirectly subordinate to the commissioners on the resources available to him. The structural tension is real.

The AG also examined two out-of-state cases that addressed similar arrangements. State v. Jeffery (Ohio 1984) and Kaufman v. Pannuccio (N.J. Super. 1972) both held that employment in a local school system and service on the tax-levying authority were not incompatible, although the statutory relationships in those states differed from North Carolina's.

Faced with this mixed signal (structural tension in North Carolina, no judicial incompatibility holdings, out-of-state opinions saying not incompatible), the AG declined to declare the offices incompatible. The reasoning is institutionally cautious: declaring offices incompatible is "largely a public policy issue and is a determination best left with the General Assembly." The Legislature has shown it knows how to enact specific dual-office bans. § 115C-10 prohibits a public school employee from being an appointive member of the State Board of Education. § 115C-37(g) prohibits an employee of a local board of education from serving on that board. Both are statutory bans on specific dual-office combinations. The absence of a statutory ban on school-employee-as-county-commissioner suggests the General Assembly has not (yet) made that public-policy judgment.

The opinion then describes the prudent course for the dual office-holder. A school employee serving on the county commission should keep in mind that the duty is to vote the public's interest as the commissioner perceives it, not the commissioner's personal interest. The tension is heightened on (a) specific votes on salary supplements that would affect the commissioner's own salary, and (b) specific votes on other budget items that directly relate to the commissioner's employment. When personal interest predominates or "might appear to predominate" over the public interest, the commissioner should ask to be excused from voting.

The opinion's bottom line: dual office holding is permissible in this situation under existing North Carolina law, but the dual office-holder bears the ongoing duty to recuse when specific votes implicate personal interest.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The General Assembly has periodically added dual-office prohibitions to Chapter 115C and the local government chapters since 1987. The State Ethics Act and the State Government Ethics Act (enacted in 2006) added a separate ethics-rule layer for state officers (not directly applicable to local officials but instructive on conflict-of-interest standards). North Carolina case law on incompatible offices remains thin. Modern researchers should verify whether the specific dual-office combination at issue has since been banned by statute and should also consider the modern ethics-rule framework on recusal and disclosure.

Background and statutory framework

North Carolina's incompatible-office doctrine has been mostly dormant in case law. The 1898 Barnhill v. Thompson case acknowledged the doctrine in dicta but did not apply it to disqualify the office-holder. The 1955 McHone case is similar. Without a strong North Carolina precedent, the doctrine in practice depends on AG opinions and good-faith interpretation by local officials.

The dual-office combination at issue is not academic. School employees often live in the county where they work and are sometimes well-known community members who run for county commission seats. The 1987 question was unlikely to be unique to Lincoln County, and the AG's response gave a usable framework for handling it.

The legislative comparison is the strongest part of the AG's reasoning. § 115C-10 (state board) and § 115C-37(g) (local board) are explicit dual-office bans the General Assembly enacted because it concluded those specific combinations were incompatible. The absence of an explicit ban on the principal-as-county-commissioner combination is meaningful. If the General Assembly thought the combination should be banned, it would have banned it.

The recusal framework is also worth attention. Under most state and local government law, recusal serves two purposes: it eliminates the actual conflict-of-interest taint from the vote, and it eliminates the appearance of conflict that could undermine public confidence in the vote's legitimacy. The AG's "personal interest predominates or might appear to predominate" formulation captures both purposes. A commissioner who recuses on his own salary supplement is acting on both grounds.

The remaining question, which the AG opinion does not directly address, is whether a recusal on most votes effectively makes the dual office holder useless on most issues. If a school principal/commissioner has to recuse on every budget vote that involves school funding, he is missing votes on a significant portion of the county's annual work. The opinion accepts that as the cost of the dual role; if the cost is too high, the commissioner can resign one office. The AG does not force that choice.

Common questions

How should a school employee/commissioner handle the school budget vote in practice?

The opinion suggests abstention on specific votes that directly affect the commissioner's salary or work conditions. The full-budget approval / disapproval vote in a single up-or-down ballot would presumably also implicate the commissioner's personal interest, since the budget includes the funds that pay him. The cleanest approach is to abstain on any vote tied to the school budget. Anything narrower invites case-by-case judgment that may be contested.

Does the same analysis apply to a teacher (not a principal) serving on the commission?

The AG opinion focuses on a school principal but the analysis turns on the principal's employment relationship with the school board, not on the principal's specific role. A teacher employed by the school board would have the same structural relationship. The same recusal advice would apply.

What if the school principal is the county manager's spouse, child, or close relative?

The opinion does not address familial conflicts. Familial conflicts are governed by separate provisions, including ethics rules, nepotism statutes (where applicable), and the general "concerned or interested" language in N.C.G.S. § 14-234. A dual office holder whose family relationship to county officials adds a second layer of conflict should consult separately with counsel.

Can the school employee/commissioner vote on the budget if the school employee's salary is fixed by state formula and not affected by the local budget vote?

The opinion does not address that scenario. State-funded portions of school employee salaries are set by state formulas (NC certified salary schedule); locally funded supplements depend on the local budget. A school employee whose entire compensation is state-funded with no local supplement would have a weaker personal-interest argument, but might still face indirect interest issues (classroom supplies, capital outlay funding).

Does the analysis apply to a state employee serving on a state board that funds the agency where the state employee works?

The opinion is about county-level relationships. State-level dual-office relationships are typically more constrained by state ethics laws and by the State Constitution's double-office holding provisions. Modern researchers facing this question should consult Article VI of the N.C. Constitution and the State Government Ethics Act.

Source

• Landing page: https://ncdoj.gov/opinions/education-school-employee-serving-on-board-of-county-commissioners-incompatibility-of-duties/

Citations

• N.C.G.S. § 115C-429(b) (commissioner review of school budget)
• N.C.G.S. § 115C-10 (ban on school employee as appointive state board member)
• N.C.G.S. § 115C-37(g) (ban on school employee as local board member)
• Barnhill v. Thompson, 122 N.C. 493 (1898)
• State v. McHone, 243 N.C. 231 (1955)
• Weza v. Auditor General, 298 N.W.2d 368 (Mich. 1941)
• Avery County v. Braswell, 215 N.C. 270 (1939)
• State v. Jeffery, 465 N.E.2d 413 (Ohio 1984)
• Kaufman v. Pannuccio, 295 A.2d 642 (N.J. Super. 1972)

Original opinion text

Requested By:

Dr. Martin Eaddy, Superintendent, Lincoln County Schools

Question:

May a school employee who serves as a member of a board of county commissioners vote on the school board's budget request?

Conclusion:

Though the issue is not free of doubt, we believe the employee is not prohibited from voting. There may be circumstances, however, when the school employee's vote would violate the employee's duty to vote in the public interest rather than his own interest. In those circumstances, the employee should abstain from voting.

A principal employed by the Lincoln County Schools is also a member of the Lincoln County Board of Commissioners. As Superintendent of the Lincoln County Schools you are concerned that a conflict may exist between the principal's interests and his duty as a county commissioner to review and approve the Lincoln County Board of Education's annual budget request. You have asked for our opinion.

Your request requires an examination of the common law rule against one person holding simultaneously incompatible offices. This rule is intended "to assure not only the actuality of undivided loyalty, but also the appearance thereof." 67 C.J.S., Officers, § 27. It has been recognized by our courts, but never applied to particular circumstances. Barnhill v. Thompson, 122 N.C. 493, 496, 31 S.E. 718 (1898); State v. McHone, 243 N.C. 231, 234, 90 S.E. 536 (1955). Apparently, the rule against holding incompatible offices is broader than the constitutional prohibition against double office holding so that a person might hold two public offices under our Constitution but nevertheless violate the incompatible offices rule. Barnhill v. Thompson, supra.

The courts have acknowledged that "it is extremely difficult to lay down any clear and comprehensive rule as to what constitutes incompatible offices." Weza v. Auditor General, 298 N.W.2d 368, 369 (Mich. 1941). See also, Barnhill v. Thompson, supra. Generally, however, two offices are held to be incompatible (1) if one office is subordinate, or subject to review or revision, by the second, or (2) if the functions of the two offices are inherently inconsistent and repugnant. See 67 C.J.S., Officers § 27; 63A Am. Jur.2d, Public Officers and Employees, §§ 78-81; 3 McQuillan, Municipal Corporations § 12.67 (3d ed. 1963).

We have found two cases dealing with the incompatibility of employment by a local school system and service on the board of the tax levying authority for the system. State v. Jeffery, 465 N.E.2d 413 (Ohio 1984) and Kaufman v. Pannuccio, 295 A.2d 642 (N.J. Super. 1972). In both cases the offices were found not incompatible, though the statutory relationship between the school systems and the tax levying authorities appear different than the relationship in North Carolina.

In North Carolina, boards of county commissioners review the local current expense and capital outlay budget requests of school boards each year, and have the power to disapprove all or a percentage of the entire request or to disapprove all or a percentage of discrete parts of the budget requests. G.S. 115C-429(b). The local current expense budget request includes many items (e.g., funds for supplies, salaries and salary supplements), as does the capital outlay request (e.g., funds for buildings, computers and furniture). Thus, when a school employee serves on a board of county commissioners and votes on the school board's budget request, the employee oversees the amount of funds allocated to his employer, the school board, and may indirectly determine the level of his salary and the type and amount of supplies and equipment available to perform his work.

This relationship has some of the earmarks of incompatible offices. The school employee is subordinate to the board of education and the board of education is in turn subordinate to the board of county commissioners in regard to the amount of the local education budget. Further, there is at least the potential for tension between the employee's personal interest in the level of his salary and other aspects of his employment, and his duty as a county commissioner to vote for the public's benefit as he perceives it. See Avery County v. Braswell, 215 N.C. 270, 275, 1 S.E.2d 864 (1939).

Despite the possible incompatibility of holding office as county commissioner simultaneously with serving as a public school employee, the determination of which offices are incompatible is largely a public policy issue and is a determination best left with the General Assembly. Furthermore, the General Assembly has addressed similar issues in recent years with specific legislation declaring particular offices to be incompatible. (E.g., G.S. 115C-10 precluding a public school employee from serving as an appointive member of the State Board of Education; G.S. 115C-37(g) precluding an employee of a local board of education from serving simultaneously on that board). Likewise, the legislatures of other states have dealt specifically with this question. See Kaufman v. Pannuccio, 295 A.2d 642, 643

(N.J. Super. 1972).

In the absence of either legislative or clearer judicial guidance on the specific question before us, we are not prepared

to declare the offices of county commissioner and school employee incompatible. Neither are we inclined to conclude

that a school principal serving as a county commissioner may not vote on certain specified issues. Nevertheless, a

school employee serving on a board of county commissioners having funding responsibility for his school system

should constantly bear in mind that his duty is to vote the public's interest as he perceives it, not his own interests.

Circumstances when the tension between the school employee's interests and the public's interest would be heightened

include specific votes on the parts of a budget request providing salary supplements and specific votes on other parts of

the budget requests directly relating to the employee. If a school employee determines that his personal interest

predominates over, or might appear to predominate over, the public's interest in a given situation, the school employee

should request to be excused from voting.

In sum, while there is some indication that holding office as county commissioner simultaneously with employment by

the local school system constitutes incompatible office-holding, we are of the opinion that a declaration of

incompatibility should come from the legislature as a matter of public policy and not from this office. Until and unless

the legislature decides to act on this issue, however, a school employee serving as county commissioner should

exercise discretion and prudence in fulfilling his duties to the public, and should refrain from voting on any issues that

may suggest he is being less than loyal to the public interest.

LACY H. THORNBURG

Attorney General

Edwin M. Speas, Jr.

Special Deputy Attorney General

Laura E. Crumpler

Assistant Attorney General