In North Carolina, can a county commissioner who also chairs the county social services board talk and vote at county commission meetings on DSS personnel and the DSS budget?

Plain-English summary

A North Carolina judge asked whether a county commissioner who chaired the Iredell County social services board could discuss and vote on social services personnel and operations, present the department's budget, and vote on that budget as a commissioner. The AG answered yes to both questions.

The opinion points to G.S. § 108A-3(a), which expressly allows a county commissioner to be appointed to the social services board. G.S. § 128-1.2 treats a commissioner appointed by the county commissioners to another board as serving there as part of the commissioner’s office. The opinion also found nothing in Chapter 108A barring that board member from becoming its chair.

For voting, the opinion quotes G.S. § 153A-44: the board may excuse a commissioner “only upon questions involving his own financial interest or his official conduct.” Service on the social services board does not ordinarily disqualify the commissioner from voting, and the AG reasoned that a commissioner who may vote may also join the discussion. The department’s budget would not ordinarily create a personal economic conflict, so the commissioner could present it and vote on its approval or disapproval. The opinion says a personal economic interest in a particular question would disqualify the commissioner.

Currency note

The opinion applies North Carolina law as discussed in 1990. Check the current statutes and local facts before acting on a present voting question.

Background and statutory framework

The AG observed that commissioners served on social services boards in several counties and that Mecklenburg County's commissioners then also acted as its social services board. It cited the statutory treatment of board appointments as part of a commissioner's duties. The opinion also cited a Florida decision involving a commissioner who served on a solid waste authority for its reasoning about service on another local board. It acknowledged the common-law rule against incompatible offices but said the legislature had addressed this situation.

The opinion's answer depends on the specific role and voting question it considered. It does not analyze a commissioner’s right to abstain at will, a particular contract in a department budget, or a different combination of board offices.

Common questions

Can the social services board chair discuss personnel and operations as a county commissioner?

Yes. The AG concluded the commissioner could participate in those discussions and vote on the matters asked about. Its reasoning was that serving on the social services board would not ordinarily disqualify the commissioner from voting at the county commission.

Can that commissioner present the social services budget and vote on it?

Yes, under the circumstances addressed. The AG said the department’s budget would not ordinarily involve a personal economic conflict of interest, leaving no basis to disqualify the commissioner from presenting it and voting on approval or disapproval.

When could a commissioner be disqualified from voting?

The opinion says a personal economic interest in a question would disqualify the commissioner. It quotes G.S. § 153A-44 as allowing the board to excuse a commissioner only on questions involving the commissioner's own financial interest or official conduct. It does not say the commissioner may abstain solely because a vote feels uncomfortable.

Citations

• N.C. Constitution, Article VI, § 9
• N.C.G.S. § 108A-3(a) (DSS board composition)
• N.C.G.S. § 128-1, 128-1.1, 128-1.2 (dual office holding)
• N.C.G.S. § 153A-44 (excuse from voting)
• N.C.G.S. § 153A-77 (Mecklenburg-style consolidation)
• City of Riviera Beach v. Palm Beach County Solid Waste Authority, 502 So.2d 1335 (1987)
• State v. McHone, 243 N.C. 234, 90 S.E.2d 536 (1955)
• Barnhill v. Thompson, 122 N.C. 493, 29 S.E. 720 (1898)
• 57 N.C.A.G. 33 (1987)

Source

• Landing page: https://ncdoj.gov/opinions/conflict-of-interest-county-social-services-board/

Original opinion text

Requested By: C. Preston Cornelius, Senior Resident Superior Court Judge

Questions: Can the chairman of the county social services board, who is also a county commissioner, participate in discussions and vote at county commission meetings in matters pertaining to personnel and the operation of the county department of social services?

Can a county commissioner who is also chairman of the county social services board present the department of social services budget to the county commissioners and thereafter participate and vote as a member of the county commissioners regarding the approval or disapproval of that budget?

Conclusions: Yes.
Yes.

A member of the Iredell County Board of County Commissioners was appointed by the commissioners to be a member of the Iredell County Social Services Board. G.S. § 108A-3(a) specifically provides that the board of commissioners shall appoint one member of the county social services board "who may be a county commissioner." It is clear that the legislature intended to permit a county commissioner to serve as a member of the county social services board. In Iredell County the selected commissioner was subsequently elected (presumably by her fellow social services board members) to be the chairman of the social services board. There is nothing in Chapter 108A to suggest any impropriety with the "county commissioner member" also serving as chairman of the social services board.

Appointment of a county commissioner to be a member of the county social services board is a common practice in North Carolina. At the present time a county commissioner serves on the social services boards of Wake, Guilford and Durham counties. In past years a county commissioner has served on the Forsyth County social services board, although there is no such appointment at the present time. Special legislation permitted Mecklenburg County to create a social services board larger than five members. See House Bill 725, Chapter 625, ratified June 19, 1981; G.S. § 153A-77. At the present time the board of county commissioners in Mecklenburg County acts in a dual role, i.e., the county commissioners become the social services board when matters pertaining to the county department of social services arise.

North Carolina regulates dual-office holding. N.C. CONST., art. VI, § 9; G.S. § 128-1; G.S. § 128-1.1. G.S. § 128-1.2 specifically addresses county commissioners serving on other boards or commissions, i.e., whenever a board of county commissioners appoints one of its own members to another board or commission, the county commissioner so appointed is considered to be serving on such board or commission as a part of his or her office as a county commissioner.

With regard to voting, G.S. § 153A-44 states that the board may excuse a commissioner from voting, "but only upon questions involving his own financial interest or his official conduct." Thus, it is apparent that the legislature contemplates county commissioners serving on other boards and commissions as an extension of commissioner duties, and that such service will not ordinarily disqualify the commissioners from voting as commissioners. If a commissioner serving as a member of another board or commission is allowed to vote as a commissioner, it is only logical that such commissioner can also participate in discussions prior to voting.

It should be noted that there are no North Carolina cases that reasonably relate to this subject. However, cases from other jurisdictions support the logic of this conclusion. In the case of City of Riviera Beach v. Palm Beach County Solid Waste Authority, et al., 502 So.2d 1335, (1987), a county commissioner was also serving as a member of the county solid waste authority. After concluding that such service was merely an extension of the member's duties as a county commissioner, which is already codified in North Carolina by G.S. § 128-1.2, the Florida court quoted the trial court judge:

In light of the numerous regulatory commissions and schemes necessitated by our growing complex society, any other holding would needlessly proliferate the numbers of persons required to act on local issues. Further, such a holding would frustrate the legislative scheme established by the waste management acts as set forth above, by requiring that those county commissioners who must serve on the local waste authority abstain on all votes concerning that authority.

City of Riviera Beach, 502 So.2d at 1336. This logic is compelling given the fact that county commissioners in North Carolina serve on numerous boards and commissions as part of their statutory duties as county commissioners. The common law rule prohibiting the holding of incompatible offices has been recognized by our courts. Despite the possibility of incompatible offices, the legislature has specifically addressed the matter in this case and its determination of such a public policy issue is controlling. 57 N.C.A.G. 33 (1987); State v. McHone, 243 N.C. 234, 90 S.E.2d 536 (1955); Barnhill v. Thompson, 122 N.C. 493, 29 S.E. 720 (1898).

Any situation in which a county commissioner has a personal economic interest would disqualify that commissioner from voting. G.S. § 153-A-44. Since the budget for the department of social services would not ordinarily involve an economic conflict of interest, there would be no basis for disqualifying a commissioner (who serves on the social services board) from presenting the budget and subsequently voting on its approval or disapproval. As set forth above, this is consistent with statutory law.

LACY H. THORNBURG, Attorney General
Robert J. Blum, Assistant Attorney General