Can the same person serve as the Mount Olive City Attorney and as a commissioner of the Mount Olive Housing Authority, given that G.S. § 157-5 says 'No commissioner may be a city official'?
Plain-English summary
Philip A. Baddour, Jr. asked the AG whether one person could serve both as the Mount Olive City Attorney and as a commissioner of the Mount Olive Housing Authority. The relevant statute, G.S. § 157-5, governs the appointment of housing-authority commissioners and provides that "No commissioner may be a city official." Special Deputy AG Charles J. Murray and Senior Deputy AG Ann Reed worked through the narrow statutory question.
The threshold question was what "official" means in § 157-5. The AG turned to Black's Law Dictionary: "An officer; a person invested with the authority of an office." Absent contrary authority, words of a statute should be given their usual meaning (Begley v. Employment Sec. Comm., 50 N.C. App. 432 (1981)). No authority supported reading "official" more broadly than "officer." So "official" was treated as synonymous with "officer," and the question collapsed to whether the City Attorney is a public officer.
NC determines public-office status mainly by two factors: (1) the position has constitutional or statutory authorization, and (2) the position involves the exercise of some portion of the sovereign power. State v. Hurd, 264 N.C. 149 (1964), captures the two-prong test. G.S. § 160A-173, the city-attorney statute, clears the first prong: it is statutory authorization for the role. The whole analysis therefore turned on the second prong: does the City Attorney exercise sovereign power?
The AG's reading of G.S. § 160A-173 was tight. The statute says the city attorney is to serve as the city council's legal adviser and lists no other duties. The AG could find no NC case law construing § 160A-173, and the McQuillin treatise reported a split among other jurisdictions on whether city attorneys generally count as public officers. Those cases dealt with distinguishable facts or non-analogous statutes, so they did not resolve the NC question directly.
The AG's substantive judgment: providing legal advice, by itself, is not the exercise of sovereign power. Rendering legal advice is not the same as enacting an ordinance, enforcing an ordinance, or deciding a rezoning petition. The opinion acknowledged the practical truth that a city would be foolhardy to ignore its attorney's advice, but observed that no principle prevents a city council from doing so. Without any legislative, executive, or judicial powers, the city attorney's role is purely advisory. A purely advisory role does not satisfy the sovereign-power prong.
So, assuming the Mount Olive City Attorney does only what § 160A-173 prescribes (legal advice to the city council), the position is not a public office. Serving simultaneously as a Mount Olive Housing Authority commissioner does not violate § 157-5.
The opinion has two important caveats. First, it is statute-specific. The result would not necessarily transfer to other dual-office contexts or other statutory schemes. Second, the AG expressly said the opinion does not deal with common-law incompatibility-of-offices doctrine or with conflict-of-interest principles. Those doctrines could independently bar the dual service even if § 157-5 does not. A practitioner advising a client on actually taking both positions would need to address those separate frameworks.
Currency note
This opinion was issued in 1993. 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.
G.S. § 157-5 and G.S. § 160A-173 may have been amended since 1993, and NC's dual-office-holding case law has developed in the intervening decades. The basic two-prong test for public-office status (statutory authorization plus exercise of sovereign power) is still recognizable, but the application to specific positions has been refined. Anyone considering dual service in a NC municipal context should consult current statutes and counsel familiar with NC public-office law.
Common questions
Q: Why isn't a city attorney automatically a "city official"?
A: Because the statute uses the word "official," which the AG treated as synonymous with "officer," not as a catch-all for anyone working for the city. NC law distinguishes between public officers (people exercising sovereign power) and employees or contractors (people performing functions for the government without exercising sovereign power). The city attorney sits closer to the second category when the role is limited to legal advice.
Q: What does "exercising sovereign power" actually mean?
A: Acting on behalf of the public in a way that binds the public, like passing an ordinance, enforcing the law, or adjudicating a dispute. Sovereign power is the legislative, executive, or judicial authority the government exercises. Giving advice that the decisionmaker is free to accept or reject is not an exercise of sovereign power.
Q: Could a city attorney be a public officer if the role included more than advice?
A: Yes. The opinion's analysis is explicit: "assuming the position of Mount Olive City Attorney involves no other duties or exercises of power beyond providing legal advice." If a particular city assigns its attorney additional duties (for example, signing certain instruments, certifying certain matters, or making binding decisions on behalf of the city), the analysis could change. The result is sensitive to the actual scope of the attorney's role in the specific city.
Q: What about the common-law incompatibility-of-offices doctrine?
A: That doctrine bars one person from holding two offices when the duties of the two are inherently incompatible (one supervises the other, one reports to the other, the two might be on opposite sides of a transaction). The AG expressly did not analyze it in this opinion. Even if § 157-5 does not bar the dual service, common-law incompatibility could. A practitioner has to run that analysis separately for the specific roles at issue.
Q: What about conflict of interest?
A: Same answer. The AG expressly did not analyze conflicts. A city attorney whose firm or whose practice involves matters before the housing authority, or whose role on the housing authority touches a matter affecting the city, would face specific conflict questions. Those are independent of § 157-5.
Q: How transferable is the reasoning to other dual-office questions?
A: The two-prong test (statutory authorization plus sovereign power) is general NC law. So the test transfers. But the answer to whether any specific position satisfies the second prong is fact-intensive. A position with even modest decision-making authority (issuing permits, denying applications, certifying compliance) might cross into sovereign-power territory in ways that pure legal advice does not.
Background and statutory framework
NC's housing-authority framework lives in Chapter 157 of the General Statutes. G.S. § 157-5 governs appointment of commissioners and contains the prohibition that drove the question here. The statute's clean rule (no city official as commissioner) appears designed to keep the housing authority independent of the city government that creates it.
Chapter 160A governs cities and towns. G.S. § 160A-173 establishes the city attorney's role, narrowly defined: the city attorney is the city council's legal adviser. The narrow definition is what made the AG comfortable answering yes. A statute that explicitly assigned the city attorney decision-making authority would have produced a different answer.
The opinion fits a broader NC pattern of distinguishing carefully between advisory positions and decision-making positions for dual-office and public-officer purposes. The pattern matters because it determines whether dual-office prohibitions, oaths of office, bonding requirements, and personnel rules apply to a given role. The 1993 opinion's clean two-prong analysis (statutory authorization plus sovereign power) is a useful reference point even where the specific statutes have since changed.
Citations
- N.C.G.S. § 157-5 (housing authority commissioners; no commissioner may be a city official)
- N.C.G.S. § 160A-173 (city attorney as legal adviser to city council; no other duties listed)
- Begley v. Employment Sec. Comm., 50 N.C. App. 432, 274 S.E.2d 370 (1981) (NC Court of Appeals; words of a statute should be given their usual meaning absent contrary authority)
- State v. Hurd, 264 N.C. 149 (1964) (NC Supreme Court; public office requires constitutional or statutory authorization and the exercise of some portion of the sovereign power)
- Black's Law Dictionary, Rev. 4th ed. (1968) p. 1237 ("official" defined as an officer; a person invested with the authority of an office)
- 3 McQuillin, Municipal Corporations § 12.31 (city attorney's status as public officer divided across jurisdictions)
- 42 Am. Jur., Public Officers § 13 (essential difference between public office and mere employment is exercise of sovereign power)
Source
Original opinion text
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