Can a North Carolina state senator (or representative) keep an existing appointment to the State Board of Education after being sworn into the legislature, or does the state constitution force the appointee to give one of the seats up?
Plain-English summary
Senator Teena S. Little had been appointed to the State Board of Education before being elected to the State Senate. She asked the AG whether she could keep the Board seat after taking the oath as a senator. The AG, signed by Chief Deputy Attorney General Andrew A. Vanore, Jr., said no, and explained that the answer was driven by the constitutional separation of powers, not just by the dual-office-holding rule.
Two constitutional provisions were in play. Article I, § 6 of the North Carolina Constitution states: "The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other." Article VI, § 9(1) of the constitution forbids a person from holding "concurrently any two or more appointive offices or places of trust or profit, or any combination of elective and appointive offices or places of trust or profit, except as the General Assembly shall provide by general law."
The leading case on the separation-of-powers issue was State ex rel. Wallace v. Bone, 304 N.C. 591 (1982). In Bone, the North Carolina Supreme Court held unconstitutional a statute placing four legislators on the Environmental Management Commission, on the ground that legislators could not concurrently exercise executive powers. Then-Attorney General Rufus Edmisten followed Bone with a February 1, 1982 written opinion to House Speaker Liston Ramsey concluding that legislators could not serve on state boards or commissions that exercise executive power. Bone did not address the reverse scenario (a board member subsequently elected to the legislature), but the AG's 1995 opinion said the same rationale applied: legislative and executive power cannot be concurrently vested in the same individual, regardless of which role came first.
There is a statutory dual-office-holding exception, G.S. § 128-1.1(b), that authorizes any person holding an elective office to also hold "one other appointive office, place of trust or profit." On its face, that statute would allow a senator to keep the Board seat. But the AG concluded the statute could not override the separation-of-powers clause. The General Assembly cannot, by ordinary statute, modify a constitutional separation-of-powers prohibition. Bone clearly held to the contrary.
Which office wins when the same person is sworn into both? The AG cited a line of North Carolina cases (State ex rel. Barnhill v. Thompson, 122 N.C. 493 (1898); Whitehead v. Pittman, 165 N.C. 89 (1914); State v. Cooke, 273 N.C. 377 (1968); State ex rel. Atkins v. Fortner, 236 N.C. 264 (1952)) for the proposition that acceptance of a second office automatically vacates the first. The first office becomes vacant as of the date of acceptance of the second office. So when Senator Little took the oath as a state senator, her Board of Education seat was automatically vacated by operation of law as of that moment. No resignation letter was needed; the vacancy was self-executing.
Currency note
This opinion was issued in 1995. 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 constitutional separation-of-powers analysis remains the controlling framework in North Carolina, and State ex rel. Wallace v. Bone has continued to be cited as the leading case. More recent appellate decisions, including the line of cases on appointments to specific boards and commissions, may have refined how courts assess which bodies count as "executive" for these purposes. Any legislator-appointee facing a current dual-role question should consult counsel and current case law.
Background and statutory framework
The North Carolina separation-of-powers principle is unusually strict. Many state constitutions have separation clauses that courts interpret flexibly, allowing some overlap between branches for practical reasons. The North Carolina version, with its "forever separate and distinct" language, has been read by the state Supreme Court to require near-categorical separation. Bone and its progeny generally hold that the political branches cannot place legislators in executive-power roles.
The State Board of Education is an executive body. It sets policy for the public schools, has rulemaking authority, and supervises the Department of Public Instruction. The AG's 1995 opinion did not have to belabor the point that the Board exercises executive power; that was established. The harder analytical move was applying Bone's rationale to a scenario where the legislative oath came second rather than first. The AG used the rationale, not the holding: if legislative and executive power cannot be combined in one person, the combination is unconstitutional regardless of which oath came first.
The automatic-vacancy doctrine that emerged from Barnhill v. Thompson and the cases that followed is a clean mechanism. It avoids constitutional limbo. The moment the legislator takes the new oath, the old office vacates and the appointing authority can fill the seat. No litigation is needed; no formal removal. The legislator simply ceases to hold the prior office.
The opinion is a good example of how AG opinions can guide officials on a personal compliance question. Senator Little was sworn in around January 1995, and the AG was asked early enough that she could plan accordingly. The official process: take the legislative oath; the Board seat vacates automatically; the seat is filled by the appointing authority (governor or legislature depending on the seat type).
Common questions
Could the legislature pass a statute saying a senator can serve on the State Board of Education?
No. Even though G.S. § 128-1.1(b) lets one person hold elective and one appointive office, the AG concluded that a statute cannot override the constitutional separation of powers. To allow a legislator to serve on the Board, the constitution would have to be amended.
What if Senator Little had resigned from the Senate before being sworn in?
Then the vacancy mechanism would not have triggered. The senator-elect is not yet a senator until taking the oath. If she had resigned the Senate seat before taking the oath, she would have remained on the Board of Education. The opinion treats the moment of the oath as decisive.
Does this rule apply to county boards of education or local boards?
The 1995 opinion addressed the State Board of Education, which is a state executive body. Local school boards are a different question; they are not state executive bodies, so Bone-style separation-of-powers analysis applies differently. The dual-office-holding statute may govern those situations directly. Local boards may have other statutory eligibility rules.
What about other state boards and commissions? Are legislators barred from all of them?
The AG opinion focused on the State Board of Education and similar executive-power bodies. The 1982 Edmisten opinion to Speaker Ramsey treated executive-power boards generally. Boards that are purely advisory and exercise no executive power may be permissible legislator service, but the Bone analysis would have to be applied case by case.
Source
Citations
- N.C. Const. art. I, § 6
- N.C. Const. art. VI, § 9(1)
- N.C.G.S. § 128-1.1(b)
- State ex rel. Wallace v. Bone, 304 N.C. 591 (1982)
- State ex rel. Barnhill v. Thompson, 122 N.C. 493 (1898)
- Whitehead v. Pittman, 165 N.C. 89 (1914)
- State v. Cooke, 273 N.C. 377 (1968)
- State ex rel. Atkins v. Fortner, 236 N.C. 264 (1952)
Original opinion text
January 19, 1995
The Honorable Teena S. Little 770 Fort Bragg Road Southern Pines, North Carolina 28387
RE: Advisory Opinion; Legislator Serving on State Board of Education; Article I, Section 6 and Article VI, Section 9 (1), N.C. Constitution
Dear Ms. Little:
You request our opinion whether you may continue your appointed position as a member of the State Board of Education after you take the oath of office as a member of the North Carolina State Senate. For reasons which follow, it is our opinion that the separation of powers provision of the N.C. Constitution plainly precludes a legislator from serving on the State Board of Education. Therefore, when you take the oath of office as a member of the North Carolina State Senate, your membership on the State Board of Education will automatically be terminated by operation of law.
There are two state constitutional provisions which must be examined to determine whether a legislator is prohibited from serving as a member of the State Board of Education: (1) the separation of powers provision, Article I, Section 6; and (2) the dual office holding provision, Article VI, Section 9 (1).
THE SEPARATION OF POWERS PROVISION
Article I, Section 6 provides: "The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other." In State ex rel. Wallace v. Bone, 304 NC 591 (1982), the Supreme Court of North Carolina held that Article I, Section 6 must be strictly observed. Bone held unconstitutional a statute which placed four members of the legislature on the Environmental Management Commission ("EMC") on the ground that legislators could not concurrently exercise executive powers. In the aftermath of Bone then Attorney General Rufus Edmisten in 1982 issued a written opinion to then Speaker of the House Liston Ramsey that members of the legislature could not constitutionally serve on State Boards or Commissions that exercise a part of the administrative or executive sovereign power of the State. A copy of the February 1, 1982 opinion from Edmisten to Ramsey is attached.
Although Bone dealt with a statute creating a position for legislators on the EMC, the rationale used applies equally if a board or commission member is subsequently elected to the legislature. The rationale of Bone is that legislative and executive power cannot be concurrently vested in the same individual.
THE DUAL OFFICE HOLDING PROVISION
Article VI, Section 9 (1) provides, in pertinent part, that: "No person shall hold concurrently any two or more appointive offices or places of trust or profit, or any combination of elective and appointive offices or places of trust or profit, except as the General Assembly shall provide by general law." A seat on the State Board of Education is an appointive office and a seat in the legislature is an elective office. Therefore, election to the legislature would preclude serving on the State Board of Education, absent a statutory exception. The legislature has created a statutory exception that would arguably permit a legislator to serve on the State Board of Education.
N.C.G.S. 128-1.1(b) provides that: "Any person who holds an elective office in state or local government is hereby authorized by the General Assembly, pursuant to Article VI, Section 9 of the N.C. Constitution to hold concurrently one other appointive office, place of trust or profit, in either state or local government." However, it appears very doubtful that the General Assembly can modify the dual office holding restrictions of Article VI, Section 9 (1) in such a manner as to thereby create a direct violation of the separation of powers provision by concurrently placing executive power as a member of the State Board of Education in the hands of a member of the legislature. Bone, we believe, clearly held to the contrary.
CONCLUSION
The question then arises, as to which office must be vacated. Acceptance of the second office results in automatically vacating the first office. State ex rel. Barnhill v. Thompson, 122 NC 493 (1898); Whitehead v. Pittman, 165 NC 89 (1914); and State v. Cooke, 273 NC 377 (1968). The first office becomes vacant as of the date of acceptance of the second office. State ex rel. Atkins v. Fortner, 236 NC 264 (1952). Therefore, as a member of the State Board of Education who was subsequently elected to the General Assembly, when sworn as a member of the legislature you would automatically, by operation of law, vacate your position as a member of the State Board of Education.
Should you have any questions, please feel free to contact us.
Andrew A. Vanore, Jr. Chief Deputy Attorney General