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. Check current constitutional law and later decisions for a present dual-office question.

Background and statutory framework

Article I, § 6 of the North Carolina Constitution separates legislative, executive, and judicial powers. The opinion applies State ex rel. Wallace v. Bone, which invalidated a statute placing legislators on an executive commission. The AG reasoned that the same separation problem arose when a State Board of Education member later entered the Senate.

Article VI, § 9(1) addresses concurrent elective and appointive offices, and G.S. 128-1.1(b) provides an exception for one elective plus one appointive office. The AG doubted that the legislature could use that exception to create a direct separation-of-powers violation. The opinion then applied the rule that accepting a second office automatically vacates the first. Senator Little's Board membership would end when she was sworn into the Senate.

Common questions

Could a statute allow a sitting legislator to serve on the State Board of Education?

The AG said it was "very doubtful" that the General Assembly could use its dual-office exception to put a legislator on the Board in violation of separation of powers. The opinion does not discuss a constitutional amendment.

What would happen to Senator Little's Board seat when she took the Senate oath?

It would automatically become vacant by operation of law. The AG treated acceptance of the Senate office as acceptance of a second office that vacated the first.

Did the opinion decide what would happen if she declined or resigned the Senate seat before the oath?

No. It answers only whether she could continue Board service after taking the oath and states the effect of that oath.

Did the AG address every state or local board?

No. It applied the separation-of-powers analysis to the State Board of Education. It also described an earlier AG opinion about legislators on state boards or commissions exercising executive power, but did not decide a local-board scenario.

Source

• Landing page: https://ncdoj.gov/opinions/legislator-serving-on-state-board-of-education/

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