Can a sitting county manager be appointed to the NC Property Tax Commission, and if so, when does the county manager's role create a conflict that requires recusal from particular Commission decisions?

Plain-English summary

Senator Marc Basnight asked whether a county manager could be appointed to the North Carolina Property Tax Commission and, if so, when the manager should abstain from deliberation and voting. The AG found no categorical legal bar to the appointment. The county manager's duties and the Commission's quasi-judicial role were not "inherently inconsistent or repugnant," and the request did not involve a personal-interest contract prohibited by G.S. § 14-234.

The opinion makes one recusal rule definite: a member who is also a county manager must disqualify from an appeal to which the member's county is a party.

For appeals involving other counties, the AG was more tentative. A challenge might concern a policy or practice the manager's home county also uses. The opinion says "We doubt whether" the member should deliberate such a challenge, because as chief administrator the manager may be deemed to have sanctioned that practice. It warns there is no clear test and calls for prudent judgment "on an ad hoc basis." It does not order recusal from every appeal presenting a similar policy.

Currency note

This opinion was issued in 1995. Check current commission membership, ethics, and recusal law for a present appointment or appeal.

Background and statutory framework

The Property Tax Commission heard appeals about county listing, appraisal, and assessment decisions. Commission members took an oath promising not to be influenced by personal or political friendships or obligations. The opinion analyzed both dual-office rules and impartiality in particular appeals.

G.S. § 128-1.1 allowed concurrent appointed positions, but the common-law bar on inherently incompatible offices still applied. The AG found county manager and Commission member were not incompatible as offices. That appointment answer did not resolve participation in every future appeal, especially where the manager's own county or its practices were implicated.

Common questions

Q: Can a sitting county manager be appointed to the Commission?
A: Yes. The AG found no legal disability barring the appointment on the facts presented.

Q: Must the member step aside when their own county is a party?
A: Yes. The opinion says the member "must disqualify himself" from any such appeal.

Q: Must the member recuse whenever another county uses a practice also used at home?
A: The opinion does not impose that categorical rule. It doubts whether the member should deliberate challenges to such practices and instructs the member to use prudent judgment case by case because there is no clear test.

Q: Did the opinion prescribe a remedy if the member participates despite a conflict?
A: No. It discusses the appointment and the member's judgment about participation, but not challenges to a resulting Commission decision or a procedure for reconsideration.

Citations

• N.C.G.S. § 105-288 (Property Tax Commission membership and oath)
• N.C.G.S. § 105-288(c) (supplemental oath: members will not allow personal or political friendships or obligations to influence their actions)
• N.C.G.S. § 105-290(b) (Property Tax Commission's authority to hear appeals from county property tax decisions)
• N.C.G.S. § 14-234 (conflict of interest statute; prohibits public officer making contracts for personal interest)
• N.C.G.S. § 128-1.1 (dual office holding; permits concurrent occupancy of two appointed positions)
• N.C.G.S. § 153A-82 (county manager's duties)
• State v. McHone, 243 N.C. 231 (1955) (NC Supreme Court; common law doctrine prohibiting holding of incompatible offices survives statutory dual-office permission)
• In re Appeal of Phillip Morris U.S.A., 335 N.C. 227 (1993) (NC Supreme Court; reversed Commission decision on contingent-fee appraisal contracts; illustrates breadth of policies that may be at stake before Commission)

Source

• Landing page: https://ncdoj.gov/opinions/appointment-of-county-manager-to-property-tax-commission-conflict-of-interest-dual-office-holding/

Original opinion text

January 27, 1995

Senator Marc Basnight
President Pro Tempore
North Carolina General Assembly
Raleigh, North Carolina 27601-2808

RE: Advisory Opinion; appointment of county manager to Property Tax Commission; conflict of interest; dual office holding; N.C.G.S. § 105-290; 153A-82

Dear Senator Basnight:

You request our opinion with respect to several questions regarding nomination to the North Carolina Property Tax Commission. You first inquire whether an individual serving as a county manager may be appointed to the Commission "without presenting a conflict of interest?" If the appointment is permissible, you ask "what, if any, matters raised before the Commission," should the individual "abstain from deliberation and voting?"

The manager is the chief administrator of a county, responsible to the board of county commissioners for all departments within the county, and unless specifically restricted, possesses broad powers to hire and discipline employees. N.C.G.S. § 153A-82. A manager's specific statutory duties include preparation of an annual budget, and compilation of a yearly report upon the county's financial and administrative activities. Id.

The Property Tax Commission is a five member quasi-judicial body established to "hear and decide appeals from decisions concerning the listing, appraisal, or assessment of property" made by boards of county commissioners. N.C.G.S. § 105-290(b). In essence the Commission serves as the state-wide administrative body to resolve all appeals regarding assessment of ad valorem taxes by local units of government. Commission members take the normal constitutional oath required of appointed office-holders, but supplemented by the phrase "that I will not allow my actions as a member of the Property Tax Commission to be influenced by personal or political friendships or obligations." N.C.G.S. § 105-288(c).

Measured by traditional principles, we see no impermissible conflict of interest created by nominating an incumbent county manager to the Property Tax Commission. "Conflicts" prohibited are those created when an appointee makes a contract for his personal interest, under authority of his appointed office. N.C.G.S. § 14-234. Your questions do not presuppose such contracts.

N.C.G.S. § 128-1.1 permits individuals to concurrently occupy two appointed positions free of constitutional limitations. However, the statute does not abolish the common law doctrine prohibiting the holding of incompatible offices. State v. McHone, 243 N.C. 231, 234 (1955). Incompatibility arises where the functions of each office are "inherently inconsistent or repugnant." 3 McQuillen, Municipal Corporations, § 12.67. p. 345 (1990). The respective duties of county manager and Commission member do not suggest such fundamental antagonism. Consequently, strictly speaking, no legal disability precludes a county manager from being appointed to the Property Tax Commission.

The more troublesome question, however, concerns what Commission matters the appointee may deliberate. Of course he must disqualify himself from questions pertaining to any appeal to which his county is a party.

But his fiduciary duty of impartiality appears to extend farther. There may be "county" issues embedded in property tax appeals emanating from other counties. We doubt whether the member should deliberate challenges to governmental policies or practices which are also implemented in his county, and for which as its chief executive officer he is deemed to have validated and sanctioned. For example, recently in In Re Appeal of Phillip Morris U.S.A., 335 N.C. 227 (1993), the North Carolina Supreme Court reversed a decision of the Property Tax Commission involving Cabarrus County. The Commission had held that contingent fee contracts awarded private appraisal firms, and commonly used by counties throughout the state, violated public policy and were void. The appointee must be particularly sensitive to similar types of issues possibly implicating administrative practices in his home county. Unfortunately there is no clear test for when the impartiality demanded of Commission members may be compromised, and the appointee must exercise prudent judgment on an ad hoc basis.

We hope you find the foregoing helpful.

Reginald L. Watkins
Senior Deputy Attorney General

George W. Boylan
Special Deputy Attorney General