Can the Director of the North Carolina Division of Aging keep serving on the Parks and Recreation Authority after starting that director job, or do the dual-role rules force her to choose between the two?

Plain-English summary

Karen E. Gottovi was appointed Director of the Division of Aging within the North Carolina Department of Health and Human Services in 1997, while already serving as a member of the North Carolina Parks and Recreation Authority. The Authority was staffed and administered by a different department, the NC Department of Environment and Natural Resources. Ms. Gottovi asked the AG whether her dual role created a legal problem.

Senior Deputy AG Daniel C. Oakley and Assistant AG David W. Berry concluded: no legal disability, but she should recuse on any matter directly or indirectly affecting DHHS or its divisions.

The starting statute was G.S. § 128-1.1, which generally permits a person to hold two concurrent appointive positions. But the AG noted that § 128-1.1 does not abolish the common-law incompatibility doctrine. State v. McHone, 243 N.C. 231 (1955), held that the doctrine survives the statute. Incompatibility arises when "the functions of each office are inherently inconsistent or repugnant," as 3 McQuillin, Municipal Corporations § 12.67 (1990) described it. So a dual-position holder has to look at both the statute and the common-law analysis.

Apply that frame to Ms. Gottovi's roles. Her statutory duties as Director of the Division of Aging under G.S. § 143B-181.1(a) included reviewing aging programs and recommending improvements to the Governor and General Assembly; publishing and disseminating aging information; educating the community about aging needs, resources, and opportunities; and administering the Home and Community Care Block Grant, which funded services for older adults. Her duties as a Parks and Recreation Authority member under G.S. § 143B-313.1 included allocating funds from the Parks and Recreation Trust Fund for land acquisition, improvements, and capital projects. The AG concluded these duties did not "suggest fundamental antagonism." Aging program administration and parks land-acquisition decisions are not inherently inconsistent.

But the AG flagged a narrower problem. Incompatibility could still arise where her Authority work directly or indirectly impacted DHHS. For example, if the Authority were considering allocating Parks and Recreation Trust Fund money to a project that involved DHHS facilities, programs, or land, Ms. Gottovi's role as a DHHS division director would put her on both sides. The remedy was case-by-case recusal: when such a situation arose, she should abstain from the Authority's deliberation and vote.

That dual-rule arrangement (concurrent service allowed, recusal required for specific overlapping matters) is the standard North Carolina approach to dual-office and dual-position situations where the offices are not inherently incompatible but where particular decisions can create case-specific conflicts.

Currency note

This opinion was issued in 1997. 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 dual-office-holding framework in G.S. § 128-1.1 and the common-law incompatibility doctrine have continued to be applied in similar ways. The North Carolina State Government Ethics Act, enacted in 2006, added additional disclosure and recusal requirements for state public servants, including covered persons in the executive branch and members of certain boards. Anyone currently considering concurrent appointive roles should also check the Ethics Act provisions and the State Ethics Commission's guidance.

Background and statutory framework

North Carolina has a long tradition of allowing experienced people to hold multiple appointive positions in state government. The statutory authority for concurrent service in § 128-1.1 reflects practical reality: the pool of qualified appointees is finite, and many people serve on boards, authorities, and commissions while holding regular government positions. The statute permits these arrangements as a default, with the common-law incompatibility doctrine carving out the exceptions.

The common-law incompatibility doctrine pre-dates § 128-1.1 and continues to apply. It asks whether the two positions' functions are inherently incompatible, not just whether they might overlap in specific cases. Inherent incompatibility is rare. Most state positions and boards have different jurisdictions, and the question is usually about case-by-case conflicts rather than structural incompatibility.

The Parks and Recreation Trust Fund was established in 1994 to fund state parks, local parks, beach access, and similar outdoor recreation purposes. The Authority's main job was to allocate the fund's resources among competing applications. Membership included representatives of various interests (state agencies, local governments, conservation groups).

Ms. Gottovi's specific case is illustrative because her division (Aging) had no obvious overlap with parks and recreation. Aging programs deal with senior services, in-home care, nutrition programs, and similar interventions. Parks projects deal with land acquisition, recreational facilities, and access infrastructure. The functional separation made the dual-position analysis easy.

The recusal mechanism is the standard workhorse of North Carolina conflict-of-interest law. Where a covered person has an interest in a specific matter, the duty to abstain ensures the body's decision-making integrity without forcing the person to give up the position entirely. The challenge is operational: the person has to flag conflicts as they arise, often before the body even considers a matter, and the body has to be prepared to function without the recused member's participation on that specific item.

Common questions

What if Ms. Gottovi were also working at DHHS and on the Aging Authority within DHHS? Would the analysis differ?

If the second position were within the same department, the analysis would be different and the risk of conflict would be much higher. The 1997 opinion focused on cross-department dual service, where the structural separation reduced inherent conflict.

Could the Governor force Ms. Gottovi to choose between the two positions?

The Governor has appointment authority over many state positions, and so can in practice push an appointee to relinquish one role. But the AG opinion is about whether the law forbids the dual service; it does not address gubernatorial discretion to remove or reassign appointees.

What counts as "directly or indirectly affecting" DHHS?

The opinion did not give a precise test. Direct effects would include a Parks and Recreation Trust Fund grant that involved DHHS land, facilities, or programs. Indirect effects could include grants that affect a community served by DHHS programs or that involve partner organizations DHHS funds. The AG left judgment to Ms. Gottovi and her counsel on a case-by-case basis.

How does the State Government Ethics Act (2006) change this analysis?

The 2006 Ethics Act added structured disclosure and recusal requirements for covered state appointees, with the State Ethics Commission providing case-specific guidance. The general principle of recusal when there is a personal or institutional conflict was preserved and formalized. Current dual-position holders should check the Ethics Act provisions in addition to the dual-office-holding statute.

Source

• Landing page: https://ncdoj.gov/opinions/conflict-of-interest-2/

Citations

• N.C. Gen. Stat. §§ 128-1.1, 143B-181.1(a), 143B-313.1
• State v. McHone, 243 N.C. 231 (1955)
• 3 McQuillin, Municipal Corporations § 12.67 (1990)

Original opinion text

November 14, 1997

Ms. Karen E. Gottovi

Director Division of Aging

N.C. Department of Health and Human Services

693 Palmer Drive

Raleigh, N.C. 27626-0531

SUBJECT: Advisory Opinion: Conflict of Interest, Employment as Director of Division of Aging and Membership on N.C. Parks and Recreation Authority, N.C. Gen. Stat. §128-1.1

Dear Ms. Gottovi:

The following opinion responds to your October 24, 1997 memorandum inquiring whether a conflict of interest, or other legal disability, arises as a result of your recent appointment as Director of the Division of Aging of the N.C. Department of Health and Human Services and concurrent membership on the N.C. Parks and Recreation Authority ("Authority"), which is staffed and administered by the N.C. Department of Environment and Natural Resources. We conclude that your recent appointment as Director of the Division of Aging does not present a legal disability to your membership on the Authority. However, in your capacity as an Authority member, you should recuse yourself from participating in any specific matter which directly or indirectly impacts your current employer, the N.C. Department of Health and Human Services, or its constituent divisions.

N.C. Gen. Stat. §128-1.1 permits individuals to concurrently occupy two appointed positions. However, that statute does not abolish the common law doctrine prohibiting the holding of incompatible offices. State v. McHone, 243 N.C. 231, 234 (1955). The doctrine of incompatibility prohibits a person from simultaneously holding a public office and an incompatible position of public employment. Incompatibility arises where the functions of each office are "inherently inconsistent or repugnant." 3 McQuillin, Municipal Corporations § 12.67 (1990).

Your respective duties as Director of the Division of Aging do not appear incompatible with your membership on the Authority. Your statutory duties as Director of the Division of Aging are set forth in N.C. Gen. Stat. §143B-181.1(a) and include, inter alia, reviewing existing programs for the aging and recommending improvements to the Governor and General Assembly; publishing and disseminating relevant information about aging; educating the community about needs, resources, and opportunities for the aging; and, administering the Home and Community Care Block Grant, which supports services for older adults. On the other hand, your statutory duties as an Authority member primarily include the allocation of funds for land acquisition, improvements, and other capital projects from the Parks and Recreation Trust Fund. See, N.C. Gen. Stat. §143B-313.1. The nature of your respective duties in both positions do not suggest fundamental antagonism. Therefore, we do not believe that your concurrent holding of the two positions presents any legal disability.

However, we do believe that the doctrine of incompatibility is applicable where your participation as an Authority member would directly or indirectly impact the N.C. Department of Health and Human Services or its constituent divisions. Therefore, if such situations arise during the course of your tenure on the Authority, we advise that you abstain from any such participation.

If you have any questions or need additional assistance, please let us know.

Daniel C. Oakley
Senior Deputy Attorney General

David W. Berry
Assistant Attorney General