Do North Carolina's political-activity restrictions on city and county 'employees' also cover elected mayors, commissioners, and sheriffs?

Plain-English summary

In October 1997, William Gilkeson, a staff attorney for the General Assembly, asked the AG whether North Carolina's two parallel local-government political-activity statutes covered elected mayors, county commissioners, sheriffs, and the like, or only their hired staff. The statutes in question, G.S. § 153A-99 for counties and G.S. § 160A-169 for cities, both prohibit certain political activity by a "city/county employee" but define "employee" only as "any person employed by a county [city] or any department or program thereof that is supported, in whole or in part, by county [city] funds." The definition does not directly address elected officeholders, and "employee" and "officer" are sometimes used in contradistinction in NC statutes.

Senior Deputy AG Ann Reed and Special Deputy AG Charles Murray concluded that "employee" reaches elected officials.

Federal-court foothold. The first piece was Carter v. Good, 951 F. Supp. 1235 (W.D.N.C. 1996), where a deputy sheriff claimed he was fired for supporting the sheriff's election opponent. The district court rejected the sheriff's argument that the elected constitutional office of sheriff was not covered by G.S. § 153A-99 and treated the sheriff as bound by the statute.

State Supreme Court analogues. The opinion drew analytical support from the public-records personnel-file line of cases: Elkin Tribune v. Yadkin County Board of Commissioners, 331 N.C. 735 (1992), and Durham Herald Co. v. County of Durham, 334 N.C. 677 (1993). Both interpreted G.S. § 153A-98 (which also speaks only of "employees") to reach the appointed office of county manager (Elkin) and the elected, constitutionally created office of sheriff (Durham Herald). The Supreme Court there expressly recognized that the General Assembly elsewhere used "employee" and "officer" in contradistinction, but still read § 153A-98's bare "employee" to include officers, including elected ones.

The cross-reference to G.S. § 14-92. Gilkeson also asked what other statutes prohibited the conduct described in subsection (e) of § 153A-99 and § 160A-169. The AG pointed to G.S. § 14-92, which makes it a Class H felony for any officer, agent, or employee of a local government to misapply local government money or property. The combined message: an elected mayor or commissioner who diverts public money is exposed both to the civil/administrative consequences of the political-activity statutes and to felony liability under § 14-92.

Currency note

This opinion was issued in 1998. 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. Both G.S. § 153A-99 and G.S. § 160A-169 have been amended in the years since, and the General Assembly has reworked parts of the local-government conflict-of-interest framework. Anyone analyzing whether a current city or county elected official falls within a current version of these statutes should look at the current statutory text and any later court decisions or AG opinions.

Background and statutory framework

G.S. § 153A-99 and G.S. § 160A-169 are parallel statutes, one for counties and one for cities, that regulate the political activity of local government workers. They restrict political activities by "employees" and impose remedies and consequences when the rules are violated. The threshold question for any enforcement is who counts as an "employee."

The phrase the AG had to construe, "any person employed by a county [city] or any department or program thereof that is supported, in whole or in part, by county [city] funds," is intentionally broad on its face. But North Carolina statutes elsewhere distinguish "officers" from "employees" (G.S. § 153A-82 defines the county manager as an officer, for example), so the question whether the term "employee" alone reaches elected officeholders is not self-answering.

The AG used the same interpretive move that the Supreme Court had used in the public-records context: read "employee" broadly in the substantive statute, treat the official/employee distinction as relevant in some contexts but not here, and lean on the legislature's apparent purpose. Combined with the Carter v. Good district-court holding directly applying § 153A-99 to an elected sheriff, the broad reading prevailed.

Common questions

Did this opinion change how political-activity discipline worked for elected officials?

It clarified that the same substantive prohibitions reached them. The actual remedies and disciplinary mechanism for elected officials are different from those for at-will employees (you cannot "fire" a mayor for a political-activity violation; you go to courts or the ballot box). But the opinion confirmed that the elected official is bound by the same prohibitions.

What does subsection (e) of § 153A-99 prohibit?

In the version then in effect, subsection (e) prohibited the use of county property or funds for political purposes. The AG cross-referenced this to G.S. § 14-92 (misapplication of local-government money or property by an officer, agent, or employee), which made the same conduct a Class H felony. The two statutes overlap, giving prosecutors and county attorneys multiple tools when an officeholder misuses public resources for campaign purposes.

Did the opinion address sheriffs specifically?

Yes. Carter v. Good was a deputy sheriff political-firing case where the sheriff argued his constitutional office placed him outside § 153A-99. The federal court rejected that, and the AG cited it as direct authority. Sheriffs are covered under the statute.

Does it matter that an office is constitutionally created?

The AG and the Supreme Court (in Durham Herald) treated constitutional status as irrelevant to the "employee" question. Durham Herald analyzed personnel-file rules and applied them to the sheriff despite the sheriff being a constitutional officer; the same logic carried over here.

What about the parallel city statute, § 160A-169?

The AG specifically said the two statutes are identical except for the substitution of "city" for "county" and the conclusion applies equally to both. So mayors, city council members, and city clerks were also reached.

Source

• Landing page: https://ncdoj.gov/opinions/definition-of-city-and-county-employee-political-activities/

Citations

• N.C.G.S. § 153A-99
• N.C.G.S. § 160A-169
• N.C.G.S. § 153A-98
• N.C.G.S. § 153A-82
• N.C.G.S. § 14-92
• N.C.G.S. § 143-318.11
• Carter v. Good, 951 F. Supp. 1235 (W.D.N.C. 1996)
• State v. Hord, 264 N.C. 149, 141 S.E.2d 241 (1965)
• Morecock v. Hood, 202 N.C. 321, 162 S.E.2d 730 (1932)
• Elkin Tribune, Inc. v. Yadkin County Board of Commissioners, 331 N.C. 735, 417 S.E.2d 465 (1992)
• Durham Herald Co. v. County of Durham, 334 N.C. 677, 435 S.E.2d 317 (1993)

Original opinion text

January 14, 1998

Mr. William R. Gilkeson
Staff Attorney, N.C. General Assembly
Suite 545, LOB
Raleigh, NC 27603-5925

Re: Advisory opinion; Definition of city and county employee as including elected officials; political activities of local government elected officials and employees; N.C.G.S. §153A-99; N.C.G.S. §160A-169.

Dear Mr. Gilkeson:

The following is in response to the request for an opinion set out in your correspondence dated October 21, 1997 asking whether the term "employee" as defined in N.C.G.S. §§ 153A-99 and 160A-169 extends to elected officials of cities and counties. Both statutes are identical save for the use of "county" in one and "city" in the other, and this opinion is applicable to both statutes.

The term "[e]mployee" is defined in subdivision (b)(1) of N.C.G.S. § 153A-99 and in N.C.G.S. § 160A-169 to mean "any person employed by a county [city] or any department or program thereof that is supported, in whole or in part, by county [city] funds." While the definition does not directly address the point raised by your inquiry, it does support a broad application of the term "employee".

Your request for an opinion recognizes that in certain situations the terms "officers" and "employees" are intended to be mutually exclusive, whereas in other situations the term "employees" is intended to include all individuals employed in any status and would include officers. "Although an office is an employment, it does not follow that every employment is an office." McQuillin, The Law of Municipal Corporations, Vol. 3, § 12.30. See also, State v. Hord, 264 N.C. 149; 141 S.E.2d. 241 (1965). The context of a statute will dictate the interpretation to be given to the words used in the statute. Morecock v. Hood, 202 N.C. 321, 323, 162 S.E.2d 730, 731 (1932); 73 Am. Jur. 2d Statutes § 213 (1974).

There has been only one case that has addressed the issue raised by your request. In Carter v. Good et al., 951 F.Supp. 1235 (WDNC, 1996) the plaintiff alleged he was wrongfully dismissed from his position as a deputy sheriff by the defendant sheriff because of his support of the opponent of the defendant during an election campaign. The opinion rejected the defendant sheriff's argument that he was not a county employee and that N.C.G.S. § 153A-99 was not applicable to the constitutionally created, elected office of sheriff. 951 F. Supp. at 1248, 1249.

We have found no North Carolina state court cases interpreting N.C.G.S. § 153A-99 or N.C.G.S. § 160A-169. However, two North Carolina cases with regard to disclosure of personnel files, which interpreted the word "employee" in N.C.G.S. § 153A-98 to apply to the appointed office of county manager and the elected office of sheriff, provide insight into the issue under consideration.

In Elkin Tribune, Inc. v. Yadkin County Bd. of Commissioners, 331 N.C. 735, 417 S.E.2d. 465 (1992), the question before the Court was the availability to the public of the names and applications of people applying for the position of county manager under the provisions of N.C.G.S. § 153A-98, which refers only to "employees" and does not use the term "officer". The Court held that N.C.G.S. § 153A-98 was applicable to the applications for the office of county manager, even though the position of county manager clearly falls within the definition of the term "officer." N.C.G.S. § 153A-82. In the case of Durham Herald Co. v. County of Durham, 334 N.C. 677, 435 S.E.2d. 317 (1993), the Court concluded that applications for a vacancy in the position of sheriff also are governed by N.C.G.S. § 153A-98. In the Durham case the plaintiff contended that because N.C.G.S. § 153A-98 only governs the personnel records of "employees" it does not apply to the sheriff. The plaintiff's argument relied on the fact that the office of sheriff is a constitutional office and an elected office whose duties are not controlled by the board of county commissioners. Citing the Elkin case, the Court rejected the plaintiff's argument, noting that while there are differences between the appointed office of county manager and the elected office of sheriff which would be material in other contexts, the application of N.C.G.S. § 153A-98 does not turn on such distinctions. Also in the Durham case, the Court's opinion contained quotations from Article 7 of Chapter 126 and N.C.G.S. § 143-318.11 relating to the disclosure of public records. Those statutory provisions use the term "employee" and the term "officer". The quotations of those statutes are significant to this discussion because they establish that the Court was advertent to the fact that the General Assembly used the terms "employee" and the term "officer" in contradistinction to each other but nevertheless held that the term "employee", when used by itself in N.C.G.S. § 153A-98, was broad enough to include elected officers. Finally, the Court stated that it was confident that the General Assembly intended N.C.G.S. § 153A-98 to apply to the position of sheriff.

Based on the preceding authority, we conclude that the provisions of N.C.G.S. § 153A-99 and N.C.G.S. § 160A-169 are applicable to elected officials of counties and cities.

Your correspondence also inquired as to other statutes which would prohibit the activities proscribed by subsection (e) of N.C.G.S. § 153A-99 and N.C.G.S. § 160A-169. Another statute that prohibits the same activity is N.C.G.S. § 14-92, which makes it a Class H felony for any officer, agent or employee of a local government to misapply the money or property of that local government.

Ann Reed
Senior Deputy Attorney General

Charles J. Murray
Special Deputy Attorney General