Can the Wake County manager and the Raleigh city attorney serve on the Centennial Authority (the body that operated the RBC Center)? If they do, can they participate in votes that affect the county and city that employ them?
Plain-English summary
The Centennial Authority is a facility authority created by the General Assembly to develop and operate a major public facility in Wake County (the Raleigh Entertainment & Sports Arena, later RBC Center, now Lenovo Center). Its 17-member board includes appointees from the General Assembly, Wake County Commissioners, Raleigh City Council, and Wake County mayors. The board chairman asked the AG two questions about whether the county and city could appoint their own management employees.
Question 1: Can the County Commissioners and City Council appoint their employees (the County Manager, the City Attorney) to the Centennial Authority?
Yes. The Facility Authority Act, G.S. 160A-480.3(b), explicitly prohibits the commissioners and city council from appointing themselves (members of the appointing body) to the Authority. But it does not restrict them from appointing their employees, agents, or officers.
The only remaining objection is the common-law incompatible-offices doctrine (citing State v. McHone). Two offices are incompatible when the duties of one cannot be performed without infringing on the duties of the other. Senior Counsel Andrew Vanore concluded there is no inherent conflict between a county manager's or city attorney's duties and the duties of an Authority member. So the doctrine does not bar appointment.
Question 2: Can the county manager and city attorney participate in Authority discussions and votes affecting Wake County or Raleigh (their employers)?
Yes. The Facility Authority Act directly addresses this in G.S. 160A-480.3(g):
Conflicts. – If any member, officer, or employee of an Authority shall be: (1) Interested either directly or indirectly; or (2) An officer or employee of or have an ownership interest in any firm or corporation, not including units of local government, interested directly or indirectly, in any contract with that Authority, the interest shall be disclosed to the Authority and shall be set forth in the minutes of the Authority. The member, officer, or employee having an interest shall not participate on behalf of the Authority in the authorization of such contract.
The italicized "not including units of local government" carves out an exception. The general rule (disclose and abstain) does not apply when the conflicting affiliation is with a local government unit. So the county manager and city attorney, whose employer is a unit of local government, can participate in Authority votes affecting Wake County or Raleigh without triggering the statutory conflict bar.
The opinion notes that the General Assembly could have prohibited county-employee or city-employee appointments to facility authorities if it wished, but did not. Where the legislature speaks expressly (the appointing-body-cannot-self-appoint rule) but leaves a wider category open (employees of the appointing body), that silence is read as permissive.
Currency note
This opinion was issued in 1999. 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 Centennial Authority has continued to operate the major Wake County sports facility through several naming-rights agreements (RBC Center, PNC Arena, Lenovo Center). The Facility Authority Act in Part 4 of Article 20 of Chapter 160A remains in force. The G.S. 160A-480.3(g) "not including units of local government" exception still appears in the statute. The reasoning in this opinion (common-law incompatible-offices doctrine plus the statutory local-government carve-out) remains directly applicable to current facility authority appointments.
Common questions
Q: What is a "facility authority"?
A: A public body created under Part 4 of Chapter 160A to develop and operate major public facilities. Facility authorities typically have bonding power, real-property authority, and operational autonomy from the city and county that participate in them. The Centennial Authority is the prototypical example.
Q: Why can the Centennial Authority's local-government-employee members vote on Wake County / Raleigh matters?
A: Because G.S. 160A-480.3(g)(2) excludes "units of local government" from the conflict-of-interest definition. The drafters anticipated that local-government employees would commonly serve on facility authorities and built in the carve-out so they could fully participate.
Q: Is this a unique exception?
A: Yes. Most NC public-body conflict statutes do not have a local-government carve-out. The G.S. 14-234 general public-official conflict statute treats government employment like any other employment for purposes of the disclosure-and-abstention rule. The Facility Authority Act's specific carve-out is a deliberate departure tailored to the structure of authorities.
Q: When does the common-law incompatible-offices doctrine apply?
A: When the duties of two positions create antagonism or subordination. For example, a sitting city council member appointed to a body that audits city operations would face inherent conflict. The county manager / Authority member combination doesn't have that structural conflict.
Q: Could a board of county commissioners or city council member serve on the Authority?
A: No. G.S. 160A-480.3(b) explicitly bars the commissioners and city council from appointing their own members. The statutory prohibition is precise: appointing-body members can't sit on the Authority through that appointing route.
Q: What about the dual-office-holding limits in Chapter 128?
A: Those apply too, but they're not addressed in this opinion. A county manager is typically a paid employee, not a holder of an "office" within Article VI § 9 of the Constitution. A city attorney is similarly an employee position. Whether the Authority membership counts as an "office" for dual-office-holding purposes is a separate question this opinion didn't reach.
Background and statutory framework
The Centennial Authority was created by Chapter 458 of the 1995 Session Laws as a facility authority under Part 4 of Article 20 of Chapter 160A. The 1997 amendment (Chapter 68) increased its membership from 13 to 17 effective January 1, 1999. The Authority's mandate was to develop and operate a major sports and entertainment facility in Wake County, which became the RBC Center (now Lenovo Center).
Facility authorities sit in an unusual structural place. They are creations of state law, not city or county subdivisions. They typically include appointees from multiple local governments plus state appointees, creating a hybrid governance structure. The legislative design intends for the participating local governments to maintain meaningful oversight of the Authority's operations, which the act accomplishes through appointment power (cities, counties, and other local bodies pick members) rather than direct governance.
The local-government employee appointment question is a natural consequence of this structure. County managers and city attorneys are precisely the kind of senior local-government officials with deep policy and operational knowledge that would be valuable on a facility authority board. The Facility Authority Act's specific carve-out in G.S. 160A-480.3(g)(2) anticipates these appointments and prevents the general conflict-of-interest rule from disabling them.
The 1999 opinion's significance is mostly clarifying. It walks through the structural logic and confirms what the statutory text already suggests. For facility-authority counsel, it provides a clean cite when the inevitable conflict-of-interest question arises.
Citations
- N.C. Gen. Stat. § 160A-480.1 (Facility Authority Act creation provisions)
- N.C. Gen. Stat. § 160A-480.3 (Authority membership and conflicts)
- N.C. Gen. Stat. § 160A-480.3(b) (appointing-body-may-not-appoint-itself rule)
- N.C. Gen. Stat. § 160A-480.3(g) (conflict-of-interest disclosure and abstention; local-government carve-out)
- N.C. Gen. Stat. § 160A-480.15 (general Facility Authority Act provisions)
- 1995 N.C. Sess. Laws ch. 458 (creating the Centennial Authority)
- 1997 N.C. Sess. Laws ch. 68 (increasing membership from 13 to 17)
- State v. McHone, 243 N.C. 231, 234 (1955) (common-law incompatible offices doctrine)
- 3 McQuillen, Municipal Corporations § 12.67 (incompatible offices treatise)
Source
Original opinion text
January 28, 1999
George B. Daniel, Chairman
Legal Bylaws Committee
The Centennial Authority
1520 Blue Ridge Road, Suite 201
Raleigh, North Carolina 27607
RE: Advisory Opinion; The Centennial Authority; The Facility Authority Act, Part 4 of Chapter 160A of the General Statutes
Dear Mr. Daniel:
You request our opinion on two questions. First, may the Wake County Board of Commissioners and the Raleigh City Council appoint their employees or officers (full-time employed manager and attorney) to the Centennial Authority? Second, if these employees may be appointed, may they participate in discussions and votes affecting their employers, the city and county?
For reasons which follow, the answer to both questions is "yes."
The Centennial Authority was created by the General Assembly as a facility authority under Part 4 of Article 20 of Chapter 160A of the General Statutes. See, Chapter 458 of the 1995 Session Laws and N.C.G.S. §§ 160A-480.1 through 160A-480.15. Effective January 1, 1999, the membership of the Centennial Authority was increased from 13 to 17 members. The members are appointed as follows: eight are appointed by the General Assembly; four are appointed by the Wake County Board of Commissioners; four are appointed by the Raleigh City Council; and one is appointed jointly by the mayors of the cities in Wake County. See, N.C.G.S. § 160A-480.3(b). This same statute provides that "(n)either the board of commissioners nor the city council may appoint a member of its board to serve on the Authority."
Although the General Assembly prohibited boards of county commissioners and city councils from appointing themselves to a facility authority, the General Assembly did not restrict these public bodies from appointing their employees, agents or officers.
The only possible argument of which we are aware that would prohibit the county manager and city attorney from being appointed to the Centennial Authority is the common law prohibition against the holding of incompatible offices. This prohibition arises when one individual holds more than one office or position and the relationship between the offices or positions held creates a conflict in the duties so that one office or position cannot be exercised without infringing upon the exercise of the other office or position. See, State v. McHone, 243 N.C. 231, 234 (1955).
Incompatibility exists when one office or position is subservient to the other or where there is antagonism created by the offices or positions.
While incompatibility has been described as physical impossibility to perform the duties of both offices, it is not simply a physical impossibility to discharge the duties of both offices at the same time, it is an inconsistency in the functions of the two offices, as where one is subordinate to the other or where a contrariety and antagonism would result in the attempt by one person to discharge faithfully and impartially the duties of both. Two offices are said to be incompatible when the holder cannot in every instance discharge the duties of each. Incompatibility arises, therefore, from the nature of the duties of the offices, when there is an inconsistency in the functions of the two, where the functions of the two are inherently inconsistent or repugnant, as where antagonism would result in the attempt by one person to discharge the duties of both offices, or where the nature and duties of the two offices are such as to render it improper from considerations of public policy for one person to retain both. The true test is whether the two offices are incompatible in their natures, in the rights, duties or obligations connected with or flowing from them.
3 McQuillen, Municipal Corporations § 12.67. (Emphasis added).
In the context of the doctrine of incompatible offices, it is the nature and duties of the offices and positions that are controlling and not the status of the positions as offices or positions of employment.
The doctrine of incompatibility prohibits a person from simultaneously holding a public office and an incompatible position of public employment. The doctrine applies where the nature and duties of two offices are such as to render it improper from considerations of public policy for one person to discharge the duties of both.
3 McQuillen, Municipal Corporations § 12.67.
Because we are aware of no inherent conflicts between the duties and responsibilities of a county manager or a city attorney and the duties and responsibilities of a member of a facility authority, we believe that the offices are not incompatible. The bottom line, of course, is that the General Assembly, should it wish to prohibit a board of county commissioners or a city council from appointing its employees to a facility authority, it has the authority to do so. It did not do so here.
Having concluded that the county manager and city attorney may be appointed to the Centennial Authority, we next address whether these individuals would be prohibited from participating in discussions and votes which arguably could affect Wake County and Raleigh.
The Facility Authority Act directly addresses that issue in N.C.G.S. § 160A-480.3(g), as follows:
Conflicts. – If any member, officer, or employee of an Authority shall be:
- (1) Interested either directly or indirectly; or
- (2) An officer or employee of or have an ownership interest in any firm or corporation, not including units of local government, interested directly or indirectly, in any contract with that Authority, the interest shall be disclosed to the Authority and shall be set forth in the minutes of the Authority. The member, officer, or employee having an interest shall not participate on behalf of the Authority in the authorization of such contract. Other provisions of law notwithstanding, failure to take any or all actions necessary to carry out the purposes of this subsection do not affect the validity of any bonds or notes issued under this Chapter. (Emphasis added).
Assuming for the sake of this discussion that the county manager or the city attorney was directly or indirectly interested on behalf of the county or city in a contract with the Authority, the General Assembly specifically excluded from the definition of "conflicts" an officer or employee of "units of local government." See, N.C.G.S. § 160A-480.3(g)(2). It follows, therefore, that the managers and attorneys of the City of Raleigh and Wake County appointed to the Centennial Authority could participate in discussions and votes affecting the city and county.
We hope this is helpful. Should you require anything further, please contact us.
Very truly yours,
Andrew A. Vanore, Jr.
General Counsel
AAVjr/jt