Can a NC Parks and Recreation Authority member who is also a community college trustee also hold an elective town office?

Plain-English summary

The General Counsel for DENR asked the AG whether a member of the Department's Parks and Recreation Authority, who was also a community college trustee, could also hold an elective office on the Town of Lewisville council. Three offices, one person, all the conditions in play. The AG said yes, but the analysis depended on a specific feature of the community-college-trustee statute.

The constitutional baseline is Article VI, § 9 of the NC Constitution. It says the responsibilities of self-government should be widely shared, and prohibits one person from holding two elective offices. It also prohibits holding two appointive offices, or any combination of elective and appointive, "except as the General Assembly shall provide by general law."

The General Assembly's basic exception is N.C. Gen. Stat. § 128-1.1. Under that statute:

• A person who holds an appointive office may also hold one other appointive office, OR an elective office.
• A person who holds an elective office may also hold an appointive office (but not another elective office).

So under § 128-1.1 alone, someone in two slots is at the maximum.

The community-college-trustee statute, N.C. Gen. Stat. § 115D-16, adds a layer specifically for trustees. It provides that the office of community college trustee is an office which an elected official may hold "in addition to and concurrently with those offices permitted by N.C. Gen. Stat. § 128-1.1."

The AG worked through what that "in addition to" language means. If an elected official is already entitled, under § 128-1.1, to hold an appointive office, and § 115D-16 lets him hold a trustee office "in addition to" those permitted offices, then the trustee position sits on top of the § 128-1.1 limit. An elected official who is also a community college trustee can therefore hold a third, appointive office.

The AG took the trouble to flag a limit. The "in addition to" rule only works because the person is an elected official. § 115D-16 applies only to the holder of an elective office who is also a trustee. If all three positions were appointive, § 128-1.1's two-appointive cap would still bite. The trustee statute was not a general dual-office-holding amnesty. It rode on top of the existing elected-plus-appointive structure.

So the answer turned on which office was elective. Town of Lewisville council member: elected. Parks and Recreation Authority member (appointed under § 143B-313.2): appointive. Community college trustee: appointive. Elected + appointive + trustee = permitted under § 115D-16 layered on § 128-1.1.

The AG noted that the Institute of Government's treatise (Bell, Ethics, Conflicts, and Offices, Appendix B, 1991) reached the same conclusion.

Currency note

This opinion was issued in 2003. 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.

§ 128-1.1 and § 115D-16 have been amended over the years. Anyone evaluating a current dual-office question should check the current versions of both statutes, and any other office-specific statutes that may layer on additional rules.

Common questions

Q: At the time of the opinion, could someone hold both a community college trustee seat and a city council seat?
A: Yes. A trustee seat (appointive) plus a council seat (elective) was the basic combination § 128-1.1 already allowed, and § 115D-16 only mattered when adding a third office.

Q: Could the same person also be a county commissioner?
A: No. County commissioner is elective. Article VI, § 9 of the NC Constitution prohibits two elective offices, and neither § 128-1.1 nor § 115D-16 overrides that.

Q: What if a person holds three appointive offices but no elective?
A: § 115D-16 would not help. The trustee "in addition to" language only operates when the person is an elective officeholder. Three appointive offices without an elective would exceed § 128-1.1's limit.

Q: Why did the General Assembly carve out community college trustees specifically?
A: The opinion did not discuss the policy. Reading the statute on its terms, the legislature evidently saw value in making it easier for elected officials to also serve on community college boards, perhaps to bring municipal and county leadership into education governance.

Background and statutory framework

The constitutional and statutory layers in this opinion:

• N.C. Const. art. VI, § 9. Sets the dual-office baseline. Two elective offices prohibited. Two appointive (or one of each) permitted only by general law.
• N.C. Gen. Stat. § 128-1.1. General-law exception. Appointive plus one more (appointive or elective). Elective plus one appointive. Federal-government offices treated separately.
• N.C. Gen. Stat. § 115D-16. Trustee-specific exception layered on top. Lets an elected official hold a trustee office in addition to whatever § 128-1.1 already permits.
• N.C. Gen. Stat. § 143B-313.2. Authorizes appointment to the State Parks and Recreation Authority.

The trick of the opinion is the layering. § 128-1.1 is the base. § 115D-16 stacks on top. The result is a four-slot ceiling for elected officials who happen to be community college trustees, even though § 128-1.1 alone would only support two slots.

The opinion was signed by Senior Deputy Attorney General James C. Gulick and Assistant Attorney General William R. Miller (Environmental Division).

Citations

• N.C. Const. art. VI, § 9 (dual-office prohibition and general-law exception)
• N.C. Gen. Stat. § 128-1.1 (general dual-office permission)
• N.C. Gen. Stat. § 115D-16 (community college trustee dual-office addition)
• N.C. Gen. Stat. § 143B-313.2 (Parks and Recreation Authority appointment)
• A. Fleming Bell, II, Ethics, Conflicts, and Offices, A Guide for Local Officials, App. B (N.C. Institute of Government 1991)

Source

• Landing page: https://ncdoj.gov/opinions/dual-office/

Original opinion text

Reply to: William R. Miller
Environmental Division
Tel: 919-716-6600 Fax: 919-716-6767

August 19, 2003

Daniel C. Oakley, General Counsel
Department of Environment and Natural Resources
1601 Mail Service Center
Raleigh, NC 27699-1601

Re: Advisory Opinion: Authority to hold appointed position on Community College Board of Trustees pursuant to N.C. Gen. Stat. § 115D-16 in addition to dual-offices held pursuant to N.C. Gen. Stat. §128-1.1

Dear Mr. Oakley:

You have requested our opinion, on behalf of the Department's Parks and Recreation Authority, whether a member of the Parks and Recreation Authority, appointed to that office pursuant to N.C. Gen. Stat. § 143B-313.2, who concurrently holds an appointment as trustee of a community college, may also hold a third public office, specifically, an elective office in the local government of the Town of Lewisville. In our opinion, the answer is yes.

Section 9 of Article VI of the North Carolina Constitution provides that the responsibilities of self-government should be widely shared among the citizens of the State and that the potential abuse of authority inherent in the holding of multiple offices by an individual should be avoided. To this end, Section 9 prohibits the concurrent holding of any two elective offices. It also prohibits the concurrent holding of any two appointive offices or any combination of any elective and appointive offices "except as the General Assembly shall provide by general law."

In N.C. Gen. Stat. § 128-1.1, the General Assembly provided that any person who holds an appointive office in either State or local government may concurrently hold one other appointive office or an elective office in either State or local government. It also provides that any person who holds an elective office may concurrently hold an appointive office but not another elective office. Different provisions not germane here apply with regard to a person who holds an office or position with the federal government.

The General Assembly has supplemented the provisions of N.C. Gen. Stat. § 128-1.1 with respect to community college trustees. N.C. Gen. Stat. § 115D-16, provides that the office of trustee of any community college is an office which an elected official may hold "in addition to and concurrently with those offices permitted by N.C. Gen. Stat. § 128-1.1." Since N.C. Gen. Stat. § 128-1.1 permits an elected official to hold concurrently an appointive office in State or local government, the effect of N.C. Gen. Stat. § 115D-16 is to authorize an elected official who is concurrently a trustee of a community college to hold a third, appointive office concurrently. Consequently, we see no impediment to an appointed member of the Parks and Recreation Authority, who concurrently holds an appointment as trustee of a community college, holding a third, elective office in the local government of the Town of Lewisville. The result would be different if all of the positions were appointive, since N.C. Gen. Stat. § 115D-16 applies only to the holder of an elective office who also is a trustee of a community college. We note that the Institute of Government subscribes to this interpretation. See, A. Fleming Bell, II, Ethics, Conflicts, and Offices, A Guide for Local Officials, Appendix B, N.C. Institute of Government (1991).

We trust this Advisory Opinion will be of assistance to you in advising the Parks and Recreation Authority.

Sincerely,

James C. Gulick
Senior Deputy Attorney General

William R. Miller
Assistant Attorney General