Wearing Several Hats: Multiple and Ex Officio Office-Holding

In an earlier blog, I discussed the meaning of “public office.”  As promised, I will now examine multiple and ex officio office-holding.

North Carolina has long had a state policy against concentrating too much government power in the hands of one individual.  Reflecting this concern, all of the state’s constitutions until 1971 banned the holding of more than one elective or appointed office at one time, and the current law generally limits any one person to one elective and one appointive office, or two appointive offices, at the same time.  G.S. 128-1.1. Ex Officio Service.  Perhaps because of the harshness of the pre-1971 rule, the courts developed the doctrine of ex officio office-holding, which is still important today.  Even the current office-holding rules may still seem unduly restrictive at times, and that is where the ex officio concept comes into play. Ex officio is a Latin term meaning “of or from the office.”  A person holding one office is said to be serving ex officio in a second office if she or he holds the second by virtue of holding the first.  For example, a city clerk might serve ex officio as the city’s finance officer, if the finance officer’s duties are included in the clerk’s job description, or a county commissioner might serve ex officio on the county’s airport authority if the commissioner’s duties are considered to include that service. A person who holds an office ex officio has all of the same rights, powers, and obligations as any other office-holder.  If the ex officio office is service on a board, the ex officio board member has the same right to vote as any other board member.  There are only two differences between ex officio and “regular” office-holding.  The first and obvious one is the method of appointment.  The second difference is the subject of this blog—offices held ex officio are not counted for multiple office-holding purposes. The statutes explicitly recognize the concept of ex officio service.  For example, G.S. 130A-35(b), and 130A-37(b), require county commissioner representation on local boards of health.  This additional service is part of the duties of office for the commissioner-members. The most important statute allowing for ex officio service is G.S. 128-1.2.  It specifies that whenever a city council or a board of county commissioners appoints one of its members or certain other local officials to another board or commission, the individual appointed is considered to be serving on the other board as part of the person’s duties of office and is not to be considered to be serving in a separate office, unless the resolution of appointment provides otherwise. An Illustration.  An inquiry that I recently received illustrates how the rules for multiple and ex officio office-holding work.  I was asked for advice about the following situation. Mr. A is a member of the jurisdiction’s governing board.  That is clearly one office. Mr. A is also active in a non-profit organization that promotes sporting activities in the community.  The non-profit was formed by joint city-county action, it receives funding from both the city and the county, and its board of directors is appointed by the city and the county.  Is that a second office for Mr. A? The governing board is now thinking about appointing Mr. A to a tourism development authority that was authorized by a local legislative act.  It is a public authority under the Local Government Budget and Fiscal Control Act.   Would that be a third office? Finally, Mr. A also serves as the governing board’s liaison to the planning board and as a member of the jurisdiction’s transportation advisory committee.  Are these fourth and fifth offices?  Is there a multiple office-holding violation? Analysis Non-Profit Corporation Board.  Non-profit corporation board members are generally not considered to be public officers, since they serve a private corporation rather than the government.  Thus, they are generally not subject to multiple office-holding laws at all. However, this situation is a bit different, in that there are significant ties between the non-profit and the city and county.  In some cases, the courts have been willing to treat non-profits as government departments if they have sufficiently strong connections to the government.  The fact that the non-profit’s board is appointed by the city and county, together with the roles of the city and county in creating and funding the non-profit, might lead a court to such a conclusion here. Tourism Development Authority.  A tourism development authority member probably holds a public office, especially if the authority has the power to do such things as hire staff, budget and spend money, contract, hold title to property, and sued and be sued.  Public offices are positions that involve the exercise of a portion of the sovereign’s power, and the exercise of discretion in carrying out the types of tasks listed probably qualifies. Liaison to the Planning Board.  While the position of liaison is no doubt quite important, carrying out this assignment likely does not involve the exercise of significant independent decision-making power or discretion, so the position is most likely not a public office. Transportation Advisory Committee.  Members of advisory groups are not public officers, since they, like the liaison, do not have discretionary decision-making powers.  They only give advice. Conclusions.  Without the law on ex officio office-holding, I would conclude that Mr. A (1) holds one elective office (board member); (2) probably holds one appointive office (member of the board of a non-profit corporation with substantial ties to the government); and (3) holds two advisory positions that are not public offices (planning board liaison and transportation advisory committee member).  I would caution that Mr. A was probably already holding the maximum of two public offices, and could not be appointed to another office (tourism development authority member) without giving up one of the two current offices.  I could not be completely sure of this answer, however, since I would not know definitely how a court would treat the non-profit board membership. In the midst of this uncertainty, the ex officio statute, G .S. 128-1.2, comes to the rescue.  Recall that under its provisions, whenever a governing board appoints one of its members to another board, that member is considered to be serving in the other position as part of the member’s duties of office as a governing board member and not to be holding a separate office, unless the appointment resolution provides otherwise. Because of the doctrine of ex officio office-holding as expressed in this statute, Mr. A can hold a position on the tourism development authority as part of his duties as a governing board member.  In addition, Mr. A need not be concerned about whether the non-profit corporation that promotes sporting activities might be considered to be a part of the government.   Even if membership on the non-profit’s board were found to be a public office, Mr. A could serve on the board ex officio. In my next blog on office-holding, I will turn to the common law doctrine prohibiting the holding of incompatible offices and positions.   Please stay tuned!