The Halifax Resolves, April 12, 1776

I find that many local officials are unclear about the statutory requirement that they hold “public comment periods” on a regular basis.  In this post, I will answer some of the questions about comment periods—which boards must hold them and how often, what they are and what they are not, what types of comments are allowed, and what procedures local officials may adopt to govern comment periods.

In 2005, the General Assembly enacted S.L. 2005-170 (H 635), which mandates that city councils, boards of county commissioners and local boards of education provide at least one period of public comment each month at a regular meeting of the board.  The law is codified with nearly identical language at G.S. 115C-51 (school boards), G.S. 153A-52.1 (counties), and G.S. 160A-81.1 (cities). The board need not provide a comment period if no regular meeting is held during the month.

The public comment period requirement does not apply to appointed boards and to other elected boards, although they may be governed by public hearing or other requirements (see the next paragraph).  These other boards may of course also choose on their own to hear from the public and, if they do so, they must observe the rules for limited public forums discussed below.

Public comment periods held pursuant to S.L. 2005-170 are different from other instances where public comment is solicited.  For example, public hearings, whether required by law or held voluntarily, are generally limited to particular subjects, such as the rezoning of specific property, a budget proposed for adoption, or the receiving comments about noise regulation.  For more information about the types of hearings that may be held, please see David Owens, “Zoning Hearings:  Knowing Which Rules to Apply.”   In addition, David Lawrence has written a blog post, “When Are Public Hearings Required,” that provides a list of statutes that require a city council or a board of county commissioners to hold a public hearing.

Participants in statutorily required public comment periods, on the other hand, are generally free to comment on any subject that is within the jurisdiction of the local government that is holding the comment period.  The public comment period is a “limited public forum” for purposes of the First Amendment’s rules on freedom of speech, and the broad language of the statutory directive to hold “public comment periods” likely means that the board must allow general comments about any topic related to the city, county, or school district. The board also must be careful not to restrict comments about such topics based on the viewpoint stated by the speaker, or by the forcefulness of the speaker’s arguments.

This is not to say that boards cannot have any rules governing public comment periods.  In language borrowed from G.S. 153A-52 and G.S. 160A-81, the public hearing statutes for counties and cities, G.S. 115C-51, G.S. 153A-52.1, and G.S. 160A-81.1 allow boards to adopt reasonable regulations governing the conduct of public comment periods, including but not limited to rules setting time limits for speakers, and providing for (1) the designation of spokesmen for groups supporting or opposing the same position, (2) the selection of delegates from groups supporting or opposing the same position when the number of persons wishing to attend the comment period exceeds the capacity of the hall, and (3) the maintenance of order and decorum in the conduct of the public comment period.  Under the First Amendment, these types of rules are called “reasonable time, place, and manner” restrictions on speech.

Are there ever instances where boards can limit the topics discussed at public comment periods, other than a requirement that the subjects addressed be related to the jurisdiction?  For example, some boards have adopted a rule that the subjects discussed during the comment period be ones that are on the board’s agenda, or conversely, that they be unrelated to agenda items.  Other boards may wish to limit public comments about individual public employees.  As noted above, the statutory requirement that public comment periods be held is quite broad, and it contains no authorization for such content-based restrictions.  Could such restrictions ever be seen as reasonable time, place, and manner regulations, as long as the board does not censor speech based on viewpoint?

Would it be permissible, for example, for a board to limit public comments about individual public employees or officials, as long as the board was careful to provide an adequate, alternative means for persons to air their comments or concerns? The board could make clear whom to contact if the concern involves a staff employee who is under the direct supervision of a city or county manager or a school superintendent, or of some other director or department head.  In addition, the board could invite the person with a concern to attend part of a closed session of the board for personnel matters, and to raise his or her issues there.

Protection from public criticism is clearly not available for the elected board members themselves.  As a practical matter, if someone wishes to complain to the board about its actions or those of one of its members, the only place where the concern may be raised publicly in front of the entire body is generally during the public comment period or at a public hearing.

Such comments are at the heart of the political speech that is protected by the First Amendment’s guarantee of freedom of speech.  In fact, criticism of public officials has a long and respected history in the United States, going back to colonial times when it was generally not protected speech.  Consider, for example, the Edenton and Boston Tea Parties and the hanging of King George III of England in effigy.  I often tell local elected officials, only half jokingly, that a thick skin and a polite willingness to endure criticism are essential job requirements for their positions.

For more information on public comment at board meetings, please see the two-part article, “Public Comment at Meetings of Local Government Boards,” available here and here, that my School of Government colleague John Stephens, and I wrote with assistance from Christopher Bass, a 1996 law clerk at the School of Government.

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!

One of the board’s suggestions is to use the audio recordings that the board chooses to make of its meetings as its permanent minutes, instead of having the clerk actually type the minutes.  The other idea is to have the board’s actions (motions and decisions made by consensus only) written down as the minutes, and then to incorporate the audio recording of the meeting as part of the minutes.

While what the board wishes to do may result in savings, their plans are legally insufficient where permanent government records are involved.  North Carolina’s Office of Archives and History, part of the Department of Cultural Resources, makes the rules that cities, counties, and other governmental units must follow concerning records retention.  That office specifies that only paper documents and microfilm copies that meet certain high quality standards can be used as permanent records, also called “human-readable preservation duplicates.” While recordings or DVDs may be useful as back-ups, they cannot take the place of paper or microfilm.  Click here for the policy.

The minutes of local governing boards and most other local government boards are among the records that must be maintained permanently in paper or microfilm form.  For a full listing of the retention periods for these and other city and county records, please see the county and municipal records retention schedules.    

The clerk and the board should also have practical concerns about how minutes and other permanent records are maintained.  Magnetic records have not been proven to have the permanency of acid-free paper and microfilm. In addition, recording technology changes, often rapidly, making it more difficult or even impossible to access older records.  For example, do you remember eight-track tapes and floppy disks?  More recently, audio cassettes and conventional videotapes, which were once ubiquitous, are fast disappearing.  

On request, the Imaging Unit of the Government Records Branch of the Office of Archives and History will prepare microfilm security copies of local government records such as minutes that must be permanently maintained.  Please click here for more information about microfilming procedures.  These microfilm security copies are safely housed in an underground vault in Raleigh. 

There is an upfront charge of $20 per reel for the filming to recover the cost of the film (there is no charge for labor or storage).  Each roll can hold approximately 2,500 images, and the local government will not be charged again until a new roll is begun.

The imaging unit also has the ability to convert some types of digital copies to microfilm.  It works individually with government agencies to ensure that particular records can be converted.

The clerk and the board will find that the Government Records Branch also offers a variety of other useful records-related services to local governments.  Its programs are described here.  Contact information for Local Records Management Analysts and other helpful persons may be found there as well.

Finally, the board should keep in mind that “full and accurate minutes” need only include a record of actions and of the existence of the conditions needed to take action, such as the presence of a quorum or the fact that a legally required public hearing was held.  A detailed record of discussion is not generally required unless the board is meeting in a quasi-judicial capacity—for example, to discuss issuance of special use permits.

I am often asked to explain what it means to hold a public office. The questioner is sometimes trying to decide whether a particular person must take an oath, which is required of public office-holders.  Or, the person may be trying to determine whether certain positions may be held simultaneously under North Carolina’s constitutional and statutory multiple office-holding restrictions.

North Carolina’s case law on office-holding is both venerable and extensive. Indeed, most of the rules that we follow today were originally developed in the late 1800s and the early 1900s.

Interest in office-holding probably arose because of a provision in North Carolina’s pre-1971 constitutions that allowed a person to hold only one “office or place of trust or profit” at a time. (“Office” and “place of trust or profit” have basically the same meaning.) Perhaps because of this rule’s strictness, questions often arose about two issues.

First, it was important to know the meaning of the term “office or place of trust or profit” because the ban did not apply to positions that were not such “offices” or “places.” Second, questions arose about the distinction, if any, between holding an office and performing the duties of an office as part of the responsibilities of another office, in order to avoid violating the ban. This practice is called ex officio office-holding. Both of these issues remain important today, even though the present multiple office-holding rules are somewhat more liberal.

In this post, I will explore the meaning of the term “public office,” and will explain generally what are and are not public offices. 

In a later post, I will examine North Carolina’s rules about holding multiple public offices, including the doctrine of ex officio office-holding.

If this subject interests you, you may also wish to consult David Lawrence’s earlier posts on oaths (Oaths of Office:  How Many and By Whom? and Filing oaths of office) and on city and county attorneys as public officers (City and County Attorneys as Public Officers — Possible Downsides, and City and County Attorneys as Public Officers — A Possible Upside).

Several factors must be taken into account in deciding whether a particular position is a public office. Does the position in question involve the exercise of independent decision-making power on behalf of the state or a duly constituted state subdivision such as a city or county, rather than being merely advisory? Is that power given by constitution or statute and does its exercise involve the carrying out of an important part of the executive, legislative, or judicial functions of government? Does the occupier of the position have significant legal power to make enforceable decisions concerning people’s life, liberty, or property? Affirmative answers to one or more of these questions are a good indication that the position under consideration is indeed a public office.

Although most public officers are required to take oaths and most receive a salary or fees, these items “are mere incidents and constitute no part of the office.” If no salary or fees are involved, “it is a naked office—honorary—and is supposed to be accepted merely for the public good.” Further, a public office does not have to be continuing in nature. An office could involve doing only one act or it could be held for several years. State ex rel. Clark v. Stanley, 66 N.C. 60, 63-64 (1872).

The dividing line between public offices and public employment generally is often hard to draw. In one case, the North Carolina Supreme Court explained that “[t]he true test of a public office seems to be that it is parcel of the administration of government, civil or military, or is itself created by the law-making power.” Eliason v. Cooper, 86 N.C. 236, 240-41 (1882) In another decision, it stated that an office involves “a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public, by which it is distinguished from employment or contract.” State ex rel. Barnhill v. Thompson, 122 N.C. 493, 495-96, 29 S.E. 720, 721 (1898).

Here are two other examples. One case involved a person who served on the Raleigh Board of Aldermen at the same time that he was employed as the night watchman for the federal courthouse under an appointment from the United States Treasury department. The supreme court concluded that while the position of alderman was a public office, the position of night watchman was not. It explained that the watchman was “employed in a specific service having none of the attributes to raise it to the dignity of the constitutional disqualification.” Doyle v. Aldermen of Raleigh, 89 N.C. 133, 135–36 (1883).

In a later case, the court concluded that the city government position of sinking fund commissioner was an office, rather than a “mere public employment,” due to several characteristics of the position. It “was not of a temporary character, and the duties were continuous and not intermittent. The incumbent was required to perform continuous public service for a definite period and of a very responsible character.” Borden v. City of Goldsboro, 173 N.C. 661, 662, 92 S.E. 694, 695 (1917).

Unfortunately, most parts of these definitions are not particularly useful. A great many public jobs are concerned in some way with the administration of government. Most are permanent rather than temporary, with continuous, non-intermittent duties. All public positions by their very nature involve public service and are exercised for the benefit of the public. And what specific attributes raise a public position to the “dignity” of a public office? Do not all public positions derive their legitimacy from the sovereign and hence involve “sovereign functions”?

Public offices are positions that involve significant responsibility and discretion under the law. The one characteristic that might provide a useful distinction is the last one mentioned in the cases above:  public offices involve public service of “a very responsible character.” This trait of great responsibility may well be what the Eliason court had in mind when it explained that a portion of a country’s (or state’s) sovereignty attaches for the time being to a public office. Eliason v. Cooper, 86 N.C. at 239-40. Perhaps another way to state the same idea is to say that public officers have a good deal of independent decision-making power involving the exercise of discretion.

Thus, the fact that someone holds a public job does not alone make that person a public officer for multiple office-holding purposes. But the more discretion, responsibility, and power to make decisions that a position involves, the more likely that courts will see that position as a public office rather than as “mere employment.” And this may be particularly true if the position involves the relatively direct exercise of the State’s authority.

The position of city or county manager provides a good example. Managers can be characterized as public officers due to the amount of independent discretion that they exercise, discretion that they have been delegated by the state. See Leete v. County of Warren, 341 N.C. 116, 119, 462 S.E.2d 476, 478 (1995) (county manager); State ex rel. Grimes v. Holmes, 207 N.C. 293, 298, 176 S.E. 746, 748 (1934) (city manager); and Ratcliff v. County of Buncombe, 663 F. Supp. 1003, 1009–10 (W.D.N.C. 1987) (county manager) for examples of how the courts have treated the manager position.

A 1965 supreme court case supports this view. In that case, the court examined the question of whether police chiefs and police officers are public officers or public employees for purposes of G.S. 14-230, which deals with willful failure by public officers to discharge official duties. The court pointed out that what determines a police officer’s status is “the nature and extent of his duties and responsibilities with which he is charged under the law.” In language similar to that found in multiple office-holding cases, it referred to the position’s creation by the sovereign power and its exercise of part of that power as distinguishing an office from employment. State v. Hord, 264 N.C. 149, 155, 141 S.E.2d 241, 245 (1965) (citation omitted). The court held that duly appointed chiefs of police, as well as police officers, are public officers rather than mere employees within the meaning of G.S. 14-230. Id.

In determining whether a position is an office, North Carolina’s courts will look at whether the powers attached to the position are those of a public office, not at whether those powers are actually being exercised. If the position has the powers of an office, it is an office. Similarly, the term of the position is unimportant.

Positions that do not actually involve the exercise of sovereign power but are merely advisory are not public offices. No matter how wise or extensive one’s advice may be, nor how much it is listened to by others, a position is not a public office if one can only advise and not decide.

Thus, for example, the members of a local planning board are not public officers if they only make recommendations to the governing body concerning re-zonings and subdivision plats. But if the planning board is given the responsibility of approving subdivision plats, so that a plat cannot be recorded in the register of deeds office without that approval, the position of planning board member is probably an office. Decisions about governmental recognition of a particular scheme for dividing land involve discretion and the exercise of a fair amount of sovereign governmental power.

A position that involves the wielding of significant legal control over people’s lives is generally a public office. This test for a public office is suggested by the last example. As noted above, if I want to record a subdivision plat, I may be required by law to go to the planning board for its approval. As another example, certain types of transactions will not be recognized in a court of law unless the parties’ signatures are notarized. The notary public is a public officer, N.C. Constitution, art. VI, § 9(2); State ex rel. Attorney-General v. Knight, 169 N.C. 333, 353, 85 S.E. 418, 428 (1915), just as the members of a planning board with plat approval authority probably are. Both types of officials may have received that designation as much because of the legal power that they have over people’s lives as because of the amount of independent discretion that they exercise.

The resolution or policy is required to address at least five key responsibilities of board members, responsibilities that reflect concern for ethical principles as well as for the effects of the board members’ decisions on others.

The five areas to be addressed follow. (Emphases and comments added.)

(1)   The need to obey all applicable laws regarding official actions taken as a board member.

Comment:  For example, the member must honor his or her oath of office, in which the member swore to uphold the constitution and laws.

(2)   The need to uphold the integrity and independence of the board member’s office.

Comment:  Among other things, this principle requires board members to make decisions that are based on the public good and not on their desires or considerations of special interest.

(3)   The need to avoid impropriety in the exercise of the board member’s official duties.

Comment:  Recall that board members are to act as “especially responsible citizens,” who are to honor the public trust” as they carry out their duties. Their official actions should be above reproach.

(4)   The need to faithfully perform the duties of the office.

Comment:  A public official who acts faithfully is one whom others can trust and respect.

(5)   The need to conduct the affairs of the governing board in an open and public manner, including complying with all applicable laws governing open meetings and public records.

Comment:  A public official who is honest, fair, and caring, and honors the public trust will honor the spirit as well as the letter of the law. He or she will see openness or transparency is an important part of that responsibility.

The statute leaves local boards a good deal of leeway in deciding what their codes will contain, as long as the code addresses the five topics. It may be very detailed, or it may be very general. It may state aspirations towards which the board is striving, or it may purport to prohibit certain board actions. The board may look to model local government codes of ethics for guidance in developing the resolution or policy.

Ethics Education Requirements

S.L. 2009-403 also enacts new G.S. 160A-84, which requires all members of the local governing boards covered by G.S. 160A-83 to receive a minimum of two clock hours of ethics education within 12 months after initial election or appointment to office and again within 12 months after each subsequent election or appointment to office. (For school board members, the ethics education may be included in the 12 clock hours of education that they are required to received annually. G.S. 115C-50(a))

The ethics education is to cover laws and principles that govern conflicts of interest and ethical standards of conduct at the local government level. It may be provided by the N.C. League of Municipalities, the N.C. Association of County Commissioners, the UNC School of Government, or other qualified sources of the board’s choosing. The clerk to each governing board must maintain a record verifying receipt of the ethics education by each board member.

The code of ethics requirements become effective January 1, 2011, and all members of governing boards covered by the act are to receive their initial training to comply with G.S. 160A-84 by that same date. Finally, the act also contains conforming provisions amending the statutes applicable to each of the boards covered by the act.

Practical Help for Local Officials

The School of Government, the League, and the Association plan to make convenient educational opportunities available to local city and county officials to help them meet the requirements of G.S. 160A-84. In addition, a practical guidebook to assist local governments in drafting ethics codes may be prepared, and workshops on code preparation may be offered.

In addition to these resources, the second edition of  Ethics, Conflicts and Offices:  A Guide for Local Officials, by A. Fleming Bell, II, will be available early next year in plenty of time to help local officials meet the January 1, 2011 deadline. It contains a detailed chapter on codes of ethics as well as a number of examples of codes for both elected and appointed officials.