HomeMy WebLinkAboutP-0430 - Orange County Ethics and Conduct for County Public Servant Policy 12-04-2006-9c•
POLICY FOR INSERTION INTO THE POLICY MANUAL
MEETING DATE: 12/04/2006 NUMBER: P:0430
EFFECTIVE DATE: 12/04/2006 REVISIONS:
POLICY: Orange County Ethics and Conduct for
County Public Servant Policy
Article 1.
General Provisions.
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Section 1. Title.
This Policy shall be known as the "Orange County Ethics and Conduct for County
Public Servant Policy".
Section 2. Purpose.
The purpose of this Policy is to ensure that elected and appointed Orange County
officials (including senior Orange County staff as articulated in this Policy) exercise their
authority honestly and fairly, free from impropriety, threats, favoritism, and undue
influence. To this end, it is the intent of the Orange County Board of Commissioners in
this Policy to ensure that standards of ethical conduct and standards regarding conflicts of
interest are clearly established for elected and appointed Orange County officials, that
Orange County educates these officials on matters of ethical conduct and conflicts of
interest and that violations of standards of ethical conduct and conflicts of interest are, to
the extent permitted by law, properly addressed.
Section 3. Definitions.
The following definitions apply in this Chapter:
(l) Board. -Any Orange County board, commission, council, committee,
task force, authority, or similar public body, however denominated, created by
statute or Orange County Board of Commissioner action, except for those public
bodies that have only advisory authority.
(2) Business. -Any of the following organized for profit:
a. Association.
b. Business trust.
c. Corporation.
d. Enterprise.
e. Joint venture.
f. Organization.
g. Partnership.
•
• h. Proprietorship.
i. Vested trust.
j. Every other business interest, including ownership or use of land for
income.
(3) Business with which associated. - A business in which the person or any
member of the person's immediate family does any of the following:
a. [s an employee.
b. Holds a position as a director, officer, partner, proprietor, or member
or manager of a limited liability company, irrespective of the amount
of compensation received or the amount of the interest owned.
c. Owns a legal, equitable, or beneficial interest often thousand dollars
($10,000) or more in the business or five percent (5%) of the
business, whichever is less, other than as a trustee on a deed of trust.
For purposes of this subdivision, the term 'business' shall not include a
widely held investment fund, including a mutual fund, regulated investment
company, or pension or deferred compensation plan, if all of the following apply:
a. The person or a member of the person's immediate family neither
exercises nor has the ability to exercise control over the financial
interests held by the fund.
b. The fund is publicly traded, or the fund's assets are widely
diversified.
(4) Compensation. -Any money, thing of value, or economic benefit
conferred on or received by any person in return for services rendered or to be
rendered by that person or another. This term does not include campaign
contributions properly received and, reported as required by Article 22A of Chapter
163 of the General Statutes.
• (5) Confidential information. -Information defined as confidential by the.
law.
(6) Contract. -Any agreement, including. sales and conveyances of real and
personal property, and agreements for the performance of services.
(7) Covered person. - An Orange County Commissioner or a public servant.
(8) County or the County. -Orange County, North Carolina.
(9) Economic interest. -Matters involving a business with which associated
or a nonprofit corporation or organization with which associated.
(l0) Extended family. -Spouse, domestic partner as defined in the County's
Personnel Ordinance, lineal descendant, lineal ascendant, sibling, spouse's or
domestic partner's lineal ascendant, spouse's or domestic partner's lineal
descendant, spouse's or domestic partner's sibling, and the spouse of any of these
persons.
(l ]) Filing person. - A person required to file a statement of economic interest
as prescribed in this Policy.
(12) Gift. -Anything of monetary value given or received without valuable
consideration by or from a lobbyist, lobbyist principal, or a person described under
Article 3, Section (d)(l), (2), or (3). The following shall not be considered gifts
under this Policy:
a. Anything for which fair market value, or face value if shown, is paid
by the covered person.
b. Commercially available loans made on terms not more favorable
than generally available to the general public in the normal course of business
if not made for the purpose of lobbying.
c. Contractual arrangements or commercial relationships or
arrangements made in the normal course of business if not made for the
purpose of lobbying.
d. Campaign contributions properly received and reported as required
under Article 22A of Chapter 163 of the General Statutes.
(13) Honorarium. -Payment for services for which fees are not legally or
traditionally required.
(14) Immediate family. - An unemancipated child of the covered person
residing in the household, the covered person's spouse, if not legally separated and a
domestic partner as defined in the County's Personnel Ordinance. A member of a
covered person's extended family shall also be considered a member of the
immediate family if actually residing in the covered person's household.
(15) Legislative action. - The preparation, research, drafting, introduction,
consideration, modification, amendment, approval, passage, enactment, tabling,
postponement, defeat, or rejection of an ordinance, including County Board of
Ilealth rules authorized b,~ Chapter 130A of the North Carolina C,eneral Statutes,
resolution, amendment, motion, report, nomination, appointment, or other matter,
whether or not the matter is identified by an official title, general title, or other
specific reference, by a legislator acting or purporting to act in an official capacity.
• (16) Legislator. - A member of the County Board of Commissioners or an
elected or appointed member of the County Board of Commissioners before taking
office ti~~hen partieipatin~~, in legislative action. A member of the County Board of
Health wher>vparticipatin i~ n 1e.~islative action.
(17) Lobbying. - As the term is defined in Chapter 120C of the North Carolina
General Statutes.
(18) Lobbyist. - As the term is defined in Chapter 120C of the North Carolina
General Statutes.
(19) Nonprofit corporation or organization with which associated. -Any
public or private enterprise, incorporated or otherwise, that is organized or operating
in the State primarily for religious, charitable, scientific, literary, public health and
safety, or educational purposes and of which the person or any member of the
person's immediate family is a director, officer, governing board member,
employee, or independent contractor as of December 31 of the preceding year.
(20) Official action. -Any decision, including administration, approval,
disapproval, preparation, recommendation, the rendering of advice, and
investigation, made or contemplated in any proceeding, application, submission,
Deleted: a bill
~. _ ~
Deleted: exercising rule-making
~. au[honty as authorized by law
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• request for a ruling or other determination, contract, claim, controversy,
investigatiorti or charge
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(21) Participate. - To take part in, influence, or attempt to influence, including
acting through an agent or proxy.
(22) Person. -Any individual, firm, partnership, committee, association,
corporation, business, or any other organization or group of persons acting together.
(23) Public event. -Any of the following:
a. For County Commissioners:
1. An organized gathering of persons open to the general public to
which all County Commissioners are invited to attend.
b. For public servants:
]. An organized gathering of individuals open to the general public
to which at least 10 public servants are invited to attend.
2. An organized gathering of a governmental body, the gathering of
which is subject to the open meetings law, and to which at least
10 public servants are invited to attend.
3. An organized gathering of a person to which at least 10 public
servants are invited to attend and to which at least 10 individuals,
other than the public servant, or the public servant's immediate
family, actually attend, or to which all shareholders, employees,
board members, officers, members, or subscribers of the person
who are located in a specific North Carolina office or county are
notified and invited to attend.
(24) Public servants. -All of the following:
a. Employees of Orange County holding the position of County
Manager, Assistant County Manager, Department Head or holding a
• position which reports directly to the County Manager.
b. All voting members of boards, including ex officio members.
Members of the County Board of Commissioners or an elected or
appointed member oi` the County Board. of Commissioners before
taking office are ublic servants whet]. participating._in_official action.
(25) Vested trust. - A trust, annuity, or other funds held by a trustee or other
third party for the benefit of the covered person or a member of the covered person's
immediate family. A vested trust shall not include a widely held investment fund,
including a mutual fund, regulated investment company, or pension or deferred
compensation plan, if:
a. The covered person or a member of the covered person's immediate
family neither exercises nor has the ability to exercise control over
the financial interests held by the fund; and
b. The fund is publicly traded, or the fund's assets are widely
diversified.
Article 2.
Public Disclosure of Economic Interests.
Deleted: ,
Deleted: , or rule making.
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• Section 1. Purpose.
The purpose of disclosure of the financial and personal interests by covered persons
is to assist covered persons and those persons who appoint, elect, hire, supervise, or
advise them identify and avoid conflicts of interest and potential conflicts of interest
between the covered person's private interests and the covered person's public duties. It is
critical to this process that current and prospective covered persons examine, evaluate,
and disclose those personal and financial interests that could be or cause a conflict of
interest or potential conflict of interest between the covered person's private interests and
the covered person's public duties. Covered persons must take an active, thorough, and
conscientious role in the disclosure and review process, including having a complete
knowledge of how the covered person's public position or duties might impact the
covered person's private interests. Covered persons have an affirmative duty to provide
any and all information that a reasonable person would conclude is necessary to carry out
the purposes of this Policy and to fully disclose any conflict of interest or potential
conflict of interest between the covered person's public and private interests, but the
disclosure, review, and evaluation process is not intended to result in the disclosure of
unnecessary or irrelevant personal information.
Section 2. Statement of economic intent; filing required.
(a) Every covered person subject to this Policy who is elected, appointed, or
employed, including one appointed to fill a vacancy in elective office, except for public
servants included under Article 1, Section 3(24)a whose annual compensation from the
County is less than sixty thousand dollars ($60,000), shall file a statement of economic
interest with the Clerk to the Orange Board of Commissioners prior to the covered
person's initial appointment, election, or employment and no later than March 15~' of
every year thereafter, except as otherwise filed under subsection (b) of this Section. The
requirement for an annual filing under this subsection also shall apply to covered persons
• whose terms have expired but who continue to serve until the person's replacement is
appointed. Once a statement of economic interest is properly completed and filed under
this Policy, the statement of economic interest does not need to be supplemented or
refiled prior. to the next due date set forth in this subsection.
(b) A candidate for an elective office subject to this Policy shall file the statement
of economic interest at the same place and in the same manner as the written disclosures
are required to be filed under Title VII, Chapter 460, 1987 Session Laws.
(c) The Clerk to the Orange Board of Commissioners shall issue forms to be used
for the statement of economic interest and shall revise the forms from time to time as
necessary to carry out the purposes of this Policy.
Section 3. Statement of economic interest as public records.
The statements of economic interest filed by prospective employees of the County
under this Policy are not public records until the prospective employee is appointed or
employed by the County. All other statements of economic interest are public records.
Section 4. Contents of statement.
(a) Any statement of economic interest filed under this Policy shall be on a form
prescribed by the County Board of Commissioners and sworn to by the filing person.
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Answers must be provided to all questions. The form shall include the following
information about the filing person and the filing person's immediate family:
(1) The name, home address, occupation, employer, and business of the
person.
(2) A list of each asset and liability (not arnounts'} included in this
subsection of whatever nature (including legal, equitable, or beneficial
interest) with a value of at least ten thousand dollars ($10,000) owned
by the filing person and the filing person's immediate family. This list
shall include the following:
a. Ail real estate located in the State owned wholly or in part by the
filing person or the filing person's immediate family, including
descriptions adequate to determine the location by city and
county of each parcel.
b. Real estate that is currently leased or rented to or from the State,
the County or any other North Carolina local government.
c. Personal property sold to or bought from the State, the County or
any other North Carolina local government within the preceding
two years.
d. Personal property currently leased or rented to or from the State,
the County or any other North Carolina local government.
e. The name of each publicly owned company.
f. The name of each nonpublicly owned company or business
entity, including interests in partnerships, limited partnerships,
joint ventures, limited liability companies, limited liability
partnerships, and closely held corporations.
g. For each company or business entity listed under sub-subsection
. f. of this subsection, if known, a list of any other companies or
business entities in which the company or business entity owns
securities or equity interests exceeding a value of ten thousand
dollars ($10,000).
h. A list of all nonpublicly owned businesses of which the person is
an officer, employee, director, partner, owner, or member or
manager of a limited liability company.
i. For any company or business entity listed under sub-subsections
f., g., and h. of this subsection, if known, any company or
business entity that has any material business dealings, contracts,
or other involvement with the State, the County or any other
North Carolina local government or is regulated by the State, the
County or any other North Carolina local government including a
brief description of the business activity.
j. For a vested trust created, established, or controlled by the filing
person of which the filing person or the members of the filing
person's immediate family are the beneficiaries, the name and
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address of the trustee, a description of the trust, and the filing
person's relationship to the trust.
k. A list of all liabilities, excluding indebtedness on the filing
person's personal residence, by type of creditor and debtor.
1. A list of any public or private enterprise, incorporated or
otherwise, that is organized or operating in the State primarily for
religious, charitable, scientific, literary, public health and safety,
or educational purposes and of which the person or any member
of the person's immediate family is a director, officer, governing
board member, employee, or independent contractor as of
December 31 of the preceding year, including a list of which of
those nonprofit corporations or organizations do business with
the County or receive County funds, if known, and a brief
description of the nature of the business, or which with due
diligence could reasonably be known.
(3) A list of each source (not amounts) of income of more than five
thousand dollars ($5,000) received during the previous year by business
or industry type, including salary or wages, professional fees, honoraria,
interest, dividends, capital gains, and business income.
(4) If the filing person is a practicing attorney, an indication of whether the
filing person, or the law firm with which the filing person is affiliated,
earned legal fees during the past year in excess of ten thousand dollars
($10,000) from any of the following categories of legal representation:
a. Administrative law.
b. Admiralty law.
c. Corporate law.
• d. Criminal law.
e. Decedents' estates law.
f. .Environmental law.
g. Insurance law.
h. Labor law.
i. Local government law.
j. Negligence or other tort litigation law.
k. Real property law.
1. Securities law.
m. Taxation law.
n. Utilities regulation law.
(5) Except for a filing person in compliance under subdivision (4) of this
subsection, if the filing person is a licensed professional or provides
consulting services, either individually or as a member of a professional
association, a list of categories of business and the nature of services
rendered knot amounts), for which payment for services were charged or
paid during the past year in excess often thousand dollars ($ l 0,000).
Deleted: specific
l0
(6) An indication of whether the filing person, the filing person's employer,
• a member of the filing person's immediate family, or the immediate
family member's employer is licensed or regulated by, or has a business
relationship with, the County.
(7) A list of the public servant's or the public servant's immediate family's
memberships or other affiliations with, including offices held in,
societies, organizations, or advocacy groups, pertaining to subject
matter areas over which the public servant's agency or board may have
jurisdiction.
(8) A list of all things of monetary value dot amounts).~reater than two
hundred dollars ($200.00) given and received without valuable
consideration and under circumstances that a reasonable person would
conclude that the thing was given for the purpose of lobbying. The list
shall include only those things received during the 12 months preceding
the reporting period under subsection (c) of this Section, and shall
include the source of those things. The list required by this subdivision
shall not apply to things of monetary value received by the filing person
prior to the time the person was elected to office or was appointed or
employed as a covered person.
(9) A list of any felony convictions of the filing person.
(b) Each statement of economic interest shall contain sworn certification by the
filing person that the filing person has read the statement and that, to the best of the filing
person's knowledge and belief, the statement is true, correct, and complete. The filing
person's sworn certification also shall provide that the filing person has not transferred,
and will not transfer, any asset, interest, or other property for the purpose of concealing it
from disclosure while retaining an equitable interest therein.
(c) All information provided in the statement of economic interest shall be current
as of the last day of December of the year preceding the date the statement of economic
interest was due.
Section 5. Failure to file.
Within 30 days after the date due under Section 2 of this Article, the Clerk to the
County Board of Commissioners shall notify persons who have failed to file or persons
whose statement is deemed incomplete. The Clerk to the County Board of
Commissioners shall simultaneously notify the County Board of Commissioners.
Article 3.
Ethical Standards for Covered Persons.
Section 1. Use of public position for private gain.
(a) Except as permitted under Section 8 of this Article, a covered person shall not
knowingly use the covered person's public position in an official action or legislative
action that will result in financial benefit, direct or indirect, to the covered person, a
member of the covered person's extended family, or business with which the covered
person is associated. This subsection shall not apply to financial or other benefits derived
by a covered person that the covered person would enjoy to an extent no greater than that
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which other citizens of the County would or could enjoy, or that are so remote, tenuous,
• insignificant, or speculative that a reasonable person would conclude under the
circumstances that the covered person's ability to protect the public interest and perform
the covered person's official duties would not be compromised.
(b) A covered person shall not mention or permit another person to mention the
covered person's public position in non-County governmental advertising that advances
the private interest of the covered person or others. The prohibition in this subsection
shall not apply to political advertising, news stories, news articles, the inclusion of a
covered person's position in a directory or biographical listing, or the charitable
solicitation. for a nonprofit business entity qualifying under 26 U.S.C. § 501(c)(3).
(c) No covered person shall use or permit the use of County funds for any
advertisement or public service announcement in a newspaper, on radio, television,
magazines, or billboards, that contains that covered person's name, picture, or voice,
except in case of County official action or other County official business and only if the
announcement is reasonably necessary to the covered person's official function.
Section 2. Gifts.
(a) A covered person shall not knowingly, directly or indirectly, ask, accept,
demand, exact, solicit, seek, assign, receive, or agree to receive anything of value for the
covered person, or for another person, in return for being influenced in the discharge of
the covered person's official responsibilities, other than that which is received by the
covered person from the County for acting in the covered person's official capacity.
(b) A covered person may not solicit for a charitable purpose any gift from any
subordinate County employee. This subsection shall not apply to generic written
solicitations to all members of a class of subordinates. Nothing in this subsection shall
prohibit a covered person from serving as the honorary head of a charitable solicitation
for a nonprofit business entity qualifying under 26 U.S.C. § 501(c)(3).
(c) No covered person shall knowingly accept a gift, directly or indirectly, from a
lobbyist or lobbyist principal as defined in Chapter 120C of the North Carolina General
Statutes.
(d) No public servant shall knowingly accept a gift, directly or indirectly, from a
person whom the public servant knows or has reason to know any of the following:
(1) Is doing or is seeking to do business of any kind with the County.
(2) Is engaged in activities that are regulated or controlled by the County.
(3) Has financial interests that may be substantially and materially affected,
in a manner distinguishable from the public generally, by the
performance or nonperformance of the public servant's official duties.
(e) Subsections (c) and (d) of this Section shall not apply to any of the following:
(1) Food and beverages for immediate consumption in connection with
public events.
(2) Informational materials relevant to the duties of the covered person.
(3) Reasonable actual expenditures of the covered person for food,
beverages, registration, travel, lodging, other incidental items of
nominal value, and entertainment, in connection with (i) a covered
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• person's attendance at an educational meeting for purposes primarily
related to the public duties and responsibilities of the covered person,
employee, or in order for the covered person to participate as a speaker
or member of a panel; or (ii) a covered person's attendance and
participation in meetings of a state, regional, national, or international
organization of which the County is a member or that the covered
person is a member or participant of by virtue of that person's public
position, or as a member of a board, agency, or committee of such
organization, provided the following conditions are met:
a. The reasonable actual expenditures shall be made by a lobbyist's
principal, and not a lobbyist.
b. Any educational meeting must be attended by at least 10 or more
participants, have a formal agenda, and notice of the meeting has
been given at least 10 days in advance.
c. Any food, beverages, or entertainment must be provided to all
attendees or defined groups of 10 or more attendees.
d. Any entertainment must be incidental to the principal agenda of
the educational meeting.
(4) A plaque or similar nonmonetary memento recognizing individual
services in a field or specialty or to a charitable cause.
(5) Gifts accepted on behalf of the County for the benefit of the County.
(6) Anything generally made available or distributed to the general public
or all other County employees by lobbyists or lobbyist's principals.
(7) Gifts from the covered person's extended family, or a member of the
same household of the covered person.
(8) Gifts given to a public servant not otherwise subject to an exception
• under this subsection, where the gift is food and beverages,
transportation, lodging, entertainment or related expenses associated
with the public business of industry recruitment, promotion of
international trade, or the promotion of travel and tourism, and the
public servant is responsible for conducting the business on behalf of
the County, provided all the following conditions apply:
a. The public servant did not solicit the gift, and the public servant
did not accept the gift in exchange for the performance of the
public servant's official duties.
b. The public servant reports electronically to the Clerk to the
County Board of Commissioners within 30 days of receipt of the
gift or of the date set for disclosure of public records under
G.S. 132-6(d), if applicable. The report shall include a
description and value of the gift and a description how the gift
contributed to the public business of industry recruitment,
promotion of international trade, or the promotion of travel and
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tourism. This report shall be posted to the County's public Web
• site.
c. A tangible gift, other than food or beverages, not otherwise
subject to an exception under this subsection shall be turned over
as County property to the County Finance Department within 30
days of receipt, except as permitted under subsection (f) of this
Section.
(9) Gifts of personal property valued at less than one hundred dollars
($100.00) given to a public servant in the commission of the public
servant's official duties if the gift is given to the public servant as a
personal gift in another country as part of an overseas trade mission, and
the giving and receiving of such personal gifts is considered a
customary protocol in the other country.
(10) Gifts given or received as part of a business, civic, religious, fraternal,
personal, or commercial relationship not related to the person's public
service or position and made under circumstances that a reasonable
person would conclude that the gift was not given for the purpose of
lobbying.
(f) A prohibited gift that would constitute an expense appropriate for
reimbursement by the County if it had been incurred by the public servant personally
shall be considered a gift accepted by or donated to the County, provided the public
servant has been approved by the County to accept or receive such things of value on
behalf of the County. The fact that the County's reimbursement rate for the type of
expense is less than the value of a particular gift shall not render the gift prohibited.
(g) A prohibited gift shall be declined, returned, paid for at fair market value, or
donated immediately to charity or the County.
. (h) A covered person shall not accept an honorarium from a source other than the
County for conducting any activity where any of the following apply:
(1) The County reimburses the covered person for travel, subsistence, and
registration expenses.
(2) The County's work time or resources are used.
(3) The activity would be considered official duty or would bear a
reasonably close relationship to the covered person's official duties.
An outside source may reimburse the County for. actual expenses incurred by a covered
person in conducting an activity within the duties of the covered person, or may pay a fee
to the County, in lieu of an honorarium, for the services of the covered person. An
honorarium permissible under this subsection shall not be considered a gift for purposes
of subsection (c) of this Section.
(i) Acceptance or solicitation of a gift in compliance with this Section without
corrupt intent shall not constitute a violation of the statutes related to bribery under
G.S. 14-217, 14-218, or 120-86.
Section 3. Other compensation.
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A public servant shall not solicit or receive personal financial gain, other than that
• received by the public servant from the County, or with the approval of the County, for
acting in the public servant's official capacity, or for advice or assistance given in the
course of carrying out the public servant's duties.
Section 4. Use of information for private gain.
A public servant shall not use or disclose nonpublic information gained in the course
of, or by reason of, the public servant's official responsibilities in a way that would affect
a personal financial interest of the public servant, a member of the public servant's
extended family, or a person with whom or business with which the public servant is
associated. A public servant shall not improperly use or improperly disclose any
confidential information.
Section 5. Other rules of conduct.
(a) A public servant shall make a due and diligent effort before taking any action,
including voting or participating in discussions with other public servants on a board on
which the public servant also serves, to determine whether the public servant has a
conflict of interest. If the public servant is unable to determine whether or not a conflict
of interest may exist, the public servant has a duty to inquire of the County attorney as to
that conflict.
(b) A public servant shall continually monitor, evaluate, and manage the public
servant's personal, financial, and professional affairs to ensure the absence of conflicts of
interest.
(c) A public servant shall obey all other civil laws, administrative requirements,
and criminal statutes governing conduct of County government applicable to appointees
and employees.
Section 6. Public servant participation in official action.
(a) Except as permitted by subsection (d) of this Section and under Section 8 of
. this Article, and with respect to the Count}- Beard of Commissioners. consistent. with
G.S. § I>3A-44. no public servant acting in that capacity, authorized to perform an
official action requiring the exercise of discretion, shall knowingly participate in an
official action by the County if the public servant, a member of the public servant's
extended family, or a business with which the public servant is associated, has an
economic interest in, or a reasonably foreseeable benefit from, the matter under
consideration, which would impair the public servant's independence of judgment or
from which it could reasonably be inferred that the interest or benefit would influence the
public servant's participation in the official action. A potential benefit includes a
detriment to a business competitor of (i) the public servant, (ii) a member of the public
servant's extended family, or (iii) a business with which the public servant is associated.
(b) A public servant described in subsection (a) of this Section shall abstain from
taking any verbal or written action in furtherance of the official action. The public servant
shall submit in writing to the County the reasons for the abstention. When the action
relates to the responsibilities of a board, the abstention shall be recorded in the board's
minutes.
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• (c) A public servant shall take appropriate steps, under the particular
circumstances and considering the type of proceeding involved, to remove himself or
herself to the extent necessary, to protect the public interest and comply with this Policy,
from any proceeding in which the public servant's impartiality might reasonably be
questioned due to the public servant's familial, personal, or financial relationship with a
participant in the proceeding. A participant includes (i) an owner, shareholder, partner,
member or manager of a limited liability company, employee, agent, officer, or director
of a business, organization, or group involved in the proceeding, or (ii) an organization or
group that has some specific, unique, and substantial interest in the proceeding.
Proceedings include quasi judicial proceedings, other permitting and proceedings and
legislative proceedings. A personal relationship includes one in a leadership or
policy-making position in a business, organization, or group.
(d) If a public servant is uncertain whether the relationship described in subsection
(c) of this Section justifies removing the public servant from the proceeding under
subsection (c) of this Section, the public servant shall disclose the relationship to the
person presiding over the proceeding and seek appropriate guidance. The presiding
officer, in consultation with legal counsel if necessary, shall then determine the extent to
which the public servant will be permitted to participate. If the affected public servant is
the person presiding, then the vice-chair or any other substitute presiding officer shall
make the determination. A good-faith determination under this subsection of the
allowable degree of participation by a public servant is presumptively valid.
Section 7. Legislator participation in ~ leiislatn~e actioq,
(a) Except as permitted under Section 8 of this Article, no legislator shall
knowingly participate in a legislative action or for which the legislator is excusable as
provided in G.S. § 153A-44; or (2) if the legislator, a member of the legislator's extended
family, the legislator's client, or a business with which the legislator is associated, has an
• economic interest in, or may reasonably and foreseeably benefit from the action, and if
after considering whether the legislator's judgment would be substantially influenced by
the interest and considering the need for the legislator's particular contribution, including
special knowledge of the subject matter to the effective functioning of the County Board
of Commissioners, or the County Board of Health, whichever is applicable, the legislator
concludes that an actual economic interest does exist which would impair the legislator's
independence of judgment. A potential benefit includes a detriment to a business
competitor of (i) the legislator, (ii) a member of the legislator's extended family, or (iii) a
business with which the legislator is associated. The legislator shall submit in writing to
the County Board of Commissioners or the County Board of Health, whichever is
applicable the reasons for the need to not participate in the legislative matter to enable the
applicable Board to vote on excusing the legislator from voting.
(b) If the legislator has a material doubt as to whether the legislator should act, the
legislator must submit the question, in writing, to the County Board of Commissioners or
to the County Board of Health, whichever is applicable for a determination by the
applicable Board.
Section 8. Permitted participation exception.
r
`Deleted official j
»:,
Deleted s _._..... ...~
•
16
Notwithstanding Sections 6 and 7 of this Article, a covered person may participate
in an official action or legislative action under any of the following circumstances except
as specifically limited:
(1) The only interest or reasonably foreseeable benefit that accrues to the covered
person, the covered person's extended family, or business with which the covered person
is associated as a member of a profession, occupation, or general class is no greater than
that which could reasonably be foreseen to accrue to all members of that profession,
occupation, or general class.
(2) When an official or legislative action affects or would affect the covered
person's compensation and allowances as a covered person.
(3) Before the legislator participated in the official or legislative action, the
legislator submitted the question, in writing, to the County Board of Commissioners or
the County Board of Health, whichever is applicable and the applicable Board did not
excuse the legislator from voting.
(4) Before participating in an official action, a public servant made full written
disclosure to the County Manager who then, with the advise of the County attorney, made
a written determination that the interest or benefit would neither impair the public
servant's independence of judgment nor influence the public servant's participation in the
official action. The County Manager shall file a copy of that written determination with
the Clerk to the County Board of Commissioners.
(5) When action is ministerial only and does not require the exercise of discretion.
(6) When a public or legislative body records in its minutes that it cannot obtain a
quorum in order to take the official or legislative action because the covered person is
disqualified from acting under Section 6 or 7 of this Article or under this Section, the
covered person may be counted for purposes of a quorum, but shall otherwise abstain
from taking any further action.
Section 9. Employment and supervision of members of covered person's extended
family.
A covered person shall not cause the employment, appointment, promotion, transfer,
or advancement of an extended family member of the covered person to a County office,
or a position to which the covered person supervises or manages, except for county
employee positions as permitted by the Orange County Personnel Ordinance. A public
servant shall not supervise, manage, or participate in an action relating to the discipline of
a member of the public servant's extended family, except as specifically authorized by the
County's Personnel Ordinance.
Article 4.
Violation Consequences.
Section 1. Violation Consequences.
(a) The willful failure of any public servant serving on a board (other than the
County Board of Commissioners) to comply with this Policy is misfeasance,
malfeasance, or nonfeasance. To the extent permitted by North Carolina law, in the event
of misfeasance, malfeasance, or nonfeasance, the offending public servant serving on a
board is subject to removal by the County Board of Commissioners from the board of
•
17
which the public servant is a member. Nothing in this Policy authorizes a public servant
to participate in an official action which participation is otherwise prohibited by law.
(b) The willful failure of any public servant serving as a County employee to
comply with this Policy is a violation of a written work order, thereby permitting, to the
extent permitted by North Carolina law, disciplinary action as allowed by North Carolina
law and the County Personnel Ordinance, including termination from employment.
(c) The County Board of Commissioners may seek to enjoin violations of Article
3, Section 4.
(d) The failure of a member of the County Board of Commissioners to comply
with the disclosure requirements of Title VII, Chapter 460 of the 1987 Session Laws,
subjects the failing Board member to the penalties prescribed in Title VII, including
forfeiture of the office of County Commissioner as prescribed in Title VII.
Article 5.
Miscellaneous
Section 1. Severability.
If any Section or provision of this Policy is declared unlawful or invalid by the
courts, that declaration does not affect the validity of this Policy as a whole or any part
other than the part so declared unlawful or invalid.
Section 2. Effective date.
This Policy becomes effective upon its adoption by the County Board of
Commissioners.
Upon motion of Commissioner seconded by Commissioner
,the foregoing Policy was adopted this the day of ,
2006.
Ayes:
Noes:
I, Donna S. Baker, Clerk to the Board of Commissioners for the County of Orange,
North Carolina, DO HEREBY CERTIFY that the foregoing is a true copy of so much of
the proceedings of said Board at a meeting held on as relates
in any way to the adoption of the foregoing and that said proceedings are recorded in
Minute Book No. of the minutes of said Board.
WITNESS my hand and the seal of said County, this day of ,
2006.
Clerk to the Board of Commissioners
F:\Lisa\orange county\OC Ethics and Conduct Policy rty__h~~geg.doc
•
ORANGE COUNTY
• BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: December 4, 2006
Action Agenda
Item No. Q-~
SUBJECT: Ethics and Conduct for County Public Servant Policy
DEPARTMENT: County Attorney PUBLIC HEARING: (Y/N) No
ATTACHMENT(S): INFORMATION CONTACT:
1. Draft Policy Geof Gledhill, 919-732-2196
2. Title VII, Chapter 460, 1987 Session
Laws
3. G.S. § 153A-44
4. March 13, 2006 letter to the Board of
County Commissioners from County
Attorney
5. Excerpt of March 15, 2006 BOCC
Meeting
PURPOSE: To consider an Orange County policy establishing ethics and conduct for County
.public servants.
BACKGROUND: The Board has considered from time to time the adoption of a policy
regarding ethics and conduct. During the Board's March 15, 2006 meeting, the Board received
and discussed information provided by the County Attorney. The Board directed the County
Attorney to continue researching codes of ethics and conduct and to report back to the Board
with a policy for its consideration. The County Attorney has done so. Also, since March 2006,
the North Carolina General Assembly has concluded amulti-year project looking at State
government ethics and has adopted Session Law 2006-201, The State,Government Ethics Act.
The conclusion reached by the County Attorney is that the work done by the General Assembly
in its work with State government ethics, with significant abridgement, provides the most
comprehensive and well-thought-out substance for a County policy. The policy for consideration
by the Board of County Commissioners that is attached is modeled from the State Government
Ethics Act (The Act). Significantly, it differs from the Act in not including (1) an Ethics
Commission, a new State agency under the Act charged with policing the Act and (2) a
comprehensive enforcement mechanism. Orange County is limited in its ability to adopt laws
permitting the policing and investigation of ethics issues and the enforcement of an ethics policy.
The policy's instruction on conduct is also limited by other North Carolina laws. Where this is
so, the policy identifies those limiting laws.
Consideration of this Policy at the November 14, 2006 Board of County Commissioners meeting
was tabled to give Board members more time to consider it. During the Board's brief discussion
of the Policy, Commissioner Carey stated that he also wanted the opportunity to review
legislation adopted by the General Assembly this year related to ethics for background in
considering the Ethics and Conduct Policy presented to the Board for consideration. Session
2
Law 2006-20 (H 1843) is 64 pages long and is therefore not included as an attachment to this
abstract. However, it can be reviewed in its entirety on the General Assembly's website
(www.ncga.state.nc.us). On the right hand side of the homepage of the website is a "Bill Look •
Up" screen. Enter "H1843" and click on "Go" or press the Enter key on your computer. When
the bill history and status screen opens, click on the title of the bill (State Government Ethics Act
-1) and the entirety of the bill will be displayed.
The County Attorney has made clarifying revisions to the Policy since the Board's November 14,
2006 meeting. Those revisions are displayed in red on the copy of the Policy that is attached to
this action abstract.
FINANCIAL IMPACT: There is no financial impact associated with consideration and adoption
of the policy. It is not possible to determine the cost to the County, in time or materials, for
implementation of the policy.
RECOMMENDATION(S): The County Attorney recommends that the Board discuss the policy.
The policy may be adopted as written or, as amended by the Board.
•
•
3
• Orange County Ethics and Conduct for
County Public Servant Policy
Article 1.
General Provisions.
Section 1. Title.
This Policy shall be known as the "Orange County Ethics and Conduct for County
Public Servant Policy".
Section 2. Purpose.
The purpose of this Policy is to ensure that elected and appointed Orange County
officials (including senior Orange County staff as articulated in this Policy) exercise their
authority honestly and fairly, free from impropriety, threats, favoritism, and undue
influence. To this end, it is the intent of the Orange County Board of Commissioners in
this Policy to ensure that standards of ethical conduct and standards regarding conflicts of
interest are clearly established for elected and appointed Orange County officials, that
Orange County educates these officials on matters of ethical conduct and conflicts of
interest and that violations of standards of ethical conduct and conflicts of interest are, to
the extent permitted by law, properly addressed.
Section 3. Definitions.
The following definitions apply in this Chapter:
• (1) Board. -Any Orange County board, commission, council, committee,
task force, authority, or similar public body, however denominated, created by
statute or Orange County Board of Commissioner action, except for those public
bodies that have only advisory authority.
(2) Business. -Any of the following organized for profit:
a. Association.
b. Business trust.
c. Corporation.
d. Enterprise.
e. Joint venture.
f. Organization.
g. Partnership.
h. Proprietorship.
i. Vested trust.
j . Every other business interest, including ownership or use of land for
income.
(3) Business with which associated. - A business in which the person or any
member of the person's immediate family does any of the following:
a. Is an employee.
b. Holds a position as a director, officer, partner, proprietor, or member
or manager of a limited liability company, irrespective of the amount
of compensation received or the amount of the interest owned.
•
4
• c. Owns a legal, equitable, or beneficial interest of ten thousand dollars
($10,000) or more in the business or five percent (5%) of the
business, whichever is less, other than as a trustee on a deed of trust.
For purposes of this subdivision, the term 'business' shall not include a
widely held investment fund, including a mutual fund, regulated investment
company, or pension or deferred compensation plan, if all of the following apply:
a. The person or a member of the person's immediate family neither
exercises nor has the ability to exercise control over the financial
interests held by the fund.
b. The fund is publicly traded, or the fund's assets are widely
diversified.
(4) Compensation. -Any money, thing of value, or economic benefit
conferred on or received by any person in return for services rendered or to be
rendered by that person or another. This term does not include campaign
contributions properly received and, reported as required by Article 22A of Chapter.
163 of the General Statutes.
(5) Confidential information. -Information defined as confidential by the
law.
(6) Contract. -Any agreement, including sales and conveyances of real and
personal property, and agreements for the performance of services.
• (7) Covered person. - An Orange County Commissioner or a public servant.
(8) County or the County. -Orange County, North Carolina.
(9) Economic interest. -Matters involving a business with which associated
or a nonprofit corporation or organization with which associated.
(10) Extended family. -Spouse, domestic partner as defined in the County's
Personnel Ordinance, lineal descendant, lineal ascendant, sibling, spouse's or
domestic partner's lineal ascendant, spouse's or domestic partner's lineal
descendant, spouse's or domestic partner's sibling, and the spouse of any of these
persons.
(11) Filing person. - A person required to file a statement of economic interest
as prescribed in this Policy.
(12) Gift. -Anything of monetary value given or received without valuable
consideration by or from a lobbyist, lobbyist principal, or a person described under
Article 3, Section (d)(1), (2), or (3). The following shall not be considered gifts
under this Policy:
a. Anything for which fair market value, or face value if shown, is paid
by the covered person.
b. Commercially available loans made on terms not more favorable
than generally available to the general public in the normal course of business
if not made for the purpose of lobbying.
a Contractual arrangements or .commercial relationships or
arrangements made in the normal course of business if not made for the
• purpose of lobbying.
5
• d. Campaign contributions properly received and reported as required
under Article 22A of Chapter 163 of the General Statutes.
(13) Honorarium. -Payment for services for which fees are not legally or
traditionally required.
(14) Immediate family. - An unemancipated child of the covered person
residing in the household, the covered person's spouse, if not legally separated and a
domestic partner as defined in the County's Personnel Ordinance. A member of a
covered person's extended family shall also be considered a member of the
immediate family if actually residing in the covered person's household.
(15) Legislative action. - The preparation, research, drafting, introduction,
consideration, modification, amendment, approval, passage, enactment, tabling,
postponement, defeat, or rejection ofl an ordinance including; County Board of
Health rules authorized by Chapter 130A of the North Carolina General Statutes,
resolution, amendment, motion, report, nomination, appointment, or other matter,
whether or not the matter is identified by an official title, general title, or other
specific reference, by a legislator acting or purporting to act in an official capacity.
(16) Legislator. - A member of the County Board of Commissioners or an
elected or appointed member of the County Board of Commissioners before taking
office when participating_in legLslative action. A member of the County Board of
Health when '° °'~ ~+'~~~+~_ ~ w~:?:c~.~e~?'c;''--~•' participating in
legislative action.
• (17) Lobbying. - As the term is defined in Chapter 120C of the North Carolina
General Statutes.
(18) Lobbyist. - As the term is defined in Chapter 120C of the North Carolina
General Statutes.
(19) Nonprofit corporation or organization with which associated. -Any
public or private enterprise, incorporated or otherwise, that is organized or operating
in the State primarily for religious, charitable, scientific, literary, public health and
safety, or educational purposes and of which the person or any member of the
person's immediate .family is a director, officer, governing board member,
employee, or independent contractor as of December 31 of the preceding year.
(20) Official action. -Any decision, including administration, approval,
disapproval, preparation, recommendation, the rendering of advice, and
investigation, made or contemplated in any proceeding, application, submission,
request for a ruling or other determination, contract, claim, controversy,
investigation; or charge, ~~- ~~'° ~°'~~„R
(21) Participate. - To take part in, influence, or attempt to influence, including
acting through an agent or proxy.
(22) Person. -Any individual, firm, partnership, committee, association,
corporation, business, or any other organization or group of persons acting together.
(23) Public event. -Any of the following:
• a. For County Commissioners:
6
• 1. An organized gathering of persons open to the general public to
which all County Commissioners are invited to attend.
b. For public servants:
1. An organized gathering of individuals open to the general public
to which at least 10 public servants are invited to attend.
2. An organized gathering of a governmental body, the gathering of
which is subject to the open meetings law, and to which at least
10 public servants are invited to attend.
3. An organized gathering of a person to which at least 10 public
servants are invited to attend and to which at least 10 individuals,
other than the public servant, or the public servant's immediate
family, actually attend, or to which all shareholders, employees,
board members, officers, members, or subscribers of the person
who are located in a specific North Carolina office or county are
notified and invited to attend.
(24) Public servants. -All of the following:
a. Employees of Orange County holding the position of County
Manager, Assistant County Manager, Department Head or holding a
position which reports directly to the County Manager.
b. All voting members of boards, including ex officio members.
• Members of the County Board of Commissioners or an elected or
appointed member of the County Board of Commissioners before
taking office are public servants when participating in official action.
(25) Vested trust. - A trust, annuity, or other funds held by a trustee or other
third party for the benefit of the covered person or a member of the covered person's
immediate family. A vested trust shall not include a widely held investment fund,
including a mutual fund, regulated investment company, or pension or deferred
compensation plan, if
a. The covered person or a member of the covered person's immediate
family neither exercises nor has the ability to exercise control over
the financial interests. held by the fund; and
b. The fund is publicly traded, or the fund's .assets are widely
diversified.
Article 2.
Public Disclosure of Economic Interests.
Section 1. Purpose.
The purpose of disclosure of the financial and personal interests by covered persons
is to assist covered persons and those persons who appoint, elect, hire, supervise, or
advise them identify and avoid conflicts of interest and potential conflicts of interest
between the covered person's private interests and the covered person's public duties. It is
critical to this process that current and prospective covered persons examine, evaluate,
and disclose those personal and financial interests that could be or cause a conflict of
interest or potential conflict of interest between the covered person's private interests and
7
the covered person's public duties. Covered persons must take an active, thorough, and
conscientious role in the disclosure and review process, including having a complete
knowledge of how the covered person's public position or duties might impact the
covered person's private interests. Covered persons have an affirmative duty to provide
any and all information that a reasonable person would conclude is necessary to carry out
the purposes of this Policy and to fully disclose any conflict of interest or potential
conflict of interest between the covered person's public and private interests, but the
disclosure, review, and evaluation process is not intended to result in the disclosure of
unnecessary or irrelevant personal information.
Section 2. Statement of economic intent; filing required.
(a) Every covered person subject to this Policy who is elected, appointed, or
employed, including one appointed to fill a vacancy in elective office, except for public
servants included under Article 1, Section 3(24)a whose annual compensation from the
County is less than sixty thousand dollars ($60,000), shall file a statement of economic .
interest with the Clerk to the Orange Board of Commissioners prior to the covered
person's initial appointment, election, or employment and no later than March 15~' of
every year thereafter, except as otherwise filed under subsection (b) of this Section. The
requirement for an annual filing under this subsection also shall apply to covered persons
whose terms have expired but who continue to serve until the person's replacement is
appointed. Once a statement of economic interest is properly completed and filed under
this Policy, the statement of economic .interest does not need to be supplemented or
refiled prior to the next due date set forth in this subsection.
(b) A candidate for an elective office subject to this Policy shall file the statement
of economic interest at the same place and in the same manner as the written disclosures
are required to be filed under Title VII, Chapter 460, 1987 Session Laws.
(c) The Clerk to the Orange Board of Commissioners shall issue forms to be used
for the statement of economic interest and shall revise the forms from time to time as
necessary to carry out the purposes of this Policy.
Section 3. Statement of economic interest as public records.
The statements of economic interest filed by prospective employees of the County
under this Policy are not public records until the prospective employee is appointed or
employed by the County. All other statements of economic interest are public records.
Section 4. Contents of statement.
(a) Any statement of economic interest filed under this Policy shall be on a form
prescribed by the County Board of Commissioners and sworn to by the filing person.
Answers must be provided to all questions. The form shall include the following.
information about the filing person and the filing person's immediate family:
(1) The name, home address, occupation, employer, and business of the
person.
(2) A list of each asset and liability knot amounts included in this
subsection of whatever nature (including legal, equitable, or beneficial
interest) with a value of at least ten thousand dollars ($10,000) owned
8
• by the filing person and the filing person's immediate family. This list
shall include the following:
a. All real estate located in the State owned wholly or in part by the
filing person or the filing person's immediate family, including
descriptions adequate to determine the location by city and
county of each parcel.
b. Real estate that is currently leased or rented to or from the State,
the County or any other North Carolina local government.
c. Personal property sold to or bought from the State, the County or
any other North Carolina local government within the preceding
two years.
d. Personal property currently leased or rented to or from the State,
the County or any other North Carolina local government.
e. The name of each publicly owned company.
f. The name of each nonpublicly owned company or business
entity, including interests in partnerships, limited partnerships,
joint ventures, limited liability companies, limited liability
partnerships, and closely held corporations.
g. For each company or business entity listed under sub-subsection
f. of this subsection, if known, a list of any other companies or
• business entities in which the company or business entity owns
securities or equity interests exceeding a value of ten thousand
dollars ($10,000),
h. A list of all nonpublicly owned businesses of which the person is
an officer, employee, director, partner, owner, or member or
manager of a limited liability company.
i. For any company or business entity listed under sub-subsections
f., g., and h. of this subsection, if known, any company or
business entity that has any material business dealings, contracts,
or other involvement with the State, the County or any other
North Carolina local government or is regulated by the State, the
County or any other North Carolina local government including a
brief description of the business activity.
j. For a vested trust created, established, or controlled by the filing
person of which the filing person or the members of the filing
person's immediate family are the beneficiaries, the name and
address of the trustee, a description of the trust, and the filing
person's relationship to the trust.
k. A list of all liabilities, excluding indebtedness on the filing
person's personal residence, by type of creditor and debtor.
1. A list of any public or private enterprise, incorporated or
• otherwise, that is organized or operating in the State primarily for
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• or educational purposes and of which the person or any member
of the person's immediate family is a director, officer, governing
board member, employee, or independent contractor as of
December 31 of the preceding year, including a list of which of
those nonprofit corporations or organizations do business with
the County or receive County funds, if known, and a brief
description of the nature of the business, or which with due
diligence could reasonably be known.
(3) A list of each source (not spec-~Eamounts) of income of more than five
thousand dollars ($5,000) received during the previous year by business
or industry type, including salary or wages, professional fees, honoraria,
interest, dividends, capital gains, and business income.
(4) If the filing person is a practicing attorney, an indication of whether the
filing person, or the law firm with which the filing person is affiliated,
earned legal fees during the past year in excess of ten thousand dollars
($10,000) from any of the following categories of legal representation:
a. Administrative law.
b. Admiralty law.
c. Corporate law.
d. Criminal law.
e. Decedents' estates law.
i f. Environmental law.
g. Insurance law.
h. Labor law.
i. Local government law.
j. Negligence or other tort litigation law.
k. Real property law.
1. Securities law.
m. Taxation law.
n. Utilities regulation law.
(5) Except for a filing person in compliance under subdivision (4) of this
subsection, if the filing person is a licensed professional or provides
consulting services, either individually or as a member of a professional
association, a list of categories of business and the nature of services
rendered (not amounts), for which payment for services were charged or
paid during the past year in excess of ten thousand dollars ($10,000).
(6) An indication of whether the filing person, the filing person's employer,
a member of the filing person's immediate family, or the immediate
family member's employer is licensed or regulated by, or has a business
relationship with, the County.
(7) A list of the public servant's or the public servant's immediate family's
• memberships or other affiliations with, including offices held in,
to subject
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10
• matter areas over which the public servant's agency or board may have
jurisdiction.
(8) A list of all things of monetary value (not amounts) greater than two
hundred dollars ($200.00) given and received without valuable
consideration and under circumstances that a reasonable person would
conclude that the thing was given for the purpose of lobbying. The list
shall include only those things received during the 12 months preceding
the reporting period under subsection (c) of this Section, and shall
include the source of those things. The list required by this subdivision
shall .not apply to things of monetary value received by the filing person
prior to the time the person was elected to office or was appointed or
employed as a covered person.
(9) A list of any felony convictions of the filing person.
(b) Each statement of economic interest shall contain sworn certification by the
filing person that the filing person has read the statement and that, to the best of the filing
person's knowledge and belief, the statement is true, correct, and complete. The filing
person's sworn certification also shall provide that the filing person has not transferred,
and will not transfer, any asset, interest, or other property for the purpose of concealing it
from disclosure while retaining an equitable interest therein.
(c) All information provided in the statement of economic interest shall be current
• as of the last day of December of the year preceding the date the statement of economic
interest was due.
Section 5. Failure to file.
Within 30 days after the date due under Section 2 of this Article, the Clerk to the
County Board of Commissioners shall notify persons who have failed to file or persons
whose statement is deemed incomplete. The Clerk to the County Board of
Commissioners shall simultaneously notify the County Board of Commissioners.
Article 3.
Ethical Standards for Covered Persons.
Section 1. Use of public position for private gain.
(a) Except as permitted under Section 8 of this Article, a covered person shall not
knowingly use the covered person's public position in an official action or legislative
action that will result in financial benefit, direct or indirect, to the covered person, a
member of the covered person's extended family, or business with which the covered
person is associated. This subsection shall not apply to financial or other benefits derived
by a covered person that the covered person would enjoy to an extent no greater than that
which other citizens of the County would or could enjoy, or that are so remote, tenuous,
insignificant, or speculative that a reasonable person would conclude under the
circumstances that the covered person's ability to protect the public interest and perform
the covered person's official duties would not be compromised.
(b) A covered person shall not mention or permit another person to mention the
covered person's public position in non-County governmental advertising that advances
• the private interest of the covered person or others. The prohibition in this subsection
11
• shall not apply to political advertising, news stories, news articles, the inclusion of a
covered person's position in a directory or biographical listing, or the charitable
solicitation for a nonprofit business entity qualifying under 26 U.S.C. § 501(c)(3).
(c) No covered person shall use or permit the use of County funds for any
advertisement or public service announcement in a newspaper, on radio, television,
magazines, or billboards, that contains that covered person's name, picture, or voice,
except in case of County official action or other County official business and only if the
announcement is reasonably necessary to the covered person's official function.
Section 2. Gifts.
(a) A covered person shall not knowingly, directly or indirectly, ask, accept,
demand, exact, solicit, seek, assign, receive, or agree to receive anything of value for the
covered person, or for another person, in return for being influenced in the discharge of
the covered person's official responsibilities, other than that which is received by the
covered person from the County for acting in the covered person's official capacity.
(b) A covered person may not solicit for a charitable purpose any gift from any
subordinate County employee. This subsection shall not apply to generic written
solicitations to all members of a class of subordinates. Nothing in this subsection shall
prohibit a covered person from serving as the honorary head of a charitable solicitation
for a nonprofit business entity qualifying under 26 U.S.C. § 501(c)(3).
(c) No covered person shall knowingly accept a gift, directly or indirectly, from a
lobbyist or lobbyist principal as defined in Chapter 120C of the North Carolina General
Statutes.
(d) No public servant shall knowingly accept a gift, directly or indirectly, from a
person whom the public servant knows or has reason to know any of the following:
(1) Is doing or is seeking to do business of any kind with the County.
(2) Is engaged in activities that are regulated or controlled by the County.
(3) Has financial interests that may be substantially and materially affected,
in a manner distinguishable from the public generally, by the
performance or nonperformance of the public servant's official duties.
(e) Subsections (c) and (d) of this Section shall not apply to any of the following:
(1) Food and beverages for immediate consumption in connection with
public events.
(2) Informational materials relevant to the duties of the covered person.
(3) Reasonable actual expenditures of the covered person for food,
beverages, registration, travel, lodging, other incidental items of
nominal value, and entertainment, in connection with (i) a covered
person's attendance at an educational meeting for purposes primarily
related to the public duties and responsibilities of the covered person,
employee, or in order for the covered person to participate as a speaker
or member of a panel; or (ii) a covered person's attendance and
participation in meetings of a state, regional, national, or international
organization of which the County is a member or that the covered
. person is a member or participant of by virtue of that person's public
12
• position, or as a member of a board, agency, or committee of such
organization, provided the following conditions are met:
a. The reasonable actual expenditures shall be made by a lobbyist's
principal, and not a lobbyist.
b. Any educational meeting must be attended by at least 10 or more
participants, have a formal agenda, and notice of the meeting has
been given at least 10 days in advance.
c. Any food, beverages, or entertainment must be provided to all
attendees or defined groups of 10 or more attendees.
d. Any entertainment must be incidental to the principal agenda of
the educational meeting.
(4) A plaque or similar nonmonetary memento recognizing individual
services in a field or specialty or to a charitable cause.
(5) Gifts accepted on behalf of the County for the benefit of the County.
(6) Anything generally made available or distributed to the general public
or all other County employees by lobbyists or lobbyist's principals.
(7) Gifts from the covered person's extended family, or a member of the
same household of the covered person.
(8) Gifts given to a public servant not otherwise subject to an exception
under this subsection, where the gift is food and beverages,
• transportation, lodging, entertainment or related expenses associated
with the public business of industry recruitment, promotion of
international trade, or the promotion of travel and tourism, and the
public servant is responsible for conducting the business on behalf of
the County, provided all the following conditions apply:
a. The public servant did not solicit the gift, and the public servant
did not accept the gift in exchange for the performance of the
public servant's official duties.
b. The public servant reports electronically to the Clerk to the
County Board of Commissioners within 30 days of receipt of the
gift or of the date set for disclosure of public records under
G.S. 132-6(d), if applicable. The report shall include a
description and value of the gift and a description how the gift
contributed to the public business of industry recruitment,
promotion of international trade, or the promotion of travel and
tourism. This report shall be posted to the County's public Web
site.
c. A tangible gift, other than food or beverages, not otherwise
subject to an exception under this subsection shall be turned over
as County property to the County Finance Department within 30
days of receipt, except as permitted under subsection (f) of this
Section.
13
• (9) Gifts of personal property valued at less than one hundred dollars
($100.00) given to a public servant in the commission of the public
servant's official duties if the gift is given to the public servant as a
personal gift in another country as part of an overseas trade mission, and
the giving and receiving of such personal. gifts is considered a
customary protocol in the other country.
(10) Gifts given or received as part of a business, civic, religious, fraternal,
personal, or commercial relationship not related to the person's public
service or position and made under circumstances that a reasonable
person would conclude that the gift was not given for the purpose of
lobbying.
(f) A prohibited gift that would constitute an expense appropriate for
reimbursement by the County if it had been incurred by the public servant personally
shall be considered a gift accepted by or donated to the County, provided the public
servant has been approved by the County to accept or receive such things of value on
behalf of the County. The fact that the County's reimbursement rate for the type of
expense is less than the value of a particular gift shall not render the gift prohibited.
(g) A prohibited gift shall be declined, returned, paid for at fair market value, or
donated immediately to charity or the County.
(h) A covered person shall not accept an honorarium from a source other than the
• County for conducting any activity where any of the following apply:
(1) The County reimburses the covered person for travel, subsistence, and
registration expenses.
(2) The County's work time or resources are used.
(3) The activity would be considered official duty or would bear a
reasonably close relationship to the covered person's official duties.
An outside source may reimburse the County for actual expenses incurred by a covered
person in conducting an activity within the duties of the covered person, or may pay a fee
to the County, in lieu of an honorarium, for the services of the covered person. An
honorarium permissible under this subsection shall not be considered a gift for purposes
of subsection (c) of this Section.
(i) Acceptance or solicitation of a gift in compliance with this Section without
corrupt intent shall not constitute a violation of the statutes related to bribery under
G.S. 14-217, 14-218, or 120-86.
Section 3.Other compensation.
A public servant shall not solicit or receive personal financial gain, other than that
received by the public servant from the County, or with the approval of the County, for
acting in the public servant's official capacity, or for advice or assistance given in the
course of carrying out the public servant's duties.
Section 4. Use of information for private gain.
A public servant shall not use or disclose nonpublic information gained in the course
of, or by reason of, the public servant's official responsibilities in a .way that would affect
• a personal financial interest of the public servant, a member of the public servant's
14
• extended family, or a person with whom or business with which the public servant is
associated. A public servant shall not improperly use or improperly disclose. any
confidential information.
Section S. Other rules of conduct.
(a) A public servant shall make a due and diligent effort before taking any action,
including voting or participating in discussions with other public servants on a board on
which the public servant also serves, to determine whether the public servant has a
conflict of interest. If the public servant is unable to determine whether or not a conflict
of interest may exist, the public servant has a duty to inquire of the County attorney as to
that conflict.
(b) A public servant shall continually monitor, evaluate, and manage the public
servant's personal, financial, and professional affairs to ensure the absence of conflicts of
interest.
(c) A public servant shall obey all other civil laws, administrative requirements,
and criminal statutes governing conduct of County government applicable to appointees
and employees.
Section 6. Public servant participation in official action.
(a) Except as permitted by subsection (d) of this Section and under Section 8 of
this Article, and with respect to the County Board of Commissioners consistent with
G.S. § 153A-44, no public servant acting in that capacity, authorized to perform an
• official action requiring the exercise of discretion, shall knowingly participate in an
official action by the County if the public servant, a member of the public servant's
extended family, or a business with which the public servant is associated, has an
economic interest in, or a reasonably foreseeable benefit from, the .matter under
consideration, which would impair the public servant's independence of judgment or
from which it could reasonably be inferred that the interest or benefit would influence the
public servant's participation in the official action. A potential benefit includes a
detriment to a business competitor of (i) the public servant, (ii) a member of the public
servant's extended family, or (iii) a business with which the public servant is associated.
(b) A public servant described in subsection (a) of this Section shall abstain from
taking any verbal or written action in furtherance of the official action. The public servant
shall submit in writing to the County the reasons for the abstention. When the action
relates to the responsibilities of a board, the abstention shall be recorded in the board's
minutes.
(c) A public servant shall take appropriate steps, under the particular
circumstances and considering the type of proceeding involved, to remove himself or
herself to the extent necessary, to protect the public interest and comply with this Policy,
from any proceeding in which the public servant's impartiality might reasonably be
questioned due to the public servant's familial, personal, or financial relationship with a
participant in the proceeding. A participant includes (i) an owner, shareholder, partner,
member or manager of a limited liability company, employee, agent, officer, or director
• of a business, organization, or group involved in the proceeding, or (ii) an organization or
group that has some specific, unique, and substantial interest in the proceeding.
15
• Proceedings include quasi judicial proceedings, other permitting and proceedings and
legislative proceedings. A personal relationship includes one in a leadership or
policy-making position in a business, organization, or group.
(d) If a public servant is uncertain whether the relationship described in subsection
(c) of this Section justifies removing the public servant from the proceeding under
subsection (c) of this Section, the public servant shall disclose the relationship to the
person presiding over the proceeding and seek appropriate guidance. The presiding
officer, in consultation with legal counsel if necessary, shall then determine the extent to
which the public servant will be permitted to participate. If the affected public servant is
the person presiding, then the vice-chair or any other substitute presiding officer shall
make the determination. A good-faith determination under this subsection of the
allowable degree of participation by a public servant is presumptively valid.
Section 7. Legislator participation in ~~ legislative actions.
(a) Except as permitted under Section 8 of this Article, no legislator shall
knowingly participate in a legislative action or for which the legislator is excusable as
provided in G.S. § 153A-44; or (2) if the legislator, a member of the legislator's extended
family, the legislator's client, or a business with which the legislator is associated, has an
economic interest in, or may reasonably and foreseeably benefit from the action, and if
after considering whether the legislator's judgment would be substantially influenced by
the interest and considering the need for the legislator's particular contribution, including
. special knowledge of the subject matter to the effective functioning of the County Board
of Commissioners, or the County Board of Health, whichever is applicable, the legislator
concludes that an actual economic interest does exist which would impair the legislator's
independence of judgment. A potential benefit includes a detriment to a business
competitor of (i) the legislator, (ii) a member of the legislator's extended family, or (iii) a
business with which the legislator is associated. The legislator shall submit in writing to
the County Board of Commissioners or the County Board of Health, whichever is
applicable the reasons for the need to not participate in the legislative matter to enable the
applicable Board to vote on excusing the legislator from voting.
(b) If the legislator has a material doubt as to whether the legislator should act, the
legislator must submit the question, in writing, to the County Board of Commissioners or
to the County Board of Health, whichever is applicable for a determination by the
applicable Board.
Section 8. Permitted participation exception.
Notwithstanding Sections 6 and 7 of this Article, a covered person may participate
in an official action or legislative action under any of the following circumstances except
as specifically limited:
(1) The only interest or reasonably foreseeable benefit that accrues to the covered
person, the covered person's extended family, or business with which the covered person
is associated as a member of a profession, occupation, or general class is no greater than
that which could reasonably be foreseen to accrue to all members of that profession,
occupation, or general class.
16
(2) When an official or legislative action affects or would affect the covered
person's compensation and allowances as a covered person.
(3) Before the legislator participated in the official or legislative action, the
legislator submitted the question, in writing, to the County Board of Commissioners or
the County Board of Health, whichever is applicable and the applicable Board did not
excuse the legislator from voting.
(4) Before participating in an official action, a public servant made full written
disclosure to the County Manager who then, with the advise of the County attorney, made
a written determination that the interest or benefit would neither impair the public
servant's independence of judgment nor influence the public servant's participation in the
official action. The County Manager shall file a copy of that written determination with
the Clerk to the County Board of Commissioners.
(5) When action is ministerial only and does not require the exercise of discretion.
(6) When a public or legislative body records in its minutes that it cannot obtain a
quorum in order to take the official or legislative action because the covered person is
disqualified from acting under Section 6 or 7 of this Article or under this Section, the
covered person may be counted for purposes of a quorum, but shall otherwise abstain
from taking any further action.
Section 9. Employment and supervision of members of covered person's extended
family.
A covered person shall not cause the employment, appointment, promotion, transfer,
• or advancement of an extended family member of the covered person to a County office,
or a position to which the covered person supervises or manages, except for county
employee positions as permitted by the Orange County Personnel Ordinance. A public
servant shall not supervise, manage, or participate in an action relating to the discipline of
a member of the public servant's extended family, except as specifically authorized by the
County's Personnel Ordinance.
Article 4.
Violation Consequences.
Section 1. Violation Consequences.
(a) The willful failure of any public servant serving on a board (other than the
County Board of Commissioners) to comply with this Policy is misfeasance,
malfeasance, or nonfeasance. To the extent permitted by North Carolina law, in the event
of misfeasance, malfeasance, or nonfeasance, the offending public servant serving on a
board is subject to removal by the County Board of Commissioners from the board of
which the public servant is a member. Nothing in this Policy authorizes a public servant
to participate in an official action which participation is otherwise prohibited by law.
(b) The willful failure of any public servant serving as a County employee to
comply with this Policy is a violation of a written work order, thereby permitting, to the
extent permitted by North Carolina law, disciplinary action as allowed by North Carolina
law and the County Personnel Ordinance, including termination from employment.
(c) The County Board of Commissioners may seek to enjoin violations of Article
3, Section 4.
17
• (d) The failure of a member of the County Board of Commissioners to comply
with the disclosure requirements of Title VII, Chapter 460 of the 1987 Session Laws,
subjects the failing Board member to the penalties prescribed in Title VII, including
forfeiture of the office of County Commissioner as prescribed in Title VII.
Article 5.
Miscellaneous
Section 1. Severability.
If any Section or provision of this Policy is declared unlawful or invalid by the
courts, .that declaration does not affect the validity of this Policy as a whole or any part
other than the part so declared unlawful or invalid.
Section 2. Effective date.
This Policy becomes effective upon its adoption by the County Board of
Commissioners.
Upon motion of Commissioner seconded by Commissioner
,the foregoing Policy was adopted this the day of ,
2006.
Ayes:
Noes:
• I, Donna S. Baker, Clerk to the Board of Commissioners for the County of Orange,
North Carolina, DO HEREBY CERTIFY that the foregoing is a true copy of so much of
the proceedings of said Board at a meeting held on as relates
in any way to the adoption of the foregoing and that said proceedings are recorded in
Minute Book No, of the minutes of said Board.
WITNESS my hand and the seal of said County, this day of ,
2006.
Clerk to the Board of Commissioners
F:\Lisa\orange county\OC Ethics and Conduct Policy rev by Qee.doc
f,
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~ _ .. ~ -~~ ~ ~ uRrnivt ~.uun ~ T DULL,
•
' Attachment A
.. •``~ss~?=M
(?) Any action seeking to recover an impact fee must be commenced
. not later than ninC munths after the impact fee is paid
" .~,;:.,:
~~
,
Sec, 18.1. Sectio,l l8 of this act shall .apply only to Orange County, and
applies only within the planning jurisdiction of Orangge County. .~,
T[TLE V[l. ORANGE COUNTY l~1SCLOSURE.
Sec. 19. Every member of the Board of Commissioners of Orange
County shall disclose any legal, equitable, t~eneficial or contractual interest he/she or
his/her spouse may have in any real property in Orange County. The real. property
which must be disclosed includes alll real property which any Board member or
his/her spouse holds title to, individually or jointly, any real property held in trust as
well as any pecuniary interest he/she may have in any business, firm, or corporation
of whatever nature, which. holds title to or has any ownership interest in any real
property within Orange County. Such disclosure shall contain the general location of
the real- property, but need not include its value.
Sec. 20. Every memt~er of the Board of Commissioners of Orange
h
ll di
~
County s
a
sclose.
any legal, equitable, beneficial or contractual interest he/she
may have in or with any business, firm, or corporation, of whatever nature, which is
doing busines with Orange County pursuant to contracts which. have been awarded
by Orange County.
Sec. 21. Every member of the Board of County Commissioners of
Orange County shat! disclose any legal, equitable, beneficial or contractual interest
he/she may have in any business, Firm; or corporation, of whatever nature, which is
~atternl~ting to secure the award of a bid from Orange County or the approval of any
Board or Agency of Orange County. •
Sec. 22. The disclosures required in Sections 19, 20 and 21 shall be in
writing and filed with the Clerk of Superior Court of Orange County and with the
Clerk to the Board of Commissioners of Orange County.
Sec. 23. The written disclosures required in Sections l9, 20 and 21 shall
be made within the following timz periods which are applicable:
(1) the later of 30 days after the effective date of this title or 30 days `~
after the Board member has.aasumed office;
(?) the earlier of 30 days of the- acquisition of any legal, equitable,
beneficial or contractual .interest in the property or business, firm, or corporation
required to be disclosed in Sections 19, 20 and 21 or prior to the award by Orange
Coumy of a contract with or a permit or other approval to a business, firm, or
corporation rc:duired to be disclosed in Sections ?0 and 2l.
• Si:c. 24. SubjC~t~to the limitations contained in this section, every Board
member who has an interest required to be disclosed by this title shall disqualify
himselflhersclf from voting on any matter involving any such interest which comes for
official action before. the Board of County Comm,ssioners of .Orange County. The
following interests do not require disqualification:
(i) interest in real property which must be disclosed in Se~ti:on 1
provided -the issue before the Board of Commissioners is one of policy that affects the `'
real property disclosed no differently than al[ other property similarly situated.
~(2) an interest in business, firm, or corporation which is negligible from .
the point of -view of the operation of the business, firm, .or corporation.
Sec. 2~. Any member who violates any provision of this title shall be
uilty of a misdemeanor and may be fined not more than one thousand dollars
g
(
$1,000) or imprisoned not more than one year, or both. Ariy member who is
convicted of a wilful second violation of any provision of this act shall forfeit hisllter
elected or appointed office, and such office shall be considered vacant as of the date
•of the final .judgment of conviction.
~
~ Sec. 26. This.Title shall apply only to Orange County.
10 ~ 11 f)H~o~u~se~ Bill ~ i 7 ~~ 1
~~ ~ 1 ~ g ~~ S~p~o~
~'T_..
1 '
'~ ' § 153A-43
§ 153A-43. Quorum.
CH. 153A. COUNTIES
1~
153A-45 `
A majority of the membership of the board of commissioners constitutes a
quorum. The number required for a quorum is not affected by vacancies. If a
member has withdrawn from a meeting without being excused by majority
vote of the remaining members present, he shall be counted as present for the
purposes of determining whether a quorum is present. The board may compel
the attendance of an absent member by ordering the sheriff to take the
member into custody. (Code, s. 706; Rev, s. 1317; C.S., s. 1296; 1945, c. 132;
1951, c. 904, s. 1; 1961, c. 154; 1967, c. 617, s. 1; 1969, c. 349, s. 1; c. 1036; 1973,
c. 822, s. 1.)
§ 153A-44. Members excused from voting..
The board may excuse a member from voting, but only upon questions
involving the member's own financial interest or official conduct or on matters
on which the member is prohibited from voting under G.S. 14-234, 153A-
340(g), or 153A-345(e1). For purposes of this section, the question of the
compensation and allowances of members of the board does not involve a
member's own financial interest or official conduct. (Code, s. 706; Rev., s. 1317;
C.S., s. 1296;1945, c. 132; 1951, c. 904, s. 1; 1961, c. 154;1967, c. 617, s. 1; 1969,
c. 349, s. 1; c. 1036; 1973, c. 822, s. 1; 2001-409, s. 8; 2005-426, s. 5.1(b).)
Editor's Note. -Session Laws 2001-409, s.
10, provides that prosecutions for offenses com-
mitted before the effective dates of the provi-
sions of the act are not abated or affected by the
act, and the statutes that would be applicable
but for the' act remain applicable to those pros-
ecutions.
OPINIONS OF ATTORNEY GENERAL
+_~
_, ,¢ ~~,
_r
Disqualification. -Any situation in which
a county commissioner has a personal economic
interest would disqualify that commissioner
from voting. See opinion of Attorney General to
C. Preston Cornelius, Senior Resident Superior
Court Judge, 60 N.C.A.G. 50 (1990).
No Conflict of Interest Found. - A county
commissioner who is also chairman of the
county social services board can present the
department of social services budget to the
county commissioners and thereafter partici-
pate and.. vote as a member of the county
commissioners regarding the approval or disap-
proval of that budget, as the budget for the
department of social services would not ordi-
narily involve an economic conflict of interest.
See opinion of Attorney General to C. Preston
Effect of Amendments. -Session Laws
2005-426, s. 5.1(b), effective January 1, 2006,
substituted "G.S. 14-234, 153A-340(8), or 153A-
345(el)" for "G.S. 14-234."
Cornelius, Senior Resident, Superior Court
Judge, 60 N.C.A.G. 50 (1990).
The chairman of the county social services
board, who is also a county commissioner, can
participate in discussions and vote at county
commission meetings in matters pertaining to
personnel and the operation of the county de-
partment of social services. It is apparent that
the legislature contemplates county commis-
sioners serving on other boards and commis-
sions as an extension of commissioner duties,
and that such service will not ordinarily dis-
qualify the commissioners from participating in
discussions and voting at county commission
meetings. See opinion of Attorney General to ~%
Preston Cornelius, Senior Resident, Superior
Court Judge, 60 N.C.A.G. 50 (1990).
§ 153A-45. Adoption of ordinances. `'
Zb be adopted at the meeting at which it is first introduced, an ordinancej+
any action having the effect of an ordinance (except the budget ordinance, 'a~
bond order, or any other ordinance on which a public hearing must be $e~
before the ordinance may be adopted) must receive the approval of all tl
members of the board of commissioners. If the ordinance is approved by;~
972
~ ,
i.
129 E. TRYON STREET
P. O. DRAWER 1529
HILLSBOROUGH, NORTH CAROLINA 27278
919.732"2196 March 1 3, 2 0 0 6
FAX 919-732.7997
www.cgandh.com
LAW OFFICES
COLEMAN, GLEDHILL, HARGRAVE & PEEK
A PROFESSIONAL CORPORATION
Orange County Board of Commissioners
Post Office Box 8181
Hillsborough, North Carolina 27278..
Barry Jacobs, Chair
Moses Carey, Jr.
Valerie P. Foushee
Alice M. Gordon
Stephen Halkiotis
E
i
j
:;E
~~
PROM THE DESK OF
GEOFFREY E. GLEDHILL
E-MAIL: geoffieygkdhilt@cgacdh.com
RE: Financial Disclosure/Conflicts of Interest: Board of
Commissioner Members and Senior County Staff
•
~J
Dear Board Members:
I have been asked to help you in your discussion of
property and business disclosure requirements and the related
notion of conflicts of interest. This letter and its attachments
provide information to that end.
Presently each member of the Orange County Board of,
Commissioners is required to comply with the property and
business ownership disclosure requirements of Title VII of
Chapter 460 of the 1987 Session Laws. A copy of that disclosure
law is Attachment A. As you can see, it is self executing. That
is, it does not require the Board of Commissioners to implement
it by ordinance, policy or otherwise.
Orange County does .not presently require property holding
or business ownership interest disclosure by senior County staff
members. Approximately a year ago, Elaine Holmes, then the
County's Personnel Director, surveyed other area local
governments to determine employee financial disclosure
requirements of the governments surveyed. That survey revealed
that the Town of Chapel Hill and Durham County have a disclosure
requirement. That survey also revealed that-the other
governments surveyed, Alamance County, the Town of Carrboro,
Chatham County, the City of Durham and Wake County, do not
ti ~.
s
Orange County Board of Commissioners
Page 2
March 13, 2006
a~
•
require this financial disclosure. The document prepared by Ms.
Holmes summarizing the survey is Attachment B.
The County has the authority to require financial
disclosure by Orange County employees that report to the County
Manager. The employees required to disclose can be required to
disclose those matters that are likely to create conflicts
between their County work and their other financial interests,
existing and potential. To implement a decision to require this
disclosure would require amendment to the County Personnel
Ordinance. A disclosure requirement could become a condition of
employment as to covered employees hired thereafter. However, as
to existing covered employees, an ordinance disclosure
requirement may not be enforceable as a condition of continued
employment.
The County Personnel Ordinance could not require the Health
Director, the Director of Social Services,. the Register of Deeds
or the Sheriff to disclose property or business ownership.
Requiring financial disclosure of these public officials would
require an act of the General Assembly, comparable to the act
(Attachment A) applicable to the members of the Board of
Commissioners. Even without legislation as to these County
officials, the Board of Commissioners could adopt a policy which
encourages financial disclosure by them.
Related to but distinct from financial disclosure is the
topic of conflicts of interest. Rules regarding conflicts of
interest are expressed in legal prohibitions and in codes of
ethics. Interestingly, sometimes the law and ethical
considerations may be perceived to be inconsistent. For example,
a,member of the Board of Commissioners may be concerned about
voting on a Board policy or program that impacts, positively or
negatively, on an organization or a cause headed by or publicly
supported by a Board member's family member. Notwithstanding the
ethical question posed, a County Commissioner is required to
vote on the policy question. This is so because N.C. Gen. Stat.
§ 153A-44 only permits the Board to excuse a member from voting
upon questions involving the member's own financial interest,
official conduct or other prohibitions spelled out by statute.. A
copy of N.C. Gen. Stat. § 153A-44 is Attachment C.
C,
t
•
•
` `}
as
Orange County Board of Commissioners
Page 3
March 13, 2006
Questions about conflicts of interest frequently arise in
land use planning decisions. I have included Attachment D, a
summary of the law on conflicts of interest applicable in land
use planning decisions, prepared by David Owens, Professor of
the School of Government. As you will see as you review Mr.
Owens' summary, the "rules" are intuitive.
Constitutional requirements applicable to land use permit
decisions resulted in the 2005 amendments to N.C. Gen. Stat. ~
153A-44. Permit decisions require an impartial decision maker
and prohibit undisclosed ex parte communications, close familial
business or other associational relationship with an affected
person and so forth. Copies of N.C. Gen. Stat. ~ 153A-340(g) and
N.C. Gen.. Stat. ~ 153A-345(e1) are Attachments E and F. The
Board of Commissioners, when it considers and makes decisions on
Class A Special Use Permit. applications, is subject to the
requirements of N.C. Gen. Stat. ~ 153A-345(el). Similarly, N.C.
Gen. Stat. ~ 153A-355 (Attachment G), contains conflict of
interest prohibitions with respect to building inspectors and
building inspections. A copy of that statute is enclosed.
Conflicts of interest principles affect County
Commissioners and County employees in other areas, the most
common being contracts between the government and its public
officers or its employees. These rules are summarized in another
School of Government publication by Professor Frayda Bluestein,
a copy of which is Attachment H. Attachment H also summarizes
N.C. Gen. Stat. ~ 132-32, a law regulating "gifts and favors."
Orange County also must meet federal conflict of interest
requirements when it accepts federal money. For example, the
Board will be asked at its March 21, 2006 meeting to approve
Attachment I, a Code of Conduct/Hatch Act Policy, the approval
of which is a requirement for the County's receiving FY 2005
Community Development Block Grant funds.
I have also enclosed documents which may help you consider
this issue which are in the form of "codes." That is, they
prescribe ethical conduct. Comparing code requirements with
legal requirements demonstrates that frequently code
requirements are also legal requirements including legal
prohibitions. The NACo Code of Ethics for County Officials is
" ~. ~ ~
\i
Orange County Board of Commissioners
Page 4
March 13, 2006
~3 S
Attachment J. A draft of a Code of Ethics for North Carolina
County .Commissioners, prepared for the North Carolina County
Commissioners Association is Attachment K. The Town of Carrboro
Code of Ethics and Disclosure Requirements is Attachment L. The
last attachment, Attachment M, is a 2001 executive order of
Governor Easley, creating a North Carolina Board of Ethics and
prescribing i.ts responsibilities and the responsibilities of
covered State employees.
Disclosure requirements can be helpful in causing the
person making the disclosure to focus on his or her (and family
member) property and business interests. This may aid the public
officer or employee in not participating in decisions where
conflicts of interest arise. Similarly, disclosure requirements
can aid others in making decisions about who should and who
should not participate in decisions. The absence of an ordinance
or statutory disclosure requirement does not, however, mean that
the requirement for disclosure on a case by case basis as
required by law does not exist. It does. And, it is possible
that an ordinance or statutory disclosure requirement would not
cover all of the things that would be required to be-disclosed .
in a given decision.
There is a lot covered in this letter and its attachments.
During your work session and thereafter you, as a Board,-can
hone in on your interests, including those not covered in this
letter and its attachments.
Very truly yours,
COLEMAN, GLEDHILL, HARGRAVE & PEEK, P.C.
GEG/lsg
Enclosures
xc: Donna Baker
Gwen Harvey
Tyrone Jackson
John M. Link, Jr:
Rod Visser
Greg Wilder
lsg:letters\bdofcom financial disclosure ltr.doc
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APPROVED 6/13/2006 MINUTES
ORANGE COUNTY BOARD OF COMMISSIONERS
WORK SESSION
March 15, 2006
4:00 p.m:
The Orange County Board of Commissioners met for. a Work Session on Wednesday,
March 15, 2006 at 4:00 p.m. at the Southern Human Services Center in Chapel Hill,
North Carolina.
COUNTY COMMISS{ONERS PRESENT: Chair Barry Jacobs, and
Commissioners Moses Carey, Jr., Valerie P. Foushee, Alice Gordon, and Stephen
Halkiotis
COUNTY ATTORNEYS PRESENT: Geoffrey Gledhill
COUNTY STAFF PRESENT: County Manager John M. Link, Jr., Assistant County
Managers Rod Visser and Gwen Harvey, and Clerk to the Board Donna Baker (All other
staff members will be identified appropriately below).
NOTE: ALL DOCUMENTS REFERRED TO IN THESE MINUTES ARE IN THE
PERMANENT AGENDA FILE IN THE CLERK'S OFFICE.
John Link distributed his suggestion to the Board for addressing the financing of
the Efland/Buckhom/Gravefly Hill water and sewer infrastructure costs.
Chair Jacobs made reference to item `g', which will be on the consent agenda on
March 21 ~`.
Chair Jacobs said that Rod Visser is preparing a memo for all County
Commissioners explaining the policies of usage of the courthouse.
1. Solid Waste Matters
a. Soiid Waste Operations Center Design
Rod Visser said that the County is preparing to construct a new solid waste
operations center that would be located on the south side of Eubanks Road on property
the County has acquired over the last several years. They feel that there are a lot of
sustainability and environmentally friendly features. He introduced the architects from
Dixon-Weinstein -Ken Freedland and Jim Compton. He said that after they receive
comments from the Board, they would like to schedule a meeting with the Rogers Road
neighborhood to show the design and answer questions. They would like to have the
facility ready to operate by mid-2007.
The architects made a presentation: Ken Freedland said that they are at the
stage of having nearly completed the schematic design. He showed a map of Eubanks
Road and the site. He said that they were asked to design a 7,000-square foot building
of usable space. They designed a 9,000-square foot building that houses the Solid
Waste operations department, includes a public meeting facility that will accommodate
80 people, and a storage building that serves Solid Waste. The building should embody
sustainable building strategies and will be a high performance building. He pointed out
the placement of the buildings. They think that the porch into the reception area would
be a prime place to take advantage of recycled building materials. The property is
oriented to the south to take advantage of daylight and solar gains, including
opportunities to produce hot water. They think that they can make extensive use of
recycled materials, and they also have the opportunity to use aloes-impact wastewater
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Commissioner Gordon made reference to page 9 and CHCCS Elementary
School #10 and said that they need to break out planning on this item. The separate
item of planning would be different than the construction. Chair Jacobs said that they
were going to front CHCCS some planning money and Donna Dean said that they would
look into this.
Commissioner Halkiotis said that he would appreciate a breakdown on the
planning money for CHCCS Elementary #10 since the architect has already designed
this same school at Rashkis. It should be a reduced fee.
3. Financial Disclosure for BOCC and Senior Staff
Chair Jacobs said that he brought this up a few years ago at the retreat. He sees
this as full disclosure. He thinks that it would be useful to know what non-profit boards
the County Commissioners serve on; and when those boards come to request funds,
then there should be some limit on gifts that the County Commissioners take or that
senior staff takes. He just wants to be honest with the public so that there are no
questions. He thinks it is relevant what his close family members do for a living in
Orange County and what businesses he has a stake in around Orange County. He
suggested making a list of some of the areas of interest. He made reference to the
material from Geof Gledhill that states that they may not be able to retroactively ask
senior staff to disclose information, but they can from now on.
Commissioner Gordon recommended the TTA disclosure form.
Commissioner Halkiotis fully endorsed the idea.
John Link suggested that he, Rod Visser, and Gwen Harvey abide by the
City/County Manager's Code of Ethics and that other departments -Purchasing,
Budget, Finance -also abide by their specific. codes of ethics..
Chair Jacobs said that the ultimate goal is that the County is ethical and proud to
say so.
The Board agreed.
Geof Gledhill will bring back a report.
With no further items to discuss a motion was made by Commissioner Halkiotis,
seconded by Commissioner Gordon to adjourn the meeting at 8:54 p.m.
Barry Jacobs, Chair
Donna S. Baker
Clerk to the Board