January 1, 2010 marked the beginning of both a new year and, potentially, a new era in local government.

             Beginning January 1, all governing boards of cities and counties and boards of education and sanitary districts must adopt a code of ethics guiding decisions by that board.  The code of ethics must contain at least the following:

             ●          the need to obey all laws

            ●          the need to uphold the integrity and independence of the board member’s  office

            ●          the need to avoid impropriety

            ●          the need to faithfully perform the duties of office

            ●          the need to conduct the affairs of government in an open, public manner

             Additionally, each board member must take a two-hour course each calendar year in conflicts of interest and ethical standards of conduct.  School board members must take an additional 10 hours of annual instruction in public school law and finance.

             Democracy, for all its strengths, is messy, and one of its problems is the elevation to public office of men and women with no previous exposure to the thousands of laws they must apply or lessons in the standards of conduct of a public fiduciary.  On the whole, therefore, this is good legislation and a great step in the direction of better government.

             If there are future amendments to this legislation it will be requiring additional hours for city and county board members – similar to school boards – for regular, annual seminars on local government laws and finance.  You heard it here first.

             But if you are reading this blog for deeper insight into new laws, let’s dig a bit.

             This legislation did not come out of the blue.  The General Assembly appointed a study commission on local government ethics in the early nineties, and possibly at other times.  The political climate in 2009, however, created a sense of urgency.  This is the wrong year to vote against legislation that furthers ethics in government.

             The conceptual problem I have with the legislation is that three of the five ethical standards are existing legal duties. Obeying the law and faithfully performing the duties of office are included in every oath of office (N.C. Constitution Article VI. §7).  Conducting the affairs of government in an open and public manner is already governed by public records and open meetings laws.

             So what do we gain by “ethicalizing” a legal duty?  Probably nothing if your focus is enforcement, but everything if your focus is the ability to require education and to promote sensitivity to these duties.

             A conflict of interest is not as difficult to define as pornography, but unlike Justice Potter Stewart claiming to recognize pornography, you don’t always recognize a conflict of interest when you see it.  Understanding what constitutes a conflict in a public decision-making forum is a small part intuition and a large part training.

             The places where conflicts will be most pronounced are the smallest of towns and counties where just about every applicant or petitioner before a board is at least one board member’s minister, business partner, father-in-law or child’s school teacher. And when your child’s passing grade in algebra is on the line, how you vote on a matter affecting the child’s teacher could possibly be an ethical conflict of interest – depending upon the code adopted – but not a legal conflict of interest.

             It’s complicated.

             And if you haven’t raised this question in your own mind yet, let’s raise it now.  Is there a “what if” built into this legislation?  What if a governing board member chooses not to take his or her two hours of ethics courses?  What if a school board member doesn’t take the extra ten hours of instruction?  What if an ethical duty is breached?  Can the board member be fined?  Does a member of the public have standing to seek a court order forcing their attendance at an ethics course?  Can they be removed from office?  Is violation a criminal act?

             The answer to the last question is “yes, possibly,” but only because we now have an ethical duty (as opposed to a mere legal duty) to obey all laws.  Whereas formerly taking a bribe is “just” a criminal act, it is now an ethical violation as well.  Violation of a civil law would also be ethically wrong, but what if it’s a regulatory infraction, such as failing to renew your car license?  An ethical violation?  Well, that’s certainly how the law reads.

             But the point still remains.  This is legislation creating new duties for public officials with no real teeth for enforcement. 

             Another (somewhat minor) omission – from my perspective as a land use and governmental attorney – is that cities and counties often delegate final land use decisions to a planning board. Similarly, all matters before a Board of Adjustment are final decisions by statute (subject to appeal). These board members have been delegated tremendous powers to affect and control other citizens’ lives and livelihoods. Would or should the same ethical standards adopted by the governing board apply to Boards of Adjustment and to planning boards making final decisions?  I would hope so.  And I would rest easier knowing that these appointed board members who don’t answer to the citizens at the ballot box have had some sort of formal training in recognizing and handling conflicts of interest.  Of course, legal standards of conduct always apply, including recusal in cases of impermissible bias.

            I bare my teeth at the General Assembly many times each year.  On this one, though, the teeth you see reveal a smile.

             [To read previous blog posts, simply continue to scroll down or click on a category of interest in the right hand column]

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Tom Terrell

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes…

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes parts of Virginia and South Carolina. His many clients are involved in commercial and residential real estate, solid waste hauling and disposal, telecommunications, quarries/asphalt and miscellaneous litigation related to permit denials, vested rights and rezonings.

He has published numerous articles and speaks regularly to legal, governmental and business groups on a variety of issues related to land use and zoning.

Mr. Terrell has served as a leader in numerous civic and legal endeavors, including Chairman of the Board of Trustees of the N.C. State Health Plan, Chairman of the Board of Trustees of Winston-Salem State University, and service on the Board of Directors of the UNC-CH General Alumni Association, Board of Directors of the High Point Chamber of Commerce, Board of Visitors of Guilford College and Board of Center Associates of the Center for Creative Leadership, and as a founding member of the N.C. Bar Association Zoning, Planning and Land Use Section.

More information can be found at https://www.foxrothschild.com/thomas-e-terrell-jr/.

Mr. Terrell can be contacted at mailto:tterrell@foxrothschild.com.