Many sermons and discussions on ethics include a story from an episode of The Andy Griffith Show.  Today’s post is no different.

            In one of the later Andy Griffith episodes when Opie is older and the show was filmed in color, a man from “somewhere up north” robs a bank in Raleigh and is caught and jailed in Mayberry.  When his big-city lawyer comes down, Andy properly leaves the jail so they can confer privately.  Opie and his friend, Arnold, however, secretly tape the man’s confession on Arnold’s reel-to-reel recorder and try to give the evidence to Andy.  Andy erases the tape and won’t let Opie tell him what he learned, explaining in two separate scenes that in America we operate by due process of law and that we must trust the procedures we have and not circumvent them.  (The man confesses, but only after Opie and Arnold privately tell him they know where the money is hidden, that they have to give it to Andy, and he would be better off fessing up).

            Now, let me bridge that story with an update on laws related to conflicts of interest in land use decisions.

            On January 19th  I posted a blog entry on new legislation which requires city and county governing boards and boards of education and boards of sanitary districts to adopt a code of ethics.  I also mentioned in my most recent blog (American Government, American Pie) that 1) the only way to address unethical conduct in government is through aggressive education regarding ethical standards, and 2) some ethical standards, although general in nature, already have been codified for land use decisions made in a quasi-judicial context. 

What do the statutes say?

             Let’s visit General Statutes 160A-388(e1) (cities) and 153a-345(e1) (counties).  These statutes contain identical provisions within the Board of Adjustment enabling legislation that govern standards for recusal in all local boards when that board engages in a quasi-judicial proceeding:

             “(e1) A member of the board or any other body exercising the functions of a board of adjustment shall not participate in or vote on any quasi-judicial matter in a manner that would violate affected persons’ constitutional rights to an impartial decision maker. Impermissible conflicts include, but are not limited to, a member having a fixed opinion prior to hearing the matter that is not susceptible to change, undisclosed ex parte communications, a close familial, business, or other  associational relationship with an affected person, or a financial interest in the  outcome of the matter. If an objection is raised to a member’s participation and that member does not recuse himself or herself, the remaining members shall by majority vote rule on the objection.”

             Today I will discuss just the first sentence only.  For background purposes, it’s a sentence of great importance.  Later this week I’ll discuss in detail the several “impermissible conflicts.”

            As a quick primer, “recusal” is a term denoting a board member’s nonparticipation in a decision-making process, typically because he or she is personally affected or otherwise has a conflict of interest.  When recusal is proper, the official must refrain from taking any action that would affect the ultimate outcome.  A “quasi-judicial proceeding” is a decision-making process that is guided by the rules of a courtroom to protect parties’ rights of due process.  A process becomes quasi-judicial when the board must “find facts” and apply laws or policies to those facts.

 What does due process have to do with ethics?

            Due process, whether practiced in Mayberry or Philadelphia, is a collection of procedural safeguards that ensure that a citizen’s constitutionally protected rights are protected when a government goes about doing whatever it is that a government does.  Typical safeguards include advance notice of action a government might take, an opportunity to appear at the hearing and a reasonable opportunity to speak, to see all information before the board, to present one’s own evidence and to cross-examine evidence provided by others.  Testimony must be under oath. 

 Competing loyalties or an impartial decision maker?

            In the statutory section above, the due process protection discussed is a citizen’s right to an impartial decision maker.

            Laypersons often think that the essential characteristic of impartiality is open mindedness. Although the ability to be open minded is critical, the more important focus is on freedom from competing loyalties (more often referred to as “conflicts of interest”).  A board member is elected or appointed to take care of the public’s business, not to use the powers bestowed by the people to look after him or herself (or the folks who happen to be related or connected in some other way).  In simplistic terms, a man cannot serve two masters.

            Some of the situations where impartiality would be compromised are codified (that is, written into law).   Each of these situations is painted with an exceptionally broad brush. A code of ethics goes beyond the broad brush of the statutes and provides guidelines for proper conduct. It should be the purpose of an ethics code and ethics education to break these situations down into their many component parts for deeper understanding and practical application. 

            Stay tuned for this detailed treatment in a later post.  In the meantime, I’ll keep my eyes glued to late-night TV for more illustrations from Andy Griffith re-runs.

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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

Mr. Terrell can be contacted at