Like it or not, we live in a world where our most difficult decisions are subjective, debatable and ultimately inconclusive.

            These past few weeks I have reviewed and analyzed statutes that (supposedly) provide guidance as to when a board member is incapable of putting self-interest or the interest of someone close to them aside when making a public decision.  It turns out that the statutes are only starting points, and the more you think about them the more you realize how muddy ethical waters can be.

            How do we know whether a Board member, acting like a judge in a quasi-judicial decision, can be nonbiased and impartial when his or her former spouse’s biological child is an applicant before the board?  Or the former spouse’s biological child’s spouse?

            Actually . . . there’s no way to know and the statutes we must work within are just starting points.  Guidelines.

            In the scenario above, the Board member could have had only a marginal connection to the former spouse’s biological child.  Or, the board member could have raised that child as his or her own.

            To repeat the issue, local government boards often engage in what are called quasi-judicial decisions where the rules of the courtroom protect an applicant’s or opponent’s constitutional rights. Typical among those decisions would be any decision by a Board of Adjustment or conditional or special use permits or conditional use zoning.   In those situations, the North Carolina General Statutes list situations that are deemed as a matter of law to create conflicts of interest that prevent a board member from being impartial and require recusal.

            The final category in this series of blog posts is “a close familial, business, or other associational relationship with an affected person.”  How do we determine when a pre-existing relationship is so strong or compelling that the decision-maker is incapable of putting feelings for that person aside in order to be completely non-biased at a hearing where the person is affected. This

Close familial relationship

            “Close familial relationship” is an undefined concept.  If I were King of the Universe I would declare that someone within one degree of kinship (parent, spouse, child, sibling) is, as a matter of law, too close for a board member to participate in a decision affecting them.  But that would be an easy and generally noncontroversial fiat. 

            It’s the second and third degrees of familial relationship where the slope gets steeper and more slippery.  Some people are very aware of and sensitive to someone being “of the same blood,” which could mean fifth cousin three times removed.  Other folks can’t tell you their first cousins’ names.  I have a second cousin who grew up in my home and I in his. We felt more like something between brothers and first cousins.  Coincidentally, he is equally kin to race car legend Richard Petty as he is to me (through the other side of his family), yet he and Petty have, to my knowledge, only shaken hands once and for a few brief seconds.

            Each relationship is different.  Each kinship has its own definition and history.  Whether a family connection is too close for the public’s comfort must be considered on a case-by-case basis.

Close business relationship

            A “business relationship” is equally squirrelly and undefined.  The point of the inquiry, again, should be whether the board member’s business relationship with an affected party would reasonably prevent him or her from being impartial when the “business relation” would be affected in any material way.

            Does the business relationship arise to a fiduciary relationship or is the party just a workplace acquaintance?  Are you co-owners or co-workers?  Do you have a sense of loyalty or friendship through the business relationship that prevents you from doing something that would harm that relationship?

            It is initially the board member’s job to point out the relationship for others, including affected parties, to consider.  If the board member fails to do so, the board chair, any board member, or someone with a matter before the board has every right to raise the issue(s).

Or “other associational relationship”

            The first time I skied – well, actually, the first, second and third time I tried to ski – I started on the bunny slopes and graduated to an intermediate course.  My view of the intermediate slope was the same each time.  As I approached it from the chair lift it looked like a gradual, soft, gentle slope.  But when I hit the slope and started down I was unprepared for the drop, the speed, and, dare I say, slipperiness.

            Most of us can identify a “close associational relationship” when we see one.  Towns and counties, large and small, cannot function without close associational relationships in business, politics and civic life.  But for some reason we always think relationships that are “too close” can easily be identified before a hearing begins.

            And Dorothy, upon meeting Glenda, the Good Witch of the North, thought she would know what a witch would look like when she landed over the rainbow.

            When is a relationship so close that a board member cannot be impartial? The scenarios we are faced with are endless.  What about two men who, for twenty some years, have shared seats at their alma mater’s home football games?  Or who twice a year spend a weekend fishing?  What if the board member made All State as a high school running back because the hearing’s applicant routinely opened holes for him in their opponents’ defensive line?

            What about two women who have a standing weekly lunch at the Country Club?  Or who, as children, were best friends and shared all of their deepest secrets?

            What about next door neighbors, Sunday School class members, or running club or poker game buddies?

            Does the analysis depends as much on the board member’s personality as the facts of the relationship?  Some people are more fearful of making a close friend angry than others, just as some board members lose every bit of stiffness in their spine when two neighbors (voters) show displeasure.

            If there is a take-away point here, it’s that fairness and impartiality are moving targets, and quasi-judicial decisions will never be completely “fair.”   All we can do is educate, be vigilant, and be willing to openly and honestly scrutinize business, family and other relationships when impartiality is required.

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