February 4, 2000

Mr. David E. Jones, Executive Director

Governor's Crime Commission

N.C. Department of Crime Control and Public Safety

1201 Front Street, Suite 200

Raleigh, North Carolina 27609

Re: Governor's Crime Commission

Dear Mr. Jones:

I will be happy to respond to your January 14, 2000, request regarding conflicts of interest and the appearance of conflicts of interest in the context of sub-committee members of the Governor's Crime Commission ("Crime Commission" or "the Commission") participating in grant recommendations when a State agency with which they are connected is the potential recipient of such grant. Before I do, however, you need to be aware of several limitations on the scope of this response. First, there may be other laws, rules, or policies that apply to the Commission in this situation. For example, North Carolina General Statutes ("NCGS") §14-234 makes it unlawful to use your governmental authority to contract for your own benefit. In addition, the Commission has its own ethics guidelines which may also address your question. See Bylaws of the Governor's Crime Commission, Article IV, "Ethical Responsibilities" (hereinafter "Bylaws"). Definitive interpretation of these and other potentially applicable statutes and specific application to your situation is a matter for the Commission in consultation with its legal counsel, if necessary. The Board of Ethics ("BOE" or "the Board") is charged with interpreting and enforcing Executive Order 127, as modified by Executive Order 131 (collectively "EO 127" or "the Order"). Any conflict between a provision of the Order and other North Carolina law is resolved in favor of the law. EO 127, §4(i).

With the foregoing limitations in mind, the following preliminary advisory opinion is issued by Board staff according to the Board's "Rules and Regulations" and may be relied upon until and unless it is formally modified or rescinded by the full Board. Once the Board formally approves, modifies, or otherwise disposes of the preliminary opinion, all pertinent parties will be so notified.

All advisory opinions, both preliminary and final, are based upon the particular facts presented and issues raised in the specific request for an advisory opinion. As such, the scope of each opinion is limited to the request made and should only serve as a recommendation to the particular parties involved. It may, however, serve as a general guide to other individuals similarly situated.

From your letter and our subsequent conversations, I understand the basic facts to be as follows. Among other things, the Commission assists the Secretary of Crime Control and Public Safety ("the Secretary") in making grants for use in pursuing the Commission's objectives (like developing a comprehensive statewide plan for the improvement of criminal justice throughout the State ). Before a final decision is made, the Commission utilizes various committees and sub-committees to evaluate grant pre-applications. Ultimately, sub-committees make recommendations to an Executive Committee which then makes a recommendation to the full Commission. The Commission is preparing for the year 2000 grant process, and applicants are starting to submit grant pre-applications. Given the advisory nature of the committees and sub-committees, is it a conflict of interest for a committee member to vote on or discuss a grant pre-application that would be received by the member's own agency? If I am mistaken about any of the facts set forth above or the nature of your question, or if there is additional relevant information needed for a complete understanding of the issues involved, please let me know at once.

The simple answer to your question is the Order, and thus the Board of Ethics' jurisdiction, does not cover "advisory boards." See EO 127, §3(g). The Board is charged with the responsibility of determining which boards, commissions, or councils are advisory and thus not covered by the Order. Therefore, the Commission's committees and sub-committees which help staff evaluate grant pre-applications are not covered by the Order's rules of conduct, including section 7 dealing with conflicts of interest and the appearance of conflict of interest.

As a matter of internal policy, I understand the Commission allows Commission members who are sitting on these advisory sub-committees to answer questions about a grant pre-application from an agency or group with which they are connected or in which they have an interest, but they are not allowed to lobby for or vote on such grant request. I believe this is a reasonable procedure which is consistent with the Board's decisions in other situations. See, e.g., AO-99-007 (April 1, 1999), a copy of which is enclosed for your information.

When the actual grant decision comes before the full Commission, the aforementioned rules of conduct would apply. The basic rule of conduct for Public Officials is that they must perform their official duties in a manner to promote the best interests of the public. EO 127, § 7. This encompasses avoiding both conflicts of interest and the appearance of conflicts of interest. A Public Official shall not knowingly use his or her position in any manner which will result in financial benefit, direct or indirect, to the Official or an individual with whom or business with which the Official is associated. EO 127, § 7 (a) (1).

Section 7 (b) of the Order addresses appearances of conflict of interest. Public Officials must make every effort to avoid even the appearance of a conflict of interest. An appearance of conflict exists when a reasonable person would conclude from the circumstances that the Official's ability to protect the public interest, or perform public duties, is compromised by personal interests. An appearance of conflict may exist even in the absence of a true conflict of interest. EO 127, § 7 (b) (1). A Public Official must recuse himself or herself from any proceeding in which the Official's impartiality might reasonably be questioned due to the Official's familial, personal, or financial relationship with a participant in the proceeding. EO 127, § 7 (b) (2).

Should a commissioner's own agency appear before the Commission concerning such grant application, the commissioner's participation in the matter could create, at a minimum, the appearance of a conflict of interest. Consequently, to avoid a conflict of interest or the appearance thereof, it is best that commissioners not participate in grant proceedings involving their own agencies. In order to uphold the integrity of both the individual and the process, a full disclosure of the disqualifying situation is encouraged.

This approach appears consistent with the Commission's own ethics policy: "any person who has an interest in a governmental agency or unit … which is applying for a Commission grant…, shall take no part in discussion or have any vote in regard to any matter directly affecting that particular grant application or grantee." Article IV, Section 1. Other guidance may be found in the Board's Advisory Opinion number AO-99-014 (July 7, 1999), a copy of which is enclosed for your information.

I hope this opinion adequately addresses the question raised in your request, but if it does not, please do not hesitate to call on me for further discussion and analysis.

cc: Mr. George F. Bason, Chairman, NC Board of Ethics