February 7, 2001

Mr. Robert Upton, North Carolina Board for Licensing of Geologists, P.O. Box 41225, Raleigh, North Carolina 27629-1225

Re: North Carolina Board for Licensing of Geologists

Dear Mr. Upton:

I will be happy to respond to your February 5 request regarding legal and "ethical" (conflict of interest/appearance of conflict) issues related to holding meetings of the North Carolina Board for Licensing of Geologists ("the Board" or "Geologists Board") in the offices of "private concerns." Before I do, however, you need to be aware of several significant limitations on the scope of this response. First, the Geologists Board appears to be covered by other laws, rules, or policies which apply to this situation. For example, North Carolina General Statutes ("NCGS") §89E-5 touches on the general subject of meetings. In addition, you ask about interpretation and application of the "Open Meetings Law" (NCGS §143-318.9 et seq.) to your situation.

Definitive interpretation of these and other applicable statutes, rules, or policies, as well as their specific application to your situation, is a matter for the Geologists Board’s legal counsel. The Board of Ethics ("BOE") is charged with interpreting and enforcing Executive Order Number One ("EO One" or "the Order"). Any conflict between a provision of the Order and other North Carolina law is resolved in favor of the law. EO One, §5 (a) (3).

With the foregoing limitations in mind, the following preliminary advisory opinion is issued by BOE staff according to the Board of Ethics’ "Rules and Regulations" and may be relied upon until and unless it is formally modified or rescinded by the full BOE. Once the BOE 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.

I understand the basic facts to be as follows. The North Carolina legislature created the Geologists Board to, among other things, protect the public health and welfare through regulation of the practice of geology in North Carolina. NCGS §89E-2 et seq. The Board conducts its business at open public meetings as required by law. In fact, NCGS §89E-5 (f) requires the Board to hold at least two regular meetings each year. In the past, the Board has met in the offices of some of its members, and it plans to do so again tomorrow (February 8, 2001) and later in the year. These meeting locations and facilities have been provided by such Board members free of charge to the Board or the State of North Carolina. If I am mistaken about any of the foregoing facts, or if there is additional relevant information needed for a complete understanding of the issues involved, please let me know at once.

A geologist licensee has raised several questions about the legality and/or propriety of meeting in private offices, namely the offices of some of the Board’s members. Specifically, the licensee questions whether conducting public meetings in private offices violates the Open Meetings Law or otherwise creates an impermissible "perception" of impropriety.

As mentioned above, the Board of Ethics is not charged with giving legal interpretations of potentially applicable statutes like the Open Meetings Law (NCGS §143-318.9 et seq.). However, purely as a matter of informal, non-binding advice, I see nothing in that law that specifies the location of public meetings in general or prohibits them from taking place in private offices in particular. The main thrust of the Open Meetings Law is that the public’s business be conducted openly and publicly, with appropriate notice to interested parties, and as long as those and the other legal requirements of Article 33C are met, I see no problem with meeting in the private offices of Board members. Again, definitive interpretation of this and any other applicable laws lies with the Board’s legal counsel.

The question of any potential "perception" of impropriety falls within the scope of the Board of Ethics’ authority. The basic rule of conduct for all covered Public Officials is that they "perform their official duties in a manner to promote the best interests of the public." EO One, § 7. This general statement is followed by rules governing both conflicts of interest and appearances of conflict. Conflict of interest rules are aimed primarily at avoiding undue financial gain as a result of one's official position. EO One, § 7 (a) (1).

Appearances of conflict cover a broader spectrum of conduct. Section 7 (b) (1) states,

I see nothing in the current situation that would indicate the reasonable possibility of either an impermissible financial conflict of interest or appearance of conflict. In the future, there could be a conflict of interest if the Board voted to compensate members for the use of their offices for public meetings, but that does not appear to be the case here. Far from it, in these tight budget times, it appears that certain Public Officials are saving the State money by donating the use of private office space for public meetings with no expectation of any personal or professional gain.

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

Sincerely,

Perry Y. Newson, Executive Director

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