AO 98-014

July 31, 1998

Francis W. Crawley, Esquire

Special Deputy Attorney General

Department of Justice

P.O. Box 629

Raleigh, NC 27602-0629

RE: Advisory Opinion; Environmental Management Commission: Does a conflict of interest exist in former mayor's participation in rule making on water restrictions for town.

Dear Mr. Crawley:

The following opinion is in response to your request by letter dated July 28 concerning the potential for a conflict of interest by a former mayor of a municipality who serves on the Environmental Management Commission ("EMC"). According to the facts presented, the EMC member served as mayor of a municipality and has not held a public office in the municipality for seventeen years and currently holds no official position with any other governmental agency in the region.

The municipality and several other local governments now seek to construct a large new water supply lake. The EMC must determine, through the rule making process, the controls necessary to protect the water quality of the lake. At present, the EMC has two sets of controls under consideration. Both sets impose some duties on local governments to impose land use controls within the water supply watershed. One set is more stringent than the other and will impose greater duties on the local governments. The vote on the rules to be implemented will come late this year or early next year.

Specifically, you ask whether the individual should recuse himself, limit his participation, or make a disclosure statement when matters come before the EMC concerning the proposed water supply lake.

The situation presented is similar to an advisory opinion dated June 29, 1998 from this office to the Parks and Recreation Authority that addressed voting on a park grant to a local government where the individual had served in the past as a local parks and recreation board or commission member. In that opinion, we recommended that an Authority member who is a past member of a local government's parks and recreation advisory board or commission disclose to the full Authority his or her past relationship with the local parks and recreation board. We also recommended that he or she discuss with the full Authority any concerns of bias the member has toward favoring the local government over others. We further stated that if the member is uncertain whether the relationship gives rise to the appearance of a conflict of interest, the presiding officer shall determine the extent to which, if any, the Public Official will be permitted to participate. EO 127, 7(b)(2).

Not addressed in the opinion was the time that had lapsed between local government service and the present state service. In the specific situation presented in your letter -- given North Carolina's rapid growth and changing environmental needs, including water quality -- we are of the opinion that the passage of seventeen years removes the potential for a conflict of interest based upon the prior local government service.

We recommend that the ENIC member disclose his former position and that he participate unless he personally believes that he has bias toward the local government. This is a determination that any member to a public board, commission or authority must make when serving in a position of public trust. ,

This opinion requires approval by the Board of Ethics. Until the Board meets and has an opportunity to discuss this opinion, however, you may rely upon it. As soon as the Board reviews the opinion, it will be reissued formally.

If you have any questions or would like to discuss this further, please don't hesitate to call.

Yours truly,

 Katherine R. White

cc: Members, Board of Ethics