AO 99-008

April 5, 1999

Mr. Daniel F. McLawhorn

General Counsel

Department of Environment and Natural Resources

Raleigh, North Carolina 27611-7687

Regarding: Ethics Opinion Request - Marine Fisheries Commission

Dear Mr. McLawhorn:

We are pleased to respond to your questions.

Background: GS 143B-289.24(a) requires that certain of its members be employed in and/or derive a majority of their earned income from commercial fishing. One of those members is primarily employed in the harvest of crabs. The Marine Fisheries Commission is considering the adoption of a means to control the crab fishery. Currently, there are two separate licensing requirements to engage in crab fishery. The licensed commercial fishermen eligible to harvest crabs for commercial purposes has been limited to those who also hold a separate and additional license to engage in the crab fishery. From the two separate licensing requirements, fewer than half of the persons holding a license to engage in commercial fishing are eligible to harvest crabs for commercial fishing.

The MFC member who participates in the crab fishery estimates that his past harvest levels place him among the top five percent of those fishermen who are a part of the crab fishery. Both alternatives under consideration by the MFC will allocate the ability to fish under a system based on the past landings by the fishermen. Thus, the two proposals to limit access will afford greater amounts of access to fishermen who have historically harvested more crabs.

In our opinion dated 3/11/98 we said that commercial fishermen on the MFC could participate in decisions affecting the fisheries in which they participate "except in extreme cases where their financial interests may be affected more than others who are subject to the rules and regulations of the Commission."

Question: Under the circumstances described, will the member violate Executive Order No. 127 if he participates in the Commission's decision about which regulatory scheme will be adopted to allocate the harvest of crabs among the eligible fishermen?

Response: GS 143B-289.24(a) allows the member to derive at least fifty percent of annual earned income from commercial fishing. It appears that the General Assembly expects the Marine Fisheries Commission to protect coastal fishery resources and to balance the commercial and recreational interests through better management of these resources.

Under the circumstances presented, the financial interests of the individual serving in the position described in G.S. 143B-289.24(a) may be affected more than that of others who are subject to the rules and regulations of the Commission. Therefore, in order for the commercial fishing viewpoint to be fully represented on the MFC, we would be in favor of the member being able to express the industry position and answer relevant questions from the other members. We would not, however, be in favor of the member lobbying other members to favor one scheme over the other. In addition, the member should not vote on either regulatory scheme.

Section 4(h)(i) allows the Board to interpret the provisions of the Order which shall be binding on Public Officials subject to the Order. It further indicates that any conflict between a provision of the Order and other NC law shall be resolved in favor of the law.

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.

Sincerely,

George F. Bason, Chairman

cc: Jimmy Johnson, MFC Chair

Willie Phillips, MFC Member

Francis M. Crawley, Special Deputy Attorney General