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7 <br /> 1 addressed by G.S. 153A-340(g) and so there is only analysis to be made, whether you may be <br /> 2 excused pursuant to G.S. 153A-340(g). <br /> 3 <br /> 4 153A-340(g) states "A member of the board of county commissioners shall not vote on any <br /> 5 zoning map or text amendment where the outcome of the matter being considered is reasonably <br /> 6 likely to have a direct, substantial, and readily identifiable financial impact on the member" <br /> 7 (emphasis added). Assuming the facts above to be true: <br /> 8 <br /> 9 • There appears to be no direct financial impact because you have had no involvement in <br /> 10 this project through your employment with Summit and will experience neither a <br /> 11 financial benefit or detriment regardless of the outcome of the vote on the project; <br /> 12 • Even if there is an indirect financial impact to you from some positive or negative <br /> 13 outcome experienced by Summit as a business this indirect impact is not at this time <br /> 14 quantifiable and is certainly not so substantial that it is apparent to a neutral observer, <br /> 15 so this may not be considered for purposes of whether you may be excused from <br /> 16 voting; <br /> 17 • Neither your compensation nor your continued employment are related in any way to this <br /> 18 project and so I also cannot determine that there is a readily identifiable financial impact <br /> 19 to you from the project. <br /> 20 <br /> 21 There is a North Carolina case that, although not directly on point, provides guidance in this <br /> 22 situation on the question of what constitutes direct and substantial impact. City of Albemarle v. <br /> 23 Security Bank & Trust Co., involved a council vote on the condemnation of property owned by <br /> 24 Security Bank & Trust Co. Three members of the council voted on the condemnation, which <br /> 25 directly impacted the bank's business and property. The three were employed by another bank <br /> 26 that was in direct competition with Security Bank & Trust Co. They held positions of Director, <br /> 27 Assistant Vice President, and Branch Manager. The Court held that even though they may <br /> 28 experience some indirect impact to their financial interest from something negative happening to <br /> 29 Security Bank & Trust Co., the impact was "too remote and infinitesimal to give rise to a conflict <br /> 30 of interest." Similarly, you could have some positive or negative experience if the company that <br /> 31 employs you has a positive or negative impact from the Board's vote on the project, but your <br /> 32 personal experience will not, pursuant to the facts you've provided, be direct, substantial, or <br /> 33 readily identifiable. <br /> 34 <br /> 35 There is no provision in the law as it relates to county boards of commissioners that allows <br /> 36 commissioners to recuse themselves from voting. The board itself must excuse, by vote, a <br /> 37 member from voting and then only in the stated circumstances. The mere appearance of <br /> 38 impropriety or appearance of a conflict of interest is not sufficient to warrant an excusal. To a <br /> 39 person unfamiliar with the voting statutes it may appear that impropriety or a conflict exists <br /> 40 based on your employment with Summit, however, the facts you've related to me suggest no <br /> 41 actual impropriety or conflict of interest exists. <br /> 42 <br /> 43 My conclusion is that you may not be excused by the Board from votinci and have a <br /> 44 statutory duty to vote on this item. James Bryan will be at tonight's quarterly public hearing <br /> 45 and I've discussed this issue with him. I've also copied the Board and as you requested the <br /> 46 manager and planning director. <br /> 47 <br /> 48 Let me know if you have any questions. <br /> 49 <br /> 50 John L. Roberts <br /> 51 Orange County Attorney <br /> 52 <br />