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3 <br /> BEEMER, HADLER, WILLETT & LIN, P.A. <br /> Attorneys at Law <br /> WAYNE R.HADLER 1829 Ewa Franklin Sweet 430 Wcst Main Strap <br /> CHRISTOPHER M.W ILLETT Suite 800.13.Franklin Squair CatThoro.NC 27510 <br /> SHARON LIN Chapel Bill,NC 27514 [el(919)904-4634 <br /> tel(919)929-0391 fax(919)967-3063 <br /> fax(919)967.3063 <br /> ]GATE L COLBURN Paralegals: <br /> 3ENNA T.HORNIK PAM LINK-SETTS <br /> WWW.BHCWLAW.COM JANET WILLEIT <br /> JESSI SKELA <br /> ELLEN LEFKOWITZ <br /> CHARLES G.BEEMEY,REr1RED <br /> REX T.SAVERY.RETIREE] Email:cwiliega bhcwlaw.cam <br /> October 30, 2020 <br /> Patrick Burns,Board Chair <br /> Orange County Alcoholic Beverage Control Board <br /> 601 Valley Forge Road <br /> Hillsborough,NC 27278 <br /> RE: Potential Appointment of a County Commissioner to the ABC Board <br /> Dear Patrick: <br /> The Board has asked for my opinion regarding ramifications of the potential appointment of a <br /> Board Member of the Orange County Commissioners to the Orange County ABC Board. The <br /> appointment of a sitting commissioner is legally permissible under North Carolina law because <br /> the commissioner is allowed to hold one elective and one appointed office. However,it will <br /> likely pose a number of logistical and ethical challenges for a small quasi-municipal board whose <br /> finances are in many ways intertwined with the appointing authority's finances. <br /> The County Attorney's materials provided to the BOCC at their most recent work session seem <br /> to indicate that the consideration of the dual position is primarily motivated by the desire to <br /> increase the ABC Board's annual distributions and grants to the County. It is true that a dual <br /> Board member can consider and vote on actions that directly impact both municipal entities <br /> without expressly violating the State's conflict of interest statutes so long as their initial <br /> appointment and personal compensation are not at issue. However,an ex officio Board member <br /> would have additional ethical duties that go beyond the dictates of the conflict of interest statute <br /> (NCGS 18B-201 et seq.). Board Members' fiduciary obligations require them to discharge their <br /> duties(1)in good faith(2)with the care of an ordinarily prudent person and(3)in a manner the <br /> Board Member believes to be in the best interests of the entity he or she is serving- Even if a <br /> member of the BOCC only serves in an ex officio role to the ABC Board, the BOCC member <br /> clearly has some fiduciary duty to the ABC Board. The County and ABC Board's current <br /> respective financial situations may make it very difficult for even the most conscientious dual <br /> Board Member to act in a manner that the Board member reasonably believes to be in the best <br />