§ 138A-36. Public servant participation in official actions.
§ 138A‑36. Publicservant participation in official actions.
(a) Except as permittedby subsection (d) of this section and under G.S. 138A‑38, no publicservant acting in that capacity, authorized to perform an official actionrequiring the exercise of discretion, shall participate in an official actionby the employing entity if the public servant knows the public servant or aperson with which the public servant is associated may incur a reasonablyforeseeable financial benefit from the matter under consideration, whichfinancial benefit would impair the public servant's independence of judgment orfrom which it could reasonably be inferred that the financial benefit wouldinfluence the public servant's participation in the official action.
(b) A public servantdescribed in subsection (a) of this section shall abstain from taking anyverbal or written action in furtherance of the official action. The publicservant shall submit in writing to the employing entity the reasons for theabstention. When the employing entity is a board, the abstention shall berecorded in the employing entity's minutes.
(c) A public servantshall take appropriate steps, under the particular circumstances andconsidering the type of proceeding involved, to remove himself or herself tothe extent necessary, to protect the public interest and comply with thisChapter, from any proceeding in which the public servant's impartiality mightreasonably be questioned due to the public servant's familial, personal, orfinancial relationship with a participant in the proceeding. A participantincludes (i) an owner, shareholder, partner, member or manager of a limitedliability company, employee, agent, officer, or director of a business,organization, or group involved in the proceeding, or (ii) an organization orgroup that has petitioned for rule making or has some specific, unique, andsubstantial interest in the proceeding. Proceedings include quasi‑judicialproceedings and quasi‑legislative proceedings. A personal relationshipincludes one in a leadership or policy‑making position in a business,organization, or group.
(d) If a public servantis uncertain about whether the relationship described in subsection (c) of thissection justifies removing the public servant from the proceeding undersubsection (c) of this section, the public servant shall disclose therelationship to the individual presiding over the proceeding and seekappropriate guidance. The presiding officer, in consultation with legal counselif necessary, shall then determine the extent to which the public servant willbe permitted to participate. If the affected public servant is the individualpresiding, then the vice‑chair or any other substitute presiding officershall make the determination. A good‑faith determination under thissubsection of the allowable degree of participation by a public servant ispresumptively valid and only subject to review under G.S. 138A‑12 upon aclear and convincing showing of mistake, fraud, abuse of discretion, or willfuldisregard of this Chapter.
(e) This section shallnot allow participation in an official action prohibited by G.S. 14‑234. (2006‑201, s. 1; 2007‑347,s. 12; 2007‑348, s. 42; 2008‑213, s. 84(a).)