Clary clarifies her billboard interests

Former Sen. Debbie Clary, a Republican from Cherryville, checked in with Dome to clarify that the billboards she owns are mobile signs, and so weren't affected by the bill she voted on last year that increases the tree- and shrub-cutting zone around fixed billboards.

Dome reported that she and Rep. Stephen LaRoque own billboards, and also voted for the bill. LaRoque was not only instrumental in writing the bill that took effect, he had also introduced one of two versions of the bill.

LaRoque released an opinion from the state Ethics Commission he received prior to introducing his bill. If you really want to get into the weeds, so to speak, here's that opinion. It's informative beyond billboards, as it spells out just what the Ethics Commission staff thinks is legally a conflict of interest.

From: Edwards, Kathleen
Sent: Monday, February 14, 2011 03:18 PM
To: Lisa Kennedy (Rep. LaRoque)
Subject: CONFIDENTIAL--Participation in Billboard Legislation
 
Dear Representative LaRoque:
 
This is in response to your request for a confidential advisory opinion concerning the permissibility of introducing legislation which would increase the area surrounding outdoor advertising signs (“billboards”) that could be cleared of vegetation.  This advice is given prospectively and is based upon and limited to the facts set forth below. It represents staff’s interpretation of the State Government Ethics Act (“the Ethics Act”) as authorized by G.S. 138A-13(c). This is not a recommended formal advisory opinion adopted by the State Ethics Commission and thus does not confer immunity.
 
It appears that this bill would provide a reasonably foreseeable financial benefit to you because it would increase the usability and value of those billboards in which you have a financial interest. Therefore, in the event you conclude that there is indeed a financial benefit and that benefit would impair your independence of judgment, you would otherwise be required to decline to participate in any legislative action with respect to that bill. However, the G.S. 138A-38(a)(1) “class” safe harbor would allow your participation for the reasons set forth below.
 
                   I.            Facts.
 
You are considering the introduction of a bill which would modify the standards relating to the removal of vegetation surrounding certain business facilities and billboards adjacent to highway rights-of-way. You currently own a 50% interest in five billboards in Lenoir County. You are also the President and primary owner of Piedmont Development, Inc., which owns four billboards acquired in connection with the default of a loan which Piedmont made to a local business.
 
You have provided me with a draft of the bill that you are considering proposing. That bill would amend various provisions of G.S. Chapter 136 to: specify when selective vegetation permits may be issued for planting, pruning, or removal of vegetation around billboards or buildings next to highway rights-of-way; establish requirements for the issuance of such permits; specify a method of calculating the value of trees that are removed; establish a process for appeals from decisions made by the State Department of Transportation (DOT) about vegetation permits; and raise the vegetation permit fee payable to DOT from $200 to $400 per site.
 
The bill would also increase the zone around billboards in which clearing is allowed with a permit and provide that a permit would not be required for the clearing of vegetation located within 500 feet of either side of the sign and within the limits of the highway right of way a distance of three feet from the controlled access fence. The bill further provides that permits to remove vegetation may only be granted for outdoor advertising locations that have been permitted for at least two years and that if the application for a permit is not acted upon within 30 days, the permit will be deemed approved.
 
                II.            The Ethics Act’s Legislative Conflict of Interest Standards.
 
The Ethics Act’s legislative conflict of interest standards are set forth in G.S. 138A-31(a) and G.S. 138A-37(a). In addition, G.S. 138A-38(a) describes conduct that is permissible even if it otherwise would constitute a conflict of interest under G.S. 138A-31(a) or G.S. 138A-37(a). The remedy for a conflict of interest that is not subject to the G.S. 138A-38 safe harbor provisions is the legislator’s abstention from participating in the legislative action, including the introduction, discussion, or amendment of a bill and any votes related thereto. G.S. 138A-37(a); G.S. 120C-100(a)(5).
 
G.S. 138A-31(a) prohibits a legislator from taking legislative action that provides a financial benefit to the legislator, a member of the legislator’s extended family, or a business with which the legislator is associated.
 
G.S. 138A-37(a) similarly prohibits a legislator’s participation in a “legislative action” if the legislator knows that the legislator, a member of the legislator’s extended family, the legislator’s client, or a business or nonprofit with which the legislator is associated may derive “a reasonably foreseeable financial benefit” from the action, and (2) the “legislator concludes that an actual financial benefit” exists and that the interest “would impair the legislator’s independence of judgment.” In reaching this conclusion, G.S. 138A-37(a) requires that the legislator consider: (a) whether “the legislator’s judgment would be substantially influenced by the interest,” and (b) “the need for the legislator’s contribution” to the matter.
 
A business or nonprofit with which associated includes a business or nonprofit in which the legislator or the legislator’s immediate family holds an officer position or as a member of a governing board, owns an interest valued at $10,000 or more (in the case of a business), or for which the legislator or immediate family member is a lobbyist or an employee.  G.S. 138A-3(3) and 138A-3(24). Therefore, to the extent those interests would be benefited by any legislative action taken by you, you would be required to remove yourself from legislative actions under those circumstances specified by the Ethics Act.
 
Both G.S. 138A-31(a) and G.S. 138A-37(a) provide guidance as to those benefits that would require recusal from taking legislative action. G.S. 138A-31(a) excludes those benefits that the legislator would receive to the same extent as other citizens of the State or “that are so remote, tenuous, insignificant, or speculative that a reasonable person would conclude” that the legislator’s ability to protect the public interest … “would not be compromised.” Similarly, G.S. 138A-37(a) provides that a legislator should consider whether a legislative action would impair the legislator’s independence of judgment after considering whether the legislator’s “judgment would be substantially influenced by the interest and considering the need for the legislator’s particular contribution ….”
 
Even if the legislator has an interest that would otherwise require recusal, the legislator may still act if the interest falls within one of the G.S. 138A-38 safe harbors. The safe harbor most relevant to your question, G.S. 138A-38(a)(1), would allow your participation where the financial benefit received is no greater than that which “could reasonably be foreseen to accrue to all members of that profession, occupation, or general class.”
 
             III.            Application of the Conflicts Provisions to Your Participation in this Bill.
 
This bill would enhance the ability of billboard owners to clear vegetation adjacent to billboards, place a time limit on the denial of vegetation permits, and provide specific means for appealing the decision of DOT officials. It therefore would appear to provide a financial benefit to billboard owners, such as yourself and your business, Piedmont Development, Inc., insofar as it would enhance the visibility of the billboards and thus increase their value. It is unclear, however, whether that benefit would “substantially influence” you.
 
However, if the bill would provide a reasonably foreseeable financial benefit to you and/or Piedmont Development and that benefit would influence your actions, it would fall within the G.S. 138A-38(a)(1) "class" safe harbor:
 
 (a) [A] covered person may participate in a legislative action
  under any of the following circumstances except as specifically
  limited:
 
(1) The only interest or reasonably foreseeable benefit or detriment
 that accrues to … a business with which the covered person is
 associated as a member of a profession, occupation, or general
 class is no greater than that which could reasonably be foreseen to
 accrue to all members of that profession, occupation, or general class.
 
Given your ownership of relatively few billboards and the fact that the expanded clearing perimeter, and the elimination of the permit requirement under some circumstances, would not benefit you to a greater extent than other billboard owners, the class safe harbor would permit you to take legislative actions with respect to the bill, including the introduction of the bill.
 
This confidential informal advisory opinion is based upon the information you have provided and specifically relates to any legislative action taken by you with respect to the proposed bill as it is currently drafted. It does not confer immunity. If you would like a formal advisory opinion from the State Ethics Commission, please contact me. I would also be happy to answer any questions you may have about the foregoing opinion or discuss the opinion in more detail.
 
Please contact me if you want to discuss this advice in more detail or have additional questions. In addition, if you would like to request a recommended formal advisory opinion from the Commission, please request that opinion in writing and provide any additional information about your request.
 
Thank you for contacting the State Ethics Commission.
 
Kathy
 
Kathleen S. Edwards
Assistant Director and Compliance Officer
State Ethics Commission