February 6, 1996
Ms. Jill R. Wilson Mr. James T. Williams, Jr. Attorneys at Law
P. O. Box 26000 Greensboro, North Carolina 27420
RE: Advisory Opinion; Company Owned by a Member of the Board of Education Supplying Materials to Firms Awarded Contracts by the Board of Education; Conflict of Interest; N.C.G.S. §§14-234, 14-236 and 14-237
Dear Jill and Jim:
I reply to your February 5 letter requesting our opinion whether a member of a Board of Education has a conflict of interest should a business he owns continue to sell its goods, wares or merchandise to potential contractors of the school system.
The Board member’s business sells and services air conditioning equipment and is the exclusive local representative of a specific brand of air conditioning units. That business periodically is asked to provide quotes for large HVAC systems to be used by HVAC contractors who may install it in the schools. In some instances representatives of the Board member’s business may know the product will ultimately end up in the school system; in some instances they may not. The Board of Education would not customarily have any knowledge about suppliers to the successful contractors.
Since the Board member has joined the Board of Education, the school system has restricted the new Board member’s company from doing any business with the school system pending a thorough review of the legal restrictions on public officers doing business with boards on which they sit. You ask our opinion on the following question:
Question: May the Board member’s company continue to sell its goods, wares or merchandise to potential contractors of the school system without violating N.C.G.S. §§14-234, 14-236 or 14237?
Answer: N.C.G.S. §14-234 is not applicable since the Board of Education is not involved in determining from whom the contractors purchase their goods, wares or merchandise. For the same reason, we do not believe that N.C.G.S. §14-237 is applicable since the Board of Education would not be purchasing any goods, wares or merchandise from the Board member’s business.
- N.C.G.S.
- §14-236, however, presents a problem. This statute arguably would be violated under the fact situation set out above. It is a crime for a member of a public body to "have any pecuniary interest, either directly or indirectly, proximately or remotely in supplying any goods, wares or merchandise of any nature or kind whatsoever for any of said institutions or schools" which are administered by the board upon which he sits. Although it is my personal opinion that
- N.C.G.S.
- §14-236 is overbroad, the statute is presumed constitutional and no appellate court has ever ruled it unconstitutional. Therefore, so long as N.C.G.S §14-236 is law, and unless the local district attorney advises that he would not prosecute this Board member, both the Board of
Education and the individual Board member should refrain from allowing the Board member’s business to sell goods, wares or merchandise to contractors of the school system.
Andrew A. Vanore, Jr. Chief Deputy Attorney General