The Ohio Ethics Commission recently determined in a 2010 advisory opinion that township trustees with a stake in a wind-power project can still participate in decisions concerning the project if they meet certain conditions.
A wind developer was seeking the advice of the Commission on the question of whether a township trustee who has a lease option with a developer on a piece of land -- or whose family members or business associates have a lease option -- can take part in township decisions regarding tax abatements for the project. Ohio law prohibits public officials from using their authority or influence to secure anything of value, or soliciting or accepting anything of value, suggesting a substantial and improper influence on them. Additionally, individuals are not allowed to give a public official anything of value that would suggest a substantial and improper influence on the official. Ohio Revised Code §§ 102.03(D), (E), and (F).
The Commission advised the developer that it could enter into lease options with township trustees under certain conditions:
- The properties in the township that are a part of the planned wind development are not predominantly properties owned by public officials, or the family members or business associates of public officials, involved in the abatement process;
- The public officials involved in the abatement process, or their family members or business associates, do not receive any specialized benefit not granted to every other similarly situated land owner;
- The option agreement between the developer and the trustee has the same terms and conditions as option agreements the developer enters into with other landowners throughout the project;
- Granting the abatement has a uniform impact, because the circumstances are the same, on all taxpayers in the jurisdiction; There is an objective showing that the properties to which the options apply are within the wind corridor and may be developed, should the developer move forward with its project;
- The trustee has no other relationship (such as employment or prohibited investment) with the developer; and
- Before any discussion, deliberation, or vote on the abatement, the trustee discloses: (a) any option agreement the trustee has with the developer; and (b) any option agreement between the trustee's family members or business associates and the developer, if the trustee knows or has reason to know about the agreement.
Boiled down to its essence, the decision allows township trustees to enter into lease options with wind-energy developers so long as they and their family members and business associates will not be affected by development of the project in a way that is selective, differential, or in disproportion to the effect on other township residents with lease option agreements with the same developer.