Transcript Nepotism Policies, Conflict of Interest and Post

Nepotism Policies, Conflict of Interest
and Post-Election Personnel Decisionmaking
Karen Arland
Ice Miller LLP
September 25, 2012
Nepotism Policies
• County must adopt and implement nepotism
policies.
– Restrictions on employment of family members.
– Disclosure of contracts with family members.
• County must include information concerning
its nepotism policies in its annual report to the
State Board of Accounts of names, business
addresses and compensation of all county
officials and employees (R-100).
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Nepotism Policies
• County's R-100 must include a certification that
the county has adopted and implemented both
nepotism policies.
• State Board must notify DLGF if information is not
provided.
• DLGF may not approve county budget or any
additional appropriations until information is
provided to State Board of Accounts.
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Nepotism Policy – Restrictions on
Employment of Family Members
• Effective July 1, 2012 – Adds IC 36-1-20.2
• Does NOT apply to persons employed by county
on July 1, 2012.
• County must adopt and implement a policy that
at a minimum prohibits employment of relatives
that results in one relative being in the direct line
of supervision of another relative.
• County may adopt more restrictive policy.
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Nepotism Policy – Restrictions on
Employment of Family Members
• An elected official or employee who is in the "direct
line of supervision" is able to affect the terms and
conditions of another individual's employment,
including decisions about work assignments,
compensation, grievances, advancement, or
performance evaluations.
• "Employment" includes full-time employees, part-time
employees, temporary employees, individuals
employed on an intermittent or hourly basis, and
individuals who are covered by an employment
contract.
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Nepotism Policy – Restrictions on
Employment of Family Members
• Employment does not include service as an
elected official.
• A "relative" is:
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A spouse.
A parent or stepparent.
A grandparent.
A brother, sister, half-brother, half-sister, stepbrother
or stepsister.
– A niece or nephew.
– An aunt or uncle.
– A daughter-in-law or son-in-law.
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Nepotism Policy – Restrictions on
Employment of Family Members
• Unless the county's nepotism policy provides
otherwise, individuals who are employed by
the county at the time a relative assumes
elected office and who would otherwise be
subject to the nepotism policy requirements
may remain employed by the county and
maintain their current rank and position even
if that places them in the direct line of
supervision of a relative.
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Nepotism Policy – Restrictions on
Employment of Family Members
• Unless the county's nepotism policy provides
otherwise, such an individual may not,
however, be promoted to a position that
would be within the direct line of supervision
of a relative.
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Nepotism Policy – Restrictions on
Employment of Family Members
• Unless the county's nepotism policy provides
otherwise:
– a sheriff's spouse may be employed as the county
prison matron and in the sheriff's direct line of
supervision.
– a current coroner who is ineligible to run for an
another term of office but who has completed the
training course offered by the Indiana law
enforcement academy may serve as deputy coroner in
the direct line of supervision of a relative who is
elected to the office of coroner.
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Nepotism Policy – Restrictions on Contracting
with Relatives of Elected Officials
• County must adopt and implement a policy that at a
minimum permits the county to enter into a contract
or renew a contract for the purchase of supplies or
services or a contract for a public works with an
individual who is the relative of an elected official or
with a business entity wholly or partly owned by the
relative of an elected official only if:
– the elected official does not violate the criminal conflict of
interest statute (IC 35-44.1-1-4);
– complies with the disclosure provisions of that statute; and
– files additional disclosure concerning the contract or
purchase.
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Nepotism Policy – Restrictions on Contracting
with Relatives of Elected Officials
• Disclosure filed by elected official must:
– be in writing;
– described the contract or purchase to be made by the
county;
– describe the relationship between the elected official and
the individual or business entity that is a party to the
contract or purchase;
– be affirmed under penalty of perjury;
– be submitted to and accepted by the county legislative
body in a public meeting before final action on the
contract or purchase;
– be filed not later than 15 days after final action with the
Board of Accounts and the county clerk
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Nepotism Policy – Restrictions on Contracting
with Relatives of Elected Officials
• County agency that is a party to the contract
or purchase must certify that:
– the contract amount or purchase price was the
lowest amount or price bid or offered; and
– explains the reasons why the vendor or contractor
was selected; and
• County satisfies any other requirements under
IC 5-22 (purchasing statute) or IC 36-1-12
(public work statute).
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Nepotism Policy – Restrictions on Contracting
with Relatives of Elected Officials
• The county may adopt a policy that includes
more stringent or detailed requirements or
applies to individuals not covered by the
minimum requirements.
• The county may prohibit or restrict an
individual who is not covered by the minimum
requirements from contracting with the
county.
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Nepotism Policy – Restrictions on Contracting
with Relatives of Elected Officials
• An "elected official" is a member of the county board
of commissioners or the county council and does not
include any other county elected official.
• A "relative" is:
–
–
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A spouse.
A parent or stepparent.
A grandparent.
A brother, sister, half-brother, half-sister, stepbrother or
stepsister.
– A niece or nephew.
– An aunt or uncle.
– A daughter-in-law or son-in-law.
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Conflict of Interest
• IC 3-5-9 – Effective January 1, 2013.
• Not the traditional "conflict of interest".
• Prohibits a person holding elected office from also serving
as a government employee of the unit for which the person
holds an elected office.
• An "elected office" is the office of county commissioner or
county council member.
• A "government employee" is a county employee.
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Conflict of Interest –Firefighters
• A person who serves as a volunteer firefighter for a fire
department (paid or volunteer) that provides fire
protection services to the county may not assume or
hold an elected office of that county.
• A person who is a county employee, serving as a fulltime paid firefighter or a volunteer firefighter for a
department providing fire protection services to more
than one unit, including the county, (excluding mutual
aid agreements) may not hold an elected office of any
unit receiving fire protection services from the
department.
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Conflict of Interest – Other Employees
• A government employee is considered to have
resigned from county employment when the
person assumes an elected office of the
county which employs the person.
• "Assuming the office" is not defined.
– Receiving certificate of election?
– Taking the oath of office?
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Conflict of Interest - "Safe Harbor"
• A county employee may assume or hold an elected
office of a unit other than the employing county.
• A firefighter (paid or volunteer) may assume or hold an
elected office of a unit other than a unit that receives
fire protection services from the department in which
the volunteer firefighter serves.
• A person who assumes or holds an elected office may
also be appointed to and serve on a board, commission
or committee of the county.
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Conflict of Interest – Elected Office on
January 1, 2013
• A county employee who holds or assumes an
elected office on January 1, 2013 may continue to
hold the office and serve as a county employee
until the term of the elected office the county
employee holds on January 1, 2013, expires.
• After the term of office held on January 1, 2013
expires, the county employee may not hold or
assume elected office and remain a county
employee.
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Post-Election Personnel Decisionmaking
• Newly elected officials consider "changing the guard" to assure that
key employees will be loyal and support the elected officials public
agenda.
• The First Amendment prohibits a public employer from making an
employment decision about an employee or independent
contractor on the basis of political affiliation, unless party affiliation
is an appropriate requirement for the position involved.
• A public employer can dismiss an employee for political reasons
only if the employee is in a policymaking or confidential position.
• There may be circumstances in which political affiliation is an
important consideration even if position is not policymaking or
confidential.
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Post-Election Personnel Decisionmaking - Policymaker
• Does the position authorize meaningful input
into government decision-making on issues
where there is room for principled
disagreement on goals or their
implementation?
• Analysis must focus on the powers of the
office, not on the activities performed by the
person holding the office.
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Post-Election Personnel Decisionmaking - Policymaker
• Some positions in which persons have informally
functioned as policymakers may not be so,
because of the inherent powers of the office are
not that of a policymaker.
• Other factors include:
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High salary
Supervisory responsibilities
Broad range of duties
Functions as advisor or formulates plans for
implementation of broad goals.
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Post-Election Personnel Decision-making –
Confidential Employee
• A person who holds a position that has
special access to and close communications
with an elected official or appointed
policymaker.
• Person would be likely to be a party to
politically sensitive communications and
information critical to the policymaking
process.
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Post-Election Personnel Decision-making –
Confidential Employee
• Loyalty may be an issue – if the person is
disloyal, can he/she interfere with a given
political program.
• Consider the position's general scope of
responsibility, not the particular activities the
person engages in.
• Nature of the duties in determinative.
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Post-Election Personnel Decisionmaking
• For both types of positions, job descriptions
may be important – if they are objective and
reliable.
• Elected official may not rely on an official job
description if it has been altered not to reflect
actual changes in the duties of a position, but
to allow the position to be filled with a
political favorite.
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Post-Election Personnel Decisionmaking - Guidance
• Don't make any public statements (or private
ones, if possible) about replacing, demoting,
or transferring employees upon being elected
to office.
• You can talk about improving government
efficiency and performance through personnel
changes, but indicate that these decisions will
be based on non-political job performance
criteria.
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Post-Election Personnel Decisionmaking - Guidance
• Don't promise anyone a job promotion, salary
increase or other benefit.
• After election, prepare a list of all positions and
analyze which ones fall within the confidential or
policymaking exceptions.
• Gather all job descriptions for non-merit jobs and
categorize them in three groups:
– Clearly ministerial
– Clearly policymaking or confidential
– Mixed functions.
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Post-Election Personnel Decisionmaking - Guidance
• Employees holding clearly ministerial positions
may not be dismissed merely because of party
affiliation.
– Dismissals for competency or budgetary reasons must
be well-documented before implementation.
• Employees in clearly policymaking or confidential
positions may be dismissed simply because they
belong to the other party, as elected official will
want own policymaking team on board from the
beginning.
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Post-Election Personnel Decisionmaking - Guidance
• Mixed function category will be the largest
category, and the most problematic.
• Study job descriptions to determine duties for
which political affiliation is an appropriate
requirement for effective performance.
– May be opportunities to revise job descriptions,
stressing formal, job-related criteria.
– Any revisions must be justified by actual changes
in duties.
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Post-Election Personnel Decisionmaking - Guidance
• Any reason for discharge other than political
affiliation should be clearly documented
before discharge is initiated.
– If performance or competency is at issue,
documentation must support conclusion.
– If budgetary concerns are at issue, a financial plan
should be available showing that decisions were
made without regard to political affiliation of
affected employees.
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Post-Election Personnel Decisionmaking - Guidance
• It would be useful to compile a record of
campaign promises and acknowledged areas
of disagreement between the newly elected
official and the departing officeholder.
– This assists in supporting determination that a
particular position involved duties for which
political affiliation was an appropriate
requirement.
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Post-Election Personnel Decisionmaking - Guidance
• Legal advice should be sought before any
employment decisions are made, particularly
when any change in position could be viewed as
politically motivated.
• Once serving, new elected official should
establish and follow a system for making all
employment-related decision-making as objective
as possible. Job descriptions should be detailed
and reflect policymaking or confidential nature of
a position and expressly provide whether the
position is policymaking or confidential.
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