Transcript Ethics In Government - Idaho Association of Counties

Ethics and Conflicts of Interest
For Public Officials
Canyon County
Prosecuting Attorney
Bryan F. Taylor
How to Not Embarrass Your County, Yourself,
and Your Family AND Avoid Going to Jail
IAC Newly Elected Officials Training
November, 2012
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Created by
Bill Thompson, Latah County Prosecutor
Bryan Taylor, Canyon County Prosecutor
A typical day in the life of a public
official
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Examples of Public Official
Misconduct Cases In Idaho
•
Receipt of gifts/trips/perquisites.
•
Corrupt, Illegal or “Sub Rosa” practices by
public officials.
•
Misuse of public monies/credit cards.
•
Abuse of authority.
•
Ex parte contacts.
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Examples (cont.)
Canyon County
Prosecuting Attorney
Bryan F. Taylor
•
Nepotism/discrimination in hiring.
•
Self-Interest in contracts.
•
Failure to comply with open meetings act.
•
Unlawful employment practices or
harassment.
•
Failure to comply with public records law.
Our Premise
As a public official you have a personal,
legal, and ethical duty to serve the public
interest and act as the conscience of your
agency.
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Topics of Ethics Discussion
(1) Ethics in Your Many Roles as a Public Official
(2) Where Do Your Ethical Duties Come From?
(3) Ethical and Legal Conflicts of Interest
(4) Ethics of Government Transparency
(5) Consequences of Ethical Violations
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Topic 1:
Ethics in Your Many Roles as a
Public Official
Canyon County
Prosecuting Attorney
Bryan F. Taylor
The different hats of a public official
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Ethical standards require you to
remember which hat you are wearing
The Multiple Roles of Public
Officials
(A) Policy makers, Legislators/Regulators
(B) Executive/Enforcers
(C) Quasi-Judicial Judges
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Topic 2:
Where do ethical duties come from?
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Sources of ethics
(1) Your own values/ethics
(2) Every statutory obligation places
upon the public servant a legal
and an ethical obligation
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Statutory Ethics
Following the law is what people must do;
there are penalties and other
consequences associated with violating
the law.
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Analysis of ethics must include
all relevant statutes
• Statutes overlap in
regulation.
• Analysis should
go beyond the
language of the
statutes.
Canyon County
Prosecuting Attorney
Bryan F. Taylor
• Ethics start with
the individual’s
attitude.
“Proper analysis of ethical
statutes should not be for
‘loopholes’ or ‘technicalities’
by which one can take
advantage of government, the
public or other interested
parties. If your analysis
requires that you find a
‘loophole,’ . . . then your
conduct is likely unethical.”
Idaho Ethics in Government
Manual, pg. 21
Idaho Statutes
(1) Ethics in Government Act
I.C. §§ 59-701 through 59-705
(2)
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Bribery & Corrupt Influence Act
I.C. §§ 18-1351 through 18-1362
Idaho Statutes (cont.)
Canyon County
Prosecuting Attorney
Bryan F. Taylor
(3)
Prohibition against contracts with
officers I.C. §§ 59-201 through 59-210
(4)
Misuse of Public Funds
I.C. §§ 18-5701 through 18-5704
Idaho Statutes (cont.)
(5)
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Local Planning Act Conflicts
I.C. § 67-6506
(1) Ethics in Government Act
I.C. § 59-701 et. seq.
Purpose:
1. Protect integrity of
government in Idaho.
2. Assure honesty of public
officials.
3. Assure that policies and
actions reflect the public
interest.
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Definitions:
I.C. §59-703
(6) Government Entity:
- counties, municipalities and all political
subdivisions
(10) Public Official:
- any person holding public office
(7) Members of a household:
- spouse, children, or dependent of public
official
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Definitions, (cont.):
~ I.C. §59-703
(5) Economic gain:
- increase in pecuniary value from a source
other than lawful compensation as a public official
(3) Business with which a public official is associated:
- any business which the public official or
member of his household has a $5,000 or more
interest in.
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Definitions, (cont.)
~ I.C. §59-703
(4) "Conflict of interest"
means any official action or any decision or
recommendation by a person acting in a capacity as a
public official, the effect of which would be to the private
pecuniary benefit of the person or a member of the
person's household, or a business with which the
person or a member of the person's household is
associated.
Canyon County
Prosecuting Attorney
Bryan F. Taylor
• Limited exceptions in situations of only general impact.
Required Action in Conflicts
I.C. §59-704
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Required Action in Conflicts, (cont.)
Disclosure
– Prior to taking any action
– May be verbal, but must be on the record,
except appointed/employed public officials
are required to disclose in writing to their
appointing authority
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Required Action in Conflicts, (cont.)
• “SAFE HAVEN”
– Elected Officials may rely on legal advice from
the public entity’s legal counsel, the Attorney
General, or private counsel.
Query: What if the legal advisors disagree?
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Sanctions
• $500 civil penalty
Canyon County
Prosecuting Attorney
Bryan F. Taylor
(2) Bribery & Corrupt Influence Act:
I.C. § 18-1351 et. seq.
Definitions
Benefit:
- gain or an advantage
Economic Gain:
- An increase in pecuniary value from sources
other than lawful compensation as an official
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Pecuniary Benefit:
- Any economic gain by a public official or their
household
Definitions (cont.)
Public Funds:
- All moneys, bonds, and evidences of
indebtedness received or held by state, county,
or city officers in their official capacity.
Public Monies:
Canyon County
Prosecuting Attorney
Bryan F. Taylor
- All moneys belonging to or in the care of an
entity or public officer and all credit cards and
credit accounts issued to such an entity
Definitions (cont.)
Conflict of interest:
– Any official action, decision, or recommendation
by a public official that would derive a pecuniary
benefit for themselves, their family, or business
Confidential Information:
Canyon County
Prosecuting Attorney
Bryan F. Taylor
– Knowledge gained through a public office that
you otherwise would not have access to and is
not subject to disclosure
Bribery & Corrupt Influence Act
I.C. §18-1352 – Can’t take bribes while holding
a public position ~ (Felony)
a.
Any decision, recommendation,
vote, or other action made by a public official
for the purpose of a pecuniary benefit
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Bribery & Corrupt Influence Act (cont.)
I.C. §18-1353 – Protects public servants from threats and improper influences
I.C. §18-1353A – Protects public officials from threats and improper influences
I.C. §18-1354 – Can’t take bribes for past official behavior
I.C. §18-1355 – Protects public officials from retaliation for past official actions
I.C. §18-1356 – Can’t take or receive gifts
I.C. §18-1357 – Can’t be compensated for assisting private interests
I.C. §18-1358 – Prohibits the selling of political endorsements
Canyon County
I.C. §18-1359 – Prohibits using public position for personal gain - ($50.00)
Prosecuting Attorney
Bryan F. Taylor
Consanguinity Chart
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Using Public Position for Personal Gain
- Small Town Exception - I.C. §18-1361
(1) The prohibitions on “self-interested contracts” do
not apply where there are less than three suppliers
of the good/service within a 15 mile radius and the
contract is reasonably necessary to respond to a
disaster
OR
Canyon County
Prosecuting Attorney
Bryan F. Taylor
(2) The contract is competitively bid and neither the
public servant nor his relatives take part in the
preparation of the contract or bid, or in the voting
/approval of the contract or bid, and the public
servant makes full disclosure in writing to the
governing board.
(3) Prohibition Against Contracts
with Officers
I.C. § 59-201 et. seq.
Public official must not have an interest
in any contract made by them in their
official capacity
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Interest in Contracts Prohibited
I.C. §59-201A
(1) The prohibition does not apply if there is
only a “remote interest” in the contract and
such interest is disclosed to the government
body and noted in the official minutes/
records.
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Contractual conflicts of interest
Law is designed to make sure a public
official’s sole motivation when entering
into contracts is the public’s benefit - not
personal financial interests.
The goal is to prevent public officials from
exploiting their positions for private
benefit.
Canyon County
Prosecuting Attorney
Bryan F. Taylor
(4) Misuse of public moneys
I.C. § 18-5701 et. seq.
(1) Can’t appropriate public moneys for your own use
(2) Can’t loan public moneys unless authorized by law
(3) Fail to keep public moneys in your possession
(4) Deposit public moneys not authorized by law
(5) Change or covert public moneys not authorized
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Misuse of public funds (cont.)
(6) Knowingly keep any false account
(7) Willfully refuse or omit to pay upon request
(8) Willfully omit to transfer moneys when required by law
(9) Willfully omit or refuse to pay a public servant
Canyon County
Prosecuting Attorney
Bryan F. Taylor
(10) Knowingly use any public moneys or credit cards for
personal use.
Punishment for Misuse of Public Funds
Ranges from Misdemeanor to Felony
Canyon County
Prosecuting Attorney
Bryan F. Taylor
(5) Local Planning Act Conflicts
I.C. §67-6506
• A member or employee of a governing board,
commission, shall not participate in any proceeding
or action when the member or employee or his
employer, business partner, business associate, or
any person related to him by affinity or
consanguinity within the second degree has an
economic interest in the procedure or action.
Canyon County
Prosecuting Attorney
Bryan F. Taylor
• Any actual or potential interest in any proceeding
shall be disclosed at or before any meeting at which
the action is being heard or considered. (Cont.)
Local Planning Act Conflicts, (cont.)
• "participation" means engaging in activities which
constitute deliberations pursuant to the open
meeting act. No member of a governing board or a
planning and zoning commission with a conflict of
interest shall participate in any aspect of the
decision-making process concerning a matter
involving the conflict of interest.
• A knowing violation of this section shall be a
misdemeanor.
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Topic 3:
Ethical and Legal Conflicts of
Interest
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Conflicts of Interests
Different kinds of conflicts of interest.
(1) Placing a relative in a public position that is
compensated with public funds (IC § 18-1359(1)(e))
(2) Contracts between a government body in which one
relation serves and a business in which another
relation has an interest (I.C. § 18-1359)
(3) Contracts between a government body in which an
individual is a public servant and a business in which
that same individual has an interest (I.C. § 181359(1)(d))
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Conflicts of Interest (cont.)
In our political culture, we are sensitive to the
mere possibility that decision-makers might put
their financial interests ahead of those of the
public.
Some laws are designed to avoid even the
perception that personal financial gain
motivated a decision.
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Topic 4:
The Ethics of Government
Transparency
Canyon County
Prosecuting Attorney
Bryan F. Taylor
The ethics of transparency laws
• The principle underlying the
governmental transparency laws is that
the public trusts what it can observe.
Canyon County
Prosecuting Attorney
Bryan F. Taylor
• Furthermore, the prospect that actions
will be publicly known can be a
deterrent against actions that might
undermine public trust.
Elements of Transparency
#1: Business in the open
#2: Public’s right to participate
#3: Access to meeting records
Canyon County
Prosecuting Attorney
Bryan F. Taylor
#4: Access to public records
Element #1:
Conducting the Public’s Business in
the Open
• Idaho’s Open Meeting Laws provide legal
minimums for local governmental
transparency in decision-making.
• Decision-making bodies must conduct their
business in an open and public meeting to
ensure that the public is fully informed about
local decisions.
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Element #2:
The public’s right to participate in
meetings
• Posting and following agenda
• The public’s right to be heard
• Reasonable time limits may be
imposed
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Element #3:
Public’s right to access meeting records
• Copies of the agenda materials and other
documents distributed to the governing body
must also be available to the public.
• The public has the right to see any materials
that are created as part of conducting the
people’s business.
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Element #4:
Public Records
Although there are exceptions to a public
agency’s duty to disclose records, the safe
assumption is that virtually all materials
involved in one’s service on a public governing
body - including e-mails - are public records
subject to disclosure.
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Our View
Your attitude about transparency laws is
an indicator of your true understanding of
your ethical obligations.
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Topic 5:
Consequences of Ethical
Violations
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Consequences of Unethical Acts
• Three Courts:
– State Courts
– Federal Courts
– Court of Public Opinion
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Consequences of Unethical Acts
Judicial Courts &
Punishment
Court of Public Opinion
• Civil Penalties
• Disgrace
• Criminal Penalties
• Public Embarrassment
• Loss of Job (IC 18-1360) • Loss of “moral high ground”
Canyon County
Prosecuting Attorney
Bryan F. Taylor
State and Federal Laws
Laws designed to prevent breaches of trust
exist at both the state and federal levels.
State laws tend to be more specific in
describing what kind of behavior crosses the
line.
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Federal law is broader in some respects and
thus arguably offers more opportunities for
missteps
What is “Deprivation of Honest
Services”?
The basic concept is that a public official owes a duty of
loyalty and honesty to the public, like a trustee or fiduciary.
That duty is violated when a public official makes a
decision that is not motivated by the public interest but
instead by his or her personal interests.
The clearest example is when an official receives a
personal financial gain as the result of their public service.
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Examples of federal prosecution of local public officials
under a theory of Deprivation of Honest Services
• Official’s failure to disclose kickback income, paid by a
firm;
• Commissioner’s use of his position to benefit airport
concessionaires;
• Firm’s agreement to pay money to middlemen in
exchange for assurances that the firm would receive
waste franchise
Canyon County
Prosecuting Attorney
Bryan F. Taylor
• Mayor’s violation of city’s ordinances governing
apartment conversions to condominiums;
Examples of Federal Prosecution (cont.)
• Treasurer’s decisions to award contracts to firms who
had provided him gifts and/or contributed to specified
political or charitable events;
• Official’s steering lucrative, no-bid contracts to a
consulting firm owned by his family;
• County officials’ efforts to encourage a company to
withdraw its application so a firm they had an interest in
could get contract.
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Legal penalties are only a small
part of the cost
Once a public official becomes the target of an
investigation or enforcement action, the prospect of a
legal penalty is only part of the costs he/she will incur.
Potential costs:
Canyon County
Prosecuting Attorney
Bryan F. Taylor
1. Attorneys fees
2. Defense costs
3. Loss of work
4. Loss of Prestige
5. Loss of Position
6. Loss of the Public Trust
Personal Costs
Personal costs to those who are the
object of an enforcement effort are the
most significant. Most describe the
proceedings as being “one of the most
unhappy experiences and periods of
their lives.”
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Personal Costs (cont.)
The effort to vindicate oneself can become an
all-consuming focus.
Negative publicity associated with being under
investigation creates a terrible stress on public
officials and their families.
Canyon County
Prosecuting Attorney
Bryan F. Taylor
This can be exacerbated by the financial stress
associated with drawing down one’s savings
and retirement accounts and/or going into debt
to pay for one’s defense.
Conclusion
• When in doubt ask your prosecutor
• When in doubt don’t accept gifts
• As hard as it may be, get all contracts in
zoning matters on the record
• Don’t look for loopholes or exceptions
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Conclusion
• Purpose of ethical standards in
government is the protection of both
citizens and public servants.
• Avoid conflicts of interest; don’t mix
personal business with government
office/duties or relatives’ business.
Canyon County
Prosecuting Attorney
Bryan F. Taylor
Integrity is doing the right thing,
even if nobody is watching
Canyon County
Prosecuting Attorney
Bryan F. Taylor