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Legal Topics - Ethics (Lynn Readey)

Ethics Reminders from The Ohio Ethics Commission

Cannot authorize a contract or use authority to secure authorization of a contract for self, family, business associate
Cannot solicit or accept things of value
Cannot disclose or use confidential information
Cannot receive additional compensation for performance of official duties
Cannot represent parties on matters in which public servant involved
Cannot participate in matters where public servant has a conflict of interest i.e. when something of value will result for self, family members, others

The following is an excerpt from The Ohio Ethics Commission publication "Ethics is Everybody's Business." The full text of the publication can be found at http://www.ethics.ohio.gov.

The Ohio Ethics Law

The Ohio Ethics Law was originally enacted in 1973 to promote confidence in government. The law:

establishes a code of conduct making it illegal for state and local public officials and employees to take official action if they have certain conflicts of interest;
provides for the filing of financial disclosure statements by many public officials, and for public inspection of those statements;
establishes procedures by which citizens may participate in the enforcement of the law; and
creates agencies within the three branches of government to administer the law:
- The Joint Legislative Ethics Committee (serving legislators);
- The Supreme Court Board of Commissioners on Grievances and Discipline (serving judges); and
- The Ohio Ethics Commission (serving all others).

The Ohio Ethics Commission

The Ohio Ethics Commission is an independent, bipartisan board whose six members are appointed by the Governor and confirmed by the Senate. The members, citizens from around the state with experience in both the public and private sector, serve six-year terms that are staggered so that one member is appointed each year.

Prohibited Conduct

Ohio's Ethics Law recognizes that many public officials and employees are in a position to make or influence decisions that directly affect their personal interests. The Ethics Law attempts to prevent this type of activity. Generally, a public officer may not participate in matters that involve his own financial interests, or those of his family or business associates. The following types of conduct are prohibited or restricted by Ohio's Ethics Law.

Misuse of Official Position

A public official or employee may not use, or authorize the use of, his public position to benefit himself or others in circumstances that create a conflict of interest where his objectivity could be impaired. This is a general restatement of one of the most important prohibitions in the Ethics Law.

Public officials and employees must avoid situations in which they might gain personally as a result of the decisions they make or influence as public servants. For example, a public official who owns property and profits by influencing his public agency to buy that property would likely be in violation of this prohibition. A public official or employee is also prohibited from using his position to benefit others, such as business associates and family members, because his relationship with those individuals could impair his objectivity in his public duties.

Two related provisions of the Ethics Law prohibit:

1. A public official or employee from soliciting or accepting anything of value that would create a substantial and improper influence upon the official in his public duties; and

2. Any person from promising or giving a public official anything of value that would create a substantial and improper influence upon the official in his public duties.

These provisions prohibit a public official from soliciting or accepting gifts, travel expenses, consulting fees, or any other thing of substantial value from a party that is interested in, regulated by, or doing or seeking to do business with his public agency. Similarly, a private citizen may not promise or give things of value to a public official or employee under circumstances that create a conflict of interest. The Ethics Commission recommends that public servants should avoid all conduct that creates the appearance of impropriety.

The "Revolving Door" Restriction

A present or former public official or employee is prohibited from representing anyone before any public agency, including his former employer, on any matter in which he personally participated in his official capacity. This prohibition is in effect during public service and generally remains in effect for one year following departure from public service. It does not prohibit a public servant from representing his former public agency.

The revolving door restriction applies to all former public officials and employees, including professionals such as attorneys, accountants, and engineers. The restriction prohibits a former public servant from improperly using insider knowledge or exerting influence with his former co-workers on a matter in which he personally participated while in public service. Since this influence could be used to benefit his client, the revolving door provision prohibits the former public servant from performing this type of representation. However, it does not apply to matters in which the former public servant did not participate as a public official.

Sale of Goods and Services to and Representation of Clients before Public Agencies

A public official or employee is prohibited from receiving compensation, other than from his own public agency, for services rendered in a matter before any agency of the government entity with which he serves. An example of this kind of activity would be a city transportation department employee who prepares private tax returns, without using public time or resources, and wishes to represent a client before any city department, including, for example, the tax department. The law generally prohibits him from performing this representation. In addition, state officials and employees are specifically prohibited from selling goods and services to state agencies, except through competitive bidding.

Non-elected officials and employees may be exempted from both of these prohibitions if the following conditions are met:

1. The official or employee is doing business with or representing the client before an agency other than the one he serves; and

2. Prior to conducting the business or providing the representation, the official or employee files a statement with his own agency, the agency to which he plans to sell goods or services, and the appropriate ethics agency.

The statement described above must contain:

1. Specific information, including the names of the public agencies involved and a brief description of the business to be conducted; and

2. The public official's or employee's declaration that he will not participate in his public capacity, for a period of two years, in any matter involving the personnel of the agency with which he is conducting business or before which he is representing any clients.

In the example of the private tax service, the city transportation department employee would be required to file a statement with his own public agency (the transportation department), the agency before which he plans to appear for compensation (the city tax or finance department), and the Ohio Ethics Commission, before he could represent the client before the tax or finance department. Finally, the city transportation department employee must declare on the statement that he will abstain for a period of two years from official participation in any matters related to the personnel of the city tax or finance department. Thus, the public servant may conduct business with, or represent clients before, an agency other than the ones he serves provided he is not an elected official and, where appropriate, follows the exemption provided by the law.

Confidential Information

The Ethics Law prohibits present and former public officials or employees from disclosing or using any information appropriately designated by law as confidential. This prohibition remains in effect as long as the information remains confidential.

License or Rate-Making Proceedings

A public official or employee is restricted from participating in license or rate-making proceedings that would affect the licenses or rates of any business if he or members of his immediate family own more than five percent of that business. A public servant is also prohibited from participating in license or rate-making proceedings that affect any person to whom the official, his immediate family, or any business of which he or his family members has sold more than $1,000 of goods or services.

Public Contracts and Public Investments

A public official or employee is prohibited from having a financial or fiduciary interest in a public contract. A public contract includes any purchase or acquisition of goods or services, including employment, by or for the use of a public agency. Specifically, a public official or employee is prohibited from authorizing, voting, or otherwise using the authority or influence of his office to secure approval of a public contract in which the official, a family member, or a business associate has an interest. This provision, for example, prohibits public officials and employees from hiring members of their families. A public official is also prohibited from securing the investment of public funds in any investment if he, a family member, or a business associate has an interest in the investment.

A public official or employee is also prohibited from having an interest in a public contract with his public entity, or an agency with which he is connected, even if he does not participate in the issuance of the contract. A public servant may have an interest in a public contract with the public entity that he serves if he meets the conditions set forth in two exemptions to this prohibition.

The two exemptions are:

1. A public official is not deemed to be "interested" in a public contract with his public agency if all of the following conditions apply:

a. His interest in the corporation is limited to being either a stockholder or a creditor of the corporation;

b. He either holds less than five percent of the outstanding stock of the corporation, or he is a creditor owed less than five percent of the outstanding debt of the corporation; and

c. He informs his public agency of his intentions by filing an affidavit with the agency prior to entering into the contract; and

2. The prohibitions do not apply if all of the following conditions are met:

a. the public official or employee takes no part in the deliberations and decisions on the transaction;

b. the public official or employee informs his public agency of his interest;

c. the contract involves necessary supplies or services that are not obtainable elsewhere at the same or lower cost or that are part of a contract established before he was hired; and

d. the public agency is given treatment at least equal to that given to other clients involved in similar transactions.

An example of this situation might be a county official or employee who operates a paving company and contracts with the county for road-paving work. The county official or employee may be in violation of the public contract prohibitions of the Ethics Law unless he can affirmatively show that he meets the limited conditions outlined above.

Soliciting or Receiving Improper Compensation

A public official or employee is prohibited from receiving compensation, in addition to that paid by his public agency, for performing his official duties. A private party is also prohibited from giving any supplemental compensation to a public official or employee to perform his official duties. In addition, a public servant is prohibited from soliciting or accepting anything of value, or coercing a campaign contribution, in exchange for an appointment to a public position, or any kind of personnel action, such as a promotion or transfer.

Penalties

All of the provisions of the Ethics Law are criminal prohibitions. Most of the provisions, including the conflict of interest prohibitions, are first degree misdemeanors, punishable by a maximum fine of $1000, a maximum prison term of six months, or both. However, certain provisions of the public contract prohibitions are fourth degree felonies, punishable by a maximum fine of $5000, a maximum prison term of eighteen months, or both.

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