2009 Presented by Marion County Clerk Beth White Legal & Ethics Conference December 1, 2009 Running...

20092009

Presented byMarion County Clerk Beth White

Legal & Ethics ConferenceDecember 1, 2009

Running an Ethical Election

Marion County Clerk Beth White12/01/09 Legal & Ethics Conference

Five Criteria

• Respect the law• Be non-partisan and neutral• Be transparent• Be accurate• Serve the voters

* taken from a Fact Sheet compiled by the International Institute for Democracy and Electoral Assistance (“IDEA”; www.idea.int); the Fact Sheet references an excerpt from the Administration and Cost of Elections

Web site (“ACE”; www.aceproject.org)


Respect the Law

• Hire special counsel

• Use Office of Corporation Counsel

• Seek advice from Indiana Election Division

• Keep current with legal issues and changes in election law


Be Non-Partisan & Neutral

• Send regular email communication to MCEB members

• Disclose relationships that could lead to conflicts of interest

• Consistent application of the rules

• State law contemplates “bi-partisan,” “non-partisan” can be more complicated


Be Transparent

• MCEB meetings open to the public– Aired on public access television– Post minutes and agenda on Web site

• Post election results in real time online

• Keep lines of communication open between MCEB and political parties


Be Transparent

• Made local campaign finance filings available online

• Developing an enhanced voter information portal– Provide polling location, current elected officials,

candidates for election cycle and sample ballots

• Work to respond to constituent and public information requests in a timely manner


Be Accurate

• Work closely with election services vendor – make sure equipment is in good working order

• Use experienced bi-partisan teams to canvass results of election

• Absentee ballot court order


Serve the Voters

• Voter Outreach– Taped infomercials for public access TV– Regularly attend community events to register

voters– Launched yVote! in 2008– Engage voters with disabilities to serve as poll

workers and to go to the polls on Election Day– Presence at various community events


Serve the Voters

• Satellite Voting– Additional sites for early voting

• November 2008: 2 sites + Clerk’s Office– More than 73,000 people voted early– More than 93,000 people voted absentee in total

• November 2009: 3 sites + Clerk’s Office– More than 5,100 people voted early– More than 8,100 people voted absentee in total


Serve the Voters


Serve the Voters

• Neighborhood Based Voting

Marion County Warren Township Ward 28; Precinct 9


Serve the Voters

• Vote Centers?– Legislation expires 12/10– Legislature looking to expand

• Tippecanoe, Wayne & Cass counties are pilot counties

– Controversial in certain areas– Used in other states

Presented byMarion County Clerk Beth White


Questions?

Ethics in Ohio and Neighboring States

David FreelExecutive DirectorOhio Ethics Commission

Ohio Ethics Commission

Ethics in Ohio and Neighboring States – Public Duties/Public

Responsibilities

David E. FreelExecutive Director

Columbus DispatchJuly 3, 2002

Used with Permission

This culture began at the top. Ebbers created the pressure that led to fraud. He demanded the results he had promised, and he appeared to scorn the procedure (and people) that should have

been a check on misreporting.

When efforts were made to establish a corporate Code of Conduct, Ebbers reportedly described it as a ‘colossal waste of time.’

He showed little respect for the role lawyers played with respect to corporate governance matters within the Company.

While we have heard numerous accounts of Ebbers’ demand for results – on occasion emotional, insulting, and with express reference to the personal financial harm he faced if the stock price declined – we have heard none in which he demanded or rewarded ethical business practices.

Special Investigative Committee Report, WorldCom Board of Directors, 3/31/2003

People at the top are not going to be able to just blame the underlings when a fraud occurs. The person at the top is responsible and has to take responsibility.

Ebbers didn’t do anything much different than an ethically challenged CEO would do. With him, for the jury, it really does seem to be the position that matters.Referring to the conviction on March 15, 2005, of former WorldCom Chairman Bernard Ebbers, The New York Times, March 16, 2005

John J. FaheyFormer Federal Prosecutor

“No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”

James Madison

Ohio Ethics Law

1974 Ethics Law Governing All Public Servants Financial Disclosure to increase transparency Conflicts of Interest Laws – with criminal sanction Processes of Advice, Disclosure, Education, and

Investigation Uniformity of State-Wide Legal Standard, but

overseen within the Three Branches of Government Ohio Ethics Commission

Oversight of all but Legislators, Judges – est. 590,000 – in public service throughout Ohio

Separate Legislative and Judicial Committee Processes

The Ohio Ethics Commission

Independent, Bipartisan, 6-Member Commission Academic, Legal, Corporate, Faith-Based Leaders Cannot be a Lobbyist or serve in any other state position

requiring disclosure Elect own Chair and Vice-Chair

Appointed by the Governor and subject to confirmation by the Senate Serve staggered, six-year terms

Appoint Executive Director Manages staff of 21 Administers Advisory, Education, Financial Disclosure,

Investigative, and Legislative Recommendation Authority

Ohio Ethics Law – Who is Governed?

All public officials and employees State officials Local officials Public employees

Whether full or part-time

Public college and university employees In some instances, “agents” or others

“performing ad hoc a governmental function” And, those who do business with public officials

and employees

Ohio Ethics Law: Four General Components

Prohibitions on Conflicts of Interest Direct and Definite Financial, Fiduciary, Family,

or Business Associate Interests Supplemental Compensation for Public Role Bar on Honoraria

Public Contract Restrictions Any Purchase or Acquisition of Goods or Services Sale of Goods to other Public Agencies

Post Employment / Representation Limits So-called “Revolving Door” Restrictions on Confidential Information

Processes of Assistance

Public Contracts

Purchase / acquisition of public property or goods Equipment purchases Office supply purchases

Purchase / acquisition of public services Personal services contracts Employment Grants and loans Abatements and service agreements

Design, construction, repair, maintenance of public property

Investments

Public Contract Restrictions

on Investments R.C. 2921.42 (A)(2) prohibits public officials

from securing, or authorizing the securing, of investments of public funds in: Share Bond Mortgage Other Security

When official, member of his family, or business associate: Has interest Is underwriter Receives brokerage, origination or servicing fees

Ohio’s Ethics Law does not oversee:

Lobbying Campaign Finance and

Elections Public records Open Meetings Compatibility (Dual

public positions) Civil service Profession of Law Personal behavior

“Integrity without knowledge is weak and useless. Knowledge without integrity is dangerous and dreadful.”

Samuel Johnson British author and critic (1709-1784)

Advice Respond to Requests for Advice before Acting Immunity Provided to Requesters Who Are

Forthright in Facts and Comply with Advice Issue opinions applying law

255 requests closed in 2008 Most recent on Stimulus (ARRA) funds Annual 3,000+ telephone calls for guidance

by three attorneys Requests and responses are public

Consultation and Guidance Provided Based Upon Prior Precedent and Case Law

“Most people don’t need to be taught. They need to be reminded.”

C.S. Lewis

Education Provide Education Sessions on Ethics Law

State officials and local officials Public employees Private and Non-Profit Sectors General public

Provided 241 Sessions in 2008 18,000+ attendees

Issue Informational Materials Educational DVD General Information Memos

Web Site: www.ethics.ohio.gov

http://www.ethics.ohio.gov/

“Sunlight is said to be the best of disinfectants…”

Former Supreme Court Justice

Louis D. Brandeis

Financial Disclosure

Two-fold Purpose: Reminds filers of potential conflicts of

interest Informs public of potential conflicts of

interest Uncompensated Board and Commission

Members’ Financial Disclosure Forms (FDS) Confidential, but subject to specific review

Financial Disclosure Statements

Most elected state and local officials

Candidates for those offices

High-ranking state officials and employees

Listing of sources of year’s finances and real property

Reminds official (and informs public) of potential conflicts of interest

Average of 11,000 annual filers 11,442 in 2008 1387 different agencies

“Self-interest has a powerful tendency to disable our objectivity and befuddle our ability to live up to moral principles.”

Michael Josephson

Investigation Investigate alleged violations of Ethics Law

544 allegations,168 active investigations in 2008 Confidential criminal investigation - subpoena authority

Recent examples: 2005-2009 Bureau of Workers Compensation (BWC)

14 of 19 convicted of Ethics Law violations Public and private sector persons

2008-2009 Former Attorney General’s Senior Staff Former Director of Administration – Theft in office,

improper compensation Multiple state and local officials, board members, public

employees, and private sector persons 32 at various stages of prosecutorial review in 2008 Staff have served as Special Prosecutors in 24 cases

Refer cases for Criminal Prosecution Alternative dispute resolution for less serious violations

Recommend legislation related to: Ethics Conflicts of interest Financial disclosure

Examples: S.B. 219 – Stat. of Limitations Uniformity (2008) S.B. 289 – Void Public Contract’s (2007) S.B. 133 – Public Pension Reform (2004) S.B. 286 – Higher Education Entrepreneurship

(2000)

Legislative Recommendations

Mandated Awareness of Ohio’s Ethics Law

Copy of Ethics Law Required by law All public officials

and employees Within 15 days of:

Hire Election Appointment

Indiana and Other Ethics Jurisdictions

Indiana Significant similarities and differences

Neighboring States West Virginia Kentucky Illinois Pennsylvania Michigan Wisconsin

Nationally – 40+ states – Colorado recently Local and Regional Growth Canada – Use of Provincial Ethics Officers Internationally – Recent JLS experience in Jordan Good Resource – COGEL – www.cogel.org

http://www.cogel.org/

“We judge ourselves by our intention, but we are judged by our last worst act.”

Michael Josephson

Ohio’s Ethics Law

The Ohio Ethics Commission8 East Long Street

10th FloorColumbus, Ohio 43215

Phone: (614) 466-7090Fax: (614) 466-8368

Website: www.ethics.ohio.gov

20092009

Ethics 101:Interpreting the

Code of Ethics

State Ethics CommissionClare Nuechterlein

Jim ClevengerPriscilla Keith

Bob Jamison

The Key to Accessing Government:A Discussion with Indiana’s Public

Access Counselor

Andrew Kossack

Indiana’s Public Access Laws

Andrew J. KossackIndiana Public Access Counselor

2009 Legal Ethics ConferenceDecember 1, 2009

48

Open Door Law

The Open Door Law The full text of the Open Door Law (“ODL”)

can be found at Ind. Code § 5-14-1.5-1 et seq.

What does the ODL require? “[A]ll meetings of the governing bodies of

public agencies must be open at all times for the purpose of permitting members of the public to observe and record them.” I.C. § 5-14-1.5-3(a).

The ODL also requires 48-hour advanced notice of meetings. I.C. § 5-14-1.5-5.

49

Open Door Law

What is a Meeting?

A gathering of a majority of the governing body for the purpose of taking official action upon public business. I.C. § 5-14-1.5-2(c).

50

Open Door Law

What is NOT a Meeting? Any social or chance gathering not

intended to avoid this chapter; any on-site inspection of any project,

program or facilities of applicants for assistance;

traveling to and attending meetings of organizations devoted to the betterment of government

a caucus;

51

Open Door Law

What is NOT a Meeting? (cont.) A gathering to discuss an industrial or

commercial prospect that does not include a conclusion as to recommendations, policy, decisions or final action on the terms of a request or an offer of public financial assistance;

An orientation of members on their role and responsibilities as public officials; or

A gathering for the sole purpose of administering an oath

52

Open Door Law

What is “Official Action?” receiving information deliberating making recommendations establishing policy making decisions taking final action (i.e. voting)

NOTE: Any one of these items constitutes official action.

53

Open Door Law

Serial meetings I.C. § 5-14-1.5-3.1. In 2007 the legislature added new language to

prohibit serial meetings. All of the following must be present to violate the serial meeting law: three members but less than a quorum meet subsequent meetings involve at least 2 members sum of all meeting attendees constitutes a quorum all meetings held within 7 days to take official action on public business

The serial meeting law does not apply to governing bodies with fewer than six members.

54

Open Door Law

Executive Sessions I.C. § 5-14-1.5-6.1 A meeting from which the public is excluded,

except for persons necessary to carry out business

There are 13 executive session instances The instances are narrowly construed The governing body may not take final action

(i.e., vote) in an executive session but may make decisions in the executive session. See Baker v. Town of Middlebury, 753 N.E.2d 67 (Ind. Ct. App. 2001).

55

Open Door Law

Reasons for Executive Sessions Discussion of strategy with respect to

initiation of litigation or litigation that is pending or has been threatened in writing (I.C. § 5-14-1.5-6.1(b)(2)(B))

To receive information about and interview prospective employees (I.C. § 5-14-1.5-6.1(b)(5))

To discuss a job performance evaluation (I.C. § 5-14-1.5-6.1(b)(9))

56

Open Door Law

Notice Requirements I.C. § 5-14-1.5-5 The notice requirements apply to open

meetings, reconvened meetings, rescheduled meetings, and executive sessions

Must post notice of date, time and location of meeting 48 hours in advance of meeting

The 48 hours does not include Saturdays, Sundays, or legal holidays

“an executive session after the regular meeting” is not sufficient notice of meeting time

57

Open Door Law

Posting or Delivery of Notice Notice must be posted at agency’s

principal office or at meeting place The agency must also deliver notice to

all news media that deliver by January 1 an annual written request for such notices.

The delivery of notice to news media does not meet the “posting” requirement, even if the media publish the notice or advertise the meeting.

58

Open Door Law

Notice Requirements for Executive Sessions: The notice must contain the same information

as for an open meeting, but must also state the subject matter by specific reference to the enumerated instance(s) for which executive sessions may be held. (e.g., “to interview prospective employees pursuant to I.C. § 5-14-1.5-6.1(b)(5)”)

Note: There is no executive session instance to “discuss personnel matters” or to “meet with the Board’s attorney” – specific instances must be cited

59

Open Door Law

Exception to Notice Requirement for “Administrative Function” Meetings

The requirements for posting notice do not apply when the executive of a county or the legislative body of a town meets if the meeting is held solely to receive information or recommendations in order to carry out administrative functions, to carry out administrative functions, or confer with staff members on matters relating to the internal management of the unit.

60

Open Door Law

Administrative Function Meetings (cont.) Administrative functions do not include the

awarding of contracts, the entering into contracts, or any other action creating an obligation or otherwise binding a county or town. I.C. § 5-14-1.5-5(f)(2).

The “administrative function” meeting must be held in the public, since the notice provision of the ODL is the only provision that does not apply to an “administrative function” meeting. I.C. § 5-14-1.5-5(f)(2).

61

Open Door Law

Agenda and Memoranda Covered in Section 4 of the ODL. I.C. § 5-

14-1.5-4) The ODL does not require an agency to

utilize an agenda. If the governing body utilizes an agenda,

the agenda must be posted outside the meeting before the meeting begins – the ODL does not provide a time by when the agenda must be posted.

62

Open Door Law

Agenda and Memoranda (cont.) An agency may deviate from its posted

agenda unless a specific statute provides otherwise.

A final action adopted by reference to agenda number or item alone is void (e.g. “all in favor of item III?”)

63

Open Door Law

Agenda and Memoranda (cont.) ODL does not require minutes Memoranda must be kept as the meeting

progresses and must contain: Date, time and location of meeting Members present and absent The general substance of all matters,

proposed, discussed, or decided A record of all votes taken, by individual

members if there is a roll call

64

Open Door Law

Agenda and Memoranda (cont.) The memoranda are to be available

within a reasonable period of time after the meeting.

The minutes, if any, are to be open for inspection and copying.

Draft minutes of a public meeting are disclosable public records despite not being in final form or adopted by the governing body.

65

Open Door Law

Memoranda Requirements for Executive Sessions Same requirements as for meetings,

except the memoranda and minutes must identify the subject matter considered by specific reference to the enumerated instance or instances for which public notice was given.

The memoranda and minutes must certify no other matter was discussed.

66

Open Door Law

A right of the public to record meetings, found at I.C. § 5-14-1.5-3(a) includes the right to audio or video record the meeting. Berry v. Peoples Broadcasting Corp., 547 N.E.2d 231 (Ind. 1989).

A governing body may place reasonable restrictions on the use of such equipment, but may not ban the use of audio or video recorders.

67

Open Door Law

Use of Technology Access laws do not always keep pace with

technological advances. The purpose of the ODL is constant and

should be considered when addressing new issues in public access.

68

Open Door Law

Teleconferencing or videoconferencing of meetings Generally, a member of a governing

body who is not physically present but communicates by electronic or telephonic means may not vote and may not be counted present

Some specific statutes allow for teleconferencing or videoconferencing

69

Open Door Law

Is Electronic Mail a Meeting? Members of governing body must be cautious

in use of email when it is used between and among members to conduct official business.

Indiana courts have not addressed the issue, but the Virginia high court ruled that email communications did not constitute a meeting. Beck v. Shelton, 593 S.E.2d 195 (Va. 2004). Email communication lacked simultaneity.

Previous PACs have opined that email is not a “meeting” under the ODL***

***Keep in mind the APRA

70

Access to Public Records Act

The Access to Public Records Act (“APRA”)

Purpose: “Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information.”

The full text of APRA can be found at Ind. Code 5-14-3-1 et seq.

71


“Public records” are broadly defined: can be summarized as “any material that is created, received, retained, maintained or filed by or with a public agency.” I.C. § 5-14-3-2(n).

The Indiana Court of Appeals has added to this definition any material created for or on behalf of a public agency. Knightstown Banner v. Town of Knightstown, 838 N.E.2d 1137 (Ind. Ct. App. 2005). In Knightstown, the record in question was a

settlement agreement held in a private attorney’s office. The settlement agreement was created for the public agency but not physically maintained by the agency.

72


“Copy” includes photocopying as well as making a digital copy using a digital camera or a hand-held scanner.

“Inspect” includes the right to make notes, abstracts and memoranda, or to listen to an audiotape.

73


The agency may require a person to submit a request for a public record in writing, or in a form supplied by the agency. I.C. § 5-14-3-3(a).

The agency shall either make the requested copy or allow the person to make a copy on the agency’s equipment or on the person’s own equipment. If the requester wants to use personal

equipment, the agency has the burden of demonstrating its reason(s) for any refusal

74


An agency must make reasonable efforts to provide a copy of electronic data to a person if the medium requested is compatible with the agency’s system.

If a record contains disclosable and nondisclosable information, the agency shall separate the disclosable material and make it available. I.C. § 5-14-3-6. Senate Bill 232: in camera review

75


Electronic Mail Any record, including electronic media,

created received, retained, maintained, or filed by or with a public agency is a public record.

Therefore, electronic mail is a public record if it is created, received, retained, maintained, or filed with a public agency, including a governing body.

76


Electronic mail must be available for inspection and copying by the governing body unless an exception to disclosure, based on the content of the email, applies.

Electronic mail must be maintained in accordance with records retention schedules, pursuant to I.C. 5-15.

77


Email messages maintained in a personal email account (e.g. Yahoo! account) are generally not public record.

If the personal email is submitted to the agency, it becomes a public record. Example: A council member prints a

personal email message from a neighbor and gives it to a city employee for follow-up.

78


Public Agency’s Responsibilities Respond to requests made in person or

via telephone within 24 hours of receipt.

Respond to mailed, faxed, or e-mailed requests within seven days of receipt.

Respond in writing to written requests for records; best practice is to respond to all requests in writing.

79


Responding is not necessarily producing the record; the PAC’s opinions have consistently been that the records should be produced within a reasonable time

PACs have considered factors such as the nature of the requests (whether they are

broad or narrow), how old the records are, and whether the records must be reviewed and

edited to delete nondisclosable material

80


The burden lies with the public agency to show the time period for producing documents is reasonable.

Suggestions: Communicate with the requester. Give yourself a production deadline and

explain your reasoning. If you need an extension, notify the requester in advance of the deadline.

Demonstrate good faith by making portions of a production available from time to time when voluminous documents are being reviewed for disclosure.

81


Section 7 of the APRA requires a public agency to regulate any material interference with the regular discharge of the functions or duties of the public agency or public employees. I.C. §5-14-3-7(a).

Section 7 does not operate to otherwise deny a requester’s rights under the APRA. I.C. §5-14-3-7(c).

82


Denials If denying records, state reason for

denial with citation to specific authority, and give name and title or position of person responsible for denial. I.C. § 5-14-3-9.

Citing unnamed “privacy laws” or referring generally to “HIPAA” is not sufficient; citations must be specific.

Produce records in reasonable time; communication with requestor is key.

83


Exceptions to Disclosure I.C. § 5-14-3-4. Section 4(a) categories are confidential

Declared confidential by federal/state statute

Patient medical records created by a provider

Declared confidential by rule adopted by Indiana supreme court (Admin. Rule 9)

84


Section 4(b): Discretionary Exemptions Investigatory records of law

enforcement Attorney-client privileged/work product Personnel file information, except for

information in 4(b)(8) Telephone number, address, and social

security number of a customer of a municipally-owned utility

85


Copy Fees Local agencies may charge only the fee

schedule adopted by the fiscal body of the agency and authorized by I.C. § 5-14-3-8.

May not exceed the actual cost for providing a copy of the public record.

Actual cost is the cost of the paper and per page cost for use of the equipment.

Actual cost cannot include labor or overhead. I.C. § 5-14-3-8(d)(2).

86


Copy Fees, cont. APRA’s general provisions regarding

fees are sometimes superseded by a specific statute allowing higher fee.

County recorders – I.C. § 36-2-7-10. County clerks and court records - I.C. § 33-

37-5-1. Agencies may require advance

payment.

87


Retention of records The APRA requires an agency to protect

records from loss, alteration, mutilation, or destruction.

Each county has a commission on public records to adopt retention schedules. The state oversight committee on public records has set general retention schedules for cities and towns. More information can be found at www.in.gov/icpr/county/coretention.

88

APRA and ODL

Enforcement Provisions A person may file a complaint with the

public access counselor alleging a denial of a right under APRA or ODL.

The PAC sends formal complaint to the agency for response and issues a formal advisory opinion within 30 days.

A person may file a lawsuit in superior court to compel the agency to produce a record or declare an action void.

89

APRA and ODL

Enforcement Provisions, cont. If a person prevails in court and has

received an advisory opinion from the PAC prior to going to court, the person shall be awarded reasonable attorney’s fees, court costs, and other reasonable costs of litigation.

90

Office of the Public Access Counselor

Our contact information 402 West Washington Street, W470

Indianapolis 46204 Fax: 317.233.3091 Toll free: 800.228.6013 Phone: 317.234.0906

Visit our website at www.in.gov/pac for the Handbook on Indiana’s Public Access Laws, advisory opinions, and other resources.

Judicial Reform

Chief Judge John BakerIndiana Court of Appeals

The Hatch Act: Does it Apply to Me?

Erica HamrickDeputy Chief, Hatch Act UnitU.S. Office of Special Counsel

04/21/2395

POLITICAL ACTIVITYPOLITICAL ACTIVITYAND THEAND THE

STATE AND LOCAL EMPLOYEESTATE AND LOCAL EMPLOYEE

STATE AND LOCAL HATCH ACT5 U.S.C. §§ 1501-08

THE ACT WAS ORIGINALLY ENACTED IN 1939. INITIALLY IT

ONLY APPLIED TO FEDERAL EMPLOYEES

IN 1940, THE HATCH ACT WAS AMENDED TO EXTEND

COVERAGE TO STATE AND LOCAL EMPLOYEES

04/21/23 96

STATE AND LOCAL HATCH ACT: COVERAGE5 U.S.C. §§ 1501-08

THE ACT APPLIES TO INDIVIDUALS WHO ARE —

EMPLOYED BY A STATE OR LOCAL AGENCY

IN THE EXECUTIVE BRANCH OF GOVERNMENT

WHOSE PRINCIPAL EMPLOYMENT IS

IN CONNECTION WITH AN ACTIVITY FINANCED

IN WHOLE OR IN PART

BY A FEDERAL LOAN OR GRANT

04/21/23 97

STATE AND LOCAL HATCH ACT: COVERAGE5 U.S.C. §§ 1501

EMPLOYED BY A STATE OR LOCAL AGENCY

INCLUDES BOTH EMPLOYEES AND INDIVIDUALS HOLDING OFFICE

INCLUDES STATE, COUNTY, AND MUNICIPAL AGENCIES OR DEPARTMENTS THEREOF

INCLUDES A TERRITORY OR POSSESSION OF THE UNITED STATES

04/21/23 98


IN THE EXECUTIVE BRANCH OF GOVERNMENT

INDIVIDUALS EMPLOYED OR HOLDING OFFICE

IN THE LEGISLATIVE BRANCH OR

THE JUDICIAL BRANCH ARE NOT COVERED

04/21/23 99


MUST BE THE INDIVIDUAL’S PRINCIPAL EMPLOYMENT

ONLY AN ISSUE WHEN THE INDIVIDUAL HAS 2 OR MORE JOBS

KEY FACTORS TO CONSIDER:(1) AMOUNT OF HOURS WORKED(2) SALARY AMOUNT

WHERE IS THE INDIVIDUAL DURING NORMAL BUSINESS HOURS?

04/21/23 100


PRINCIPAL EMPLOYMENT MUST BE IN

CONNECTION WITH ACTIVITY FINANCED

BY FEDERAL LOAN OR GRANT

04/21/23 101


INDIVIDUAL IS COVERED BY THE ACT IF

“AS A NORMAL AND FORSEEABLE INCIDENT TO

PRINICIPAL POSITION OR JOB, THE INDIVIDUAL

PERFORMS DUTIES IN CONNNECTION WITH AN

ACTIVITY FINANCED IN WHOLE OR IN PART BY A

FEDERAL LOAN OR GRANT.”

Special Counsel v. Williams, 56 MSPR 277, 283 (1993).

04/21/23 102


PRACTICIONER’S TIP:

LOOK AT THE PROGRAMS THAT AN INDIVIDUAL

WORKS ON AND ASK WHETHER THERE ARE ANY

FEDERAL LOANS OR GRANTS FINANCING THOSE

PROGRAMS.

CONSIDER ALL DUTIES OF THE INDIVIDUAL

REMEMBER TO CONSIDER HOW OPERATING COSTS,

EQUIPMENT COSTS, AND ADMINISTRATIVE COSTS

ARE PAID

04/21/23 103


EXAMPLES OF COVERED EMPLOYEES:

• Executive Secretary of Housing Authority covered when

agency receives an operating subsidy and secretary reviews

& signs requests for subsidy. Special Counsel v. Hayes, 16

MSPR 166 (1983).

• Employee covered because part of his travel expenses – a

mere $350- came from a federal grant received through the

state board of health. In Re Lyle, 2 PAR 413 (1951).

04/21/23 104


EXAMPLES OF COVERED EMPLOYEES:

Employee who had general supervision of all engineering

work for the State Department of Highway covered by the Act

because engineering projects financed in part by federal

grants. In re Grant, 2 PAR 156 (1944).

04/21/23 105


SUPERVISORY EMPLOYEES & DIRECTORS

INDIVIDUAL WHO SUPERVISES EMPLOYEES WHO WORK

ON FEDERALLY FUNDED PROGRAMS GENERALLY WILL

BE HELD TO HAVE DUTIES IN CONNECTION WITH

FEDERALLY FUNDED ACTIVITIES BECAUSE OF

OVERSIGHT RESPONSIBILITIES

Palmer v. United States Civil Service Commission, 297 F.2d 450 (7th Cir. 1962) (Director of Department of Conservation covered even though he claimed he spent less than one percent of his time on federally funded projects).

04/21/23 106


FEDERAL LOAN OR GRANT INCLUDES:

GRANTS THAT PASS THROUGH THE STATE OR OTHER

AGENCY

FEDERAL REIMBURSEMENTS

FEDERAL SUBSIDIES

MEDICAID – (Special Counsel v. Alexander, 71 MSPR 636)

BUT NOT

MEDICARE

04/21/23 107


FACTS ABOUT COVERAGE:

IT IS NOT NECESSARY THAT AN INDIVIDUAL’S

SALARY BE PAID WITH FEDERAL FUNDS

THE INDIVIDUAL DOES NOT HAVE TO HAVE

ADMINISTRATIVE OR EXECUTIVE DISCRETION OVER

FEDERAL FUNDS OR DECIDE HOW THEY ARE SPENT

PROGRAM DOES NOT HAVE TO BE FUNDED AT

LEAST 50% BY FEDERAL FUNDS – ANY AMOUNT CAN

TRIGGER COVERAGE

04/21/23 108


FACTS ABOUT COVERAGE:

THE ACT CONTINUES TO APPLY TO INDIVIDUALS

WHILE ON ANNUAL LEAVE, SICK LEAVE, LEAVE

WITHOUT PAY, ADMINISTRATIVE LEAVE OR

FURLOUGH

PART-TIME, TEMPORARY OR SEASONAL

EMPLOYEES ARE COVERED BY THE ACT

04/21/23 109

STATE AND LOCAL HATCH ACT: EXEMPTIONS5 U.S.C. §§ 1501(4)(B)

EDUCATIONAL EXEMPTION

INDIVIDUAL IS NOT COVERED IF:

EMPLOYED BY EDUCATIONAL OR RESEACH INSTITUTION,

ESTABLISHMENT, OR AGENCY THAT IS SUPPORT IN PART BY

STATE OR LOCAL AGENCY

FOR EXAMPLE: TEACHERS, PROFESSORS

SCHOOL ADMINISTRATORS

04/21/23 110

STATE AND LOCAL HATCH ACT: COVERAGE – PRIVATE, NONPROFIT 5 U.S.C. §§ 1501

PRIVATE NONPROFIT CORPORATIONS

GENERAL RULE: HATCH ACT DOES NOT APPLY TO

EMPLOYEES OF PRIVATE, NONPROFIT CORPORATIONS.

EXCEPTION: SOME FEDERAL STATUTES CONTAIN A

PROVISION THAT RECEIPIENT ORGANIZATIONS WILL BE

TREATED AS “STATE OR LOCAL” AGENCIES FOR

PURPOSES OF HATCH ACT.- HEAD START (42 U.S.C. 9851)

- COMMUNITY SERVICE BLOCK GRANT (42 U.S.C. 9918)

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HATCH ACT DO’s5 U.S.C. § 1502

HATCH ACT COVERED EMPLOYEES MAY –

l ATTEND AND BE ACTIVE AT POLITICAL RALLIES AND MEETINGS

l JOIN AND BE ACTIVE MEMBER OF A POLITICAL PARTY OR CLUB, INCLUDING HOLDING OFFICE

l SIGN NOMINATING PETITIONS

l CAMPAIGN FOR OR AGAINST REFERENDUM QUESTIONS, CONSTITUTIONAL AMENDMENTS, MUNICIPAL ORDINANCES

04/21/23 112

HATCH ACT DO’s5 U.S.C. § 1502

HATCH ACT COVERED EMPLOYEES MAY –

l CAMPAIGN FOR OR AGAINST CANDIDATES IN PARTISAN ELECTIONS

l MAKE CAMPAIGN SPEECHES FOR CANDIDATES IN PARTISAN ELECTIONS

l DISTRIBUTE CAMPAIGN LITERATURE IN PARTISAN ELECTIONS

l BE CANDIDATE FOR PUBLIC OFFICE IN NONPARTISAN ELECTION

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HATCH ACT DON’Ts5 U.S.C. § 1502; 5 C.F.R. Part 151

COVERED EMPLOYEES MAY NOT —

USE OFFICIAL AUTHORITY OR INFLUENCE TO INTERFERE WITH OR AFFECT AN ELECTION

DIRECTLY OR INDIRECTLY COERCE, ATTEMPT TO COERCE, COMMAND, OR ADVISE A STATE OR LOCAL OFFICER OR EMPLOYEE TO PAY, LEND, OR CONTRIBUTE ANYTHING OF VALUE TO A PARTY, COMMITTEE, AGENCY OR PERSON FOR POLITICAL PURPOSES

BE CANDIDATES FOR PUBLIC OFFICE IN PARTISAN ELECTIONS

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HATCH ACT DON’Ts5 U.S.C. § 1502(a)(1); 5 C.F.R. PART 151


USE OFFICIAL AUTHORITY OR INFLUENCE TO INTERFERE WITH AN ELECTION

Use of official titleCoercion of subordinatesSolicit the uncompensated volunteer services of

subordinatesE-mail

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DIRECTLY OR INDIRECTLY COERCE, ATTEMPT TO COERCE,

COMMAND, OR ADVISE A STATE OR LOCAL OFFICER OR

EMPLOYEE TO PAY, LEND, OR CONTRIBUTE ANYTHING

OF VALUE TO A PARTY, COMMITTEE, ORGANIZATION,

AGENCY OR PERSON FOR POLITICAL PURPOSE.

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BE CANDIDATES FOR PUBLIC OFFICE IN PARTISAN ELECTIONS

Election is partisan if ANY candidate is nominated or elected as representing a political party, for example, the Democratic or Republican Party.

Write-in candidacy (must be spontaneous)

Party office is permissible (Precinct Committee person)

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CROSS FILING FOR OFFICE

ELECTION IS PARTISAN EVEN IF CANDIDATES ARE PERMITTED TO CROSS FILE FOR THE OFFICE.

SPECIAL COUNSEL V. YOHO, 15 MSPR 409 (1983)

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HATCH ACT DON’Ts5 U.S.C. § 1502(b; 5 C.F.R. PART 151

EXEMPTION FOR CERTAIN ELECTED OFFICIALS

THE PROHIBITION AGAINST BEING A CANDIDATE DOES NOT APPLY TO:

1. The Governor or Lieutenant Governor of a State;2. The mayor of a city;3. A duly elected head of an executive department who is not

classified under a merit or civil service system; or4. An individual holding elective office.

INDIVIDUAL MUST QUALIFY FOR EXEMPTION BASED ON THEIR PRINCIPAL EMPLOYMENT.

THESE INDIVIDUALS STILL SUBJECT TO OTHER PROHIBITIONS

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CANDIDACY5 U.S.C. § 1502

WHEN DOES IT BEGIN? WHEN AN INDIVIDUAL BEGINS TO COLLECT

SIGNATURES FOR NOMINATING PETITIONS

WHEN AN INDIVIDUAL BEGINS TO FUNDRAISE

WHEN AN INDIVIDUAL MAKES AN ANNOUNCEMENT TO THE PRESS

WHEN AN INDIVIDUAL FILES NOMINATING PETITIONS

WHEN AN INDIVIDUAL PUTS A CAMPAIGN COMMITTEE TOGETHER

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BEWARE OF NONPARTISAN ELECTIONS/CANDIDACIES5 U.S.C. § 1502

NONPARTISAN CAN BECOME PARTISAN ELECTION WHEN: Standard: There is evidence showing that partisan politics

actually entered the campaign of a candidate.

Employee/candidate seeks and receives endorsement of political party.

Employee/candidate advertises endorsement of political party.

Employee/candidate uses political party resources.

Employee/candidate announces he is political party candidate.

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THE OFFICE OF SPECIAL COUNSEL’S ROLE& THE STATE AND LOCAL HATCH ACT5 U.S.C. § 1504

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THE OFFICE OF SPECIAL COUNSEL SERVES TWO

FUNCTIONS:

1. ISSUE ADVISORY OPINIONS CONCERNING THE

HATCH ACT;

2. INVESTIGATE ALLEGATIONS OF POLITICAL

ACTIVITIES PROHIBITED BY THE HATCH ACT AND

SEEK DISCIPLINARY ACTION AGAINST THOSE WHO

VIOLATE THE ACT.

PENALTIES FOR VIOLATION(STATE AND LOCAL HATCH ACT)5 U.S.C. § 1505

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MERIT SYSTEMS PROTECTION BOARD DETERMINES —

1. IF THERE HAS BEEN A VIOLATION OF THE HATCH

ACT;

AND

2. DOES THE VIOLATION WARRANT REMOVAL OF

THE EMPLOYEE FROM THE COVERED POSITION.


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WHEN VIOLATION WARRANTS REMOVAL OF THE EMPLOYEE,

THE MERIT SYSTEMS PROTECTION BOARD

-NOTIFIES AGENCY TO REMOVE EMPLOYEE FROM POSITION

-IF AGENCY REFUSES TO REMOVE EMPLOYEE, AGENCY

FORFEITS FEDERAL FUNDS IN AN AMOUNT EQUAL TO TWO

YEARS OF THE PERSON’S SALARY


DEBARMENT

INDIVIDUAL ORDERED REMOVED CANNOT BE HIRED

BY ANY OTHER STATE OR LOCAL AGENCY WITHIN

THE SAME STATE FOR A PERIOD OF 18 MONTHS

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HATCH ACT INFORMATION / ADVICE 5 U.S.C. § 1212 (f)

EMPLOYEES MAY:

● OBTAIN ANSWERS TO SPECIFIC QUESTIONS ABOUT POLITICAL ACTIVITY BY CALLING OSC, AT ―

800-85-HATCH OR 202-254-3650

● OBTAIN WRITTEN ADVISORY OPINIONS ABOUT THE HATCH ACT BY CONTACTING OSC ―

BY MAIL, AT: U.S. OFFICE OF SPECIAL COUNSEL

1730 M STREET, NW (SUITE 218)WASHINGTON, DC 20036-4505ATTN: HATCH ACT UNIT

BY FAX, AT: (202) 254-370004/21/23 126

OSC WEB SITE(http://www.osc.gov)

04/21/23 127

Ethics: A Federal and State Perspective

Mark EversonIndiana Department of Administration


Ed CharbonneauState Senator

Legal & Ethics ConferenceSen. Ed Charbonneau

Early Ethics Lesson


• Perspective– Business– Local Government Academy– Economic Development– Health Care– Lobbyist– Ethics Commission– State Senator


• September 5, 2003– Agenda– Resolution– Ethics Pledge April 2004– 15 Cities & Towns Adopt Ethics Codes– 4 Community Joint Code & Shared Ethics

Officer– HB1033 C. Brown December 4, 2003– Crown Point becomes a City of

Character


“The public has a right to know whether their public officials are honest, and the public officials need to know that someone is watching them. A little paranoia is not a bad thing.”

Joe Van Bokkelen U.S. Attorney

Northern District of Indiana


• What is ethics?– Choices– Not tough to understand but tough

to live with– Addressed when problems arise– Starts small and escalates

• Let’s return to the alley


•Issues–Conflict of Interest–Gifts–Nepotism–That Free Lunch–Inappropriate Use of Position–Dishonesty


•Conflict of Interest–Doctor Admitting Patients–City Employee on City Council

–Revolving Door–Part-Time Legislature


•Gifts–Teacher–Cop in the Donut Shop–$75 Cash


•Nepotism–Fire Department–City of Anderson


•That Free Lunch–Pharmaceutical Companies

–Engineering Firms–Lobbyists


•Inappropriate Use of Position–Emergency Room–Line in the permitting office

–Letter from Mayor’s office


•Dishonesty–Splitting Contracts–Performance Reviews–Letters of Reference–Copy Machine–Using computer to run second job–Taking “stuff” home from work


PEOPLE


ORGANIZATION


LEADERSHIP


Since “wrongdoing” is an ethical concept, not a legal one, the ability of administrators and managers to perceive, avoid and deal effectively with such accusations is a critical competence that suggests a new paradigm looking beyond compliance to the issue of organizational culture


•Why be ethical?–Professional Dimension–Moral Dimension–Personal Dimension


•Why be Ethical?–Risk Management Strategy–Good Business–More professional and efficient

–Improved Quality of Life


•Ethics Codes–Framework for decision making–Easier to do the right thing when we know what it is

–Need to be reminded more than to be educated

–Consequences


•Training–Establish Expectations–Educate–Enforce


•Final Thoughts– Character Training

“We pay a price when we deprive children of the exposure to the

values, principles and education they need to make them good citizens.”

Sandra Day O’Connor


•Final Thoughts–The Stakes Are Higher Than Violating an Ethics Code


Carol,I am so sorry for this. I feel I just can’t go on. I have always tried to do the right thing but where there was once great pride now it’s gone. I love you and the children so much. I just can’t be any good to you or myself. The pain is overwhelming. Please try to forgive me.

Cliff


Ethics is about being better.

2009 Presented by Marion County Clerk Beth White Legal & Ethics Conference December 1, 2009 Running...

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