Ethical Issues Facing Municipal Officials

Transcription

1 Ethical Issues Facing Municipal Officials Missouri Municipal League Annual Conference September 12 th, 2011 Missouri Ethics Commission This presentation is intended only as a guide to aid in understanding the duties and responsibilities of the Missouri Ethics Commission. For the Law s complete requirements, consult the law itself, codified at Chapter 105 and 130 of the Revised Statutes of Missouri.

2 Overview of Topics Agenda About the Missouri Ethics Commission Outreach & Education Advisory Opinions Enforcement Laws Affecting Conflict of Interest Issues Prohibited Acts Nepotism Incompatible Offices Quasi-Judicial Decisions Special Circumstances Personal Financial Disclosures 2 Missouri Ethics Commission

3 Missouri Ethics Commission About the Commission

4 Missouri Ethics Commission 4 Mission Serve the public interest Assist and educate Enforce laws 2010 Statistics Public Officials Citizens of Missouri Lobbyists MEC Individuals participating in public election Campaign Finance 2,969 Committees 18,084 Reports Filed Missouri Ethics Commission

5 Outreach & Education Outreach & Education 5 1. Website: 2. Resources: Publications & FAQs If you would like to host a training session, please call or training@mec.mo.gov 3. Training: In-person, webinars & tutorials Missouri Ethics Commission

6 Advisory Opinions What is an Advisory Opinion? Issued upon written request Person requesting - directly affected by the law s application and prospective opinion Opinion can act as a defense against prosecution Published on website Requestor s information redacted 6 Missouri Ethics Commission

7 Advisory Opinions 7 Search by Topic or by Keyword Missouri Ethics Commission

8 Advisory Opinions 8 Select View to open as PDF document Missouri Ethics Commission

9 Enforcement Areas Enforcement Campaign Finance Disclosure Conflict of Interest Lobbying 9 Violation of Law, Order, Ordinance or Resolution dealing with official conduct (includes use of public funds) Personal Financial Disclosure Missouri Ethics Commission

10 Enforcement Initiate Investigations Receiving a complaint or Unanimous vote of the six Commissioners or Reports and related records, required to be filed with the Commission 10 Missouri Ethics Commission

11 Investigations Enforcement Confidential, by law Commission s final action public Penalties: fees, reprimands, etc. Refer potential criminal to pros. attorneys 11 Missouri Ethics Commission

12 Investigation Process: Enforcement STEP 1: Notify w/in 5 days person under investigation (complainant also) 12 STEP 2: Conduct investigation STEP 3: Determine reasonable grounds STEP 4: Dismiss or Refer to General Counsel STEP 5: Conduct Hearing or Enter into Consent Agreement (probable cause) Missouri Ethics Commission

13 Laws Affecting Conflict of Interest Issues Presented September 12, 2011 by Joe Lauber Missouri Municipal League Annual Conference Serving those who serve the public

14 Sources of Authority 14 Missouri Constitution Missouri Revised Statutes Local ordinances, charters, policies and procedures

15 Conflict of Interest Subjects 15 Prohibited Acts , RSMo Nepotism Incompatible Offices Quasi-Judicial Decisions Special Circumstances Tax increment financing applications Ballot measures Personal Financial Disclosures

16 16 Prohibited Acts , RSMo Elected or Appointed Officials Act or refrain from acting because of offer to pay Use or disclose confidential information obtained in office or employment for financial gain Favorably act on a matter specifically designed to provide special monetary benefit Use decision-making authority for financial gain Advocate for an appointment in exchange for value

17 17 Prohibited Acts , RSMo Elected or Appointed Officials Serving in an Executive or Administrative Capacity Perform service for the political subdivision for pay (from the political subdivision) other than compensation for official duties Engage in property transaction with the political subdivision Attempt to influence the decision of the political subdivision when result might be performance of service or property transaction Exceptions applicable to the first 3 prohibited acts: Over $500 per transaction or $5,000 per year Unless competitively bid and official s bid was lowest received During tenure of office, perform services for pay from another to influence decision of political subdivision During one year after termination of office, perform service for pay from another to influence the decision of the political subdivision Perform any service for any consideration from another at any point after termination in relation to a matter in which the official was directly concerned or personally participated

18 Prohibited Acts , RSMo Members of Governing Bodies 18 For Individuals: Perform service for the political subdivision for pay (from the political subdivision) other than compensation for official duties Engage in property transaction with the political subdivision Unless competitively bid and official s bid was lowest received Attempt to influence the decision of the political subdivision when result might be performance of service or property transaction For Business Entities Where Member Has More than 10% interest: Perform service for the political subdivision for pay (from the political subdivision) other than compensation for official duties Engage in property transaction with the political subdivision Exceptions: Over $500 per transaction or $5,000 per year Unless competitively bid and official s bid was lowest received

19 19 Prohibited Acts , RSMo Recording a Member s Interest in a Proposed Ordinance Applies to members of political subdivision s governing body Substantial personal or private interest File written report of the nature of the interest with city clerk Before passing upon the ordinance Deemed compliance if personal financial disclosure on file addresses the issue

20 Prohibited Acts , RSMo Persons with Rulemaking Authority 20 Applicability: Empowered to adopt a rule or regulation Empowered to fix rates Empowered to adopt zoning or land use regulations or plans Participates in votes in adoption of rules, regulations, rates, or plans Restrictions: Attempt to influence the decision of the group of which they are a member when the result might create a direct financial gain or loss to member, spouse or dependent child, or associated business During tenure of office, perform services for pay from another if the service requires the member to attempt to influence the decision of the group with which he or she is associated For one year after termination, perform services for pay from another to influence the decision of the group with which he or she was associated Perform service for or engage in property transaction with another if the member, during the preceding year, participated in or voted on the adoption of any zoning plan or grant or revocation of any license Exceptions: Over $500 per transaction or $5,000 per year Unless competitively bid and rulemaker s bid was lowest received

21 Prohibited Acts , RSMo Officials Service in a Judicial or Quasi-Judicial Position 21 Cannot participate in any proceeding when the official knows that the party is: Great grandparent or grandparent Parent, step-parent, guardian or foster parent Spouse or former spouse Child, step-child, foster child, or ward Brother or sister Niece or nephew Aunt, uncle, or cousin

22 Nepotism 22 Mo Const. Art. VII, 6 Applies to public officers and public employees Cannot name or appoint relatives within the 4th degree of consanguinity or affinity Do not reappoint or vote on the appointment or employment of existing employees Violation of nepotism prohibition will result in automatic forfeiture of office can t fix the problem

23 Incompatible Offices 23 Can one person concurrently hold two public offices? Check local ordinance restrictions and statutory duties Common law doctrine of incompatibility applies Are duties of each office inconsistent, antagonistic, repugnant, or conflicting? Is one office subordinate or accountable to the other? Supervision Removal Financial oversight Examples

24 Quasi-Judicial Decisions 24 Legislative vs. quasi-judicial decisions Creates rules for the whole jurisdiction Applies the rules to the facts of a specific situation Ex parte communication Communication with only one side of an issue should be avoided, but if it occurs: Limit to least extent possible Don t express an opinion Don t accept gifts- no dinner or drinks Document the encounter Disclose the contact for the record State whether you can still fairly consider the matter Prejudgment bias Familiarity with the facts is acceptable Tentative conclusion is permissible Must approach the hearing with an open mind

25 Special Circumstances 25 TIF Approvals (13), RSMo Applicability: Governing body TIF Commission Municipal employee or consultant Who owns or controls an interest, direct or indirect, in any property in the TIF area Responsibility: Disclose interest in writing to city clerk Refrain from further official involvement, voting on the matter, and communicating with other members Ballot Measures , RSMo Cannot use public funds to advocate, support, or oppose any ballot measure or candidate Does not prohibit a public official from making public appearances or from issuing press releases concerning any such ballot measure

26 Personal Financial Disclosure 26 Purpose is to provide the public information about a public official s or employee s or candidate s financial interests Historically used to disclose any potential conflicts of interest by a public official or employee Two basic types of personal financial disclosures: general and specific General disclosures are governed by to , RSMo Submitted annually to municipality and Missouri Ethics Commission in accordance with state statutes or local ordinance Broader in scope; applies to both elected officials and certain employees Specific disclosures are addressed at , RSMo Filed with city clerk Applies when a member of the governing body has a substantial personal or private interest in a matter pending before the governing body

27 Personal Financial Disclosure 27 General Disclosures- local ordinance option , RSMo Political subdivisions may adopt their own method of disclosing potential conflicts of interest If adopted, the local ordinance controls Must be adopted every 2 years by September 15 Submit a certified copy of ordinance to the Missouri Ethics Commission within 10 days of adoption Minimum contents: Disclosure of financial transactions with political subdivision over $500 by official or employee or immediate family or business entity in which person has substantial interest Chief administrative officer and chief purchasing officer disclosures

28 Personal Financial Disclosure 28 Who is required to file? Follow local ordinance, if adopted (remember minimum contents) If not, follow (11), RSMo IF political subdivision has an annual operating budget of over $1 million: Elected officials Candidates for elective office Chief administrative officer Chief purchasing officer General counsel (if employed full time) Persons authorized by the governing body to create or vote on rules and regulations having the force of law

29 Elections Personal Financial Disclosure 1. Prepare Candidate Declaration Form 2. Review Election Packets 29 a) Notice to Candidate form b) Guide to Ethics Law Plain English Summary 3. Review deadlines for filing PFD a) 14-day: $10 per day late fee b) 21-day: Disqualification/removal from ballot 4. Submit Candidate List w/in 48 hours of closing date of filing for candidacy 5. Track candidate filers by 14/21 day deadlines Missouri Ethics Commission

30 Personal Financial Disclosure 30 Notice to Candidate Candidate Information Candidate s name Office sought Political subdivision Date of election PFD Information Indicates Filing Status and List deadlines for filing (14 day & 21 day) Signed by candidate and witnessed by election official Acknowledges receipt of Notice to Candidate Guide to Ethics Law Missouri Ethics Commission

31 Personal Financial Disclosure Time Periods Covered & Due Dates Status Time Period Due Date Annual Filer Jan 1 to Dec 31 May 1 Newly appointed or employed Incumbent Candidate New Candidate 31 Calendar year (Jan 1 to Dec 31) before the date of appointment or employment Jan 1 of previous calendar year to closing date for candidacy (may be longer than a 12 month period) 12 months before the closing date for candidacy W/in 30 days of appointment or employment or prior to confirmation W/in 14 day of closing date for candidacy W/in 14 days of closing date for candidacy FYI: Long forms (Personal Financial Disclosure Statement) are generally filed by all officials, unless the subdivision has an ordinance or resolution. Missouri Ethics Commission

32 Personal Financial Disclosure Filing Deadlines Electronically filed 5:00 pm on the due date Hand-delivered 5:00 pm on the due date Mailed - Post-marked before due date Penalties Late fees Candidate disqualification/removal from ballot Withholding of compensation Suspension from office Legal action 32 Missouri Ethics Commission

33 Missouri Ethics Commission Questions??? Visit us online at Phone: Missouri Ethics Commission

34 Ethics Issues for Municipal Officials Contact Information: Joe Lauber 1300 SW Hook Road Lee s Summit, Missouri (816) jlauber@laubermunicipal.com Scan with your smart phone QR reader Serving those who serve the public

35 About the Firm I established, for the purpose of serving local governmental entities of all types and sizes. I have dedicated my entire career to the representation of municipal clients I have excelled in my practice as a public law attorney starting with big firm experience in the public law practice group at one of Kansas City s largest law firms, then a practice focused exclusively on Missouri economic development law at the region s busiest bond firm, before returning to a general municipal practice at a boutique municipal law firm in the Kansas City metro area. I can serve your community as its general counsel (City Attorney) or as special counsel for technical issues like economic development incentive approvals, annexation, elections, impeachments, and appellate work. My goal through, is to meld my previous experience together to provide a high-quality, big firm work product, while providing the flexibility, personal responsiveness, and cost effectiveness of a small firm. I completely understand public entities needs to obtain the most effective representation possible while considering the fact that these services are compensated from a budget made up of public funds. As the motto for, states: I am proud to serve those who serve others. My sincere desire is to make that job easier and less stressful for the elected officials and administrative staffs of these entities. The choice of a lawyer is an important decision and should not be based solely on advertisements. This disclosure is required by rule of the Missouri Supreme Court.