Ethics for Public Entities

Transcription

1 17 th Annual Water Quality Management & Planning Conference Ethics for Public Entities Presented by: David Méndez May 19-23, 2015 South Padre Island, Texas All images from 2015 Microsoft Bing Images

2 Conflict of Interest --a conflict between the private interests and official responsibilities of a person in a position of trust You work as a public servant -- You serve in challenging times People are skeptical of government: Where there s smoke... Goal: Be right on the law, right on the ethics, and avoid even the appearance of impropriety LET HONOR BE YOUR GUIDING STAR...

3 Ch. 176, Texas Local Government Code Conflict Disclosure Statute --With Criminal Penalty GOVERNMENT OFFICER must file disclosure statement IF: Government entity has: contracted with VENDOR ; or is considering doing business with VENDOR; AND VENDOR has employment or other business relationship with the local GOVERNMENT OFFICER (or family member) that results in the officer or family member receiving taxable income (other than investment income ) that exceeds $2,500 during the 12 months preceding the date the officer becomes aware of contract consideration; OR VENDOR has given officer or family member gifts that have an aggregate value of more than $250 in the 12 months preceding the date the officer becomes aware of contract consideration.

4 Ch. 176, Texas Local Government Code Procedural Requirements & Criminal Penalty Officer Conflicts Disclosure Statement -- See Texas Ethics Commission Website Filing Deadline -- 7 Business Days from Awareness File with Records Administrator Vendor Disclosure Statement -- Different Form & Rules Mandatory Website Access to Filed Disclosure Statements Criminal Penalty -- Class C Misdemeanor Note: Removal from Office for Official Misconduct

5 Ch. 171, Texas Local Government Code -Conflict Disclosure Statute - With Increased Criminal Penalty Three Questions for Analysis: 1. Is a vote or decision pending before a local governmental entity which involves a business entity or real property? 2. If so, does a local public official of that entity have a substantial interest in the business entity or real property? 3. If so, will action on the matter have a special economic effect on the business entity -- or on the value of the real property -- that is distinguishable from the public effect? If Yes = Conflict Established + Affidavit and Abstention Required

6 Substantial Interest A board member has a substantial interest in a business entity if the member or a relative with the first degree of consanguinity or affinity owns 10% or more of the voting stock or shares of the business entity, owns either 10% or more or $15,000 or more of the fair market value of the business entity, or received over 10% of his or her gross income for the previous year from the business entity.

7 Substantial Interest A board member has a substantial interest in real property if his or her interest or that of a relative within the first degree of consanguinity or affinity has an equitable or legal ownership with a fair market value of $2,500 or more in real property.

8 Ch. 171, Texas Local Government Code Procedural Requirements & Criminal/Removal Penalties Special Disclosure Affidavit Required -- See TXOAG Form Affidavit Filing -- Prior to Discussion/Action on Matter Filed with Official Record Keeper Abstention Rule = No Discussion, Vote, or Action on Matter Special Rules: Filings by Other Members Budget Votes Members Who are Practicing Attorneys Criminal Penalty -- Class A Misdemeanor (Note: Surety Rules) Note: Removal from Office for Official Misconduct

9 Bribery and Corrupt Influence A public servant may not intentionally or knowingly confer or accept a benefit as consideration for the person s decision, opinion, recommendation, or vote or for violation of a duty imposed by law. Bribery is a second degree felony.

10 Honorariums & Other Gifts A public servant may not accept an honorarium in consideration for services that he or she would not have been requested to provide but for the person s official position or duties. A public servant may not accept any benefit from a person that the public servant knows is interested or likely to become interested in any contract, purchase, payment, claim, or transaction involving the exercise that of the public servant s discretion. Violation of these laws is a Class A Misdemeanor.

11 What is a Benefit? For bribery purposes, a benefit is any thing of value regardless of how nominal the value is. For purposes of the Penal Code provisions prohibiting the acceptance of honorariums or gifts, the following items are not considered to be a benefit :

12 What is a Benefit? gifts under $50 in value (excluding cash or a negotiable instrument); transportation and lodging expenses in connection with a conference or similar event where the public servant renders services that are more than merely perfunctory such as addressing an audience or meals at such events; gifts conferred on account of kinship or a personal, professional, or business relationship independent of the official status of the public servant; political contributions.

13 Falsification of Public Records Penal Code Section prohibits the following activities: knowingly making a false entry or false alteration of a government record; making or presenting a document with knowledge of its falsity and with intent that it be taken as a genuine governmental record; intentionally destroying, concealing or removing a government record;

14 Falsification of Public Records Penal Code Section prohibits the following activities: possessing, selling, or offering to sell a record or blank form with intent to use it unlawfully; making, presenting, or using a government record with knowledge of its falsity; or possessing, selling or offering to sell a record or blank form with knowledge that it was obtained unlawfully.

15 Misuse of Official Information Section of the Texas Penal Code provides: (a) A public servant commits an offense if, in reliance on information to which he has access by virtue of his office or employment and that has not been made public, he: (1) acquires or aids another to acquire a pecuniary [or monetary] interest in any property, transaction, or enterprise that may be affected by the information; (2) speculates or aids another to speculate on the basis of the information; or (3) as a public servant, including as a principal of a school, coerces another into suppressing or failing to report that information to a law enforcement agency.

16 Misuse of Official Information Section of the Texas Penal Code provides: (b) A public servant commits an offense if with intent to obtain a benefit or with intent to harm or defraud another, he discloses or uses information for a nongovernmental purpose that: (1) he has access to by means of his office or employment; and (2) has not been made public. Violation of this law is a Third Degree Felony.

17 Abuse of Official Capacity Under section of the Penal Code, a public official may not intentionally or knowingly, with intent to obtain a benefit, or to harm or defraud another, violate a law relating to the official s office or misuse government property, services, personnel or any other thing of value belonging to the government that has come into the official s possession by virtue of the official s office. Violation of this law is a Class A Misdemeanor.

18 Official Oppression A public servant commits an offense by acting under color of the official s office to intentionally impede another in the exercise or enjoyment of rights, privileges, or immunities; or by acting to intentionally subject another to sexual harassment including unwelcome sexual advances, submission to which is made a term or condition of a person s exercise or enjoyment of any right, privilege, or power, either explicitly or implicitly. Violation of this law is a Class A misdemeanor.

19 Procurement Laws Statutory Regulatory District Policy Procedures Practice

20 Procurement Laws - Statutory Review of Texas Water Code Sections Construction and related issues.

21 Procurement Laws - Regulatory Overview of Texas Water Development Board Program Requirements.

22 Nepotism and Other Ethics and Conflict of Interest Laws

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24 Nepotism Nepotism is the granting of employment and appointments on the basis of kinship rather than merit. Nepotism is prohibited by state law, Chapter 573 of the Texas Government Code.

25 Nepotism The nepotism statutes prohibit you from appointing, confirming the appointment of, or voting on the appointment of a close relative to a paid public position A close relative is one within the third degree by consanguinity (blood) or within the second degree by affinity (marriage).

26 AFFINITY KINSHIP (MARRIAGE) RELATIONSHIPS Father-in-Law Mother-in-Law Son-in-Law Daughter-in-Law Spouse 1 ST DEGREE 2 ND DEGREE Spouse s Grandfather Spouse s Grandmother Spouse s Brother (Brother-in- Law) Spouse s Sister (Sister-in-Law) Spouse s Grandson Spouse s Granddaughter Brother s Spouse (Sister-in-Law) Sister s Spouse (Brother-in-Law) Tables adapted from Water District Update, Issue No. 6, February 2001, a publication of TCEQ.

27 CONSANGUINITY (BLOOD) RELATIONSHIPS 1 ST DEGREE 2 ND DEGREE 3 RD DEGREE Father Grandfather Great-Grandfather Mother Grandmother Great-Grandmother Son Brother Nephew Daughter Sister Niece Grandson Granddaughter Great-Grandson Great-Granddaughter Tables adapted from Water District Update, Issue No. 6, February 2001, a publication of TCEQ.

28 Stay Off the Tracks Practice Cautious Risk Management Anticipate Potential Conflicts of Interest Learn & Follow Conflict Disclosure Statutes (Chs. 171, 176 TEX. LOC. GOV T CODE) Work Hard to: Be Right on the Law Be Right on the Ethics Avoid Even the Appearance of Impropriety LET HONOR BE YOUR GUIDING STAR...

29 29 David Méndez Tel: David practices in the areas of public law, elections, public finance, and school law. He represents public entities, including municipalities, counties, school districts, higher education institutions, and special districts in public finance, elections, water and open meetings and open government issues S. MoPac Expressway, Building One, Suite 300, Austin, TX

30 17 th Annual Water Quality Management & Planning Conference Ethics for Public Entities Presented by: David Méndez May 19-23, 2015 South Padre Island, Texas All images from 2015 Microsoft Bing Images