Ethics in government

1. Ethics in government So you’re saying I can’t hire my brother?

2. What Are Ethical Values? • Ethics are standards by which one should act, based on core values. • Core values motivate actions and attitudes, • Relate to what is right and wrong, and • Demand that our actions not only comply with the law, but promote public confidence.

3. Ethics – policy and purpose (I.C. § 74-402) • “Protect the integrity of government throughout the State of Idaho . . .” • “Assure independence, impartiality and honesty of public officials . . .” • “Inform citizens of the existence of personal interests which may present a conflict of interest . . .” • “Prevent public office from being used for personal gain . . .” • “Prevent special interests from unduly influencing . . .” • “Assure that government functions . . . reflect . . . the public interest.”

4. The Law in Idaho • Three primary statutes governing ethics in government: • Bribery and Corruptions Act (Title 18, Chapter 13, Idaho Code), • Prohibition Against Contracts with Officers Act (Title 74, Chapter 5, Idaho Code), and • Ethics in Government Act (Title 74, Chapter 4, Idaho Code).

5. Your Desk reference: Idaho Ethics in Government Manual https://www.ag.idaho.gov/content/uploads/2018/04/EthicsInGovernment.pdf

6. Ethics in Government Act • Title 74, Chapter 4, Idaho Code: • Applicable to all public officials, including county elected officials • Basic Rule #1: CYA (consult your attorney) • Basic Rule #2: DISCLOSE on the record (minutes)

7. What is a conflict of interest? • Tension between public responsibility vs. personal or private interests (including family, business and employment relationships). I.C. § 74-403(4) • Legal standards almost always involve money – directly or indirectly.

8. Practical considerations • Friendship • Social relationships (clubs, organizations, etc.) • Speculative gain

9. Bribery & Corruption Act • Title 18, Chapter 13, Idaho Code (Criminal): • Prohibited acts include: • Bribery, threats, and improper influence; • Compensation or retaliation for past actions; • Compensating public servants; • Buying or selling political endorsement or influence; • Using county funds or property for economic benefit without specific authorization from the county; and • Using or disclosing confidential information for economic benefit. • Not a valid defense: Not in office yet, or lacked jurisdiction.

10. Ethical issues can be criminal • Forbidden acts or omissions (misdemeanors unless otherwise specified): • Bribery is a felony (§18-1352) • Compensation for public action or duties – can be past or future actions §18-1352 and §18-1354 • Using threats or “private influence” (ex-parte?) to spur public action – no excuse if not yet in office - §18-1353 – felony if involving a judicial or administrative proceeding • Gifts from persons subject to regulation – broad limitation for law enforcement, commissioners - §18-1356 • Gifts exceeding $50 or involving substantial risk of undermining impartiality

11. Lets talk about gifts! Public officials shouldn’t accept gifts EXCEPT (Section 18-1356, Idaho Code): • If it is a fee prescribed by law or any other benefit for which he is otherwise legally entitled • Gifts from family, friends or business acquaintances • Gifts or benefits not to exceed a value of fifty dollars ($50.00)

12. Using public position for personal gain (Idaho Code §18-1359 ) • Without permission, use public funds or property for personal benefit – Be wary of granting that permission • Solicit benefits in exchange for any public action • Use or disclose confidential information for personal gain or for gain by others • Be interested in a public contract where board decides (see I.C. § 74-501 also) • Appointment or knowing payment to ineligible relative of public official (more to follow) – criminal offense

13. Prohibition on contracts with officers • “Members of the legislature, state, county, city, district and precinct officers, must not be interested in any contract made by them in their official capacity, or by any body or board of which they are members.” (Section 74-501, Idaho Code)

14. Cannot contract with officers • Dates back to 1875 (pre-statehood). • Prohibition of contract or “interest” in contract. • Disclosed “remote interests” occasionally allowed as defined by I.C. 74-502(1)(a-d). • Cannot contract with any “body or board of which they are members.” • Cannot recuse yourself to avoid conflict (must resign office or by-pass contracting). • Exception for non-compensated public official on government board. (I.C. § 74-510)

15. Idaho Code § 18-1361 A public official or his/her relatives CAN contract with the board if: • Less than 3 suppliers of good or service within 15 mile radius; and • Submit a competitive bid and the low bid; and • Can’t take part in the bidding process (including preparing the contract and voting); and • Provides full disclosure in writing to board; and • Hasn’t violated any laws pertaining to competitive bidding.

16. Employing relatives • No public officials may: • Appoint or vote for the appointment of any person related to him by blood or marriage within the second degree, to any clerkship, office, position, employment or duty, when the salary, wages, pay or compensation of such appointee is to be paid out of public funds (Section 18-1359(1)(c), Idaho Code).

17. Employing Relatives • An employee of a governmental entity holding a position prior to the election of a local government official, who is related within the second degree, shall be entitled to retain his or her position and receive general pay increases, step increases, cost of living increases, and/or other across the board increases in salary or merit increases, benefits and bonuses or promotions (Section 18-1359(5)).

18. Misuse of public Funds • The Obvious: • Embezzlement • The Blind Spots: • Use of county credit cards for personal expenses • Asking for trouble • Use of county gas cards for personal vehicles • Overstatement of expenses • Taking a per diem for conferences that include meals with registration • Requesting personal reimbursement for use of county vehicle

19. From the Headlines

20. Punishment for misuse of funds • Section 18-5702, Idaho Code • Stealing less than $300: • Not in charge of money -$1000 fine 1yr in jail. • In charge of money – felony, $5000 and 5yrs. • More than $300: • Felony punishable by a fine up to $10,000, or by imprisonment in the state prison for not less than one (1) year nor more than fourteen (14) years, or by both. • And repay including retirement!

21. Planning and Zoning conflicts OF INTEREST • Participation forbidden if economic conflict of interest (actual or potential). • Disclosure of conflicts is mandated at onset. • Participation means serving as a decision maker or taking part in deliberations. • Board members can speak as citizens as long as they do not participate. • Knowing violation is misdemeanor crime • Section 67-6506, Idaho Code

22. More P&Z Conflicts of Interest • Consult with prosecuting attorney. • It is not considered good faith if you consult only with a personal attorney. • CAUTION: ex-parte contact could violate Section 18-1353, Idaho Code.

23. Other Potential Ethical blind spots • Failure to disclose and step down when a conflict exists • Inappropriate relationships with employees/coworkers/inmates • Not following bidding and procurement law • Open meetings vs executive session • "Meeting" means the convening of a governing body of a public agency to make a decision or to deliberate toward a decision on any matter. I.C. §74-202(6). • “Executive Session” I.C. § 74-206(1)(a-j) • Release of public records without authority • Harassment

24. General penalties and Consequences • For conflicts – fines of varying amounts ($500 to $1000) • Contract can be voided • Benefits received can be forfeited – past wages, etc. • Office or employment may have to be forfeited • Major disruption in agency

25. Other potential costs • Attorneys fees • Defense costs • Loss of work • Loss of prestige • Loss of position • Loss of the public trust

26. The law centers on relatives and money. Fairness of public processes often turn on friendships and social relationships. Avoid taking action if you have an overwhelming personal like or dislike of interested party. Beyond conflicts of interest is bias (relevant in quasi-judicial decisions). Will the person subject to government action get a “fair shake”? If in doubt, sit it out. Cast no shadows. GUT CHECK - Beyond Legal Requirements

27. The time is always right to do what is right. - Martin Luther King Jr.

28. How do Ethics Problems Happen? • Information Problems • Reasoning Problems • Loyalty Problems

29. Information Problems • Didn’t know the policy or rule • Sector confusion • Believed they had implicit permission

30. Reasoning Problems • Ends justify the means • “Working around” bothersome rules or laws to get a good thing done. • Justifications • “We don’t get paid enough.” • “That’s how we’ve always done it.”

31. Loyalty Problems • When more than one right thing is involved

32. Integrity is doing the right Thing even when no one is watching.- C.S. lewis

33. When in doubt, ask your prosecutor. When in doubt, don’t accept gifts. If you have even the slightest questions about accepting a benefit - don’t. Pay your own way and decline the benefit. Remember that if you guess wrong it is a crime. It just isn’t worth the risk. Even if you don’t get charged with a crime it will wind up being embarrassing and perhaps even a political liability for you. Pointers

34. As hard as it may be, get all contacts in zoning matters on the record. Until we find out how our Supreme Court will deal with the ex parte contact issue in conjunction with the Bribery and Corrupt Influence Act, you run significant risk. Lead by example. Set the tone for your county. Hold yourself and your employees accountable. Pointers

35. When in doubt, disclose your ethical concerns and refrain from participation in the decision or discussion. If it smells bad, it probably is. Foster an environment where your employees go beyond asking “is it legal?” Train employees on the law and the expectations of the county. Pointers

36. Could vs. Should • When making an ethical decision, ask yourself two questions: • Do the ethics rules permit me to take a proposed action? Could I? • If so, should Itake the action? Would my action create an appearance that I am less than fair and impartial or cause a reasonable person to question the integrity of the operations of my county?

37. When in Doubt… Ask your Prosecuting Attorney!

38. No responsibility of government is more fundamental than the responsibility of maintaining the highest standard of ethical behavior for those who conduct the public business. - John F. Kennedy