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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)
Marion County Clerk Beth White12/01/09 Legal & Ethics Conference
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
Marion County Clerk Beth White12/01/09 Legal & Ethics Conference
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
Marion County Clerk Beth White12/01/09 Legal & Ethics Conference
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
Marion County Clerk Beth White12/01/09 Legal & Ethics Conference
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
Marion County Clerk Beth White12/01/09 Legal & Ethics Conference
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
Marion County Clerk Beth White12/01/09 Legal & Ethics Conference
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
Marion County Clerk Beth White12/01/09 Legal & Ethics Conference
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
Marion County Clerk Beth White12/01/09 Legal & Ethics Conference
Serve the Voters
Marion County Clerk Beth White12/01/09 Legal & Ethics Conference
Serve the Voters
• Neighborhood Based Voting
Marion County Warren Township Ward 28; Precinct 9
Marion County Clerk Beth White12/01/09 Legal & Ethics Conference
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
Legal & Ethics ConferenceDecember 1, 2009
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
“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
“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
Access to Public Records Act
“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
Access to Public Records Act
“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
Access to Public Records Act
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
Access to Public Records Act
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
Access to Public Records Act
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
Access to Public Records Act
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
Access to Public Records Act
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
Access to Public Records Act
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
Access to Public Records Act
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
Access to Public Records Act
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
Access to Public Records Act
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
Access to Public Records Act
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
Access to Public Records Act
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
Access to Public Records Act
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
Access to Public Records Act
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
Access to Public Records Act
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
Access to Public Records Act
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.
2009
Judicial Reform
Chief Judge John BakerIndiana Court of Appeals
2009
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
STATE AND LOCAL HATCH ACT: COVERAGE5 U.S.C. §§ 1501
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
STATE AND LOCAL HATCH ACT: COVERAGE5 U.S.C. §§ 1501
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
STATE AND LOCAL HATCH ACT: COVERAGE5 U.S.C. §§ 1501
PRINCIPAL EMPLOYMENT MUST BE IN
CONNECTION WITH ACTIVITY FINANCED
BY FEDERAL LOAN OR GRANT
04/21/23 101
STATE AND LOCAL HATCH ACT: COVERAGE5 U.S.C. §§ 1501
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
STATE AND LOCAL HATCH ACT: COVERAGE5 U.S.C. §§ 1501
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
STATE AND LOCAL HATCH ACT: COVERAGE5 U.S.C. §§ 1501
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
STATE AND LOCAL HATCH ACT: COVERAGE5 U.S.C. §§ 1501
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
STATE AND LOCAL HATCH ACT: COVERAGE5 U.S.C. §§ 1501
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
STATE AND LOCAL HATCH ACT: COVERAGE5 U.S.C. §§ 1501
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
STATE AND LOCAL HATCH ACT: COVERAGE5 U.S.C. §§ 1501
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
STATE AND LOCAL HATCH ACT: COVERAGE5 U.S.C. §§ 1501
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)
04/21/23 111
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
04/21/23 113
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
04/21/23 114
HATCH ACT DON’Ts5 U.S.C. § 1502(a)(1); 5 C.F.R. PART 151
COVERED EMPLOYEES MAY NOT —
USE OFFICIAL AUTHORITY OR INFLUENCE TO INTERFERE WITH AN ELECTION
Use of official titleCoercion of subordinatesSolicit the uncompensated volunteer services of
subordinatesE-mail
04/21/23 115
HATCH ACT DON’Ts5 U.S.C. § 1502(a)(2); 5 C.F.R. PART 151
COVERED EMPLOYEES MAY NOT —
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.
04/21/23 116
HATCH ACT DON’Ts5 U.S.C. § 1502(a)(3); 5 C.F.R. PART 151
COVERED EMPLOYEES MAY NOT —
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)
04/21/23 117
HATCH ACT DON’Ts5 U.S.C. § 1502(a)(3); 5 C.F.R. PART 151
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)
04/21/23 118
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
04/21/23 119
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
04/21/23 120
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.
04/21/23 121
THE OFFICE OF SPECIAL COUNSEL’S ROLE& THE STATE AND LOCAL HATCH ACT5 U.S.C. § 1504
04/21/23 122
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
04/21/23 123
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.
PENALTIES FOR VIOLATION(STATE AND LOCAL HATCH ACT)5 U.S.C. § 1506
04/21/23 124
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
PENALTIES FOR VIOLATION(STATE AND LOCAL HATCH ACT)5 U.S.C. § 1506
DEBARMENT
INDIVIDUAL ORDERED REMOVED CANNOT BE HIRED
BY ANY OTHER STATE OR LOCAL AGENCY WITHIN
THE SAME STATE FOR A PERIOD OF 18 MONTHS
04/21/23 125
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
2009
Ethics: A Federal and State Perspective
Mark EversonIndiana Department of Administration
Legal & Ethics ConferenceDecember 1, 2009
Ed CharbonneauState Senator
Legal & Ethics ConferenceSen. Ed Charbonneau
Early Ethics Lesson
Legal & Ethics ConferenceSen. Ed Charbonneau
• Perspective– Business– Local Government Academy– Economic Development– Health Care– Lobbyist– Ethics Commission– State Senator
Legal & Ethics ConferenceSen. Ed Charbonneau
• 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
Legal & Ethics ConferenceSen. Ed Charbonneau
“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
Legal & Ethics ConferenceSen. Ed Charbonneau
• 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
Legal & Ethics ConferenceSen. Ed Charbonneau
•Issues–Conflict of Interest–Gifts–Nepotism–That Free Lunch–Inappropriate Use of Position–Dishonesty
Legal & Ethics ConferenceSen. Ed Charbonneau
•Conflict of Interest–Doctor Admitting Patients–City Employee on City Council
–Revolving Door–Part-Time Legislature
Legal & Ethics ConferenceSen. Ed Charbonneau
•Gifts–Teacher–Cop in the Donut Shop–$75 Cash
Legal & Ethics ConferenceSen. Ed Charbonneau
•Nepotism–Fire Department–City of Anderson
Legal & Ethics ConferenceSen. Ed Charbonneau
•That Free Lunch–Pharmaceutical Companies
–Engineering Firms–Lobbyists
Legal & Ethics ConferenceSen. Ed Charbonneau
•Inappropriate Use of Position–Emergency Room–Line in the permitting office
–Letter from Mayor’s office
Legal & Ethics ConferenceSen. Ed Charbonneau
•Dishonesty–Splitting Contracts–Performance Reviews–Letters of Reference–Copy Machine–Using computer to run second job–Taking “stuff” home from work
Legal & Ethics ConferenceSen. Ed Charbonneau
PEOPLE
Legal & Ethics ConferenceSen. Ed Charbonneau
ORGANIZATION
Legal & Ethics ConferenceSen. Ed Charbonneau
LEADERSHIP
Legal & Ethics ConferenceSen. Ed Charbonneau
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
Legal & Ethics ConferenceSen. Ed Charbonneau
•Why be ethical?–Professional Dimension–Moral Dimension–Personal Dimension
Legal & Ethics ConferenceSen. Ed Charbonneau
•Why be Ethical?–Risk Management Strategy–Good Business–More professional and efficient
–Improved Quality of Life
Legal & Ethics ConferenceSen. Ed Charbonneau
•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
Legal & Ethics ConferenceSen. Ed Charbonneau
•Training–Establish Expectations–Educate–Enforce
Legal & Ethics ConferenceSen. Ed Charbonneau
•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
Legal & Ethics ConferenceSen. Ed Charbonneau
•Final Thoughts–The Stakes Are Higher Than Violating an Ethics Code
Legal & Ethics ConferenceSen. Ed Charbonneau
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
Legal & Ethics ConferenceSen. Ed Charbonneau
Ethics is about being better.
2009