Ethical Dilemmas for Municipal Attorneys

Presented on behalf of

Presented by:

Joe Jarret

Attorney At Law

Rule 31 Civil Mediator

The Ethics Dilemma A 2016 study released by the nonprofit Ethics Resource Center, found that nearly 60 percent of

public employees had witnessed violations of ethical standards, policy or laws in their respective entities within the last year.

Observed misconduct included:

• Conflicts of interest;

• Abject bias for or against certain classes of citizens;

The Ethics Dilemma Observed misconduct included:

• Refusal to release or alterations of public documents;

• Patronage and undue political influences;

• Theft of proprietary information and property.

“Politics is an honorable undertaking and public service is among the

highest callings open to members of the human society.”

Ethics Laws Generally Violated

–Conflicts of interest

–Failure to follow Procurement and contracting policies

–Accepting inappropriate Gifts and travel

–Accepting unauthorized outside employment

–Nepotism

Ethics Laws Generally Violated

–Improper use of information not readily available to the public

–Inadequate financial disclosures

–Failure to disclose ex parte communications

–Violating Tennessee’s Pubic Records and Open Government Laws

Tennessee Ethics Reform Act • The Tennessee Ethics Commission was

therefore established by the general assembly to sustain the public's confidence in government by increasing government's integrity and transparency through the regulation of lobbying activities, financial disclosure requirements, and certain other specific types of activities that are within the statutory jurisdiction of the Ethics Commission and local government Ethics Committees.

2006 Extraordinary Session of the Tennessee General Assembly

Tennessee Ethics Reform Act, Cont.

• Not later than June 30, 2007, all Tennessee Counties were required to adopt by ordinance or resolution, as appropriate, ethical standards for all officials and employees of such county.

• Most of Tennessee’s 95 counties adopted the Uniform Policy created by the County Technical Advisory Service

• Note: Pursuant to an amendment to the Ethics Reform Act, School Boards must promulgate and adhere to a Code of Ethics adopted by the Board of Education of the School District: §8-17-102 T.C.A.

Ethics Myths

--Tennessee’s counties are required to have an ethics committee!

--FACT: Tennessee’s Comprehensive Governmental Ethics Reform Act of 2006 does not require a county to have an ethics committee, merely an ethics policy.

Ethics Myths

--A county ethics committee must investigate all allegations of wrongdoing alleged by complainants.

--FACT: an ethics complaint received by a county ethics committee that does not address either the acceptance and/or disclosure of a gift or a conflict of interest need not be pursued by the ethics committee. TN AG.

Ethical Challenges Unique to the Public Sector Practice of Law

• Under various legal provisions, including constitutional, statutory, and common law, the responsibilities of government lawyers may differ from those of lawyers in private client-lawyer relationships. Tennessee Supreme Court Rule 8, Scope (4).

• Certain government lawyers may be authorized to represent several government agencies, officers, or employees in legal controversies in circumstances where a private lawyer could not represent multiple private clients. Id.

Ethical Challenges Unique to the Public Sector Practice of Law, Cont.

• Tennessee public sector attorneys may have authority to represent the “public interest” in circumstances where a private lawyer would not be authorized to do so.

• The resolution of any conflict between these Rules and the responsibilities or authority of government lawyers under any such legal provisions is a question of law beyond the scope of these rules. Tennessee Supreme Court Rule 8, Preamble, Scope (4).

Ethical Challenges Unique to the Public Sector Practice of Law, Cont.

-Every oral or written utterance made by a public sector attorney, with few exceptions, is subject to media and public scrutiny and discourse (T.C.A. § 10-7-505 (d));

-It is not uncommon for legal decisions to become politicized;

Ethical Challenges Unique to the Public Sector Practice of Law, Cont.

-It is not unusual for the local government attorney to be pitted against persons employed by her or his own entity, such as in cases involving employment or workers’ compensation issues;

-Not every body politic is a collegial board;

-The local government attorney cannot pick and choose his or her clients.

Rule 1.13

Organizational Clients

(a)A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

Comment [6], Government Agency

• When the client is an organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful official act is prevented or rectified, for public business is involved.

Rule 1.13

Organizational Clients, Cont.

• In a matter involving the conduct of government officials, a government lawyer may have authority to question such conduct more extensively than that of a lawyer for a private organization

in similar circumstances. This Rule does not limit that authority.

Comment [6], Government Agency

The Ethical Government Attorney in Times of Disaster

State of Tennessee, Emergency Preparedness

Legislative Intent, Cont.

-- Because of the existing and continuing possibility of the occurrence of emergencies and disasters resulting from natural, technological, or manmade causes, including acts of terrorism and the recovery therefrom, it is hereby found and declared to be necessary to suspend or relax those rules and regulations regarding public sector purchasing of goods & services and the hiring of necessary personnel. Tenn. Code Ann. § 58-2-107

Power and authority of political subdivisions to waive certain Purchasing and related procedures and formalities otherwise

required by law

-- Performance of public work and taking action necessary to ensure the health, safety, and welfare of the community;

--Entering into contracts;

--Incurring obligations;

--Employment of permanent and temporary workers;

--Utilization of volunteer workers;

-- Rental of equipment;

--Acquisition and distribution, with or without compensation, of supplies, materials, and facilities; and

-- Appropriation and expenditure of public funds.

Martial Law

• Governor can declare Martial Law which serves to effect:

• The regulation and closing of places of amusement and assembly;

• The prohibition of the sale and distribution of alcoholic beverages;

• The prohibition and control of the presence of persons on public streets;

• The regulation and control of the possession, storage, display, sale, transport and use of firearms Tenn. Code Ann. § 58-2-107

Ethical Minefields

Some Common, subjective duties of government that can pose ethical challenges include;

• Beer/alcohol boards/licensure;

• Building permits;

• Purchasing/contract awards;

• Zoning/land use districts

• Code enforcement;

• Employee discipline;

• Sexually Oriented Businesses

• Other locally issued licenses

Tennessee Beer Boards

• Title 57 Intoxicating Liquors:

• Part 2 Licenses and Fees

• Tenn. Code Ann. § 57-3-210 (2013), restrictions on license holders -- Employees -- Penalties.

• (c) No wholesaler or retailer shall be a person who has been convicted of a felony involving moral turpitude, within ten (10) years prior to the time the person or the concern with which the person is connected shall receive a license

Public Meetings

Whistler-blower Protection • Presently, the Federal Government, Tennessee

State Government and multiple county and city entities afford employees whistleblower protection. Most policies provide:

• (b) No Official, Employee or Appointee shall use or threaten to use any official authority or influence to discourage, restrain or interfere with any other person for the purpose of preventing such person from acting in good faith to report or otherwise bring to the attention of the Ethics Committee information relating to an ethics violation or investigation.

A public official with knowledge based upon

available information that reasonably causes the

public official to believe that a theft, forgery,

credit card fraud, or any other act of unlawful

taking of public money, property, or services has

occurred shall report the information in a

reasonable amount of time to the office of the

comptroller of the treasury.

Tenn. Code Ann. § 8-4-119

Local Government Instances

of Fraud Reporting Act

Presumption of

Public Officials’ Good Faith

• Under Tennessee law, there is a rebuttable presumption that public officials perform their duty with honesty and integrity, and in the manner prescribed by law, and the party claiming bias has the burden of proof.

• Cunningham v. City of Chattanooga 2009 WL 2922789, *2 (Tenn.Ct.App.,2009)

Unavoidable Ethical Dilemmas of Newly

Elected Local Officials

• Can they show favoritism to supporters?

• Should they vote against those who worked against them?

• Should they appoint their political friends and supporters to boards, etc.?

• In the absence of an anti-nepotism rule/ordinance, should they hire family members?

Unavoidable Ethical Dilemmas of Newly Elected Local Officials, Cont.

What are their personal conflicts of interest?

--Employment?

--Family and personal relationships?

--Community involvements?

--Personal relationships?

--Partisan affiliations?

Unavoidable Ethical Dilemmas of Newly

Elected Local Officials, Cont.

• From what boards, councils, organizations, etc., should they resign?

• On what matters should they recuse themselves?

Honoraria T.C.A. § 2-10-116

• The acceptance of an honorarium by a public official in such person's capacity as a public official is prohibited. "Honorarium" means a payment of money or any thing of value for an appearance, speech or article, but does not include actual and necessary travel expenses, meals and lodging associated with such appearance, speech or article.

• Acceptance of an honorarium for an appearance, speech or article by a public official in such person's capacity as a private business person, professional or tradesperson is not prohibited.

PERMITTED GIFTS

& BENEFITS

• There are certain types of gifts and benefits listed in T.C.A. § 3-6-305(b) and (c) which are not prohibited.

• HOWEVER, most anything of value provided by a vendor to a county official for advice or assistance in influencing county legislative or administrative action, such as getting a contract with the county, is prohibited under the law.

PERMITTED GIFTS & BENEFITS, Cont.

• Unsolicited tokens or awards of appreciation, honorary degrees, or bona fide awards in recognition of public service in the form of a plaque, trophy, desk item, wall memento and similar items; provided, that any such item shall not be in a form which can be readily converted to cash. T.C.A. § 3-6-305(b)(5).

Consulting Services

• It is an offense for any member of a county legislative body, member-elect of a county legislative body, or other elected county official to knowingly receive a fee, commission or any other form of compensation for consulting services, other than compensation paid by the state, a county, or municipality. T.C.A. § 2-10-124(a).

Planning/Zoning/Land use Ethical Principles Overview

• The Government has an ethical duty to: • Serve the public interest • Provide notice of actions • Provide full, clear, and accurate information • Give citizens a meaningful opportunity to

participate • Be fair and unbiased • Conduct public business in the public • Disclose personal interests • Do not abuse the power of public office • Expand choice and opportunity

Board member’s duty

to Recuse in cases of Bias. • Individual board members are subject to disqualification for

bias if their impartiality can reasonably be questioned. To amount to grounds for disqualification, a board member's bias must take one of three forms:

• (1) personal interest bias (i.e., where the board members will either gain or lose fairly directly from the decision),

• (2) bias or prejudice against a party either as an individual or as a member of a group, and

• (3) bias stemming from the prejudgment of disputed fact issues that will prevent a board member from fairly and impartially weighing the evidence. Martin v. Sizemore, 78 S.W.3d 249, 266 (Tenn.Ct.App.2001) (citations omitted)

Board member’s duty

to Disclose Personal Involvement • The administrative record included several email exchanges

between one of the commissioners and the Commission’s staff prior to the hearing showing that the Commissioner had already reached conclusions about the applicant’s proof. The Commissioner’s involvement in the fact-finding, as well as his conclusions reached prior to the hearing, all without disclosure, “undermine[d] the fairness of the hearing.” These acts “would cause a reasonable person to question the Commission's impartiality.”

• Byron Ave. 3501, LLC v. Metro. Historic Zoning Comm'n of the Metro. Gov't of Nashville, 2011 WL 2112774 (Tenn. Ct. App. 2011), citing, Martin v. Sizemore, 78 S.W.3d 249 (Tenn.Ct.App.2001).

Ex Parte Communications

• Board members have a duty to avoid

having any one-on-one (“ex parte”) contact with applicants (or other interested parties) regarding cases before a Commission.

• Tenn. Op. Atty. Gen. No. 09-02 (Tenn.A.G.), 2009 WL 103689

Board Member’s Duty to Vote

Rather than Abstain • In Hoover, the Court of Appeals held that

[T]he board members acted illegally, arbitrarily, or fraudulently because they constructively denied the permit [through abstention] despite their beliefs that Hoover had fulfilled the zoning requirements....

• Hoover, Inc. v. Metro Bd. of Zoning Appeals, 924 S.W.2d 900, 906-07 (Tenn. Ct. App. 1996)

PLANNING COMMISSION CONDUCT & ETHICS

• The American Planning Association's "Statement of Ethical Principles for Planning" "establishes guidelines for ethical conduct to assure that those individuals whose decisions and actions have long-range consequences for later generations may merit the respect and confidence of other officials, public employees, professional planners, and the public."

Misuse of Official Information

T.C.A. § 39-16-404

Prohibits a public servant from

attaining a benefit or aiding another

person in attaining a benefit from

information which was obtained in an

official capacity and is not available to

the public.

Ethics & Third Parties

• Lobbyists

–Registration

–Reports about activities including expenditures

• Contractors

–Prohibitions against misrepresentations

–Disqualifications

National Association of Counties (NACO) Ethics Policy

• The ethical county official should:

• Properly administer the affairs of the county and promote decisions which only benefit the public interest.

• Keep safe all funds and other properties of the county.

• Conduct and perform the duties of the office diligently and promptly dispose of the business of the county.

• Faithfully & impartially comply with all laws and regulations applicable to the county.

National Association of Counties (NACO) Ethics Policy

• The ethical county official should not:

• Engage in outside interests that are not compatible with the impartial and objective performance of his or her duties.

• Improperly influence or attempt to influence other officials to act in his or her own benefit.

• Accept anything of value from any source which is offered to influence his or her action as a public official.

• Forget that his or her mission is that of servant and steward to the public.