Ethics

How does learning about ethics differ from learning about other stuff?

What ethical rules will provide infallible guidance for dealing with every situation?

What can you do to reduce risk in this area?

“Problems” in Ethics: Ethics as Values

“Legal” equals “ethical.” True or False? Don’t question my ethics.Your ethical standards are always subject to question.Which is more believable: spicy, simple stories or the dull, complicated truth?Where there’s smoke, there’s … (a) fire, or (b) a powerful enemy with a fancy smoke machine?

What Rules Work All the Time?

The Oklahoma Ethics Commission Rules?

Your own board’s ethics policy?

The Golden Rule?

The 9 ½ Commandments?

None of the above?

What can (and should) you do?

Refresh your knowledge of the legal rules

Revisit your own board’s policy periodically

Seek board consensus on values, perks, etc

Make early disclosure of potential conflicts

Know when to consult your lawyer

ONE. Thou art a Regent,

a Regent hath the Governor created you, a Regent only art thou, and thou shalt hold no other office but this one --- and a few other specified in law. [51 O.S., §6.]

TWO.Yearly thou shalt sacrifice

to the priesthood of the Oklahoma Ethics Commission some (but not very much) financial information about thyself. [74 O.S., Appendix, 257:15-1-7.]

THREE.Thou shalt not receive,

directly or indirectly, any interest, profit or perks, from the use of public monies in your hands.In other words, thou shalt not do business with the institutions thou govern. [Okla. Const., Art. X, §11] …. BUT,

THREE “A.” The OEC readeth not this part of the Constitution

The hand of the lawgiver slipp-est and the etching on the stone tablets blur-est. The Oklahoma Ethics Commission apparently readeth not this part of the Constitution. It sayeth that thou mayst do such business with your institutions if thou disclose fully your interest, on the record, and abstain from voting. That which is an abomination unto the Constitution is acceptable in the sight of the OEC. [20-1-10.] How can this be? Better not to guess.

The Attorney General issued an official opinion in December, 2004.

Article X, Section 11 controls over the Ethics Commission Rules, according to the Attorney General:

“Thus, although the rule of the Ethics Commission is more liberal, allowing relatively generous exceptions for public members of boards and commissions, we conclude that compliance with such ethics rules will not, and cannot, guarantee that an officer engaging in such conduct will not be subject to criminal sanction and disqualification to hold office under Article X, Section 11 of the Oklahoma Constitution. Conduct that avoids violation of the conflict of interest principles set out in Article X, Section 11 will also avoid violation of the Ethics Commission rules, but not vice versa. If a public member of a board engages in conduct allowed under the provisions of [the Ethics Commission Rules], he or she runs the risk of violating the more stringent constitutional prohibitions.

The Ethics Commission Rules cannot be read as granting an exception to the Article X, Section 11 prohibition.

Whether a public officer would be prosecuted for a conflict of interest under Article X, Section 11 rests in sound discretion of the district attorney with jurisdiction over the matter. Whether a particular offense is prosecuted as a crime under Article X, Section 11 is a matter of prosecutorial discretion.”

State officers, including regents, had come to rely on the guidance provided by the Ethics Commission The rules provided a little certainty in an otherwise uncertain area

Meeting with Attorney General’s office First Assistant Attorney General Tom Gruber

o Would expect local district attorney to use common sense, which would include a “de minimis” standard

State officers, including regents, had come to rely on the guidance provided by the Ethics Commission The rules provided a little certainty in an otherwise uncertain area

Meeting with Attorney General’s office First Assistant Attorney General Tom Gruber

• would expect local district attorney to use common sense, which would include a “de minimis” standard

• de minimis non curat lex – “The law does not take notice of very small or trifling matters.”

FOUR. It is not sufficient that thou art required to abstain from voting

on any matter in which thou hast a pecuniary interest.

Even greater purity is required. Thou must keep unto thyself and refrain from trying to influence those brethren and sistern who are allowed to vote on your deal. [20-1-8]

FIVE. Lawyers are especially accursed in the

sight of the Ethics Commission. It is easier for a camel to pass through the eye of a needle than it is for a lawyer to serve happily as a Regent. In addition to the afore-inscribed no-nos, (e.g., not doing business with thine institutions) lawyers shalt not even represent entities that do business with the institutions they governst. Lawyers, having eaten at the tree of law school, are further accursed with knowledge of all the subtleties embodied in the term “represent.” [20-1-6.]

SIX.Thou shall beware of geeks

bearing gifts. The rules on accepting gifts are fully understandable only to the rule-making gods. It were better for you to rend your garments and pour ashes over your head than to accept a gift prohibited by law. [20-1-9.]

SEVEN.Thou shalt not hire thine own

relatives to work for the institutions thou govern,

even though they may be more capable than someone else’s relatives. [21 O.S., §§481-7.]

EIGHT.Thou shalt not use thy

position to secure special treatment for thyself,

or for thy friends and family, by the institutions they govern. [20-1-4.]

NINE. Though shouldst not use thy position to further a political agenda that has nothing to do

with your official duties. [20-1-4.]

Political CampaignActivities

OEC Rules

Prohibits advocacy activities by state employees on behalf of candidate or ballot measure

Use of public funds, property, time

State resources may not be used to support the political activities of a Regent

Exception to OEC prohibition

Statements made in performance of officer or employees “duties”

Or, as allowed by law (statute)

Restriction on exceptionStatute does not trump OEC rule

Must be read to harmonize with rule

Penalties

OEC authorized by Constitution, Art. 29 §4(a) to

Establish civil fines.• Willful – up to $50K

• Inadvertent – up to $15K

Prosecute violations in state court

Statutory provision- misdeameanor criminal liability – 26 O.S., §16-119

Summary

Impossible to list all activities permittedOr, not permitted

Use common sense in good faith

Consult with legal counsel

Legal counsel may want to engage OEC and/or AG

The Oklahoma Open Meetings Act

What You Should Know

Who is covered?

All public bodies

Does not include staff employees purely advisory groups

What is a “meeting”?

A meeting occurs when a majority of a public

body are physically together “conducting public business” -- even if no action is planned or taken.

Types of “Meetings”

Regular

Special

Emergency

Regular Meetings

Dates are set in December for the following year

Must give 10 days notice prior to changing meeting date

Special Meetings

Includes meetings such as COW or SPRRequires 48 hours advance notice

Emergency Meetings

Lawful only when life and/or property are threatened and threat was not reasonably foreseeableRequires “reasonable” notice

Meeting Places

Time and place must be convenient to the public

Committee Meetings

Not covered unless committee has actual or de facto decision-making power

Meeting Notices

Provide notice to the Secretary of State indicating time, date, space and place of meetingPost meeting agenda 24 hours prior to meeting

Agenda Requirements

List all items of business to be transacted, including discussion items and executive session itemsDescribe in plain language; use sentencesIdentify as “action,” “possible action” or “discussion only”

Executive Sessions

For discussions about the employment status of an individual employee

For confidential communications with the public body’s attorney about a pending investigation, claim or lawsuit

Meeting Minutes

Written minutes must show, at a minimum, those members present and absent, all matters considered and all actions taken

Minutes of executive sessions are required but are not open records and thus may be segregated from public minutes

COW and SPR meetings are special meetings and are subject to this requirement

Potential Problem Areas

Polling for votes by telephone or otherwise

Sub-quorum committees having de facto decision-making power

Discussion only meetings

Social gatherings involving a majority of the members

Penalties for Violations

Actions taken in willful violation of the act are null and void.

Willful violations of the Act are misdemeanors punishable by a fine not to exceed $500 and/or imprisonment in the County jail not to exceed one year.“Willful” does not require intent to break the

law

Coughing It Up

Adventures in Open Records in the Electronic Age

What Are the Issues?

Volume of records: do we know what we have?

Multiple “publishers” internally: do we know what we have?

Unmediated access to web-based records

What is really confidential?

Analyzing ORA Questions

Are you a public body?

Is it a record?

Is it a public record?

Is it exempt under the ORA?

Is it exempt under Oklahoma law?

Does it fit the federal exemption?

Who is covered?

All public bodies

Does not include staff employees purely advisory groups

What Is a Record?Includes all documentsPapersComputer disksEmailsSound recordingsCreated by or in the possessionOf officials or employees

In connection with

Transaction of public business

Expenditure of public funds

Administering of public property

E-mail

ORA and Records Management Act both apply

Test for email same as other documents

Is saving hard copy always good enough?

How to redact the electronic version?

Protecting the integrity of records

From: Nat. Assoc. of Col. And Univ. Attorneys on behalf ofSent: Wed. 5/3/2006 6:04 PMTo: NACUANET@PEACH.EASE.LSOFT.COM

Have any private, non-medical institutions transitioned to an interpretation that tenure does not guarantee a specific or recurring level of salary or compensation for faculty?

Any policies or written materials relevant to this matter would be appreciated.

Date: Wed., 3 May 2006 18:42:27 -0070From:Subject: Re: Tenure and Guaranteed Salary

I’ve got to leave for my meeting now and won’t be back

till around 10:00 and you will be asleep. Good night,

baby. I miss you, but will see you soon. I wish I could

give you a nice long sensual kiss before you go to bed,

but I’ll save it for when I come out there. Isn’t it funny

how it worked out after all. Sleep well. All my love,

If Public Record, Must Disclose ----- Unless

Exempt under the ORA

Exempt under other Oklahoma law

Exempt under federal law

ORA Exemptions

Some privileged material (e.g., executive session, attorney client)

Some personnel records

Some law enforcement records

Some student records

Some proprietary material

Preliminary notes

Other Oklahoma Laws

Over 140 statutes provide confidentiality

Many juvenile records (also school children)

Tax records

Retirement systems (individual records)

Licensing boards’ disciplinary proceedings

The Federal Exemption

Records coming from federal government

OR

Gathered as a result of federal legislation

AND

Required by federal law to be kept confidential

Disclosure Is the Rule

Must disclose unless specific exemption applies

No individual right of privacy apart from specific exemptions to ORA

Government bears burden of proving exemption from disclosure

Does It Matter Who Asks? Or Why?

Normally, no BUT

Special recognition for news media

Also for citizens acting in public interest

BUT purely commercial requests subject to search fee

Note: special rules on personnel files

What If You Don’t Comply?

Criminal penalties: misdemeanor liability for willful violations ($500 and/or 1 year)

No liability for producing open records

Institution pays attorney’s fee for successful requester

No recovery for successful defender unless request was “clearly frivolous”

Student Records

ORA intended to mesh with FERPA

If differences, FERPA controls

Bottom line, confidentiality of individual student records maintained, except directory information

Scope of Public Access

General rule: records open for inspection, copying and/or mechanical reproductionCan/must segregate (redact) exempt material from otherwise open recordMust produce records within “reasonable” timeMust have someone available to decide what’s open

Personnel Records: What’s Confidential?

Internal personnel investigative materials

Examination and selection material

Records from lawful executive session

Payroll deductions

Employee evaluations

Applications of persons not hired

Home addresses, phone numbers, and SSNs

Personnel Records: What’s Open?

Everything else, including

Application of person hired

Gross receipt of public funds

Dates of employment, title (or position)

Result of final disciplinary action

Employee Records: Who May Inspect and Copy?

Current employees

Past employees (unclear but probably yes)

Authorized representatives of employees (document authority of representative)

Attorney-supervised Investigations

Investigative reports

Litigation files

Ties in with attorney-client privilege and work-product doctrines

Conclusion

Strong public policy for disclosure

The AG is usually pro-disclosure

If no exemption, think disclosure

If disclosure is optional, review reasons for non-disclosure

Ask question: why not disclose?

THE ETHICS OF OPENNESS

Challenges for Government Officials

and Their Lawyers

Common Dilemmas

Desire for private discussions on hot topics.Fear of media criticism if you get it “wrong” even if you’re “right” on the law. Fear of second guessing by AG.Everyone’s an expert on what’s open and/or ethical.

Ethical Issues (Lawyers)

Is technical compliance good enough?

How to resolve differences among “clients”

What client secrets are confidential?

Suppose client won’t comply?

See the Big Picture

For the OFFICIAL:Openness issues are:• Big picture.• Public perception.• Public policy.

Technical compliance with the law is not always enough.

See the Big Picture (Continued)

For the LAWYER:Openness issues are:• Big picture.• Public perception.• Public policy.

Avoid having your role limited to matters of purely technical compliance with the law.

Truth Telling

Officials: expect your lawyer to always give you candid legal advice.

Lawyers: always “call ‘em like you see ‘em.”

Know Who The Client Is

Officials: always remember who the client really is (it’s the agency you work for, not you) and understand where you fit in the overall picture.

Lawyers: always remember who the client really is (help constituents understand where they fit in the overall picture).

What Is Lawyerly Discretion?

Officials: try to raise delicate legal issues in private but always assume your lawyer’s advice will be made public.

Lawyers: always try to provide your advice in private; always assume your advice will be made public.

Where’s the Attorney General?

Officials: expect your lawyer to be familiar with the attorney general’s current advice on openness issues. (His/her view will always trump your lawyer’s.)Lawyers: try to stay in touch with the attorney general’s advice on openness issues. (His/her view will always trump yours).

You Have to Know the TerritoryOfficials: familiarize yourself with the openness practices of other, similar public bodies.

You Have to Know the Territory (Continued)

Lawyers: unless ethical considerations require you to do otherwise, avoid being the lone wildebeest on the Serengeti.

Criminal LiabilityOfficials: remember that there is potential criminal-liability card for violations of the openness laws. If you are in doubt about that, ask your lawyer.

Lawyers: don’t play the potential-criminal-liability card unless you really need it but don’t hesitate to play it (privately, if possible) if you must.

What Difference Does It Make?

Officials: if confidentiality isn’t mandated or otherwise justified, always ask yourself what the harm is in releasing a particular record

Lawyers: if confidentiality isn’t mandated or otherwise justified, always ask the client what the harm is in releasing a particular record

Be Prepared

Officials: always have your lawyer review a proposed meeting agenda well in advance of the meeting.

Lawyers: always review a proposed meeting agenda in advance of the meeting (in time to comment, constructively if possible).

Be Educated

Officials: ask your attorney for periodic briefings on current openness issues, especially in emerging areas.

Lawyers: look for, and exploit, opportunities to educate the client about openness issues, especially in emerging areas (e.g., email).

Duty of Confidentiality

Confidentiality is an ethical duty: the attorney is obligated not to reveal information given by the client in confidence for the purpose of obtaining or providing legal assistance.

Doesn’t apply to fraud or crime.

It’s the same duty for government and private lawyers.

Attorney-client Privilege

The privilege is a rule of evidence.

It belongs to the client.

It allows the client to refuse to disclose or to prevent the disclosure of communications facilitating the provision of legal services.

Some exceptions – fraud, etc

Attorney-client Privilege for Public Officers and Agencies

The privilege is limited to pending investigations or litigation.

“Ordinary” legal advice to public officials not covered by the privilege.

Privilege destroyed by communication to non-client third parties.

Advice: How Technical?

Is the client experienced in legal matters?A lawyer may refer not only to law but to other relevant considerations such as moral, economic, social and political factors.A lawyer shall exercise independent professional judgment and render candid advice.

Ethics: What-Me Worry?

Moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.

Is the “Customer” Always Right?

Normally, a lawyer is required to abide by a client’s decisions concerning the goals of representation.”

A government lawyer may have authority to question the client’s conduct more extensively than a lawyer for a private organization in similar circumstances.

What If the Client Wants to Do Something Wrong?

Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront.

A lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.

A client is entitled to straightforward advice expressing the lawyer’s honest assessment.

What Is the Lawyer’s Duty?If it’s a violation of law for the organization, and

Is likely to result in substantial injury to the organization,

The lawyer shall proceed in the best interest of the organization

Doing the Right ThingTo do the right thing you have to know the right thing: education.

Avoiding embarrassing mistakes requires thinking ahead: preparation.

Government lawyers should know their clients’ plans: communication.

The legal requirements should be viewed in the context of good public policy: wisdom.

Questions?