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Ethics

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  1. 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?

  2. “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?

  3. 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?

  4. 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

  5. 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.]

  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.]

  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,

  8. 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.

  9. 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.

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

  11. 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.”

  12. 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]

  13. 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.]

  14. 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.]

  15. 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.]

  16. 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.]

  17. NINE. Though shouldst not use thy position to further a political agenda that has nothing to do with your official duties.[20-1-4.]

  18. Political CampaignActivities

  19. 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

  20. Exception to OEC prohibition • Statements made • in performance of officer or employees “duties” • Or, as allowed by law (statute) • Restriction on exception • Statute does not trump OEC rule • Must be read to harmonize with rule

  21. 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

  22. Summary • Impossible to list all activities permitted • Or, not permitted • Use common sense in good faith • Consult with legal counsel • Legal counsel may want to engage OEC and/or AG

  23. The Oklahoma Open Meetings Act What You Should Know

  24. Who is covered? • All public bodies • Does not include • staff employees • purely advisory groups

  25. 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.

  26. Types of “Meetings” • Regular • Special • Emergency

  27. Regular Meetings • Dates are set in December for the following year • Must give 10 days notice prior to changing meeting date

  28. Special Meetings • Includes meetings such as COW or SPR • Requires 48 hours advance notice

  29. Emergency Meetings • Lawful only when life and/or property are threatened and threat was not reasonably foreseeable • Requires “reasonable” notice

  30. Time and place must be convenient to the public Meeting Places

  31. Committee Meetings Not covered unless committee has actual or de facto decision-making power

  32. Meeting Notices • Provide notice to the Secretary of State indicating time, date, space and place of meeting • Post meeting agenda 24 hours prior to meeting

  33. Agenda Requirements • List all items of business to be transacted, including discussion items and executive session items • Describe in plain language; use sentences • Identify as “action,” “possible action” or “discussion only”

  34. 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

  35. 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

  36. 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

  37. 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

  38. Coughing It Up Adventures in Open Records in the Electronic Age

  39. 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?

  40. 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?

  41. Who is covered? • All public bodies • Does not include • staff employees • purely advisory groups

  42. Includes all documents Papers Computer disks Emails Sound recordings Created by or in the possession Of officials or employees In connection with Transaction of public business Expenditure of public funds Administering of public property What Is a Record?

  43. 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

  44. 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.

  45. 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,

  46. If Public Record, Must Disclose ----- Unless • Exempt under the ORA • Exempt under other Oklahoma law • Exempt under federal law

  47. 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

  48. Other Oklahoma Laws • Over 140 statutes provide confidentiality • Many juvenile records (also school children) • Tax records • Retirement systems (individual records) • Licensing boards’ disciplinary proceedings