What Can I Keep? Gifts, Honoraria & Use of Office or Position

What Can I Do? Outside Employment, Political Activity & Conflicts of Interest

Can I Accept That?

Restrictions on Gifts, Honoraria and Use of Office or Position

Underlying Principle

• Public officials should not be receiving any significant economic benefit by virtue of their position beyond what is available to the general public.• Individuals, corporations or others cannot entice public officials with free goods or services.

Three Potential Issues

1. Use of Position or Office2. Restrictions on Gifts3. Restrictions on Honoraria

Use of Position or Office

• RULE: A public official may not use or attempt to use position or office for financial gain or avoidance of financial detriment if not otherwise available but for the public official's holding of the office or position. ORS 244.040(1).– Applies to public official, relative or member of

household of public official or business associated with public official, relative or member of household.

Specific Prohibitions• Job related resources: i.e. use of state phones, computers, copiers for non-

state business.• Business opportunities: i.e. use of state funded trip to promote personal

business opportunities.• Information: i.e. use of information obtained on the job not otherwise

available to the general public to gain financial advantage or avoid expense.• Avoidance of personal expense: i.e. waiver of expenses or membership fee

that would be incurred but for position as public official (but see possible exceptions to gifts).

• Gaining something of economic value: i.e. financial stipend offered with opportunity only due to state business.

• Creating new job opportunity: i.e. using contacts made on trip paid for by state resources to solicit new job opportunity.

Gift Restrictions

• RULE: There are restrictions on the value of gifts accepted by a public official if the source of the gift may have a legislative or administrative interest in decisions the public official makes when acting in the capacity of a public official.– Applies to public officials, relatives and members of

household of public official.

Definition of Gift

1. Something of economic value;2. Offered to public official, relative or member of household of public official;3. Without cost or at discount or as forgiven debt; and4. The same offer is not made or available to the general public who are not public officials.

Analysis – Step 1

1. Who is offering to pay? Do they have a possible administrative or legislative interest in an area of my portfolio?

- Must identify the source of final payment.- Sources may be private individuals, businesses, organizations or government agencies.- Does not include your own agency.- May be a co-worker of the same agency who has purchased an item with personal resources.

Legislative or Administrative Interest

• Legislative or administrative interest: means an economic interest, distinct from that of the general public, in any matter subject to decision or vote of the public official acting in an official capacity.

• Decision: A public official makes a decision when the public official exercises the authority given to the public official to commit the public body to a particular course of action. Making a recommendation or giving advice in an advisory capacity does not constitute a decision. OAR 199-005-0003(2).

Analysis – Step 2

2. If the source has a legislative or administrative interest in the decisions of a public official, the public official can only accept gifts from that source when the aggregate value of gifts from the source does not exceed $50 in a calendar year. If source has no legislative or administrative interest, you may accept.•But remember use of position or office issue.

Gift Exceptions

• Travel• Food• Entertainment

TravelTravel expenses are allowable under these circumstances:

1. Reasonable expenses paid as a representative of Government (for public official only), when the following three criteria have been met in ORS 244.020(6)(b)(F):a. Payment is from a unit of federal, state or local government, a Native American tribe, a membership organization to which a public body pays membership dues or a tax exempt not-for-profit 501c3;b. For attendance at a convention, fact-finding mission or trip, conference or other meeting; andc. Public official is scheduled to deliver a speech, make a presentation, participate on a panel or represent state government. 2. Reasonable travel or lodging expenses provided to public official (+ relative/MOH or staff), when public official is representing state government on an officially sanctioned trade-promotion or fact-finding mission; or in officially designated negotiations, or economic development activities, where receipt of expenses is approved in advance. ORS 244.020(6)(b)(H).

3. When provided by one public official to another public official for travel when the following three criteria have been met in ORS 244.020(6)(b)(K): a. Inside this state;b. To or from an event that bears a relationship to the receiving public official’s office;c. And at which the official participates in an official capacity.

FoodFood may be allowable under these circumstances:

1. Admission and cost of food or beverage consumed by public official (+ MOH or staff) at a reception, meal, meeting held by an organization when public official represents state government. ORS 244.020(6)(b)(E).

2. Reasonable food expenses provided to public official (+ relative/MOH or staff), when public official is representing state government on an officially sanctioned trade-promotion or fact-finding mission; or in officially designated negotiations, or economic development activities, where receipt of expenses is approved in advance. ORS 244.020(6)(b)(H).

3. When food/beverage is consumed in association with review or execution of financial documents including business agreement (for public official only). ORS 244.020(6)(b)(I).

4. When food/beverage is incidental (secondary or minor) to main purpose of reception and no cost is placed on food or beverage (for public official only). ORS 244.020(6)(b)(L).

Entertainment

Entertainment is only allowable under these circumstances:

1. When entertainment is incidental (secondary or minor) to main purpose of another event (ex: band performance as part of convention).

2. When public official is viewing and/or participating in the entertainment for ceremonial purpose with official role in the entertainment event (ex: throwing the first pitch).

Other Exceptions• Gifts from relatives or members of household of public official.

ORS 244.020(6)(b)(B).• Something of economic value offered to public official or

relative/member of household as part of usual and customary practice of the person’s private business or the person’s employment or position as a volunteer with a private business, organization or not-for-profit corporation and that bears no relationship to public official’s position or office. ORS 244.020(6)(b)(O).

• Waiver or discount of registration expenses or materials provided to public official at a continuing education event that the official may attend to satisfy professional licensing requirement. ORS 244.020(6)(b)(J).

Examples

• A member of the Legislature invites a State official to be their guest at a fundraiser dinner. The cost of the dinner is $125 per person and has already been paid for by the legislator. If the legislator has an administrative interest in the State official’s role, the State official cannot accept the gift because it is over $50. Some options to consider:– The policy advisor could pay for his or her own cost of the

dinner.– If the organization hosting the dinner offered to provide the

policy advisor a ticket, there may be an allowable gift exception that would allow the advisor to attend.

Examples

• A group of organizations and businesses propose to sponsor a reception for Governor's Office advisors. Can we accept?– It will depend on who is providing the funding- does it include an

organization or business that has an administrative interest in something the Governor's office does? It may be that some sponsoring organizations that are not permissible - for example any lobbying groups or groups that will apply for funding from the Governor's Office will be excluded from being able to contribute.

– Who is invited to the event? Is it open to the public or restricted?– Are there any allowable gift exceptions that apply?

Examples

• A corporation offers to pay the travel and expenses and a stipend of a State official to attend a conference.– Travel expenses are allowable only for: an officially

sanctioned trade-promotion or fact-finding mission; or in officially designated negotiations, or economic development activities, where receipt of expenses is approved in advance.

– Would be broader allowance if paying organization is a government agency or not-for-profit.

– Stipend above and beyond travel expenses is not allowable.

Examples

• A State official attends a work-related conference paid for by the state. When he checks into the hotel, he is offered a coupon for two free nights lodging in any hotel in the chain. – Because the state employee can make his own travel

arrangements, the hotel has an administrative interest in his future business.

– This would be a gift subject to the $50 annual limitation.– Be also aware of state policy restricting the receipt of

rewards or miles programs.

Examples

• A State official is offered complimentary membership at an exclusive club. – Even if the club does not have a legislative or

administrative interest, is this a benefit that is being offered only because he or she is a public official?

– If so, it may not be an allowable gift but it may be an improper use of state position.

Honoraria

• Prohibits solicitation and receipt, whether directly or indirectly, honoraria for official or member of household if it is solicited and received in connection with official duties of the official. ORS 244.042– Permits honoraria, certificate, plaque or token with

value $50 or less.– Permits honoraria for services performed in relation to

private profession, occupation, avocation, or expertise.

Can I Do That?

Restrictions on Outside Employment, Political Activity and Conflicts of Interest

Outside Employment Activities

• As a general matter, Oregon government ethics laws do not prohibit outside employment by a public official.

• However, there must be a clear separation between your public official role and your private endeavors.

Outside Employment Activities

• You may not accept opportunities that are only available “but for” your position as a public official. Davidson v. Oregon Government Ethics Commission, 300 Or 414, 712 P2d 87 (1985) (explaining Oregon’s broad policy of ethics laws as ensuring that government employees do not gain personal financial advantage through their access to the assets and other attributes of government).

Oregon Ethics Commission Guidelines for Outside Employment

• Private business cannot be conducted on state time.• State supplies, facilities, equipment, staff, records or

any other public resources may not be used to carry out private business activities.

• No official action toward a third party may be conditioned on a private business relationship.

• No confidential information learned in the course of public employment may be used for the benefit of private business activities.

• Conflict of interest procedures must be followed.

Political Activity is Prohibited

• The law prohibits unelected public officials, on the job during working hours, from promoting or opposing:– Any political committee (including political party or PAC)– The nomination or election of a candidate– The gathering of signatures on an initiative, referendum or recall

petition– The adoption of a measure– The recall of public office holder

The law does not restrict the right of a public employee to express personal political views. ORS 260.432 (2)

Can take vacation or do during own time.

Political Activity Cannot be Required

• The law prohibits any person, including an elected official, to require any public employee to engage in political activity.

• Cannot direct staff to engage in any conduct that may be political activity.

Prohibited Conduct Allowable Conduct

As Governor's office representative, cannot attend event that is sponsored by a political party, political candidate or PAC.

Can attend event as private citizen that is sponsored by a political party or PAC.

Cannot prepare or distribute written material, post website information, transmit emails or make presentation that advocates political position including for or against an initiative petition or a ballot initiative on state time or as Governor’s Office representative.

Can prepare and distribute impartial written material or make impartial presentation that discusses election subjects.

Cannot collect funds, prepare filing forms or correspondence on behalf of candidates for office or political committees on state time or as Governor’s Office representative.

Can perform standard job duties such as opening and forwarding mail and maintaining or responding to public records requests.

Cannot make calls to schedule or organize campaign events or other political activity on behalf of an elected official or political committee on state time or as Governor’s Office representative.

Can as staff of elected official, can handle incoming calls about official's availability for political events and routine scheduling.

Cannot grant unequal access to public facilities to candidates or political committees.

Can grant access to nonpolitical groups but on an equal basis.

Cannot direct subordinate employee to participate in or support political activities.

Any employee is free to participate in political activities on his or her own time, outside of work hours and without using public resources.

Conflicts of Interest

There are two types of conflicts: actual and potential.

Actual COI: any action or any decision or recommendation by a person acting in a capacity as a public official, the effect of which would be to the private pecuniary benefit of the person, person's relative or any business of which the person or person's relative is associated.

Potential COI: any action or decision or recommendation by a person acting in a capacity as a public official, the effect of which could be to the private pecuniary benefit of the person, person's relative or any business of which the person or person's relative is associated.

Conflicts of Interest

• A conflict does not arise unless and until a public official is participating in an official action, recommendation, or decision which would or could result in a financial benefit or detriment to the public official, a relative or business with which public official is associated.

Exceptions

• If COI arises from membership or interest held in a particular business, industry, occupation or other class and that membership is a prerequisite for holding the public official position.– Member of state licensing board decides license fee increase

• If financial impact of official action would impact the public official, relative or business to the same degree as other members of an identifiable group or class.– Governor signing bill that impacts all licensed doctors

• If COI arises from unpaid position as officer or membership in a nonprofit corporation.

Examples

• A State official who provides recommendations on legislation being pushed by another entity and the official is in the process of obtaining business opportunities with the entity pushing the legislation. – The State official will have a conflict of interest in

any legislation that is supported or opposed by this entity.

Examples

• A Governor’s Office employee serves on the board of a nonprofit that is lobbying for or against legislation. – If employee is on board as an unpaid volunteer,

there is no conflict of interest.– If employee is on board as a paid member, there is

a conflict of interest.

How to Remedy a COI

• When met with actual or potential COI, a public official should notify in writing the person who appointed the public official to office of the nature of the conflict and request the appointing authority to dispose of any matter giving rise to the conflict.

• The appointing authority shall designate an alternate to dispose of the matter or shall direct the official to dispose of the matter. This means the official must be removed from participating in any official action, decision, or recommendation which could or would result in a financial benefit or detriment.

Why should I care?

• The Oregon Government Ethics Commission has jurisdiction to receive, investigate and sanction violations of the Ethics laws.– Sanctions range from letters of reprimand to civil

penalties up to $5000 per violation and forfeitures.

– The liability is personal.

What is a public record?

• A “public record” means any information that:– (A) Is prepared, owned, used or retained by a state

agency or political subdivision;– (B) Relates to an activity, transaction or function of

a state agency or political subdivision; and– (C) Is necessary to satisfy the fiscal, legal,

administrative or historical policies, requirements or needs of the state agency or political subdivision.

What is a public record?

• Generally, all emails you send or receive, all documents you create or receive in the course of your job and all calendar entries and notes in Outlook will all be considered public records.

• Emails relating to state business sent to a personal/home email are still considered public records.

What do I need to keep?

• Generally, you will be required to maintain all records, electronic or hard copy, that relate to public business. The Governor’s Office has an email archival system that maintains your emails.

• Public records do not include multiple copies of records or messages on voice mail or on other telephone message storage and retrieval systems.

Why should I care?

• Tampering with public records is a crime! • ORS 162.305 provides that a person commits

the crime of tampering with public records “if, without lawful authority, the person knowingly destroys, mutilates, conceals, removes, makes a false entry in or falsely alters any public record[.]”

Other Issues to Consider

• DAS Policies– Travel – Use of State Resources– Expenditures

• DAS Contracts– Azumano has exclusive contract

Other Issues to Consider

• Statement of Economic Interest: You will need to report:– Any expenses with aggregate value exceeding $50

provided for participating in convention, mission, trip or other meeting

– Any expenses with aggregate value exceeding $50 for participating in mission, negotiations or economic development activities

– Any honoraria with value exceeding $15

Contacts

• Liani Reeves (503) 378-8636 liani.reeves@state.or.us

• Steve Powers (503) 378-3014 steven.powers@state.or.us