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9-12-04 Much Ethics Information Available for Local Officials

A public trustee may not place himself in a position in which his interest or the interest of private parties he represents may conflict with the public interest, and he has the opportunity and temptation to sacrifice the public interests to his interests or those of third parties.

AVOC

 

September 8, 2004

 

Much Ethics Information Available for Local Officials

 

By Wendell Dawson, Editor, AVOC, Inc.

 

All local officials would be well-served by reading this ACCG Article.  It has much guidance for the “Public Trust” aspect of public office.

 

Good newspaper coverage and citizen alertness and questions can also be beneficial for local government.

 

Some of the highlighted areas of this article are very pertinent to recent area activities.


ACCG

 

Ethics: an area of special interest for elected officials

 

11/15/1999 Charles Brown

 

Regarding ethics, and potential ethics violations, elected officials are in a class by themselves in terms of public scrutiny. After all, the author says, a commissioner’s time is better spent building jails, not biding time in one.

Just do right, advised Coach Erk Russell to his young charges, as he sought to develop football players of grit on the field and citizens of character off the field - first at The University of Georgia, Athens and then at Georgia Southern University.

For county commissioners, the coach’s advise, while helpful, is not enough.

Georgia has so many laws defining the ethical standards of public office holders that following practices that measure up to one’s personal sense of "right" may not be enough to avoid legal complications, if not violations (1).

The purpose of this article is to persuade commissioners to focus, at least briefly, on staying out of jail, rather than their usual preoccupation with building and paying for jails. The challenge of being "legal" aside, the importance of ethical conduct for a public official can never be over-emphasized. A commissioner can hold down taxes, attract industry and pave roads and still become the subject of public ridicule if he or she breaches constituents’ trust. An office holder’s capacity to offer leadership can evaporate overnight in the face of allegations of impropriety or dishonesty. While the need for public confidence in its democratically elected leaders may be obvious, it is even important in a communist society.

Witness the leadership of China’s Premier, Zhu Rongji; even in the West, he is respected for his character and intelligence. Because of his brilliance and avoidance of cronyism, many observers give him a better than even shot at reforming China’s economy and human rights practices. According to a recent Time magazine story, while Mayor of Shanghai Rongji’s relatives asked him to bend a strict residency law so they could come live in the booming port city. Zhu turned them down, saying, "What I can do, I’ve already done. What I cannot do, I will never do." What Georgia county commissioners must "never do" if they are to be effective leaders, is trip over one of our myriad statutes dealing with official conduct.

The Constitutional standard
A good place to begin a review of Georgia’s ethics laws is with the sweeping language of the Georgia Constitution:

"Public officers are the trustees and servants of the people and are at all times amenable to them."(2) So the Constitution declares lofty expectations of service and accountability. Interpreting the provision, the Georgia Supreme Court has set a high bar, quoting the observation of others that a trustee is held to something stricter than the morals of the marketplace and should have a most sensitive honor. The Court wrote that "County commissioners....[are] require to exercise the utmost good faith, fidelity, and integrity."(3)

The Code of Ethics


The constitutional aspiration has found its way into the statute adopted by the General Assembly as Georgia’s Code of Ethics. The Code provides that no one in government service will:

·  Engage in business with the government, either directly or indirectly, which is inconsistent with the conscientious performance of one’s governmental duties.

·  Solicit or accept gifts, loans, favors or services under circumstances from which it could reasonably be inferred that a major purpose of the donor was to influence one’s official duties.

·  Accept an economic opportunity where the public official knew that there was a substantial possibility that the opportunity was afforded with an intent to influence official conduct.

·  Take any official action with regard to any matter where the office holder might have a direct or indirect monetary interest.

·  Discriminate unfairly by the dispensing of special favors and privileges to anyone that might reasonably influence the performance of duties.(4)

The code: no ‘toothless tiger’
Beware: the Code of Ethics is no toothless tiger. Upon informal charges being filed with the Governor, and after a hearing and a determination that the charges are true, the Governor shall remove the charged office holder from office.(5)

Certainly, the statutory language is general, even vague. But don’t accept that as a license to test the limits of the law. Rather, commissioners should be mindful of a press and a public whose skepticism of office holders may mean close issues are called against the office holder, not in his or her favor. If Caesar’s wife must be above reproach in Rome, Italy, so too must county commissioners be above reproach in Rome, Georgia.

A commissioner should be acutely aware of the statutory clause, "direct or indirect," which could lead some to perceive illegal favoritism when the commissioner believed none existed. For example, let’s assume a commission hires a consultant for a traffic flow study. The firm employs a commissioner’s spouse as an engineer. Those firms that didn’t get the contract, and later, the public, may well suspect some "indirect" benefit.

Another subjective term in the statute that may cause differing perceptions is "reasonable," as in "reasonably infer influence." For example, let’s assume a longtime friend of yours invites you to quail hunt on a plantation outside Thomasville when you know he’ll have a re-zoning application pending before your commission shortly. Sure, you’re old friends and, sure, you’ve hunted together before, but try and convince a neighborhood group who is opposed to the zoning change of that when the hunting trip gets written up in the local media and, worse yet, in later formal charges to the Governor. There could be more than ruffled quail feathers!

To avoid such traps, a commissioner should publicly disclose any potential relationship giving rise to a conflict, assure the official minutes reflect the disclosure and step aside from all consideration of the issue or decision at hand.

But even this may not be enough. In 1997, the Attorney General wrote in a letter that a county cannot deposit funds on a rotating basis in a bank or make interest-bearing deposits in the bank with the highest bid, if a commissioner serves on the bank’s board of directors and is the bank’s attorney.(6) The commissioner’s "indirect benefit" from the deposits was held enough, in the Attorney General’s view, to create a conflict of interest. The commissioner’s self-recusal was held to be an inadequate cure for what was described as the commissioner’s "dual roles." The Attorney General referenced his earlier 1982 opinion that:

A public trustee may not place himself in a position in which his interest or the interest of private parties he represents may conflict with the public interest, and he has the opportunity and temptation to sacrifice the public interests to his interests or those of third parties. This rule is not limited to instances where a public official’s interest is directly involved in the transaction. It also applies when a public official has a financial interest in, or fiduciary duty to, a private entity involved in a transaction with the state. (7)

Malpractice in office
No statute better illustrates the reach of Georgia statutes dealing with official conduct than the law that provides for indictment for malpractice in office. The law declares that any elected county officer may be indicted for malpractice, misfeasance or malfeasance in office. The same statute also provides that one can be indicted for:

·  Using oppressive or tyrannical partiality in the administration of one’s office.

·  Any illegal conduct in the performance of the office which is unbecoming to the character of public office.

*Willfully demanding more cost than the office holder is entitled to. (8) The statute does not even define the term, "malpractice." The Supreme Court has declared that the term means a wrongful or unjust doing of an act which the doer has no right to do, or a failure to do what the law makes it his duty to do, with evil intent or motive, or culpable neglect.(9)

This language is almost as broad as the plan for salvation and a whole lot more difficult to understand. Notwithstanding the dangerously general language, the statute does offer some protection to public officials charged under its provision. A copy of any indictment charging malpractice must be served on the accused 15 days before it is presented to a grand jury, and the accused has the right to appear before the grand jury and to make a sworn statement at the conclusion of the evidence by the prosecutor. The office holder and his or her attorney can be present during the presentation of the evidence, but must leave when the grand jury begins its deliberations.

A conviction under this law can result in a fine of up to $,000, imprisonment up to one year, and, at the court’s discretion, removal from office.(10)

No business with the county

Yet another statute that has been around for more than 100 years provides that no county commissioner can use county funds for the purchase of goods for public purposes from any store in which the commissioner is an employee or where the commissioner has a direct or indirect interest. A similar provision (and one which is a felony in the Criminal Code) provides that a government officer may not on his own behalf or on behalf of any business entity, sell any real or personal property to an agency on which he serves. Conviction can result in a one- to five-year prison term.(11) State statutes aside, your county probably has purchasing policies with which you should be familiar and whose terms you’ll never want to offend.

Finally, the statutes criminalize the receipt of money from public works contracts by a commissioner. If any public official directly or indirectly receives any part of the pay or profit arising out of any public works contract, he or she shall be guilty of a misdemeanor.(12)

The law does except from its application such transactions if previously approved by a majority of the members of the commission, and likewise declares the statute as not applicable where it "clearly" appears that the goods cannot be bought at a better price. But relying on these exceptions or qualifiers is a dangerous course of action. To avoid trouble under this statute, one should never violate its prohibitions, as a very unsympathetic public may well place most emphasis on the offense and ignore the exception.(13)

Statutes aside, the Attorney General has held that a county commission chair cannot sell groceries to the county even when the purchases are made under competitive bids with full disclosure. The Attorney General reasoned that a conflict existed because the chair would be called on to judge his own performance as to timeliness of delivery and quality of product.(14)

Oath of office
Do you recall your oath of office? Even that can lead to difficulties. When you became a commissioner and you swore to faithfully discharge your office, your failure to do so might lead to an indictment for "violation of an oath by a public officer."

The law provides that "Any public officer who willfully and intentionally violates the terms of his oath as prescribed by law shall, upon conviction thereof, be punished by imprisonment for not less than one or more than five years."(15)

As with several other statutes concerning public officer duties, the law’s language is broad, and, for the careless, a snare. So, now you have one more reason to be very strict and severe in assessing your duties to avoid ethical lapses.

Conclusion


Suffice it to say that if a Georgia county commissioner wants to go on building jails, rather than being confined to one, to say nothing of maintaining the public confidence for effective leadership, the commissioner must walk a straight and narrow path.

The State Bar of Georgia tells its lawyer members that they should avoid not only impropriety, but the appearance of impropriety.(16)

Given every commissioner’s desire to be an effective public servant, and given that one can only serve well when he or she has the trust of the electorate, perhaps commissioners should apply a similar test to all ethical challenges. If a constituent might perceive a particular action to be unethical or a conflict of interest, walk away. Refuse to have any role in the transaction.

Then, one having "done right," as Coach Russell admonished, will have the enormous satisfaction of knowing that he or she has served not just effectively, but honorably too.

References
1) For a comprehensive discussion of many of the issues addressed in this article see James F. Grubiak, Ethics, Conflicts of Interest and Abuse of Office, Handbook for Georgia County Commissioners, Ch. 8 (3rd ed).
2) The Georgia Constitution, Art. I, § II, ¶ I.
3) Malcom v Webb, 211 Ga. 449, 456-57 (1955).
4) O.C.G.A. §§ 45-10-1 through 45-10-3.
5) Id. § 45-10-4.
6) Letter from Attorney General to Emanuel County Commission Chair. (Mar. 31, 1997).
7) Ga. Att’y Gen. Op. 82-82.
8) O.C.G.A. § 45-11-4.
9) State v Burrell, 189 Ga. App. 812, 813 (1989).
10) O.C.G.A. §§ 17-10-3, 45-11-4.
11) O.C.G.A. §16-10-6; for a thorough discussion of county contracting, see Paul T. Hardy, Ethics, Conflicts of Interest, and Abuse of Office, Handbook for Georgia County Commissioners, Ch. 17 (3rd ed).
12) O.C.G.A. § 36-10-5.
13) O.C.G.A. § 36-1-14.
14) Ga. Att’y Gen. Op. U38-8 (1983). "Official opinions" are those written for the Governor and state department heads; "unofficial opinions" (designated with a "U" in the citation) are those written for other state officers and county and municipal attorneys. While the opinions do not have the force of law, they are afforded great weight in the interpretation of doubtful statutes. 2 E.G.L., Attorney General, Sec. 8 (1993 Rev).
15) O.C.G.A. § 16-10-1; State v Green, 171 Ga. App. 329 (1984); Poole v State, 262 Ga. 718 (1993).
16. State Bar of Georgia Canons of Ethics, Canon 9.

 

 

 


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