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Definitions

Following Mark Davies, I have placed definitions not at the front of the Code, where they usually appear, but at the end of the Ethics Provisions section. The reasoning behind this choice is that definitions should not be as important as they often are. Often, definitions include significant content, so that officials and employees must read the definitions before they can know what they are required to do. It is better to have officials focus on the plain meaning of ethics provisions, knowing that no extra duties will be imposed in the definitions, that there are no traps hidden there. If an official does not read the definitions, the worst that will happen is that he or she will think that the ethics rules are more restrictive than they really are, and will thus be protected from inadvertently violating them.

Please recommend additional or different definitions, and please share your experiences, especially problems arising from wording of definitions, as well as from lack of clear definitions.

111. Definitions.

Unless otherwise stated or unless the context otherwise requires, when used in this code:

1. To "appear" or "appear before" means to communicate in any form, including, without limitation, personally, through another person, by letter, or by telephone. This definition also applies to the noun form, "appearance."

2. "Consultant" means an independent contractor or professional person or entity engaged by the city and in a position to influence a city decision or action, or have access to confidential information.

3. "Customer or client" in 100(1)(e) means (a) any person or entity to which a person or entity has supplied goods or services during the previous twenty-four months, having, in the aggregate, a value greater than $1,000, or (b) any person or entity to which an official or employee's* outside employer or business* has supplied goods or services during the previous twenty-four months, having, in the aggregate, a value greater than $1,000, but only if the official or employee knows or has reason to know the outside employer or business supplied the goods or services.

4. "Domestic partner" is an adult, unrelated by blood, with whom an unmarried or separated official or employee* has an exclusive committed relationship, maintains a mutual residence, and shares basic living expenses.

5. "Financial benefit" includes any money, service, license, permit, contract, authorization, loan, travel, entertainment, hospitality, gratuity, or any promise of any of these, or anything else of value. This term does not include campaign contributions authorized by law. A "financial interest" is a relationship to something such that a direct or indirect financial benefit has been, will be, or might be received as a result of it.

6. A "gift" is a financial benefit* received or given without equivalent compensation. However, a financial benefit* received or given on terms available to the general public is not a gift.

7. "Household" includes anyone whose primary residence is in the official or employee*'s home, including non-relatives* who are not rent payers or servants.

8. An "interest in a contract" is a relationship to a contract such that a direct or indirect financial or other material benefit has been, will be, or might be received as a result of that contract. The official or employee* does not need to be a party to the contract to have an interest in it. Indirect benefit includes a benefit to the official's family or outside business or employer.

9. "Ministerial act" means an action performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the act. An example of a ministerial act is the granting of a marriage license by a city clerk.

10. "Official or employee" means any official or employee of the city, whether paid or unpaid, and includes all members of an office, board, body, advisory board, council, commission, agency, department, district, administration, division, bureau, committee, or subcommittee of the city. "Official or employee" does not include:

(a) A judge, justice, or official or employee of the court system;

(b) A volunteer fire fighter or civil defense volunteer, except a fire chief or assistant fire chief; or

(c) A member of an advisory board if, but only if, the advisory board has no authority to implement its recommendations or to act on behalf of the city or to restrict the authority of the city to act.

11. "Outside employer or business" includes:

(a) any substantial business activity other than service to the city;

(b) any entity, other than the city, of which the official or employee* is a member, official, director, or employee, and from which he or she receives compensation for services rendered or goods sold or produced;

(c) any entity located in the city or which does business with the city, in which the official or employee* has an ownership interest, except a public corporation in which the official or employee's ownership interest is the lesser of (i) stock valued at less than $50,000 or (ii) five percent of the outstanding stock; and

(d) any entity to which the official or employee* owes, or by which the official or employee is owed, more than $10,000, either in the form of a note, a bond, a loan, or any other financial instrument.

For purposes of this definition, "compensation" does not include reimbursement for necessary expenses, including travel expenses..

12. "Personal benefit" includes benefits other than those that are directly financially advantageous. These include financial benefits* to relatives*, business associates, and others listed in 100(1), as well as non-financial benefits* to these people and to oneself, including such things as reputation and the success of one's career. A "personal interest" means a relationship to something such that a personal benefit has been, will be, or might be obtained by certain action or inaction with respect to it.

13. "Relative" means a spouse, child, step-child, brother, sister, parent or step-parent, or a person claimed as a dependent on the official or employee's* latest individual state income tax return.

14. "Subordinate" means another official or employee* over whose activities an official or employee has direction, supervision. or control.

Comment: Subsection 3 ("customer or client"): An employee of a large corporation may not know many of the customers or clients of his or her employer and should not be penalized for that understandable ignorance. For that reason, the "knows or has reason to know" language is included.

Subsection 6 ("gift"): A "financial transaction ... on terms not available to the general public" includes, for example, a reduced-interest loan to a municipal official. The reduction in interest would constitute a gift.

Subsection 11(c)("outside employer or business"): It is sometimes said that stock ownership in a public company is not relevant to an official's interests, because he or she owns a tiny percentage of the stock and therefore has no control over the entity. But the success of the public company does have special meaning to someone who holds a large dollar amount of that company's stock (even if that amount is large only for the individual, not for the corporation) and, therefore, it does constitute an interest that could get in the way of an official's ability to act impartially (as well as the perception of how the official would benefit from the company's success).

The amount of share holdings will not be disclosed, but since there is a minimum amount, it will be clear that any disclosed share holding is sizeable. Therefore, some cities may want a lower threshold amount, so that it is not clear whether a shareholding is large or small.

Subsection 12 ("personal benefit"): Many ethics codes require the expenditure of funds even with respect to personal benefits. But this requirement allows officials to vote, say, on whether they should have to recuse themselves, when a committee member raises the issue at a meeting. Non-financial interests, such as reputation, are very important to people and have an equally powerful effect on their ability to make impartial decisions. I would like to hear about examples of personal benefits you feel should be included as giving rise to a possible conflict of interest, and how you have seen such personal benefits dealt with when they are and when they are not covered by ethics codes.

Subsection 13: Some cities follow the IMLA Model Code by defining "relatives," generally or in such instances as gift-giving, as anyone within up to the fifth degree of consanguinity. I feel that this term is inappropriate to an ethics code because of its unfamiliarity, its difficulty, and its common usage in law (determining incest). To be in the fifth degree of consanguinity, two individual's first common ancestor must be no more than a total of five generations away. For example, if my grandfather (two degrees) is your great-grandfather (three degrees), there are five degrees of consanguinity between us. In law, because consanguinity is for the purpose of defining incest, it does not include relationship by marriage. However, relationship by marriage is relevant in government ethics.

Throughout this code there are stars next to defined words. If this usage is followed and the code is placed on a city's website, these stars should be turned into links to the Definitions section, so that the definitions can be easily consulted.

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Robert Wechsler says:

Perhaps "officials and employees" (definition #10) should be more inclusive.

First of all, it does not include members of all bodies or agencies that are legally separate from the city, such as a housing or water authority, and yet do the work of municipal bodies or agencies.

Second, it does not include contractors, allowing municipalities to contract out municipal work, even such work as that of a city manager. This has been a problem in Florida, and the state Ethics Commission is asking the legislature to amend its ethics law to close this loophole due specifically to the hiring of contracted city managers.

But should all contractors be included? If not, how does not clearly describe which ones are covered and which are not?

If anyone knows the language being recommended by the Florida Ethics Commission, or used elsewhere, please share it here.

Robert Wechsler
Director of Research, City Ethics
[email protected]