Ethics interpretations and informal opinions of the Ethics Commission

              ETHICS INTERPRETATION EI-2011-004
ISSUED NOVEMBER 17, 2011
Following a public hearing, the Ethics Commission in its regular meeting held
November 17, 2011, considered your request for an ethics interpretation. You have
asked:
Do the Constitutional Ethics Rules [“ the Rules” ], Section 257:1-1-1 et seq. of
the Rules of the Ethics Commission, 74 O. S. 2011, Ch. 62, App. prohibit your spouse,
who is a practicing attorney in this state, from continuing to provide legal
services to either CompSource Oklahoma or the University of Oklahoma?
THE FACTS
You have advised:
! your spouse has been a practicing attorney in the State of Oklahoma for the
past 27 years;
! during that time he has represented a number of clients;
! they have included CompSource Oklahoma [“ CompSource” ] and the
University of Oklahoma, which he represented for approximately 17 years and five
years, respectively;
! these attorney-client relationships predate both your marriage and you taking
office as the Governor of this state;
! exercising caution, your spouse chose to suspend representation until a
determination could be made regarding the legality of his continued work for these
clients;
! you posed a similar question to the Attorney General w ho, in Opinion 2011-
14, interpreted the Oklahoma Constitution to mean that prohibitions set forth in Article
X, Section 11 apply solely to public funds and, hence, do not extend to monies of
CompSource, which have been judicially determined as not constituting public funds;
! with respect to the University of Oklahoma, the Attorney General found that
prohibitions of Article X, Section 11 do not apply to all public funds, but only to: (1)
the use or loan of public funds in an officer’ s hands, or (2) monies to be raised
through the officer’ s agency;
! the Attorney General thus concluded that Article X, Section 11 does not
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prohibit a governor’ s spouse from being paid attorney fees from funds of
CompSource, nor does it prohibit the University of Oklahoma from using its public
funds to pay attorney fees to a governor’ s spouse;
! you now ask whether the Constitutional Ethics Rules in any way preclude
your spouse from representing either of these clients;
! the Commission relies solely on your statements and has made no
independent effort to confirm them. It therefore limits its ethics interpretation to the
facts you have provided;
! finally, while Section 257:1-1-6(h) protects “ the identity of the person or
persons involved in the situations presented in the request for ethics interpretation,”
you have formally waived those protections and have expressly authorized the
Commission to publish your name and that of your spouse.
THE LAW
Since this is a question of first impression, the Commission has no interpretative
authority on point. For that reason, it will confine itself to an examination of language
within applicable Rules. The controlling provision is Section 257:20-1-10(b), in
Chapter 20, governing ethics and conflicts of interest. It provides:
State officers’ and state employees’ private interests in public contracts
* * *
(b) Contracting with current or former legislators and statewide elective officers
– Exceptions. No legislator or statew ide elect ive of f icer shall sell or cause to be sold,
rent or lease either as an individual or through any business enterprise in w hich he
holds a substant ial f inancial interest , goods, services, buildings or propert y to any
governmental ent it y. No state of f icer or state employee, act ing in his or her of f icial
capacit y, shall enter into any cont ract in w hich the state of f icer or state employee
know s that a person w ho is then or has been a legislator w ithin the previous year, or
a member of such person’ s immediate family, has a substantial financial interest. The
provisions of this subsect ion shall not apply to a cont ract of employment w ith an
immediate family member of a legislator, together w ith any renew al, promot ion or
lateral t ransfer of such employment cont ract to another governmental ent it y, w hich is:
(1) in existence on July 1, 1994;
(2) in existence prior to the legislator’ s term of of f ice;
(3) in existence prior to marriage to the legislator; or
(4) w ith a student employed on a part -t ime basis, w hich shall be sevent y-f
ive percent (75%) of a normal fort y-hour w ork w eek or thirt y (30) hours per
w eek, or less, and w ho is regularly enrolled, as def ined in Paragraph 11 of
Sect ion 840.8 of Tit le 74 of the Oklahoma Statutes, in an inst itut ion of higher
educat ion comprising the Oklahoma State System of Higher Educat ion.
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No legislator or statewide elected officer shall at tempt to inf luence or perform an
of f icial funct ion requiring the exercise of discret ion relat ing to a cont ract w ith any
governmental ent it y if a member of the legislator’ s or statewide elective officer’ s
immediate family has a substantial financial interest in such contract.
(c) Exceptions. Subsect ions (a) and (b), except as prohibit ed by law , shall not
apply to:
(1) cont ract s w ith state employees for goods or services valued at less
than f ive thousand dollars ($5,000);
(2) cont ract s w ith state employees entered into af ter public not ice by the
governmental ent it y and compliance w ith compet it ive bidding procedures; and
(3) employment cont ract s entered into w ith former legislators.
* * *
Sect ion 257:20-1-10 [emphasis added]
The Rule breaks down into three distinct parts.
First, with certain exceptions, it prohibits legislators and statewide elective
officers from contracting with a state governmental entity. The latter is defined as:
Definitions
* * *
“Governmental entity”
(1) means any department , commission, authorit y, council, board, bureau,
commit tee, legislat ive body, agency, state benef icial public t rust , or other
establishment of the execut ive, legislat ive or judicial branch of the State of
Oklahoma.
(2) shall not mean ent it ies of polit ical subdivisions of the State of
Oklahoma.
* * *
Sect ion 257:1-1-2
The Commission finds that both CompSource and the University of Oklahoma were
intended to fit under this broadly-w orded definition, which includes “ establishments”
of any of the three branches of government in the State of Oklahoma.
Second, the Rule precludes state officers and employees from entering into
publicly funded contracts with a person who has served as a legislator within the
previous year, as well as a member of his or her immediate family. The latter is
defined in the Rules as:
* * *
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“ Immediate family” means a child under the age of eighteen (18) years residing in a
state of f icer’ s or state employee’ s household, a spouse of a state of f icer or state
employee, and an individual claimed by the state of f icer or state employee or the state
of f icer’ s or state employees’ s spouse as a dependent for tax purposes.
* * *
Id.
Finally, it forbids a legislator or statewide elective officer from attempting to
influence or perform an official function requiring the exercise of discretion relating to
a contract with a governmental entity where the legislator’ s or statewide elective
officer’ s immediate family has a substantial financial interest in that contract.
ANALYSIS
These facts do not involve a statewide elective officer – like the governor –
entering a contract in her official capacity with a person who has been a legislator
within the past year or with his or her immediate family member. Therefore, part two
of paragraph (b) of Section 257:20-1-10 does not apply.
Similarly, part three has no application. There is no suggestion that the
governor will attempt to influence or perform an official function requiring the exercise
of discretion relating to her spouse’ s contract for legal services with one or more
governmental entities.
The Commission therefore turns to part one of Rules’ Section 20-1-10(b). As
noted, it prohibits a statewide elective officer – including the governor – from selling
or causing to be sold, rent or lease either as an individual or through any business
enterprise in which he or she holds a substantial financial interest, goods, services,
buildings or property to any governmental entity.
This language would prohibit the governor – were he or she a lawyer – from
selling services, including legal services, to a state governmental entity. But, by its
clear w ording, it does not reach a spouse or other members of the immediate family.
The absence of inclusive language in this provision shows an intent by the framers to
omit the spouse, particularly where that person – and immediate family members –
are expressly provided for elsewhere in this Chapter of the Rules.
For instance, Section 257:20-1-7 includes within its strictures not only a spouse
and immediate family member(s), but expands the regulation to include an adopted
child, step-child, and a business entity with which a state officer or legislator is
associated. In pertinent part, it provides:
Votes, deliberations, and discussions by legislators or statewide elective officers
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(a) A legislator or st at ew ide elect ive of f icer shall not int roduce or cause to have
int roduced, request the int roduct ion of , promote, or vote on any legislat ion if the
statew ide elect ive of f icer or legislator or a child, adopted child, step-child or spouse of
the officer or legislator or a business or entity with which the legislator or officer or a
member of the immediate family of the legislator or officer is associated has:
(1) a pecuniary interest in; or
(2) a reasonably foreseeable benef it f rom:
the legislat ion . . .
* * *
Sect ion 257:20-1-7
Similar language is contained in Rules’ Section 257:20-1-8, which regulates
votes, deliberation and discussions by public members. There applicable language
includes not merely the public member, but his or her immediate family, as well as a
business or entity with which he or she – or immediate family member(s) – is
associated, has a pecuniary interest in or a reasonably foreseeable benefit from the
matter under consideration by the entity the public member serves.
Votes, deliberations, and discussions by public members
(a) A public member shall not part icipate in the discussion on, vote on, inf luence,
or at tempt to inf luence an of f icial act ion of the governmental ent it y the public member
serves on if the public member or a member of the immediate family of the public
member or a business or ent it y w ith w hich the public member or a member of the
immediate family of the public member is associated, has:
(1) a pecuniary interest in; or
(2) a reasonably foreseeable benef it f rom:
the mat ter under considerat ion by the governmental ent it y of w hich the public member
is a member . . .
* * *
Sect ion 257:20-1-8
These establish that the framers were aware of the option of extending Chapter 20
Rules to include spouses, immediate family members, adopted children, step-children
and even businesses or entities in w hich the state officer holds a substantial financial
interest. With regard to the controlling language of Rules’ Section 257: 20-1-10(b),
they chose not to take that step.
The Commission thus finds that nothing in the applicable part of that provision
precludes the spouse of a statewide elective officer from contracting for legal services
with a state governmental entity. As noted, the latter includes both CompSource and
the University of Oklahoma.
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Therefore, the Commission finds that nothing in the Constitutional Ethics Rules
prohibits a governor’ s spouse, w ho is a practicing attorney in the State of Oklahoma,
from continuing to provide legal services to either CompSource or the University of
Oklahoma. Because this holding provides the ultimate answer to your question, the
Commission does not analyze any alternate scenarios.
CONCLUSION
It is therefore the Ethics Interpretation of the Ethics Commission, as decided at
its regular meeting held November 17, 2011, that the Constitutional Ethics Rules do
not prohibit the Governor’ s spouse, who is a practicing attorney in the State of
Oklahoma, from continuing to provide legal services to either CompSource or the
University of Oklahoma.
Please be advised that ethics interpretations are fact specific. They answer only
the question or questions put forth in the underlying request. While they may shed
light on other situations, this opinion does not necessarily control them. To be binding
on the future action of this agency, the interpretation must be directed to the
individual situation.
The Commission is authorized to issue ethics interpretations by Oklahoma
Constitution Article 29, Section 5 and Rule 257:1-1-6(h) . Questions pertaining to
other Oklahoma Statutes, the state and federal Constitutions or federal law cannot be
interpreted by the Commission and must be referred to the appropriate authority.
Ethics Interpretations are issued not by staff, but by the Commissioners.
Members consider briefs, testimony and input from the public, who have prior notice
of the issues and an opportunity to be heard on the questions presented in the ethics
interpretation request. Following consideration in executive session, members vote
on the matter in open meeting.
Ethics Interpretations are ordinarily published with sufficient deletions to prevent
identification of the requester. The protection of confidentiality was, in this instance,
formally waived. This opinion therefore bears no restrictive label.
We trust the foregoing has answered your questions. Please advise if we may
be of further assistance.
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