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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 Page 1 of 6 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. Page 2 of 6 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: * * * Page 3 of 6 “ 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 Page 4 of 6 (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. Page 5 of 6 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. Page 6 of 6
Object Description
Okla State Agency | Ethics Commission, Oklahoma |
Okla Agency Code | '296' |
Title | Ethics interpretations and informal opinions of the Ethics Commission |
Alternative title | Ethics interpretations [EIs] and informal opinions [IOs] |
Authors | Oklahoma Ethics Commission. |
Publisher | Oklahoma Ethics Commission |
Publication Date | 1999; 2000; 2001; 2002; 2003; 2004; 2005; 2006; 2007; 2008; 2009; 2010; 2011 |
Publication type | Laws/Rules |
Serial holdings | Electronic holdings: 1999-2011 |
Subject |
Political ethics--Oklahoma--Cases. Civil service ethics--Oklahoma--Cases. |
Notes | issues through 2011; For interpretations and informal opinions in effect, reference Ethics Commission website.;Numbers not in collection withdrawn or not in effect? |
OkDocs Class# | E5100.4 E84i |
For all issues click | E5100.4 E84i |
Digital Format | Word docs. or PDF, Adobe Acrobat required. |
ODL electronic copy | Downloaded from agency website: www.ethics.state.ok.us |
Rights and Permissions | This Oklahoma government publication is provided for educational purposes under U.S. copyright law. Other usage requires permission of copyright holders. |
Language | English |
Date created | 2012-08-07 |
Date modified | 2012-11-09 |
OCLC number | 192176080 |
Description
Title | EI-2011-04 |
OkDocs Class# | E5100.4 E84i EI-2011-004 |
Digital Format | PDF, Adobe Reader required |
ODL electronic copy | Downloaded from agency website: http://www.ok.gov/oec/documents/EI-2011-004.pdf |
Rights and Permissions | This Oklahoma state government publication is provided for educational purposes under U.S. copyright law. Other usage requires permission of copyright holders. |
Language | English |
Full text | 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 Page 1 of 6 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. Page 2 of 6 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: * * * Page 3 of 6 “ 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 Page 4 of 6 (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. Page 5 of 6 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. Page 6 of 6 |
Date created | 2011-12-15 |
Date modified | 2011-12-15 |