PADM505 American Military Ethics Commission Advisory Opinion Paper Assignment Instructions Please choose 1 of the 2 topics below: A)You are on your state

PADM505 American Military Ethics Commission Advisory Opinion Paper Assignment Instructions

Please choose 1 of the 2 topics below:

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PADM505 American Military Ethics Commission Advisory Opinion Paper Assignment Instructions Please choose 1 of the 2 topics below: A)You are on your state
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A)You are on your state Ethics Commission and have been asked to provide an advisory opinion on the following: The agency director received an invitation to a golf outing sponsored by a party that is seeking to do business with their agency. As part of the invitation they will provide the round fee, a cart, and dinner after the round. There are public and private officials that have been invited to the event. The director would attend on non-work time and has not promised anything in return. Does the ethics law in your state allow this? What is the law? What are the implications of accepting this invitation? Does your state address golf specifically or is it under their gift provisions? What would you do in this instance? Is there information that is not given that you would use in making the decision? Please draft an advisory response from the Commission. Please back up your answer with at least three sources, one of which is your state regulation that covers this area. Your sources can be primary regulations, journals, or state websites such as that of your Ethics Commission. Your response should follow the format of an advisory opinion such as the example below. The answer should be at least 5 pages in APA format (though the example is not).

For the state it would be either Alabama or Texas

Instead of quoting large amounts of law, use your own words to summarize it (citing it, of course) to show you understand its meaning.

B) You have been asked to write an advisory opinion for your State Ethics Commission. The requester is the assistant director for your state’s public library. The library has a policy of hiring substitute librarians when someone is on leave and there is currently an opening. The assistant director’s mother has applied. There are over 100 other employees in the library system and this position does not report directly to the assistant director. The hiring authority would be Human Resources but the assistant director would normally have final approval. Is there information that is not given that you would use in making the decision? Please draft an advisory response from the Commission. Please back up your answer with at least three sources, one of which is your state regulation that covers this area. Your sources can be primary regulations, journals, or state websites such as that of your Ethics Commission. Your response should follow the format of an advisory opinion such as the example below. The answer should be at least 5 pages in APA format (though the example is not).

For the state it would be either Alabama or Texas

Instead of quoting large amounts of law, use your own words to summarize it (citing it, of course) to show you understand its meaning. Merom Brachman, Chairman
Maryann B. Gall, Vice Chair
Bruce E. Bailey
Betty Davis
Michael A. Flack
OHIO ETHICS COMMISSION
William Green Building
30 West Spring Street, L3
Columbus, Ohio 43215-2256
Telephone: (614) 466-7090
Fax: (614) 466-8368
Paul M. Nick
Executive Director
www.ethics.ohio.gov
INFORMATION SHEET: ADVISORY OPINION NO. 2013-01
FIRE CHIEF APPROVING PAYMENTS TO EDUCATIONAL INSTITUTIONS
What is the question in the opinion?
Can a Fire Chief, who also teaches at a college, university, or other educational
institution, approve invoices for payment from the fire department to the
educational institution where he teaches?
What is the answer in the opinion?
The public contract law, R.C. 2921.42(A)(1) prohibits a public official from
authorizing any contract in which a business associate has an interest. If a Fire
Chief works for an educational institution, it is his business associate. Because he
is an employee of the educational institution, the Fire Chief cannot approve
invoices for payment from the public agency to the educational institution.
What prompted this opinion?
Many Fire Chiefs and other senior fire and public safety officers teach at colleges,
universities, and educational institutions. Other employees of their public
agencies take classes at the educational institutions. Fire Chiefs may be in a
position to approve invoices from the educational institutions for classes taken by
other employees in the public agency.
When did the conclusions in this opinion become effective?
The opinion became effective when the Commission approved it at its meeting on
July 10, 2013.
For More Information, Please Contact:
Paul M. Nick, Executive Director
(614) 466-7090
THIS COVER SHEET IS PROVIDED FOR INFORMATION PURPOSES.
IT IS NOT AN ETHICS COMMISSION ADVISORY OPINION.
ADVISORY OPINION NO. 2013-01 IS ATTACHED.
Promoting Ethics in Public Service for Ohio since 1974
Merom Brachman, Chairman
Maryann B. Gall, Vice Chair
Bruce E. Bailey
Betty Davis
Michael A. Flack
OHIO ETHICS COMMISSION
William Green Building
30 West Spring Street, L3
Columbus, Ohio 43215-2256
Telephone: (614) 466-7090
Fax: (614) 466-8368
Paul M. Nick
Executive Director
www.ethics.ohio.gov
Advisory Opinion
Number 2013-01
July 10, 2013
Fire Chiefs Approving
Payments to Schools
Syllabus by the Commission:
(1)
Division (A)(1) of Section 2921.42 of the Revised Code prohibits a person
employed as a Fire Chief, who is also employed as a part-time teacher at
an educational institution, from authorizing, or using his or her fire
department position to secure authorization of, tuition payments from the
fire department to the educational institution.
(2)
A person employed as a Fire Chief, who is also employed as a part-time
teacher at an educational institution, cannot sign-off on or approve
payment of tuition invoices for firefighters and emergency medical
personnel (“Firefighters”), and cannot assign this duty to another person
who is subordinate to the Fire Chief.
(3)
By signing off on or otherwise approving tuition payments, a Fire Chief
takes part in the deliberations or decision of the fire department with
respect to a public contract, therefore the exception provided in Division
(C) of Section 2941.42 does not apply.
(4)
The safety director, mayor, city manager, council, board of trustees, or
other authority that appoints the Fire Chief can assign the duty of
approving payment of tuition invoices for Firefighters to another fire
department employee who is not employed at the educational institution
and who is not under the control or direction of the Fire Chief who is
employed at the educational institution. The person receiving such an
assignment must report directly to the assigning authority on this matter.
(5)
While this advisory opinion specifically considers the application of the
law to Chiefs of fire departments, the same restrictions apply to
employees in any similar departments, including other senior fire or public
service officers.
*
*
*
Promoting Ethics in Public Service for Ohio since 1974
Opinion No. 2013-01
July 10, 2013
Page 2
The Ohio Ethics Commission has been asked for an advisory opinion on behalf of Fire
Chiefs, and other senior public service officers, who are employed as part-time teachers at
educational institutions. The question is whether it is a violation of the public contract
restrictions provided in Section 2921.42(A)(1) of the Revised Code if Fire Chiefs “sign off” on
tuition invoices which authorize tuition payments to Educational Institutions for Firefighters
attending classes at an educational institution at which the Fire Chiefs are employed. For the
purposes of providing this opinion, the Commission assumes the following facts:
•
•
•
•
•
•
•
•
•
Firefighters are required to take at least 54 hours of continuing education every three
years (“Continuing Education Requirement”) in order to maintain their emergency
medical service certification and more hours are required for Firefighters to move up
from one level of Firefighter to another.
Continuing education is available at chartered fire education programs and must be
taught by individuals who are registered Firefighters in Ohio and who hold a fire
service instructor certification issued by the Ohio Department of Public Safety.
Beyond the Continuing Education Requirement, some Firefighters enroll in
educational institutions for other education related to their employment as
firefighters.
It is a common practice for Fire Chiefs to be employed and teach Continuing
Education Requirement classes at educational institutions.
Many fire departments reimburse Firefighters for classes taken to satisfy their
Continuing Education Requirement and reimburse Firefighters for education related
to their profession (collectively “Classes”).
Fire Chiefs sign off on the tuition invoices and purchase orders to authorize payment
by the fiscal officer of the fire department (“Payment Authorization”) to the
educational institution at which the Fire Chief is employed and teaches.
Such Payment Authorization is made only after a full disclosure of the facts to the fire
department.
Firefighters are free to select the educational institution of their choice.
The Fire Chief instructor is not paid a commission based on the number of students in
the class.
Question Presented
Can a Fire Chief who teaches part-time at an educational institution sign off on a
Payment Authorization for Firefighters in the Fire Chief’s fire department to attend Classes at the
educational institution where the Fire Chief is employed?
Brief Answer
No. The Fire Chief is employed by both the fire department and the educational
institution. The Fire Chief cannot approve a Payment Authorization to the educational institution
that employs the Fire Chief.
Opinion No. 2013-01
July 10, 2013
Page 3
The Law
Revised Code Section 2921.42, 1 commonly referred to as the Public Contract Law,
makes it illegal for a public official to have an unlawful interest in a public contract. A Fire
Chief employed by a fire department of a city, village, township, or other public agency is a
public official subject to R.C. 2921.42.
Division (A)(1) of R.C. 2921.42 makes it illegal for a public official to knowingly
“authorize, or employ the authority or influence of the public official’s office to secure
authorization of any public contract in which the public official, a member of the public official’s
family, or any of the public official’s business associates has an interest.” 2 There are three
elements:
•
•
•
Knowingly authorizing or employing the authority or influence of his or her office to
secure authorization of;
A public contract;
In which the public official, a member of the public official’s family, or a business
associate of the public official has an interest.
As to the first element, a public official will be deemed to have “authorized” a public
contract if the contract could not have been awarded without the public official’s approval. 3 For
example, a public official has authorized a public contract if he or she has:
1.
2.
3.
Approved the contract;
Voted to approve the contract; or
Signed the contract.
A public official has used the “authority or influence of office” to secure the
authorization of a public contract if the official has exercised the power and influence inherent in
his or her public position to affect the decision-making process on a public contract, even if the
official later abstains from voting on the matter, does not sign the contract, or does not otherwise
participate in the final official decision. 4 A public official has used the authority or influence of
his or her office to secure authorization of a contract if the official has, for example:
1.
2.
3.
Prepared bid specifications for a project;
Reviewed submitted bids and recommended which bidder should get the contract;
or
Signed off on payment for a particular purchase.
As to the second element of R.C. 2921.42(A)(1), “public contract” is defined in R.C.
2921.42(I)(1)(a) and includes any purchase or acquisition of property or services by or for the
use of a public agency. 5
Opinion No. 2013-01
July 10, 2013
Page 4
As to the third element of R.C. 2921.42(A)(1), a public official’s “business associate” is
any person with whom the official is engaged in an ongoing business enterprise. 6 Specifically, a
public official’s outside employer, whether public or private, is a business associate. 7
Division (C) of R.C. 2921.42 provides an exception to these public contract restrictions if
four requirements are met: (i) the supplies or services are necessary for the public agency; (ii)
the supplies or services are unobtainable elsewhere for the same or lower cost; (iii) the treatment
accorded the public agency is either preferential to or the same as that accorded in similar
transaction; and (iv) the entire transaction is conducted at arm’s length; with full knowledge of
the governmental agency; and without any deliberations or decisions by the public official.
The Application of the Law to the Facts
The Fire Chief’s signing off on the Payment Authorization is a necessary action before
the fiscal officer can issue payment to the educational institution. The Fire Chief therefore has
knowingly employed the authority of his office to secure authorization of this payment.
The Fire Chief’s authorization was for a “public contract.” A contract to pay an
educational institution tuition for Firefighter Classes is a contract for the payment of services.
Further, payment for training a fire department’s employees is a “public contract,” whether the
payment is made directly to the educational institution that provided the training or as
reimbursement to an employee who paid for the Classes. 8
The educational institution has an interest in the public contract, because the educational
institution is paid by the fire department. The educational institution is a “business associate” of
the Fire Chief because the Fire Chief is employed by the educational institution.
Although the education of Firefighters is a necessary service to the fire department and
there is full disclosure by the Fire Chief of his employment with the educational institution, the
exception provided in R.C. 2921.42(C) does not apply. The Firefighter training is available
elsewhere at comparable cost, and the transaction is not at arm’s length, because the Fire Chief
did “take part in the deliberations or decision” of the Department “with respect to the public
contract.” Furthermore, a Fire Chief’s signing of a Payment Authorization is not a procedural or
de minimis act, because, but for that act, the educational institution would not be paid.
Alternative Solution
The Fire Chief is prohibited from signing off on or otherwise approving tuition payments
from the Department he serves to the educational institution where he teaches, but the law does
not prohibit:
1.
2.
Employees of the fire department from taking Classes at the educational
institution where the Fire Chief teaches; or
The Fire Chief from accepting employment from and teaching at the educational
institution; or
Opinion No. 2013-01
July 10, 2013
Page 5
3.
The appointing authority from assigning someone else to sign off on the Payment
Authorization from the Department to the educational institution, provided that
the assigned person does not report to the Fire Chief on these matters and does not
work for the educational institution.
Example
The Fire Chief of a statutory village is appointed by the village mayor. 9 The Fire Chief is
also employed by a state community college to teach fire science Classes. Village Firefighters
need fire training and take Classes at the college. The college provides the training and sends
invoices to the village fiscal officer who seeks approval before paying the college for the Classes
the Firefighters attend.
The village mayor can assign the duty of approving the invoices to another village
employee (even another employee of the fire department), so long as the assigned employee does
not report to the Fire Chief as to this function, and the assigned employee is not also employed
by the educational institution. The employee must report directly to the mayor, rather than the
Fire Chief, regarding the approval of the invoices. As a result, the village Firefighters receive
the training; the Fire Chief continues to serve the village as Chief and be employed to teach the
Classes; and the educational institution receives payment for the Classes taught.
Conclusion
Limited to questions arising under Chapter 102. and Sections 2921.42 and 2921.43 of the
Revised Code, it is the opinion of the Ohio Ethics Commission, and the Commission advises
that: Division (A)(1) of Section 2921.42 of the Revised Code prohibits a Fire Chief, who teaches
part-time at an educational institution, from taking any action as a Fire Chief, to authorize or use
the Fire Chief’s position to secure authorization of tuition payments from the fire department to
the educational institution employing the Fire Chief. The Fire Chief cannot sign-off on or
otherwise approve payment of the tuition invoices, and cannot assign this duty to another person
who is subordinate to the Fire Chief. The safety director, mayor, council, board of trustees, or
other authority that appoints the Fire Chief can assign the duty of approving payment of tuition
invoices to another department employee who is not employed by the educational institution and
who must report to the assigning authority, rather than the Fire Chief, on these matters. Finally,
the goals of all the participants can be accomplished without violation of the law.
_________________________________
Merom Brachman, Chairman
Ohio Ethics Commission
Opinion No. 2013-01
July 10, 2013
Page 6
The Ohio Ethics Commission Advisory Opinions referenced in this opinion are available on the
Commission’s Web site: www.ethics.ohio.gov.
1
R.C. 2921.01(A); Ohio Ethics Commission Advisory Opinion No. 84-014.
R.C. 2921.42(A)(1).
3
Adv. Ops. No. 87-004, 88-008, 90-010, and 92-012.
4
Adv. Op. No. 90-012 and 91-001.
5
R.C. 2921.01(I)(1)(a).
6
Adv. Ops. No. 89-008 and 96-004.
7
Adv. Ops. No. 86-002 and 2007-01.
8
Id.
9
R.C. 737.22.
2

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