CJ Dykhouse Boone County Counselor 801 E. Walnut, Suite 211 - - PowerPoint PPT Presentation

CJ Dykhouse Boone County Counselor 801 E. Walnut, Suite 211 Columbia, MO 65201

Topics

Potential “traps” for lawsuits Personal Financial Disclosure Compatible/Incompatible Offices Ethics Statutes / Conflict of Interest Anti-nepotism

Topics

Potential “traps” for lawsuits Personal Financial Disclosure Compatible/Incompatible

Offices

Ethics Statutes / Conflict of

Interest

Anti-nepotism

Potential litigation traps

Mo Const. Art. 6, Sect. 23 – No public

money for private purposes

No county, city, or other political

corporation shall … lend its credit or grant public money or thing of value in aid of any corporation, association, or individual, except as provided in this constitution.

Potential litigation traps

RSMo §115.646 – Prohibition on use

• f public funds

Cannot use public funds to advocate,

support, or oppose any ballot measure

• r candidate

Does not prohibit a Commissioner from

making public appearances or issuing press releases

Potential litigation traps

RSMo §50.660 – Bidding required

 All contracts and purchases shall be let to

the “lowest and best” bidder after due

• pportunity for competition

Exception – purchases of $4,500 or less

from any one vendor within 90 days (or $6,000 or less for certain counties)

Advertising required if purchase is over

$6,000

Potential litigation traps

RSMo §107.170 – Payment Bonds

“Public Works” contracts (roads,

buildings, public facilities) estimated to exceed $50K MUST have a Labor and Material Payment Bond

This is considered a mandatory,

ministerial duty. Therefore, there is PERSONAL LIABILITY if it isn’t done!

Potential litigation traps

Can we use this money for that?

Key information:

 Statutory authorization language at time

issue was presented to voters

 Ballot language  Statutory authorization language at time

question is presented

Potential litigation traps

Can we use this money for that?

 Legal Principle:

 “…the people’s money is not to be spent in a

manner other than authorized by an appropriation law” and “appropriation acts must be strictly construed.” Little Portion Franciscan Sisters, Inc. v. Boatright, 26 S.W.3d 443 (Mo.App. S.D. 2000) (analyzing the ballot language on a bond issue).

Topics

Potential “traps” for lawsuits Personal Financial Disclosure Compatible/Incompatible Offices Ethics Statutes / Conflict of Interest Anti-nepotism

Personal Financial Disclosure

Personal Financial

Disclosures (“PFDs”) required by RSMo §§105.483 -105.492

• Provides the public information about

the financial interests of public officials and employees

Personal Financial Disclosure

PFDs are required from the officials

and employees described in RSMo §105.483

County annual operating budget over

$1M = a need to file PFDs PFDs are due by May 1st each year Filed electronically with the Missouri

Ethics Commission

Personal Financial Disclosure

NOTE – You are BOTH an official and a

candidate when filing for reelection as an incumbent

Candidates are required to file a

separate PFD no later than 14 days after the close of filing

Personal Financial Disclosure

Failure to file a PFD as a candidate within

21 days of the date filing closes will result in REMOVAL of a candidate’s name from the ballot! RSMo Sec. 105.492.2

PRO TIP: You’ll file TWO (2) PFDs in the

year you declare for reelection – follow the Declaration of Candidacy instructions!

Personal Financial Disclosure

 Local Ordinance / Commission Order Option

per RSMo §105.485.4

 Must be adopted biennially at open meeting

by September 15th of preceding year

 Certified copy sent to Missouri Ethics

Commission within 10 days of adoption

 Certain minimum requirements required  Takes the place of the “long form” PFD

promulgated by the Missouri Ethics Commission

Personal Financial Disclosure

Additional, specific disclosures

required by RSMo §105.461

Written report filed with County

Clerk

Applies when a Commissioner has a

substantial personal or private interest in a matter before the County Commission

Personal Financial Disclosure

Questions? Missouri Ethics Commission

www.mec.mo.gov (800)392-8660 helpdesk@mec.mo.gov

Topics

Potential “traps” for lawsuits Personal Financial Disclosure Compatible/Incompatible Offices Ethics Statutes / Conflict of Interest Anti-nepotism

Incompatible Offices

One person can not hold two public

• ffices that are incompatible.

Inquiry turns on the specific facts and

circumstances.

TEST: Does one public office have some

supervision over, or is required to deal with, control, or assist the other public

• ffice?

Incompatible Offices

If the offices are incompatible,

taking the oath for the second

• ffice acts as an implied

resignation of the first office!

Incompatible Offices

See State ex rel. Walker v. Bus,

36 S.W. 636 (Mo. 1896).

Numerous AG Opinions

 www.ago.mo.gov for AG Opinions under

“Other Resources” tab

 Search “incompatibility of offices”

Topics

Potential “traps” for lawsuits Personal Financial Disclosure Compatible/Incompatible Offices Ethics Statutes / Conflict of Interest Anti-nepotism

Ethics Statutes / Conflict of Interest

Ethics Statutes can be found at RSMo

§§105.450 – 105.467.

There are several types of prohibited

actions…

Conflict of Interest

 RSMo §105.452 prohibited acts:

 Act or refrain from acting in exchange for anything of

value, including campaign contributions

 Use confidential information obtained in official

capacity for financial gain

 Disclose confidential information obtained in official

capacity for financial gain

 Favorably act on a matter designed to provide a “special

monetary benefit”

 Use decision-making authority for financial gain  Advocate for an appointment in exchange for anything

• f value

Conflict of Interest

 RSMo §105.454 prohibited acts:

 Perform any service for County for consideration other

than official compensation

 Sell, rent, or lease any property to the County for more

than $500 per transaction or $5,000 per year, unless true low bid after bidding procedure

 Participate in any decision or attempt to influence any

decision that would lead to a transaction in excess of $500 per transaction or $5,000 per year to official,

• fficial’s business, official’s spouse or dependent child

Conflict of Interest

 RSMo §105.454 prohibited acts (continued):

 Perform any service for consideration which

attempts to influence a decision of the County

 Attempt to influence decisions of County in

exchange for consideration for 1 year after termination of office

 After termination of office, perform any service for

consideration for any person in relation to any case, decision, proceeding, or application in which you personally participated in as an official

Conflict of Interest

 RSMo §105.458 prohibited acts:

 Allow any business entity in which you own more

than a 10% interest to do business with County in excess of $500 per transaction or $5,000 per year unless true bid after bidding procedure

 All any business entity in which you own more than

a 10% interest to sell, rent, or lease property to the County in excess of $500 per transaction or $5,000 per year unless true low bid after bidding procedure

Conflict of Interest

 RSMo §105.464 prohibited acts:

 Quasi-Judicial Capacity (examples – Conditional Use

Permits; nuisance abatements)

 Can not participate in any proceeding involving a party

who is your grandparent, great grandparent, parent, step-parent, guardian, foster parent, spouse, former spouse, child, step-child, foster child, ward, sibling, niece, nephew, aunt, uncle, or cousin.

Conflict of Interest

RSMo §105.467 prohibited acts:

 Shall not discharge or discriminate against any

employee for reporting suspected violations of RSMo §§104.450 – 105.498

Topics

Potential “traps” for lawsuits Personal Financial Disclosure Compatible/Incompatible Offices Ethics Statutes / Conflict of Interest Anti-nepotism

Anti-Nepotism

Mo Const. Art. 7, Sect. 6:

Any public officer or employee in this state who by virtue of his office

• r employment names or appoints to

public office or employment any relative within the fourth degree, by consanguinity or affinity, shall thereby forfeit his office or employment

Anti-Nepotism

Anti-Nepotism

Some cautionary tales:

Anti-Nepotism

The takeaway:

Avoid hiring or appointing ANY relatives

within the 4th degree or they will get to keep their job / appointment but YOU WILL LOSE YOUR OFFICE (and you can’t fix it)!

QUESTIONS?

Thank you!