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 of public funds Cannot use public funds to advocate, support, or oppose any ballot measure or 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 opportunity 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 1 st 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 15 th 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 offices 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 office?
Incompatible Offices If the offices are incompatible, taking the oath for the second office 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 of 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, official’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 or 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 4 th degree or they will get to keep their job / appointment but YOU WILL LOSE YOUR OFFICE (and you can’t fix it)!
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