The Ohio Ethics Law and New Township Trustees and Employees Recorded Webinar Transcript

[00:05] Hello, everyone. My name is Susan Willeke. I work for the Ohio Ethics Commission and it's my pleasure to be able to give you some information today about the Ohio Ethics Law as it pertains to your service for townships. You are new to this world, so a warm welcome. Thank you for wanting to serve in the public sector. It can be a very rewarding and wonderful experience that can have a great many benefits for so many people. So thank you for being willing to serve in your local township. I'm going to do about 30 minutes about the Ohio Ethics Law, so just, real briefly, if you're not real familiar with the Ethics Law, just be aware, it's been around for a while, almost 50 years this law has existed in the state of Ohio, and it really is designed to protect all of us, not just those of us in public service, but all of us who are citizens, who are taxpayers, that you have the right to expect that governments operate fairly, that they operate impartially. That people are never using their public service, their public position or office or role in a way to get some unfair advantage or benefit for themselves, for their families, for their outside business associates.

[01:09] So as you can understand, a 30 minute class on an entire criminal law, because in fairness, this is a criminal statute, certainly is not a full, full course, if you will, on the Ethics Law. There’s many nuances, lots of studies we could do. This really is a fairly brief overview of some of the major portions of the Ethics Law as it pertains to you, as you join this wonderful adventure of public service in the township. So I'm just going to give you some of the basics. Please understand that everything we talk about there is so much more that you can find on our website, by giving us a call, reaching out to us at the Ethics Commission, because it really is our desire to keep government safe, fair, effective, but also to be a resource to all of us who do serve in the governmental arena. So before I jump into the law itself, I want to give you just a little bit more information, actually, about the Ethics Commission itself, what we can provide to you, how we can assist you.

[02:08] As you can see on this screen, these are some of our primary statutory responsibilities under the Ohio Ethics Law that have been under our purview for almost five decades. Now, I understand that your eyes probably go, first, to that third bullet point. Right? The “investigations.” And I understand that. As I mentioned, this is a criminal statute. It's very important for all of us to understand this is not a policy. This is not about best professional practices. This is not a civil law. It is a criminal law. So it does behoove all of us in public service to obey and comply with the Ethics Law because it does keep us safe. I don't want to be charged with a crime in my life any more than you do. So I understand why our eyes kind of go to that “investigation” one first. And in all fairness, our investigators here on staff are professional. They do their jobs well. They do them thoroughly, professionally, compassionately and everything else.

[03:03] But at the end of the day, my guess is most of us would prefer to not spend a ton of time with our investigators. Hence, you see the first two bullet points on this screen. I am the manager of the Education, Training, Communications section of the Ohio Ethics Commission. My job is to take the legal language of the Ethics Law and to make it relatable, understandable, palatable. That people can apply sort of the nuances and the details of this law to their careers, to their their role as public servant or public official. I do live speeches. Some of you may have seen me maybe in other parts of your career, in your life, at conferences around the state, I travel to counties and cities. I speak at state agencies, but I also do webinars like this one, both live and recorded. I do factsheets. I have a quarterly newsletter. We have all kinds of information that I create to put in our website, again, to kind of create a toolkit to help you, as someone in public service, be able to understand and therefore more effectively comply with the Ethics Law.

[04:05] So having said that, now glance at that first bullet point. We have three amazing Advisory Attorneys on our staff here at the Ethics Commission. Their job, honestly, is to give people in public service - it doesn't matter, your role, by the way - hired, elected, appointed, full time, part time, management, non-management, union, non-union. Everybody in public service at the state and local government levels are subject to the Ohio Ethics Law. The good news is you, therefore, have at your fingertips a resource, three Advisory Attorneys on our staff, that can help you understand. “Hey, Ethics Commission, I want to do the right thing. I'm just not sure what the right thing is to do in this particular circumstance, this fact pattern, this particular situation that I find myself in. How should I proceed that I make sure I do comply with the Ethics Law?” Those advise attorneys are there for you. They can send you information. How we have opined in the past. What we can guide you, in this circumstance, to make sure that you are in fact doing the right thing under the Ethics Law.

[05:11] The financial disclosure one is not something as a trustee or as a township employee that you are going to have to worry about. There are folks in public service that are required to do an annual financial disclosure statement with us. It's not true for townships, so you won't have to worry about that one. But I did want to make sure that you know that that does exist, that that's a resource to you as well, that if you want to know the transparency of certain people, “Hey, I'd like to know this elected official, that county commissioner, that mayor, that state, you know, employee with lots of authority,” there is even that level of transparency in government for you here in the state of Ohio. So with that, we talked a little bit about the “Why?” of the Ethics Law. This is the “Who?” of the Ethics Commission. So, that does bring us to the actual “What?” of the Ohio Ethics Law. These are the major provisions of our statute.

[06:03] I will tell you right up front, there are other parts of the Ethics Law that we're not going to get too deep into, probably not going to spend a lot of time on representation or supplemental compensation. The truth is, even though it's here on this screen, I'm not going to spend time in the Post-Employment world. That's something that you're going to want to know about someday when you're exiting public service. But for today, since this is kind of the introductory class, I want to talk about the ones that are most likely going to rear their heads for you in your years of public service at your township. So we're going to kind of tackle most of these, one at a time. Kind of like a table of contents in a book. So let's kind of hit these one at a time. So we will, in fact, start with Conflicts of Interest. I will tell you, I've always believed that this phrase “conflict of interest” to some degree gets a bad rap. Right? Of, it sounds very scary, very ominous. “Oh, a conflict of interest.”

[06:55] The truth is conflicts of interest happen a lot in public service. It's sort of a normal consequence of the fact that real live human beings like you, like me, we are the ones serving in governmental roles. People who enter public service any way, any form, like I said earlier, we don't cease to be human. We don't cease existing at, I don't stop existing at the end of my workday. You won't cease to exist at the end of that township trustee meeting or at the end of that shift, etc.. We all have these outside interests, our own financial interests, our property value, the job that you have in your private life, where you work full time or part time, the consulting work that you do, your family members who might be right there living and doing business in the township where you're serving, the nonprofit that you serve on their board, or maybe you're their executive director, that someday may need something from the township. These are normal life situations. These are the people and the things that enrich our lives and bring us joy. They, in fairness, are also the things that can bring about a conflict of interest.

[08:02] Any time something in our private lives that could show up in our public roles. These are the things that can bring about a conflict of interest. I'll tell you right off the bat, one of the phrases that you will hear a lot at the Ethics Commission when we're talking about conflicts of interest is the issue of a “definite and direct” conflict. For example, there's a huge difference between, let's say that I'm a township trustee in the township of Anywhere, Ohio. There's a huge difference with me saying, “Oh, I have a conflict that I can't vote on this budget tonight because we're voting on budget money that will pave roads in the township and I drive on the township roads. That's absurd, right? No one would ever interpret the statute that broadly. That's a huge contrast, an overreach, a hyperbole like that, with something along these lines: I am, you know, advocating for this lane to become a township road in order that I could access my property better. Or I'm advocating for this road to be, the infrastructure to be improved so it will increase traffic to my business.

[09:16] There's a difference between something that would impact everyone uniformly in that township versus something that somehow specially singles out a small group of people or an individual person. That includes myself, my family members, or someone in my outside business life. That's different than those overall across the board impacts that impacts everyone the same. So let me give you just a few examples that I've heard in my career at the Ethics Commission. I like this, this example, because it would it, would well illustrate a conflict that someone could have, even though he or she did nothing wrong. So let's pretend for a minute that I'm, I'm a trustee. And there's this development proposed for our community. And if our trustee board, if the if the township approves this development, then my brother, who has been approached by that developer saying, “Hey, if they approve this, we want to buy your property!” In this instance my brother stands to make a lot of money if this goes through.

[10:24] Now, in fairness, let me say again, I didn't create this conflict. I didn't invite it. I didn't seek it out. But I am now in a conflicted situation. Right? This is not something that impacts everybody in the community equally. My brother could make a lot of money. I haven't done anything wrong - so far. Because so far, we have to remind ourselves, it is not illegal for someone in public service to have a conflict. What would be illegal would be if I acted on it. All right, here's another one. Let's say we've got a public employee of any sort, state, township, county, city. It doesn't matter. I was just using examples here. That I'm using my public time, my public equipment to somehow operate a private business. Here I happen to use laptop or cell phone. It could also be something, like, I'm a township employee and by the way, I'm borrowing the township backhoe on the weekends to operate a private ditch digging business. I hope that would give you angst if that happened in your community.

[11:24] How about this one? This is a really common conflict, everybody. And again, it doesn't mean someone is automatically thinking, “Oh, I'm out to break the law.” But let's say that I'm a township employee and there really is this development company and they often have requests before the zoning commission and I see a job posting on their website. This comes down to: could that be a conflict for me? How involved am I in this development? Am I superfluous, peripheral involved, or am I deeply involved? These are situations where we would say, “Don't panic.” Just get more information. Step away, recuse, disclose, remove myself, withdraw, get more information. Call the Ethics Commission, reach out to the township's legal counsel, your county prosecutor most likely, and say, “What do I need to know? Do I need to step back?”

[12:16] One, we tons of information on our website, as I mentioned. But the one that I would point out quickly here is this one. This is a really helpful Advisory Opinion. 96-004. That just means it's the fourth opinion we issued in the year 1996. Really helpful in knowing, “What about that, using a laptop, using that township backhoe. What do I need to know about wearing my uniform if I'm working from home that day?” This is a really helpful Advisory Opinion for people who are balancing two parts of their lives. That I serve the township, but I also have this outside job consulting work, etc. At the end of the day, the answer is always going to weigh on: how do I recuse? When do I recuse? And I would point out, if, in fact, someone really has a conflict, recusal is far more than just, “I'll abstain from the vote.” It would mean that. But it would also mean I'm not having hallway conversations. I'm not reviewing, recommending, I'm not denying, I'm not advocating behind the scenes. I'm not, you know, imploring someone to see things their way. My outside business partner, et cetera. Recusal would have to be complete.

[13:28] Now, I realize in such a short time, I've probably caused more questions to come to your mind than I've answered them. I understand that. But again, this is the briefest of overviews. It's just to kind of begin to plant the seed of, “When will I even want to get more legal advice? When will I want to ask more questions?” The number one piece of advice I can give you as you enter this township adventure is to become familiar with our website. Check it out, look at it, see how much is there so you can get more information. And knowing that there's always more that you can get from us. If you say, “I need some specific legal guidance as well.” All right. I know. I could do, I could do my whole half hour just on the concept, I could do hours just on the conflict. But in the interest of time, we are going to move forward to the Gift part of the Ethics Law.

[14:16] The one thing that I will tell you, if you are coming in to trustee or township service, having come from a private sector background, you will need to know this is going to be vastly different for you. I understand in the private sector that companies that wine and dine clients or take them to ballgames or to Broadway shows or give them extravagant holiday gifts. That's a normal part of a lot of private sector industry. I completely understand that. When you have entered public service, you need to know all bets are off. That is not okay under the Ethics Law. Now, one of the things that you're probably hoping that I could give you right now would be a specific dollar amount of, “Hey, tell me, what are the gifts I am not allowed to accept? Is it 20? Is it 25? Is it 50? A 100? A million? A trillion? Just tell me the dollar amount.”

[15:09] The truth is, in the state of Ohio, 102.03(E) of the Revised Code does not identify a specific dollar amount. What the statute actually says to us in public service, again, it doesn't matter if you been hired, elected, or appointed, this is the same for all of us, we are not allowed to solicit or to accept substantial things of value from improper sources. So let's break those down. If you don't mind, I like to begin with the second word first, “improper.” All that word means is: who is the source of that thing of value? Who is it that wants to pick up my tab at lunch? Who is it that's saying I have an extra ticket to this football game or that hockey game? Or who is it that wants to take me golfing? Who is it that sent the box of cookies to the township office at the holidays?

[15:59] You can see on this slide, not every single human being on planet Earth is an improper source to your township, but there's some significant ones here. Those companies, those entities that are already doing business with your township; they are, they are currently selling construction services or IT consulting or they sell the t-shirts for your Parks and Rec people. Right? They are already doing business with your township. They are going to be an improper source of some things of value. Those who are seeking to do business, maybe they are submitting bids, maybe they are advertising, maybe they frequently sell goods and services. Maybe they are calling up your township administrator saying, “Hey, could I talk to you about our widgets?”

[16:47] So those that are already doing or actively seeking to sell goods and services to your township, that's going to make them an improper source. Anybody who's directly regulated by, like, this is actually someone that can get a permit or a license or you can do inspections, you can approve or deny things, or those who have a vested or specific interest in matters before your office. They can't open their new business in your township unless the zoning board approves their zoning request. Right? These are all folks who have a vested interest. Doing or seeking to do business regulated by or they are awaiting the outcome of some decision, some matter, case, proceeding. These are the folks that we would call an improper source. It doesn't mean they're improper people. It doesn't mean we assume they have improper motives. What it means is they would be improper sources of substantial things of value.

[17:45] As you can see, this is a two part equation, right? If in fact that improper source, that company that's selling things to your township or they're waiting to hear the outcome of that zoning request, whatever, if they gift you or your staff or your office with nominal things. Right? The trinket-y little promotional, the coffee mug or the little box of chocolates or donuts. That's not what we're calling substantial. When we use this word, “substantial.” It's some of those things that I mentioned that I do understand takes place in the, you know, private sector world. Right? Some of these things. Now, I will say this. Please don't look at this slide and think this is an all encompassing all inclusive list. It is not. Please don't look at this slide and think, “Well, I don't see home construction on my home, so that must be okay.” Right? This is just a smattering of examples of things that we've heard, stories that we've heard all about that sometimes we've even actually prosecuted.

[18:45] Right? Um The golf outings, the special discounts, furniture, appliances, jewelry, travel expenses, expensive meals, expensive bottles of alcohol, tickets to, whether it's a college, like an OSU football game, or a professional sporting event, or golf outings. These are the kinds of things that we're going to call substantial and that are therefore illegal for someone in public service to accept from our vendors, potential vendors, people we regulate, or people that have a vested interest in matters before our public office. It's not just a bad idea. It's not just bad form. It's not just the appearance of impropriety. It's actually a crime in the state of Ohio for people in public service to accept these things.

[19:37] So here's what I would tell you. In your years of public service, if the question arises in your mind, “Should I take it?” The very fact that that question has arisen in your mind might be indicative enough for you to say, “You know what, I'm gonna stay safe and stay away from this.” I will tell you, I've been a public employee for many, many years. It is not a gift that I can think of that makes it worth being charged with a crime for. Your two best “phrase friends” here, while you're in public service are, number one: “No, thank you.” And number two: “I'll pay my own way.” If you want to go have a lunch at a fancy steakhouse with a vendor to your agency or to your township. Fine. Just bring your own personal credit card. Right? You can go anywhere you want with anybody you want if you're paying your own way out of your own pocket. Right? Otherwise, just graciously decline.

[20:31] These things aren't worth it, everybody. It's not worth it. When you're in public service. It is different than the private sector. The work that you are embarking on as a township employee or township official is too wonderful, too valuable to the people who call your township home to have it messed up by something so temporary as some game or golf outing anyway. Okay? All right. So again, if you look at our website, there are so much more things that you're going to find out there. Fact sheets, I have worksheets, I have e-courses. I have so many things on gifts that can be helpful. Take a look. And if you still can't find what you looking for, give us a call. We'll be happy to help you. So with that, I do want to move on to the Public Contract part of my presentation today.

[21:15] A public contract, there's a fancy definition of it, I'll give you the really simple one. A public contract is any time your township spends money. That's really all it is. I don't care if it's a $5, you had to replace, you had to replace a cord for a township cell phone, or if it's a $100,000 construction contract. Any time public money is spent, that's a public contract. That's totally normal. It happens all the time. But you have to expect, when we're talking about public funds, you have to expect that there's going to be some restrictions. So here is the first felony provision that we're talking about in this course today.

[21:56] This Felony-4 would play out something like this. I work for the township of Anywhere, Ohio, and our township has decided that we are going to replace the roof on the township hall. And as a township employee, I think to myself, “Oh, that's kind of neat!” Because you know why? My brother owns a roofing company here locally and I think he should throw his hat in the ring and be considered for this roofing contract with our township. Now, the first question that might arise in your mind would be, “If I'm a trustee or a township employee, is my brother even allowed to go after that contract?” The answer is “Yes.” If your brother is a private sector roofing company owner and he's not in the public arena, yeah, he's allowed to pursue whichever contract he wants. The restriction isn’t on my brother. The restriction is on us as the person in public service.

[22:52] Here's our, this is, you’re not going to see this in the statute itself. But here in a nutshell, is the response that will keep you safe. “Hey, bro, good luck. Deep down in my heart, I'll be so happy for you if you get that contract. But you are on your own. I am not talking you up. I'm not talking down your competition. I'm not hand-delivering your bid spec response. I am not advocating, lobbying for, deciding, I'm not having any hallway conversations, I am not taking one single solitary action, whether verbally by text, formally, informally, no, never, anywhere, to help you get that contract.” If that kind of recusal is in fact possible for you, then it would be possible for your brother to get that contract. If you can not recuse yourself, there is nothing in the Ethics Law that says, “Well, as long as you promise you can behave objectively.” No, no such loophole. If you cannot recuse yourself, your brother in this example cannot get that contract.

[23:54] It's only when that kind of recusal, the complete total, 100% recusal is possible, that, in this case, your family member, maybe an outside business associate, could get that contract. So, for example, for a business associate. Let's say that I am a township trustee, but I work for a roofing company. Could my boss, who owns that company, could he or she get that contract? Same exact thing we said with the brother. If recusal is possible for me, then yes, the owner of that company that I work for, my brother, my sister could get that contract only if recusal is possible. Now, let's glance at that first bullet point,”Self.” This is one of the areas of the Ethics Law where recusal doesn't solve our problem.

[24:40] Now, clearly, if I actually use the authority of my public position to get that roofing contract for myself, we're looking at a fourth-degree felony for me. But here's the inaccurate leap that people often make. They'll say, “Hey, Ethics Commission, I totally get it. If, in fact, my my brother wants that contract, as long as I can recuse myself, it is possible for him to get it as long as I can recuse.” That's an accurate statement. Here's the inaccurate leap: “Doesn't that mean then, Ethics Commission, If I'm the township official or employee, shouldn't I, too, if I own the roofing company, shouldn't I, too, be able to throw my hat in the ring? And as long as I can recuse myself at the township, shouldn't I, too, be able to potentially get that contract?” And the answer here is a resounding, “No.”

[25:25] This is one of our two most commonly violated parts of the Ohio Ethics Law. In a nutshell, here's what I will tell you. This is where recusal doesn't solve the problem. This provision of the statute, 2921.42(D), it, paraphrased, essentially says this: You and I, as people in public service, we should never have our own public entity, in your case, your township, as a client in your private business. It shouldn't happen. If any of you watching this recording right now, if you own or co-own a business in your private outside life, if you do consulting work, if you sell widgets, I wish you joy and success. Excuse me. But you have to assume right here, right now, that you will never be a vendor to your own township. It should not happen.

[26:20] This is a common violation. I'm asking you right now to just separate those two parts of your life. You cannot sell things to your, services, goods, to your township. You can't do it. I don't care if it's a huge thing, an ongoing thing, like construction, or if it's a once in a while “as needed,” “I'm going to sell t-shirts to the township volunteers.” This is one of our two most common violations of the Ethics Law. I'm asking you right now to make sure this never happens in your township, that it never happens in your career. You should not be selling construction services, t-shirts, printing services, IT consulting, cookies, catering, DJ services, nothing. These are all things I've heard about. You have to have a bright red line separating your private business and your township. Those two should not be overlapping.

[27:13] If you would like more information on this, I have a fact sheet on our website specifically called “Sales - Goods and Services to Local Governments.” Check that out, look at it, and stay far away from this very common violation. Now, I've mentioned a couple of times this is one of our two most common violations. The other most common violation of the Ohio Ethics Law is also a public contract violation. And this is one when people help secure a very specific kind of public contract for a member of their family. And that specific kind of contract is a public job leading to nepotism.

[27:51] Now, mind you, nepotism is not the violation of two people who happen to be related to one another by blood or by marriage, both serving in a township. I understand that can happen. If I'm elected as a township trustee and my sister already was working for the township. She's a firefighter. She works in the Parks and Rec department. She works in the cemetery world. We get that that can happen. But that's not automatically nepotism because I'm not the person who got my sister her job. She predated me there in this hypothetical. It's the public that elected me. So that's not automatically nepotism.

[28:30] The crime of nepotism is when one person who was already in public service hired, elected or appointed, they were already in some public public role, they do not recuse themselves when their family member is seeking a public job. If a member of your family is pursuing a public job, you must completely recuse yourself from the entire process. You can see the definition of family here on this slide. (Spouse/domestic partner, Sibling, Parent/step-parent, Child/step-child, Grandparent, Grandchild) Incidentally, it doesn't matter if your children or grandchildren, etc. live in your home or not, they are still considered your family and you would have to recuse from any action related to their public job hunt. The exception is extended relatives not listed on this slide like aunts, uncles, nieces, nephews, cousins and in-laws. Any of those relatives are only considered family under the Ethics Law if that extended relative actually lives in your home.

[29:31] So if any of these family members we've discussed is looking for a public job at your township, at your county, a state agency, etc., wish them well and then stay far away. I recognize that I have very likely again, posed more questions in your mind than we could even answer in a one hour class. So I am going to invite you at this point to check out our website. That is our website. That is our general phone number. Please become familiar with the information that we have on our website and feel free to reach out to us if we can offer you even more information. There is so much that we can provide to you if in fact you attend the OTA conference. I hope to see you there. Please feel free to come say “hi” to me. I would love to be part of your journey as you embark on public service, because public service really is something that can be very honorable.

[30:25] I've devoted my entire adult life to it. Whether this is a new venture for you or you've been in other kinds of public service, I do welcome you to township public service. I grew up in a township. I grew up in a very rural one. Now I live in a township that's far more suburban looking, but nonetheless I recognize the value of the hard work that you have done, that you will yet do. If the Ethics Commission could be part of you doing that work ethically with the heart of real public service at the at the center of it all, it would be our great honor. So with that, thank you so much, everybody, for joining me for this session. I hope to see you again real soon in the future. Take care. Bye-bye.