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A Functional Definition of a Government Employee
Tuesday, October 22nd, 2013
Robert Wechsler
In many jurisdictions, lawyers have sought to be excluded from
ethics program jurisdiction, arguing that their conduct is regulated
by their state's attorney disciplinary process. Recently, in Louisiana,
other professionals have sought to be excluded from the state ethics
program's jurisdiction (which includes local officials) pursuant to
a different argument.
The issue is, When do employees of a private company become government employees for purposes of ethics program jurisdiction over them?
According to an article in Sunday's Advocate, "architects, engineers and contractors sought an exemption from the [state] ethics code during the 2013 legislative session. Legislators refused."
Failing to get a legislative exemption, professional groups sought exemption via a state ethics board advisory opinion. The ethics board refused, as well. The board chair was very direct with the attorneys representing the professional groups. He said, “I think you are trying to get us to give a blanket exemption that the Legislature wouldn’t give you.” He noted that the board had given professionals guidance in the form of advisory opinions on particular cases, and that factual scenarios are necessary for the board to be able to provide an advisory opinion. He said that the “nebulous questions” presented to the board look like “a trap.” The board's decision not to provide an advisory opinion in this situation was, I think, correct.
A Functional Definition
The state ethics code's definition of "public employee" includes "anyone who is ... engaged in the performance of a governmental function." In other words, it is, in part, a functional definition. I like this language so much, I added it to the City Ethics Model Code's definition of "official or employee." It is important that the definition of a government employee include both the positional and the functional.
When a definition is functional, jurisdiction, and the individual's obligations, depend not solely on the individual's position and status (employee of a private company), but also on his function. When a lawyer is hired to represent a city, he is functioning in a manner no different than the city attorney. Therefore, his obligations to the public are the same. When an engineer is hired to do inspections for a county, she is functioning in a manner no different than an inspector on the payroll. Therefore, her obligations to the public are the same.
The attorney for a contractors association took a different view, that private professionals do not become public employees. “The sovereign authority of the state has not been ceded,” he is quoted as saying.
Government ethics has nothing to do with sovereign authority. It has to do with the obligations of individuals who serve the community either in or for the government. The public does not differentiate between a lawyer, engineer, or architect who is on the payroll and one who is on contract. If they are using and being paid out of public resources, or if they have special influence over public decisions, it doesn't matter how private they otherwise are.
The contractors association attorney also is quoted as saying, “The ethics code was never intended to sweep up people and make them public employees just because they have a contract with a public body.” It's not about making contractors public employees, it's about recognizing the obligations of those doing government work and about giving the government ethics program jurisdiction over them, which means ethics training, ethics advice, disclosure requirements, as well as enforcement.
When I hire a contractor to do work on my house, she follows not just her company's rules, but my rules as well. She has obligations to me and to my neighborhood for the time she is working at my house. This includes limitations on noise, garbage, etc. It's no different for contractors who work for government. They are subject to government rules and have obligations to the community in which they work.
Robert Wechsler
Director of Research-Retired, City Ethics
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The issue is, When do employees of a private company become government employees for purposes of ethics program jurisdiction over them?
According to an article in Sunday's Advocate, "architects, engineers and contractors sought an exemption from the [state] ethics code during the 2013 legislative session. Legislators refused."
Failing to get a legislative exemption, professional groups sought exemption via a state ethics board advisory opinion. The ethics board refused, as well. The board chair was very direct with the attorneys representing the professional groups. He said, “I think you are trying to get us to give a blanket exemption that the Legislature wouldn’t give you.” He noted that the board had given professionals guidance in the form of advisory opinions on particular cases, and that factual scenarios are necessary for the board to be able to provide an advisory opinion. He said that the “nebulous questions” presented to the board look like “a trap.” The board's decision not to provide an advisory opinion in this situation was, I think, correct.
A Functional Definition
The state ethics code's definition of "public employee" includes "anyone who is ... engaged in the performance of a governmental function." In other words, it is, in part, a functional definition. I like this language so much, I added it to the City Ethics Model Code's definition of "official or employee." It is important that the definition of a government employee include both the positional and the functional.
When a definition is functional, jurisdiction, and the individual's obligations, depend not solely on the individual's position and status (employee of a private company), but also on his function. When a lawyer is hired to represent a city, he is functioning in a manner no different than the city attorney. Therefore, his obligations to the public are the same. When an engineer is hired to do inspections for a county, she is functioning in a manner no different than an inspector on the payroll. Therefore, her obligations to the public are the same.
The attorney for a contractors association took a different view, that private professionals do not become public employees. “The sovereign authority of the state has not been ceded,” he is quoted as saying.
Government ethics has nothing to do with sovereign authority. It has to do with the obligations of individuals who serve the community either in or for the government. The public does not differentiate between a lawyer, engineer, or architect who is on the payroll and one who is on contract. If they are using and being paid out of public resources, or if they have special influence over public decisions, it doesn't matter how private they otherwise are.
The contractors association attorney also is quoted as saying, “The ethics code was never intended to sweep up people and make them public employees just because they have a contract with a public body.” It's not about making contractors public employees, it's about recognizing the obligations of those doing government work and about giving the government ethics program jurisdiction over them, which means ethics training, ethics advice, disclosure requirements, as well as enforcement.
When I hire a contractor to do work on my house, she follows not just her company's rules, but my rules as well. She has obligations to me and to my neighborhood for the time she is working at my house. This includes limitations on noise, garbage, etc. It's no different for contractors who work for government. They are subject to government rules and have obligations to the community in which they work.
Robert Wechsler
Director of Research-Retired, City Ethics
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