A Functional Definition of a Government Employee
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.<br>
<br>
The issue is, When do employees of a private company become government
employees for purposes of ethics program jurisdiction over them?<br>
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According to <a href="http://theadvocate.com/home/7354025-125/ethics-board-declines-answers&q…; target="”_blank”">an
article in Sunday's <i>Advocate</i></a>, "architects, engineers and
contractors sought an exemption from the [state] ethics code during the
2013 legislative session. Legislators refused."<br>
<br>
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.<br>
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<b>A Functional Definition</b><br>
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.<br>
<br>
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.<br>
<br>
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.<br>
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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.<br>
<br>
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 <i>making</i> 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.<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
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