ADVISORY OPINION NO. 126
The question is whether outside employment as a musician would conflict with an employee's duties as an assistant to a member of the City Council. The Ethics Commission's [Commission's] answer is no.
The Commission appreciates the employee's awareness and concern regarding the ethical ramifications of his off-duty activities as a musician in relation to his official duties. As stated in Section 11-101, RCH, the Commission's main objective is to increase and retain the public's confidence in City government. This objective is achieved by nipping any potential conflict of interest which may exist when a written disclosure is filed for review. This advisory opinion therefore sets out what could happen – rather than what has happened – if an officer or employee is not cognizant of the scope of the standard of conduct provisions of the RCH and ROH. Perhaps the Commission can focus attention upon the basic elements which constitute a conflict of interest. Conflict of interest is defined in 73 Michigan Law Review 758 (1975) thus:
A 'conflict of interest' may be defined as any circumstance in which the personal interest of a public official in a matter before him in his official capacity may prevent or appear to prevent him from making an unbiased decision with respect to the matter. [Emphasis added]
Based on the foregoing definition, the Commission has developed a diagram of the basic situation. See Appendix A attached hereto. Note that there are two upper blocks, one representing the public position of aide and the other the private activities as a musician and resident of this City. The lower block represents business establishments such as restaurants, bars, night clubs, and caterers (hereinafter "Musicians"), which employ musicians. A solid line connecting two boxes means a direct connection between the two entities. The significant aspect in this case is the absence of a solid line extending from the aide block to the block labeled "Musicians." The absence of the solid line indicates that duties as an aide do not involve Musicians, either directly or indirectly. Since there is no link between the aide block and the Musicians block, there is no opportunity for the employee to make a biased decision in favor of Musicians. For the same reason, there is no appearance of conflict of interest.
Based on the foregoing discussion, the Commission will now attempt to show the circumstances in which a standard or standards of conduct found in the RCH or ROH would apply. In this case, the Commission would first set out the relevant facts which would be the basis for the application of a specific standard of conduct that would apply in this case. What follows, then, is a discussion of how the specific standard of conduct provisions could apply in certain circumstances. Based on the response to questions posed by the Commission at a preliminary hearing held on (date), the Commission considers the following facts to be relevant for the application of the specific standard of conduct provisions:
1. On (date) the subject was employed by the City as aide to a member of the City Council. His primary duties as aide are to: research or refer research requests of the Councilmember to the Office of Council Services Director; direct constituents' concerns either to the Councilmember or the appropriate City agency for action; develop, digest, or summarize proposed bills, policies and procedures; and submit such digests and summaries to the Councilmember.
2. He is employed as a musician. This employment is carried on after office hours and weekends. There are no statutory, charter, or ordinance provisions authorizing the Council to exercise jurisdiction over musicians for employment or business establishments which employ musicians.
Because the aide is employed as a musician, he has a financial interest as defined in Section 6-1.1(6), ROH. Inasmuch as he has a financial interest, the standards of conduct that could apply are Sections 11-102.3, RCH, and 6-1.2(2), ROH. Section 11-102.3, RCH, provides that no officer or employee shall:
Engage in any business transaction or activity or have a financial interest, direct or indirect, which is incompatible with the proper discharge of his official duties or which may tend to impair his independence of judgment in the performance of his official duties.
Section 6-1.2(2), ROH, provides that no officer or employee shall:
Acquire financial interest in business enterprises which he has reason to believe may be directly involved in official action to be taken by him.
To determine whether his off-duty activity as a musician is incompatible with the proper discharge of his duties as an aide or the independence of his judgment as an aide, the Commission focuses its attention on his specific duties and responsibilities as an aide. Such examination reveals that musicians are not within the scope of his duties. In short, as an aide, employment of musicians is not one of his concerns. Consequently, his off -duty activity as a musician is not a financial or business interest which is incompatible with the proper discharge of his duties as an aide or which may tend to impair his independence of judgment as an aide.
Although the Commission has opined that Section 11-102.3, RCH, would not apply in this case, it could apply if he were to use City time, equipment, or materials for his off-duty activity as a musician. Such restriction is not expressly stated in Section 11-102.3. RCH, but it is implied. That is, if his activity as a musician causes him to use City time, equipment, or material, then such off-duty activity is incompatible with the proper discharge of his duties or has caused an impairment of the independence of his judgment as an employee. For instance, he may use a City telephone to contact one of his off-duty employers to inform him of changes in his schedule. If such use of City equipment were made during his regular working hours (City time), he would have violated Section 11-102.3, RCH.
As to Section 6-1.2(2), ROH, there is no doubt that his employment as a musician is a financial interest in a business enterprise. However, Section 6-1.2(2), ROH, could not apply in his case because activities of musicians are not within the scope of his official duties. As such, activities of musicians would not come before him for his official action.
Another standard of conduct that could apply to his case is Section 11-102.2, RCH, relating to disclosure of confidential information. Since he is the aide to a member of the Council, he would be privy to privileged or confidential information regarding the activities of the Council. Such privileged or confidential information could relate to personnel, claims against the City, labor-management matters, and proposed amendments to bills which are not public record. Therefore, he must exercise care to determine whether or not a particular item or subject matter is privileged or confidential before disseminating same. Moreover, as an aide, he may be badgered by print and electronic media reporters regarding activities of the Council, so he must be certain that any items or subject matters released by him are public record. Constituents and lobbyists may be contacting him to find out attitudes, opinions, or tentative decisions of the Councilmember or other members of the Council regarding proposed bills in committee or the Council of interest to them. Some of them may wish to obtain advance information, regarding proposed bills which are before the Council, for their personal economic interests. In such case, if the desired information is a matter of public record, he may disclose it. However, if it is not, he should not disclose it.
Another standard of conduct which could apply because of his position as an aide is Section 11-104, RCH, regarding fair and equal treatment. That section provides that:
No elected or appointed officer or employee shall use his official position to secure or grant special consideration, treatment, advantage, privilege or exemption to himself or any person beyond that which is available to every other person.
As an aide to a member of the Council, he may be placed in such position that he may find it difficult to adhere to the mandate in Section 11-104, RCH, because of the variety of individuals who seek to gain the attention of the Councilmember and obtain information about the Council. Therefore, he must be alert and diligent so that he will not be charged with favoritism of one group over another or of one individual over others.
To summarize, the Commission concludes that the employee's off-duty activity as a musician would not cause him to make or appear to make a biased decision as an aide in favoring musicians because musicians are not within his jurisdiction as an aide. Consequently, Section 11-102.3, RCH, relating to financial or business interests which are incompatible with the proper discharge of his duties as an aide or may impair the independence of his judgment as an aide, would not apply. Although the Commission opined that Section 11-102.3, RCH, could not apply in his case, if he uses City time, equipment or material for his purposes as a musician, Section 11-102.3, RCH, would be applicable. As for Section 6-1.2(2), ROH, this provision would not apply for the same reason. Such restriction is not expressly stated within those sections, but it is implied. Inasmuch as he may be privy to confidential information as the aide to a Councilmember, any disclosure of such information by him could be a violation of Section 11-102.2, RCH. Section 11-102.3, RCH, could apply if he disclose confidential information – such as personnel matters, claims against the City, proposed amendments to bills, or labor-management decisions which he obtains from the Councilmember or colleagues, or from documents which are yet to be classified as public record and which he may be privy to as aide – to persons not privy to such. Finally, Section 11-104, RCH, could apply in his case if he, as an aide to a Councilmember, treats or favors an individual or a group of individuals differently from another individual or group of individuals similarly situated. Therefore, he should exercise caution in dealing with the public who seeks his assistance regarding the Councilmember's or Council's activities.
Dated: November 8, 1983
MAZEPPA K. COSTA
[DIAGRAM OF CONFLICT OF INTEREST]