ADVISORY OPINION NO. 128
The question is whether an after-working-hours project relating to researching and drafting a manuscript for a proposed book on a specialized City agency would conflict with the duties of an information specialist for the City.
It is the Ethics Commission's [Commission's] opinion that the proposed project may conflict with the duties of an information specialist.
The Commission conducted a preliminary hearing wherein the information specialist appeared and responded under oath to questions posed by the Commissioners. The following facts were obtained through his testimony, his position description, and the organization chart of the department concerned and are relevant in this case:
1. The subject is employed by the City as an information specialist;
2. The employee's primary duties and responsibilities are to research and draft letters, manuscripts, proclamations, press releases, resolutions, and other documents for City departments and agencies;
3. Among the agencies which may be assigned to him by either the Director or his Section Chief is the agency in question. Consequently, he was assigned to do research and draft an educational memorandum on the agency;
4. He proposed to undertake this project after his regular working hours. Since the historical notes and data on the agency may be found in State and City Archives and such agencies are open for business only during regular office hours, he intends to take leaves of absence with pay to do such research. As for personal interviews, he may or may not be confined to regular office hours. On the other hand, if such interviews can only be done during regular office hours, he intends to do such interviews when he is on official leave; and
5. He testified that he became interested in the agency because he was assigned by his superior to do research and draft a memorandum on the agency. He further testified that such research, writing, and other data on the agency may be used in his proposed book. Moreover, such research and writing were done during City time, using City equipment, and material.
The information specialist's concern that his proposed book might involve conflict of interest considerations is appreciated and was transmitted to the Director. Thus, when the request for an advisory opinion was transmitted to the Commission, he complied with the provisions of Section 11-103, RCH. That section states that:
Any elected or appointed officer or employee who possesses or who acquires such interests as might reasonably tend to create a conflict with the public interest shall make a full disclosure in writing to his appointing authority . . . and to the Ethics Commission, at any time such conflict becomes apparent.
His timely disclosure enables him to avoid any potential conflict of interest. This Commission also has the duty to nip any potential conflicts of interests. Since the Commission is concerned with the avoidance of potential conflicts of interest, an advisory opinion generally refers to what could happen rather than what has happened.
In the application of the standard of conduct provisions, there is an indefinite scope as to its application. Such indefiniteness is caused by phrases such as: "reasonably be inferred," Section 11-102.1, RCH; "may tend to . . .," Section 11-102.2, RCH; "might reasonably tend to . . .," Section 11-103, RCH; "reason to believe may be. . . ," Section 6-1.2(3), ROH; and "appear to prevent," 73 Michigan Law Review definition (see below).
With the foregoing explanation, the Commission will proceed to set out the standard of conduct provisions and discuss its applicability in conjunction with the pertinent facts of his case.
Under the foregoing facts, the applicable standards of conduct are:
1. Section 11-102.3, RCH, relating to incompatibility. That section 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. . . .
2. Section 11-102.4, RCH, relating to compensation. That section provides that no officer or employee shall:
Receive any compensation for his services as an officer or employee of the city from any source other than the city, except as otherwise provided by this charter or by ordinance. . . .
3. Section 11-104, RCH, relating to fair and equal treatment. That section states 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.
Sections 11-102.3 and 11-102.4, RCH, are labeled "conflict of interest" provisions in the RCH, but not Section 11-104. The phrase "conflict of interest," is defined in 73 Michigan Law Review 758 (1975), as:
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.
This definition has been applied to this case and is illustrated by a diagram shown in Appendix A, attached hereto. Generally, when the lines from the upper blocks converge on the single lower block, there is a conflict of interest or an appearance of a conflict of interest. A conflict of interest may occur because of a tug-of-war between personal business or financial interests of an officer or employee versus the public duties of that officer or employee.
Before Section 11-102.3, RCH, is applied in this case, the Commission has to determine whether or not his proposed book represents either a business or financial interest, or both. Article 11, RCH, does not provide statutory definitions for business or financial interests, but those definitions may be found in Section 6-1.1, ROH. Examination of those definitions indicates that his proposed book may be either a business or financial interest. Thus, the Commission can now consider whether the rest of Section 11-102.3, RCH, could apply in his case.
The Commission relates two situations which may cause the information specialist to set aside his duties because of overriding concern in connection with his proposed book.
For example, he may have a City assignment that may take him to the State Archives. After he has finished his City assignment, he may decide to spend some time at the Archives to gather additional information on the agency. There may be other situations where his interest in his proposed book may override his assigned work as an Information Specialist because:
1. He evidently works under general supervision rather than close supervision of his superiors in carrying out his duties;
2. He has an intimate knowledge of the duties and responsibilities of an Information Specialist; and
3. He knows the internal and external routine within his Department.
Another example is that if the employee incorporates into his proposed book the product of his research, drafts, and other materials, he would be utilizing the foregoing items which belong to the City. They belong to the City because he testified that he was assigned to do research and writing about the agency as his regular assignment. Moreover, he utilized City time and probably City equipment and material. Consequently, such incorporation by him would result in a business or financial interest which is incompatible with the proper discharge of his duties or may have tended to impair his independence of judgment.
Although the use of City time, equipment, or material is not expressly forbidden in Section 11-102, RCH, such restriction is implied. Any time an officer or employee uses City time, equipment, or material for his or her personal business or financial interests, it follows that such officer or employee has not properly discharged his or her public duties or that his or her independence of judgment has been impaired to the detriment of his or her public duties. In short, no City officer or employee should have a personal business or financial interest which is enhanced at the expense of the City or the public.
The application of Section 11-102.4, RCH, is predicated on the receipt of a fee and/or royalties by the information specialist for each book sold to the public. An analysis of his job description and his assignment clearly reveals that any research and writing about the agency can be a regular assignment. Consequently, he was assigned to do research and write about the agency. Thus, any royalties he received would be compensation for work he was required to do as an Information Specialist. Moreover, the Commission is unable to find any exception in the State laws or the Revised Charter of Honolulu wherein he may receive royalties for his proposed book.
Section 11-104, RCH, could apply if the information specialist sets aside a regular assignment which is to provide special information concerning a problem encountered by a resident of the City, and work instead on his proposed situations in which he may give a higher priority to his proposed book at the expense of a resident involved in his regular assignments. Should such situation actually occur, there would be a breach of Section 11-104, RCH. In short, he would have failed to treat a resident of the City in the same manner as he did himself concerning any research or writing assignment about the agency.
In sum, the Commission finds that Section 11-102.3. 11-102.4 and 11-103, RCH, could apply in his case under the circumstances related herein.
Section 11-102.3, RCH, could apply if the information specialist incorporates in his proposed book any research data and drafts about the agency which were acquired during City time, on City equipment, and using City material during regular working hours as a regular assignment for an information specialist. Moreover, because he works under general, rather than close, supervision of his superiors, there may be instances in which his personal business or financial interests in his proposed book could override his public duties as an Information Specialist. If such a situation should occur, the activities related to his proposed book would be incompatible with the proper discharge of his duties or impair his independence of judgment. Although the use of City time, equipment, or material is not expressly forbidden in Section 11-102.3, RCH, it is implied. It is implied because any time he uses City time, equipment, or material to enhance his personal business or financial interests, he is not properly carrying out his public duties, or his judgment has been impaired in carrying out such duties.
Since his regular assignment as an information specialist may include the agency, if he receives any compensation, such as royalties from his publication, he may be receiving compensation for work he was required to do as an Information Specialist. If so, Section 11-102.4, RCH, could apply.
Section 11-104, RCH, could also apply if he relegates a regular assignment, involving a resident of the City concerned with a problem with the City, to a lower priority in favor of his activities on his proposed book during regular working hours. In short, he has treated the resident unfairly.
In view of the foregoing, the Commission recommends that publication of the history of the specialized City agency be undertaken as a City project because:
1. It is a worthwhile project; and
2. If public funds are not available, funds from the private sector may be sought by a private organization whose purpose and existence is for the benefit of the agency.
Dated: August 25, 1983
MAZEPPA K. COSTA
Chair, Ethics Commission
[DIAGRAM OF A CONFLICT OF INTEREST]