I.
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IV.
V.
Introduction and Summary
Purpose of This Policy; Agency Policy Statement
Definitions
Procedures
Other Applicable Requirements
I.
Introduction and Summary
It is critically important that the public have confidence in the Act 250 decision making process. Toward this end, the Vermont Environmental Board (“Board”) is committed to administering Act 250 in a manner that is objective, fair, impartial and in accordance with the law. While authority to render permit decisions rests solely with the Board and nine District
Environmental Commissions, employees who provide administrative and technical support to these agencies must execute their duties with integrity and objectivity to assure the proper functioning of the Act 250 program.
The Board has adopted this policy to provide guidance to classified, limited service, temporary, and contract employees concerning how to avoid conflicts of interest and how to resolve conflicts of interest questions if and when they arise in the course of their work for the
The Board is committed to interfering as little as possible in the off-duty activities of its employees. In fact, the Board encourages its employees to be active members of their communities and to become involved in civic or other activities, if they wish, provided that the frequency and timing of such outside activities does not impair the conduct of their official duties. The Board also recognizes that some employees may need or desire to secure paid employment outside of regular work hours, and does not wish to discourage such activity.
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Nevertheless, a Board or Commission classified, limited service, temporary, or contract employee must be wary of conflicts of interest and scrupulously avoid staffing any matter or proceeding in which he or she has a private interest which conflicts with his or her official duties. Conflicts of interest may arise from many kinds of interests -- pecuniary and otherwise -
- that a Board or Commission classified, limited service, temporary, or contract employee may have outside of work. This policy attempts to define these conflicts of interest.
To protect the right of a classified, limited service, temporary, or contract employee to
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engage in off-duty affairs, this policy states that in the event of a conflict between an employee's outside activity and his or her Act 250 duties, the outside activity may take precedence. In such circumstances, the employee must be shielded from involvement with the matter in his or her job, so that the employee can fully participate in the outside activity. The
Board also recognizes that in certain cases an employee’s Act 250 duties must take precedence over the employee’s private interest, and this policy establishes criteria and a process for making such a determination.
II.
Purpose of This Policy
The State of Vermont Personnel Policies and Procedures on Employee Conduct
(Number 5.6) and Income from Outside Sources (Number 11.5) provide, in part:
Employees shall not engage in any employment, activity, or enterprise which has been or may be determined by the appointing authority to be inconsistent, incompatible, or in conflict with their duties as a State employee or with the duties, functions or responsibilities of the agency by which they are employed.
(emphasis added)
Policy 5.6 also provides, “The mere appearance of impropriety may constitute a conflict of interest. . . . Employees shall consult with their appointing authorities prior to engaging in such employment, activity, or enterprise.”
The purpose of this policy is to set standards to help Board or Commission classified, limited service, temporary, or contract employees determine whether outside “employment, activity or enterprise” is “inconsistent, incompatible, or in conflict with” the employee’s job, and if so, what should be done about it. It also establishes a procedure by which these employees can obtain guidance and, if necessary, a decision by their appointing authority on whether offduty conduct will or may run afoul of the Personnel Policies and this Policy. By accomplishing these objectives, this policy is designed to foster and protect the integrity of Act 250 staff in the performance of their job-related duties, the integrity of the Act 250 program as a whole, and the objectivity of Board and Commission decision making, while minimizing interference with employees’ outside activities.
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III.
Definitions
“Agency” means Vermont Environmental Board and/or a District Environmental Commission, depending on the context in which the term is used.
“Appointing Authority” means the person authorized by statute, or lawfully-delegated authority, to appoint and dismiss employees for the Board and Commissions. For purposes of this policy, the Board through its Chair hereby delegates to the Executive
Director, the authority to operate as the “appointing authority” for Board and
Commission classified employees.
“Classified Employee” means an employee of the State of Vermont who is hired to fill a position in the classified service in accordance with merit principles as administered by the Department of Personnel. “Classified employee” or “employee,” as those terms are used in this policy, both refer to classified employees appointed to work for the Board or a Commission.
“" Conflict of interest ” occurs when there is a significant interest, pecuniary or otherwise, of an employee or a member of the employee’s immediate family or household, or of an employee’s business partner or associate, in the outcome of any particular matter pending before the Board or Commission over which the employee has decision making authority or the ability to influence the decision-maker. “Conflict of interest” does not include (i) any interest that is no greater than that of other persons generally affected by the outcome of the matter, or (ii) any interest that has been disclosed by the employee and approved pursuant to sections 1 and 2 of the Procedures set forth below.
“Contract Employee” means a person who has been contracted to deliver services for a specific fee in a specified period. There is no employer-employee relationship created by the contract and therefore this person is, strictly speaking, not an “employee.”
Nevertheless, a person who provides contracted services is expected to conduct his or her affairs consistent with the terms and requirements of this Policy, so far as applicable. [See Department of Personnel Policy 5.1, Employee Categories.]
“" Immediate family or household ” means an employee’s parent, grandparent, spouse, party to a civil union, child, brother, sister, parent-in-law, grandchild, foster child, any person residing with the employee, and any family member for whom the employee is primarily responsible either to arrange for health care or to provide care.
“Limited Service Employee” means a person who holds a non-tenured position in the classified service which, when initially established, is reasonably expected to exist for a limited duration of less than three (3) years but more than one (1) year. A limited service position has a definite termination date and is usually associated with a specially funded project or program. [See Department of Personnel Policy 5.1, Employee
Categories.]
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“Policy” means “Vermont Environmental Board Policy Regarding Employee Conflicts of
Interest,” unless some other agency’s policy is specifically referenced.
“Significant interest” Whether a classified employee (or immediate family or household member, or business partner or associate) has a “significant interest” outside of work depends on the facts in each case. In determining whether a “significant interest” exists, the inquiry should focus on whether the employee’s (or related person’s) involvement in the outside activity makes it reasonably possible that the employee’s actions on the job will be influenced by the outside involvement. The more deeply involved an employee is in an outside activity, the more significant is his or her interest.
Also, the greater the authority an employee has over the agency action in question the lesser the outside involvement needs to be to constitute a “significant interest” under the circumstances. Generally speaking, an employee’s mere membership in an organization (non-profit corporation, educational association, club, etc.) without greater involvement, does not rise to the level of a “significant interest.”
“Temporary Employee” means a person who holds a position of short-term duration, outside the State classified service, but subject to allocation to a class and assignment of pay grade within the State classification plan. There are six classes of temporary employees: seasonal bonafide emergency hires, intermittent, sporadic, or ongoing parttime (that averages less than twenty (20) hours per week during any one calendar year, not to exceed 1040 hours in one calendar year).
IV .
Procedures
1.
Gaining Approval for Outside Activities
Familiarize Yourself with This Policy. The first line of defense against conflicts of interest is to become familiar with the provisions of this policy and related Vermont Personnel Policies. In most instances, a Board or Commission classified, limited service, temporary, or contract employee will be able to make his or her own determination of whether a particular outside activity presents a conflict of interest and will be able to discuss with his or her immediate supervisor how to best address the situation through a change in work assignments or other means.
Consult in Advance. As a preventative measure, Board and Commission classified, limited service, temporary, or contract employees are strongly encouraged to consult with their immediate supervisors to determine whether current and/or proposed outside activities, enterprises or employment does or may present conflicts of interest, as required by Vermont
Personnel Policy 5.6. Regardless of whether an employee has sought advance approval, the employee remains subject to the ongoing prohibition against conflicts of interest as required by this Policy and the Personnel Policies. If in doubt about whether an outside activity creates a conflict of interest under this Policy, a Board or Commission classified, limited service, temporary, or contract employee is encouraged to seek a determination from his or her immediate supervisor concerning whether such activity constitutes or may constitute a conflict of interest and what measures, if any, should be taken to avoid or remedy such a conflict.
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How to Receive Approval. A Board or Commission classified, limited service, temporary, or contract employee, engaged in or proposing to engage in an outside activity, enterprise or employment that does or may present a conflict of interest, is encouraged to obtain written approval for said activity from his or her immediate supervisor. This should be done by written memorandum to the immediate supervisor outlining the nature of the outside activity, enterprise or employment, the degree of involvement of the employee, the nature of the actual or potential conflict of interest, and a proposal for how any actual conflict of interest shall be avoided or remedied. The immediate supervisor shall act promptly on all such memoranda and respond in writing concerning whether there is or may be a conflict of interest and, if so, what actions should be taken to avoid or remedy such conflict of interest, if such conflict of interest.
Appealing a Decision Regarding a Conflict of Interest. If a Board or Commission classified, limited service, temporary, or contract employee consults with his or her immediate supervisor concerning whether a conflict of interest exists or may exist, and the employee disagrees with either the supervisor’s determination that a conflict of interest exists or any decision concerning how any conflict of interest shall be avoided, the employee may either accept such determination or ask the Appointing Authority to make an independent determination concerning whether a conflict of interest exists or may exist and what measures, if any, are necessary to avoid or remedy such conflict. Such a request shall be done by filing a written memorandum with the Appointing Authority outlining the nature of the outside activity, enterprise or employment, the degree of involvement of the employee, the nature of the actual or potential conflict of interest, and a proposal for how any actual conflict of interest shall be avoided or remedied. The Appointing Authority may meet with both the employee and the immediate supervisor to ascertain facts necessary to make his or her written decision. The immediate supervisor’s decision will stand unless and until reversed by the Appointing Authority, who shall act promptly on all such appeals.
Resolving Conflicts of Interest. A conflict of interest is resolved by removing one of the conflicting interests -- the outside activity or the agency job responsibility. For unavoidable conflicts, as explained below, the outside interest takes precedence but the employee must be removed from involvement with the matter giving rise to the conflict in his or her job. For avoidable conflicts, the employee’s job responsibilities at the agency will ordinarily take precedence, meaning that the employee will need to disengage from the outside activity or the relevant portion of the activity, as the case may be. As explained below, however, the immediate supervisor or Appointing Authority retains the discretion under appropriate circumstances to allow the employee to continue participating in the outside activity.
Where the employee has determined that he or she has a conflict of interest that requires removal from agency duties that give rise to the conflict, or where the employee’s immediate supervisor or the Appointing Authority have made such a determination, the employee shall not staff the matter presenting the conflict of interest. This means that the employee should voluntarily refrain from participating in any case review or other support services, discussions with Board or Commission members, deliberations, or in any other manner concerning the matter at issue. Alternatively, the employee’s immediate supervisor or the Appointing Authority may assign or re-assign the matter to other agency staff, which may include, as appropriate, staff from a different Commission.
The specific details for assigning or re-assigning work, or requiring the employee to disengage from an outside activity, will vary from case to case. These details will be determined by the
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employee’s immediate supervisor and, if appealed, by the Appointing Authority after consultation with the affected employee and his or her immediate supervisor.
Where a conflict of interest exists, the immediate supervisor and/or Appointing Authority has the discretion to review prior actions or decisions of the employee related to the matter creating the conflict. The purpose of this review is to ensure that prior actions and decisions were made in an objective and unbiased manner.
2.
Determining Precedence
Unavoidable Conflicts. A Board or Commission classified, limited service, temporary, or contract employee will not be required to give up or not pursue an outside interest that creates a conflict of interest if that outside interest is either involuntary (for example, due to relationship by birth) or is associated with a major life decision such that it would be unreasonable to require the employee to give up the interest (for example, marriage or place of residence). In such circumstances, the conflict shall be considered unavoidable, and the employee must be shielded from involvement with any agency action that might be affected by the outside interest.
Avoidable Conflicts. If a conflict is not unavoidable then it is an avoidable conflict. In such situations, an employee’s obligation ordinarily runs to his employer. However, it is within the immediate supervisor’s or Appointing Authority’s discretion to allow the outside activity and instead bar the Board or Commission classified employee from all involvement with agency actions that might be affected by the outside interest, if it would not be unduly disruptive to the employee's agency to do so. In making such a decision, the immediate supervisory or
Appointing Authority shall consider such factors as the impact on the workload of co-workers of the employee, the impact on the effectiveness of the work unit, the implications of such a precedent, and fairness to other employees with outside interests.
Waiver of a Conflict. In very rare circumstances, it may be appropriate to waive an employee's conflict of interest and allow the employee both to perform his or her agency job and maintain the outside activity, employment or enterprise that constitutes the conflict. These circumstances exist only where the conflict is unavoidable and there is no feasible alternative.
Only the Appointing Authority may grant a waiver and any waiver decision shall be in writing.
Clear justification for a waiver of conflict must be presented in writing to the Appointing
Authority and the terms of any waiver must be expressly agreed to by the employee. In no event may a waiver be granted if it would violate any provision of law.
3.
Assistance of Board’s Ethics Officer
The Board may designate one or more of its in-house legal counsel to serve as an
Ethics Officer to render informal and formal opinions on ethics matters. A Board or
Commission classified, limited service, temporary, or contract employee may request the assistance of an Ethics Officer to determine whether a particular outside activity creates or may create a conflict of interest. If, however, the employee does not request this assistance as a preventative measure, and, instead, the employee seeks a determination from his or her immediate supervisor, which is then appealed to the Appointing Authority, the Ethics Officer may be asked to assist the Appointing Authority in issuing a written decision on the conflict of interest question.
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The Appointing Authority shall serve as the Board’s repository for written decisions on conflicts of interest involving agency employees. These decisions may prove useful to Board and Commission classified, limited service, temporary, or contract employees wishing to assess their own current and prospective outside activities for possible conflicts of interest. To the extent required by applicable law and policy, confidential information shall be redacted from the decisions prior to their release.
4.
Complaints from the Public
This Policy is designed to avoid situations that would give rise to complaints by the public concerning the integrity of Board and Commission classified, limited service, temporary, or contract employees. There may be instances, however, where a party to an application or another person may complain to the Board or a Commission concerning an employee’s alleged conflict of interest. Any such complaints, whether oral or written, shall be referred directly to the
Appointing Authority. The Appointing Authority shall then consult with the affected employee and his or her immediate supervisor to determine if a conflict of interest actually exists and, if so, what action should be taken. Whether or not a conflict of interest is determined to exist, the
Appointing Authority shall provide a written response to the complainant in a timely manner after such consultation.
5.
Review of this Policy
The Board and the Appointing Authority shall review the operation of this Policy on or before three years from its effective date, to determine whether it has been effective and whether any modifications are appropriate. In conducting its review, the Board and the
Appointing Authority shall request comment from Board and Commission classified employees concerning the effectiveness of this Policy and possible improvements.
V.
Other Applicable Requirements
Department of Personnel and other State restrictions may apply to conduct relating to outside activities, depending upon the situation. These include:
Agency Policies
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Code of Conduct and Communications Policy of the Vermont Environmental Board and
Water Resources Board (8/15/98)
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Department of Personnel Policies
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Conflicts of Interest Arising From Employment (Number 5.2)
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Employee Conduct (Number 5.6)(other parts not discussed , e.g., “Employees shall not use . . . their positions to obtain special privileges . . .”);
Income from Outside Sources (Moonlighting) (Number 11.5);
No Solicitation Policy (Number 11.6);
Annual Leave (Number 14.0);
Sick Leave (Number 14.1);
Personal Leave (Number 14.3);
Fire and Rescue Leave (Number 14.4);
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<.
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Civic Duty Leave (Number 14.5);
Court and Jury Leave (Number 14.6).
Vermont Laws
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Executive Order 04-00 (June 13, 2000) (applies to exempt employees and appointees)
Adopted in Montpelier, Vermont, this 14th day of August, 2002.
/s/ Marcy Harding
Marcy Harding, Chair
Vermont Environmental Board
F:\Tinab\ETHICS\CONPOL8-14-02.DOC
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