Ethics
How does learning about ethics differ from
learning about other stuff?
What ethical rules will provide infallible
guidance for dealing with every situation?
What can you do to reduce risk in this area?
“Problems” in Ethics:
Ethics as Values
“Legal” equals “ethical.” True or False?
Don’t question my ethics.
Your ethical standards are always subject to
question.
Which is more believable: spicy, simple stories
or the dull, complicated truth?
Where there’s smoke, there’s … (a) fire, or (b) a
powerful enemy with a fancy smoke machine?
What Rules Work All the Time?
The Oklahoma Ethics Commission Rules?
Your own board’s ethics policy?
The Golden Rule?
The 9 ½ Commandments?
None of the above?
What can (and should) you do?
Refresh your knowledge of the legal rules
Revisit your own board’s policy
periodically
Seek board consensus on values, perks, etc
Make early disclosure of potential conflicts
Know when to consult your lawyer
ONE.
Thou art a Regent,
a Regent hath the Governor created you,
a Regent only art thou,
and thou shalt hold no other office but this
one --and a few other specified in law.
[51 O.S., §6.]
TWO.
Yearly thou shalt sacrifice
to the priesthood of the Oklahoma
Ethics Commission
some
(but not very much)
financial information about thyself.
[74 O.S., Appendix, 257:15-1-7.]
THREE.
Thou shalt not receive,
directly or indirectly,
any interest, profit or perks,
from the use of public monies
in your hands.
In other words, thou shalt not do
business
with the institutions thou govern.
[Okla. Const., Art. X, §11] …. BUT,
THREE “A.” The OEC readeth not
this part of the Constitution
The hand of the lawgiver slipp-est and the etching
on the stone tablets blur-est.
The Oklahoma Ethics Commission apparently
readeth not this part of the Constitution. It sayeth
that thou mayst do such business with your
institutions if thou disclose fully your interest, on the
record, and abstain from voting.
That which is an abomination unto the Constitution
is acceptable in the sight of the OEC. [20-1-10.]
How can this be? Better not to guess.
The Attorney General issued an official
opinion in December, 2004.
 Article X, Section 11 controls over the Ethics Commission Rules,
according to the Attorney General:
“Thus, although the rule of the Ethics Commission is more liberal,
allowing relatively generous exceptions for public members of boards
and commissions, we conclude that compliance with such ethics rules
will not, and cannot, guarantee that an officer engaging in such
conduct will not be subject to criminal sanction and disqualification to
hold office under Article X, Section 11 of the Oklahoma Constitution.
Conduct that avoids violation of the conflict of interest principles set
out in Article X, Section 11 will also avoid violation of the Ethics
Commission rules, but not vice versa. If a public member of a board
engages in conduct allowed under the provisions of [the Ethics
Commission Rules], he or she runs the risk of violating the more
stringent constitutional prohibitions.
The Ethics Commission Rules cannot be read as granting an exception to the
Article X, Section 11 prohibition.
Whether a public officer would be prosecuted for a conflict of interest under
Article X, Section 11 rests in sound discretion of the district attorney with
jurisdiction over the matter. Whether a particular offense is prosecuted as a
crime under Article X, Section 11 is a matter of prosecutorial discretion.”
 State officers, including regents, had come to rely on the guidance provided by
the Ethics Commission
 The rules provided a little certainty in an otherwise uncertain area
 Meeting with Attorney General’s office
 First Assistant Attorney General Tom Gruber
o Would expect local district attorney to use common sense, which
would include a “de minimis” standard
 State officers, including regents, had come to rely on the guidance
provided by the Ethics Commission
 The rules provided a little certainty in an otherwise uncertain area
 Meeting with Attorney General’s office
 First Assistant Attorney General Tom Gruber
• would expect local district attorney to use common sense,
which would include a “de minimis” standard
• de minimis non curat lex – “The law does not take notice
of very small or trifling matters.”
FOUR.
It is not sufficient that thou art
required to abstain from voting
on any matter in which thou hast
a pecuniary interest.
Even greater purity is required.
Thou must keep unto thyself and
refrain from trying to influence those
brethren and sistern who are allowed to
vote on your deal. [20-1-8]
FIVE.
Lawyers are especially accursed in the
sight of the Ethics Commission.
It is easier for a camel to pass through the eye of
a needle than it is for a lawyer to serve happily
as a Regent.
In addition to the afore-inscribed no-nos, (e.g.,
not doing business with thine institutions)
lawyers shalt not even represent entities that do
business with the institutions they governst.
Lawyers, having eaten at the tree of law school,
are further accursed with knowledge of all the
subtleties embodied in the term “represent.”
[20-1-6.]
SIX.
Thou shall beware of geeks
bearing gifts.
The rules on accepting gifts are fully
understandable only to the rule-making
gods.
It were better for you to rend your
garments and pour ashes over your
head than to accept a gift prohibited by
law. [20-1-9.]
SEVEN.
Thou shalt not hire thine own
relatives to work for the
institutions thou govern,
even though they may be more capable
than someone else’s relatives. [21 O.S.,
§§481-7.]
EIGHT.
Thou shalt not use thy
position to secure special
treatment for thyself,
or for thy friends and family, by the
institutions they govern. [20-1-4.]
NINE.
Though shouldst not use thy
position to further a political
agenda that has nothing to do
with your official duties.
[20-1-4.]
Political Campaign
Activities
OEC Rules
Prohibits advocacy activities by state
employees on behalf of candidate or ballot
measure
Use of public funds, property, time
State resources may not be used to support
the political activities of a Regent
Exception to OEC prohibition
Statements made
in performance of officer or employees “duties”
Or, as allowed by law (statute)
Restriction on exception
Statute does not trump OEC rule
Must be read to harmonize with rule
Penalties
OEC authorized by Constitution, Art. 29
§4(a) to
Establish civil fines.
• Willful – up to $50K
• Inadvertent – up to $15K
Prosecute violations in state court
Statutory provision- misdeameanor criminal
liability – 26 O.S., §16-119
Summary
Impossible to list all activities permitted
Or, not permitted
Use common sense in good faith
Consult with legal counsel
Legal counsel may want to engage OEC
and/or AG
The Oklahoma Open
Meetings Act
What You Should Know
Who is covered?
All public bodies
Does not include


staff employees
purely advisory groups
What is a “meeting”?
A meeting occurs when a majority of a public
body are physically together “conducting
public business” -- even if no action is
planned or taken.
Types of “Meetings”
Regular
Special
Emergency
Regular Meetings
Dates are set in December
for the following year
Must give 10 days notice
prior to changing meeting
date
Special Meetings
Includes meetings such as COW or SPR
Requires 48 hours advance notice
Emergency Meetings
Lawful only when life and/or property are
threatened and threat was not reasonably
foreseeable
Requires “reasonable” notice
Meeting Places
Time and place must be convenient to the
public
Committee Meetings
Not covered unless committee has actual or
de facto decision-making power
Meeting Notices
Provide notice to the Secretary of State
indicating time, date, space and place of
meeting
Post meeting agenda 24 hours prior to
meeting
Agenda Requirements
List all items of business to be transacted,
including discussion items and executive
session items
Describe in plain language; use sentences
Identify as “action,” “possible action” or
“discussion only”
Executive Sessions
For discussions about the employment
status of an individual employee
For confidential communications with the
public body’s attorney about a pending
investigation, claim or lawsuit
Meeting Minutes
Written minutes must show, at a minimum,
those members present and absent, all
matters considered and all actions taken
Minutes of executive sessions are required
but are not open records and thus may be
segregated from public minutes
COW and SPR meetings are special
meetings and are subject to this requirement
Potential Problem Areas
Discussion only meetings
Social gatherings involving
a majority of the members
Polling for votes by
telephone or otherwise
Sub-quorum committees
having de facto decisionmaking power
Penalties for Violations
Actions taken in willful violation of the act
are null and void.
Willful violations of the Act are
misdemeanors punishable by a fine not to
exceed $500 and/or imprisonment in the
County jail not to exceed one year.
 “Willful” does not require intent to break the
law
Coughing It Up
Adventures in Open Records in the
Electronic Age
What Are the Issues?
Volume of records: do we know what we
have?
Multiple “publishers” internally: do we
know what we have?
Unmediated access to web-based records
What is really confidential?
Analyzing ORA Questions
Are you a public body?
Is it a record?
Is it a public record?
Is it exempt under the ORA?
Is it exempt under Oklahoma law?
Does it fit the federal exemption?
Who is covered?
All public bodies
Does not include


staff employees
purely advisory groups
What Is a Record?
Includes all documents In connection with
Papers
Transaction of public
Computer disks
business
Emails
Expenditure of public
Sound recordings
funds
Created by or in the
Administering of
possession
public property
Of officials or
employees
E-mail
ORA and Records Management Act both
apply
Test for email same as other documents
Is saving hard copy always good enough?
How to redact the electronic version?
Protecting the integrity of records
From: Nat. Assoc. of Col. And Univ. Attorneys on behalf of
Sent: Wed. 5/3/2006 6:04 PM
To: NACUANET@PEACH.EASE.LSOFT.COM
Have any private, non-medical institutions transitioned
to an interpretation that tenure does not guarantee a
specific or recurring level of salary or compensation for
faculty?
Any policies or written materials relevant to this matter
would be appreciated.
Date: Wed., 3 May 2006 18:42:27 -0070
From:
Subject: Re: Tenure and Guaranteed Salary
I’ve got to leave for my meeting now and won’t be back
till around 10:00 and you will be asleep. Good night,
baby. I miss you, but will see you soon. I wish I could
give you a nice long sensual kiss before you go to bed,
but I’ll save it for when I come out there. Isn’t it funny
how it worked out after all. Sleep well. All my love,
If Public Record, Must Disclose ---- Unless
Exempt under the ORA
Exempt under other Oklahoma law
Exempt under federal law
ORA Exemptions
Some privileged material (e.g., executive
session, attorney client)
Some personnel records
Some law enforcement records
Some student records
Some proprietary material
Preliminary notes
Other Oklahoma Laws
Over 140 statutes provide confidentiality
Many juvenile records (also school
children)
Tax records
Retirement systems (individual records)
Licensing boards’ disciplinary proceedings
The Federal Exemption
Records coming from federal
government
OR
Gathered as a result of federal legislation
AND
Required by federal law to be kept
confidential
Disclosure Is the Rule
Must disclose unless specific
exemption applies
No individual right of privacy apart
from specific exemptions to ORA
Government bears burden of proving
exemption from disclosure
Does It Matter Who Asks? Or
Why?
Normally, no BUT
Special recognition for news media
Also for citizens acting in public interest
BUT purely commercial requests subject to
search fee
Note: special rules on personnel files
What If You Don’t Comply?
Criminal penalties:
misdemeanor liability for
willful violations ($500
and/or 1 year)
No liability for producing
open records
Institution pays attorney’s
fee for successful requester
No recovery for successful
defender unless request
was “clearly frivolous”
Student Records
ORA intended to mesh with FERPA
If differences, FERPA controls
Bottom line, confidentiality of individual
student records maintained, except directory
information
Scope of Public Access
General rule: records open for inspection,
copying and/or mechanical reproduction
Can/must segregate (redact) exempt
material from otherwise open record
Must produce records within “reasonable”
time
Must have someone available to decide
what’s open
Personnel Records: What’s
Confidential?
Internal personnel investigative
materials
Examination and selection
material
Records from lawful executive
session
Payroll deductions
Employee evaluations
Applications of persons not hired
Home addresses, phone numbers,
and SSNs
Personnel Records: What’s Open?
Everything else, including
Application of person hired
Gross receipt of public funds
Dates of employment, title (or position)
Result of final disciplinary action
Employee Records: Who May
Inspect and Copy?
Current employees
Past employees (unclear but probably yes)
Authorized representatives of employees
(document authority of representative)
Attorney-supervised
Investigations
Investigative reports
Litigation files
Ties in with attorney-client privilege and
work-product doctrines
Conclusion
Strong public policy for disclosure
The AG is usually pro-disclosure
If no exemption, think disclosure
If disclosure is optional, review reasons for
non-disclosure
Ask question: why not disclose?
THE ETHICS OF
OPENNESS
Challenges for
Government Officials
and Their Lawyers
Common Dilemmas
Desire for private discussions on hot
topics.
Fear of media criticism if you get it
“wrong” even if you’re “right” on the law.
Fear of second guessing by AG.
Everyone’s an expert on what’s open
and/or ethical.
Ethical Issues (Lawyers)
Is technical compliance good enough?
How to resolve differences among “clients”
What client secrets are confidential?
Suppose client won’t comply?
See the Big Picture
For the OFFICIAL:
Openness issues are:
• Big picture.
• Public perception.
• Public policy.
Technical compliance
with the law is not
always enough.
See the Big Picture (Continued)
For the LAWYER:
Openness issues are:
• Big picture.
• Public perception.
• Public policy.
Avoid having your
role limited to
matters of purely
technical compliance
with the law.
Truth Telling
Officials: expect your lawyer to always
give you candid legal advice.
Lawyers: always “call ‘em like you see
‘em.”
Know Who The Client Is
Officials: always remember who the client
really is (it’s the agency you work for, not
you) and understand where you fit in the
overall picture.
Lawyers: always remember who the client
really is (help constituents understand
where they fit in the overall picture).
What Is Lawyerly Discretion?
Officials: try to raise
delicate legal issues in
private but always assume
your lawyer’s advice will
be made public.
Lawyers: always try to
provide your advice in
private; always assume
your advice will be made
public.
Where’s the Attorney General?
Officials: expect your lawyer
to be familiar with the
attorney general’s current
advice on openness issues.
(His/her view will always
trump your lawyer’s.)
Lawyers: try to stay in touch
with the attorney general’s
advice on openness issues.
(His/her view will always
trump yours).
You Have to Know the Territory
Officials: familiarize yourself with the openness
practices of other, similar public bodies.
You Have to Know the Territory
(Continued)
Lawyers: unless ethical considerations require
you to do otherwise, avoid being the lone
wildebeest on the Serengeti.
Criminal Liability
Officials: remember that there is potential criminalliability card for violations of the openness laws. If
you are in doubt about that, ask your lawyer.
Lawyers: don’t play the potential-criminal-liability
card unless you really need it but don’t hesitate to
play it (privately, if possible) if you must.
What Difference Does It Make?
Officials: if confidentiality
isn’t mandated or otherwise
justified, always ask yourself
what the harm is in releasing
a particular record
Lawyers: if confidentiality
isn’t mandated or otherwise
justified, always ask the client
what the harm is in releasing
a particular record
Be Prepared
Officials: always have your
lawyer review a proposed
meeting agenda well in advance
of the meeting.
Lawyers: always review a
proposed meeting agenda in
advance of the meeting (in time
to comment, constructively if
possible).
Be Educated
Officials: ask your attorney for periodic briefings on
current openness issues, especially in emerging areas.
Lawyers: look for, and exploit, opportunities to
educate the client about openness issues, especially in
emerging areas (e.g., email).
Duty of Confidentiality
Confidentiality is an ethical duty: the
attorney is obligated not to reveal
information given by the client in
confidence for the purpose of obtaining or
providing legal assistance.
Doesn’t apply to fraud or crime.
It’s the same duty for government and
private lawyers.
Attorney-client
Privilege
The privilege is a
rule of evidence.
It belongs to the
client.
It allows the client to refuse to disclose or
to prevent the disclosure of
communications facilitating the provision
of legal services.
Some exceptions – fraud, etc
Attorney-client Privilege for
Public Officers and Agencies
The privilege is limited to pending
investigations or litigation.
“Ordinary” legal advice to public officials
not covered by the privilege.
Privilege destroyed by communication to
non-client third parties.
Advice: How Technical?
Is the client experienced in
legal matters?
A lawyer may refer not only
to law but to other relevant
considerations such as moral,
economic, social and political
factors.
A lawyer shall exercise
independent professional
judgment and render candid
advice.
Ethics: What-Me Worry?
Moral and ethical considerations impinge
upon most legal questions and may
decisively influence how the law will be
applied.
Is the “Customer” Always
Right?
Normally, a lawyer is
required to abide by a
client’s decisions
concerning the goals of
representation.”
A government lawyer may have authority to
question the client’s conduct more
extensively than a lawyer for a private
organization in similar circumstances.
What If the Client Wants to Do
Something Wrong?
A client is entitled to straightforward
advice expressing the lawyer’s honest
assessment.
Legal advice often involves unpleasant
facts and alternatives that a client may be
disinclined to confront.
A lawyer should not be deterred from
giving candid advice by the prospect that
the advice will be unpalatable to the client.
What Is the Lawyer’s Duty?
If it’s a violation of law for the organization, and
Is likely to result in substantial injury to the
organization,
The lawyer shall proceed in the best interest of the
organization
Doing the Right Thing
To do the right thing you have to know the
right thing: education.
Avoiding embarrassing mistakes requires
thinking ahead: preparation.
Government lawyers
should know their clients’
plans: communication.
The legal requirements should be viewed in the
context of good public policy: wisdom.
Questions?