2. 2009

3. Presented by Marion County Clerk Beth White Legal & Ethics Conference December 1, 2009 Running an Ethical Election

4. Marion County Clerk Beth White 12/01/09 Legal & Ethics Conference Five Criteria Respect the law Be non-partisan and neutral Be transparent Be accurate Serve the voters * taken from a Fact Sheet compiled by the International Institute for Democracy and Electoral Assistance (“IDEA”; www.idea.int); the Fact Sheet references an excerpt from the Administration and Cost of Elections Web site (“ACE”; www.aceproject.org)

5. Marion County Clerk Beth White 12/01/09 Legal & Ethics Conference Respect the Law Hire special counsel Use Office of Corporation Counsel Seek advice from Indiana Election Division Keep current with legal issues and changes in election law

6. Marion County Clerk Beth White 12/01/09 Legal & Ethics Conference Be Non-Partisan & Neutral Send regular email communication to MCEB members Disclose relationships that could lead to conflicts of interest Consistent application of the rules State law contemplates “bi-partisan,” “non-partisan” can be more complicated

7. Marion County Clerk Beth White 12/01/09 Legal & Ethics Conference Be Transparent MCEB meetings open to the public –Aired on public access television –Post minutes and agenda on Web site Post election results in real time online Keep lines of communication open between MCEB and political parties

8. Marion County Clerk Beth White 12/01/09 Legal & Ethics Conference Be Transparent Made local campaign finance filings available online Developing an enhanced voter information portal –Provide polling location, current elected officials, candidates for election cycle and sample ballots Work to respond to constituent and public information requests in a timely manner

9. Marion County Clerk Beth White 12/01/09 Legal & Ethics Conference Be Accurate Work closely with election services vendor – make sure equipment is in good working order Use experienced bi-partisan teams to canvass results of election Absentee ballot court order

10. Marion County Clerk Beth White 12/01/09 Legal & Ethics Conference Serve the Voters Voter Outreach –Taped infomercials for public access TV –Regularly attend community events to register voters –Launched yVote! in 2008 –Engage voters with disabilities to serve as poll workers and to go to the polls on Election Day –Presence at various community events

11. Marion County Clerk Beth White 12/01/09 Legal & Ethics Conference Serve the Voters Satellite Voting –Additional sites for early voting November 2008: 2 sites + Clerk’s Office –More than 73,000 people voted early –More than 93,000 people voted absentee in total November 2009: 3 sites + Clerk’s Office –More than 5,100 people voted early –More than 8,100 people voted absentee in total

12. Marion County Clerk Beth White 12/01/09 Legal & Ethics Conference Serve the Voters

13. Marion County Clerk Beth White 12/01/09 Legal & Ethics Conference Serve the Voters Neighborhood Based Voting Marion CountyWarren Township Ward 28; Precinct 9

14. Marion County Clerk Beth White 12/01/09 Legal & Ethics Conference Serve the Voters Vote Centers? –Legislation expires 12/10 –Legislature looking to expand Tippecanoe, Wayne & Cass counties are pilot counties –Controversial in certain areas –Used in other states

15. Presented by Marion County Clerk Beth White Legal & Ethics Conference December 1, 2009 Questions?

16. Ethics in Ohio and Neighboring States David Freel Executive Director Ohio Ethics Commission

17. Ohio Ethics Commission Ethics in Ohio and Neighboring States – Public Duties/Public Responsibilities David E. Freel Executive Director

18. Columbus Dispatch July 3, 2002 Used with Permission

19. This culture began at the top. Ebbers created the pressure that led to fraud. He demanded the results he had promised, and he appeared to scorn the procedure (and people) that should have been a check on misreporting.

20. When efforts were made to establish a corporate Code of Conduct, Ebbers reportedly described it as a ‘colossal waste of time.’ He showed little respect for the role lawyers played with respect to corporate governance matters within the Company.

21. While we have heard numerous accounts of Ebbers’ demand for results – on occasion emotional, insulting, and with express reference to the personal financial harm he faced if the stock price declined – we have heard none in which he demanded or rewarded ethical business practices. Special Investigative Committee Report, WorldCom Board of Directors, 3/31/2003

22. People at the top are not going to be able to just blame the underlings when a fraud occurs. The person at the top is responsible and has to take responsibility. Ebbers didn’t do anything much different than an ethically challenged CEO would do. With him, for the jury, it really does seem to be the position that matters. Referring to the conviction on March 15, 2005, of former WorldCom Chairman Bernard Ebbers, The New York Times, March 16, 2005 John J. Fahey Former Federal Prosecutor

23. “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” James Madison

24. Ohio Ethics Law  1974 Ethics Law Governing All Public Servants Financial Disclosure to increase transparency Conflicts of Interest Laws – with criminal sanction Processes of Advice, Disclosure, Education, and Investigation  Uniformity of State-Wide Legal Standard, but overseen within the Three Branches of Government  Ohio Ethics Commission Oversight of all but Legislators, Judges – est. 590,000 – in public service throughout Ohio Separate Legislative and Judicial Committee Processes

25. The Ohio Ethics Commission  Independent, Bipartisan, 6-Member Commission Academic, Legal, Corporate, Faith-Based Leaders Cannot be a Lobbyist or serve in any other state position requiring disclosure Elect own Chair and Vice-Chair  Appointed by the Governor and subject to confirmation by the Senate Serve staggered, six-year terms  Appoint Executive Director Manages staff of 21 Administers Advisory, Education, Financial Disclosure, Investigative, and Legislative Recommendation Authority

26. Ohio Ethics Law – Who is Governed?  All public officials and employees State officials Local officials Public employees  Whether full or part-time Public college and university employees In some instances, “agents” or others “performing ad hoc a governmental function”  And, those who do business with public officials and employees

27. Ohio Ethics Law: Four General Components  Prohibitions on Conflicts of Interest Direct and Definite Financial, Fiduciary, Family, or Business Associate Interests Supplemental Compensation for Public Role Bar on Honoraria  Public Contract Restrictions Any Purchase or Acquisition of Goods or Services Sale of Goods to other Public Agencies  Post Employment / Representation Limits So-called “Revolving Door” Restrictions on Confidential Information  Processes of Assistance

28. Public Contracts  Purchase / acquisition of public property or goods Equipment purchases Office supply purchases  Purchase / acquisition of public services Personal services contracts Employment Grants and loans Abatements and service agreements  Design, construction, repair, maintenance of public property  Investments

29. Public Contract Restrictions on Investments  R.C. 2921.42 (A)(2) prohibits public officials from securing, or authorizing the securing, of investments of public funds in: Share Bond Mortgage Other Security  When official, member of his family, or business associate: Has interest Is underwriter Receives brokerage, origination or servicing fees

30. Ohio’s Ethics Law does not oversee:  Lobbying  Campaign Finance and Elections  Public records  Open Meetings  Compatibility (Dual public positions)  Civil service  Profession of Law  Personal behavior

31. “ Integrity without knowledge is weak and useless. Knowledge without integrity is dangerous and dreadful.” Samuel Johnson British author and critic (1709-1784)

32. Advice  Respond to Requests for Advice before Acting  Immunity Provided to Requesters Who Are Forthright in Facts and Comply with Advice  Issue opinions applying law 255 requests closed in 2008 Most recent on Stimulus (ARRA) funds Annual 3,000+ telephone calls for guidance by three attorneys Requests and responses are public  Consultation and Guidance Provided Based Upon Prior Precedent and Case Law

33. “Most people don’t need to be taught. They need to be reminded.” C.S. Lewis

34. Education  Provide Education Sessions on Ethics Law State officials and local officials Public employees Private and Non-Profit Sectors General public  Provided 241 Sessions in 2008 18,000+ attendees  Issue Informational Materials Educational DVD General Information Memos  Web Site: www.ethics.ohio.govwww.ethics.ohio.gov

35. “Sunlight is said to be the best of disinfectants…” Former Supreme Court Justice Louis D. Brandeis

36. Financial Disclosure  Two-fold Purpose: Reminds filers of potential conflicts of interest Informs public of potential conflicts of interest  Uncompensated Board and Commission Members’ Financial Disclosure Forms (FDS) Confidential, but subject to specific review

37. Financial Disclosure Statements  Most elected state and local officials  Candidates for those offices  High-ranking state officials and employees  Listing of sources of year’s finances and real property  Reminds official (and informs public) of potential conflicts of interest  Average of 11,000 annual filers 11,442 in 2008 1387 different agencies

38. “Self-interest has a powerful tendency to disable our objectivity and befuddle our ability to live up to moral principles.” Michael Josephson

39. Investigation  Investigate alleged violations of Ethics Law 544 allegations,168 active investigations in 2008 Confidential criminal investigation - subpoena authority  Recent examples: 2005-2009 Bureau of Workers Compensation (BWC)  14 of 19 convicted of Ethics Law violations  Public and private sector persons 2008-2009 Former Attorney General’s Senior Staff  Former Director of Administration – Theft in office, improper compensation Multiple state and local officials, board members, public employees, and private sector persons  32 at various stages of prosecutorial review in 2008  Staff have served as Special Prosecutors in 24 cases  Refer cases for Criminal Prosecution Alternative dispute resolution for less serious violations

40.  Recommend legislation related to: Ethics Conflicts of interest Financial disclosure  Examples: S.B. 219 – Stat. of Limitations Uniformity (2008) S.B. 289 – Void Public Contract’s (2007) S.B. 133 – Public Pension Reform (2004) S.B. 286 – Higher Education Entrepreneurship (2000) Legislative Recommendations

41. Mandated Awareness of Ohio’s Ethics Law  Copy of Ethics Law  Required by law  All public officials and employees  Within 15 days of: Hire Election Appointment

42. Indiana and Other Ethics Jurisdictions  Indiana Significant similarities and differences  Neighboring States West Virginia Kentucky Illinois Pennsylvania Michigan Wisconsin  Nationally – 40+ states – Colorado recently  Local and Regional Growth  Canada – Use of Provincial Ethics Officers  Internationally – Recent JLS experience in Jordan  Good Resource – COGEL – www.cogel.orgwww.cogel.org

43. “We judge ourselves by our intention, but we are judged by our last worst act.” Michael Josephson

44. Ohio’s Ethics Law The Ohio Ethics Commission 8 East Long Street 10 th Floor Columbus, Ohio 43215 Phone: (614) 466-7090 Fax: (614) 466-8368 Website: www.ethics.ohio.gov

45. 2009

46. Ethics 101: Interpreting the Code of Ethics State Ethics Commission Clare Nuechterlein Jim Clevenger Priscilla Keith Bob Jamison

47. The Key to Accessing Government: A Discussion with Indiana’s Public Access Counselor Andrew Kossack

48. Indiana’s Public Access Laws Andrew J. Kossack Indiana Public Access Counselor 2009 Legal Ethics Conference December 1, 2009

49. 48 Open Door Law The Open Door Law  The full text of the Open Door Law (“ODL”) can be found at Ind. Code § 5-14-1.5-1 et seq.  What does the ODL require? “[A]ll meetings of the governing bodies of public agencies must be open at all times for the purpose of permitting members of the public to observe and record them.” I.C. § 5- 14-1.5-3(a). The ODL also requires 48-hour advanced notice of meetings. I.C. § 5-14-1.5-5.

50. 49 Open Door Law What is a Meeting? A gathering of a majority of the governing body for the purpose of taking official action upon public business. I.C. § 5-14-1.5-2(c).

51. 50 Open Door Law What is NOT a Meeting? Any social or chance gathering not intended to avoid this chapter; any on-site inspection of any project, program or facilities of applicants for assistance; traveling to and attending meetings of organizations devoted to the betterment of government a caucus;

52. 51 Open Door Law What is NOT a Meeting? (cont.) A gathering to discuss an industrial or commercial prospect that does not include a conclusion as to recommendations, policy, decisions or final action on the terms of a request or an offer of public financial assistance; An orientation of members on their role and responsibilities as public officials; or A gathering for the sole purpose of administering an oath

53. 52 Open Door Law What is “Official Action?” receiving information deliberating making recommendations establishing policy making decisions taking final action (i.e. voting)  NOTE: Any one of these items constitutes official action.

54. 53 Open Door Law Serial meetings  I.C. § 5-14-1.5-3.1.  In 2007 the legislature added new language to prohibit serial meetings. All of the following must be present to violate the serial meeting law: three members but less than a quorum meet subsequent meetings involve at least 2 members sum of all meeting attendees constitutes a quorum all meetings held within 7 days to take official action on public business  The serial meeting law does not apply to governing bodies with fewer than six members.

55. 54 Open Door Law Executive Sessions I.C. § 5-14-1.5-6.1 A meeting from which the public is excluded, except for persons necessary to carry out business There are 13 executive session instances The instances are narrowly construed The governing body may not take final action (i.e., vote) in an executive session but may make decisions in the executive session. See Baker v. Town of Middlebury, 753 N.E.2d 67 (Ind. Ct. App. 2001).

56. 55 Open Door Law Reasons for Executive Sessions Discussion of strategy with respect to initiation of litigation or litigation that is pending or has been threatened in writing (I.C. § 5-14-1.5-6.1(b)(2)(B)) To receive information about and interview prospective employees (I.C. § 5-14-1.5-6.1(b)(5)) To discuss a job performance evaluation (I.C. § 5-14-1.5-6.1(b)(9))

57. 56 Open Door Law Notice Requirements I.C. § 5-14-1.5-5 The notice requirements apply to open meetings, reconvened meetings, rescheduled meetings, and executive sessions Must post notice of date, time and location of meeting 48 hours in advance of meeting  The 48 hours does not include Saturdays, Sundays, or legal holidays  “an executive session after the regular meeting” is not sufficient notice of meeting time

58. 57 Open Door Law Posting or Delivery of Notice Notice must be posted at agency’s principal office or at meeting place The agency must also deliver notice to all news media that deliver by January 1 an annual written request for such notices.  The delivery of notice to news media does not meet the “posting” requirement, even if the media publish the notice or advertise the meeting.

59. 58 Open Door Law Notice Requirements for Executive Sessions: The notice must contain the same information as for an open meeting, but must also state the subject matter by specific reference to the enumerated instance(s) for which executive sessions may be held. (e.g., “to interview prospective employees pursuant to I.C. § 5- 14-1.5-6.1(b)(5)”)  Note: There is no executive session instance to “discuss personnel matters” or to “meet with the Board’s attorney” – specific instances must be cited

60. 59 Open Door Law Exception to Notice Requirement for “Administrative Function” Meetings  The requirements for posting notice do not apply when the executive of a county or the legislative body of a town meets if the meeting is held solely to receive information or recommendations in order to carry out administrative functions, to carry out administrative functions, or confer with staff members on matters relating to the internal management of the unit.

61. 60 Open Door Law Administrative Function Meetings (cont.) Administrative functions do not include the awarding of contracts, the entering into contracts, or any other action creating an obligation or otherwise binding a county or town. I.C. § 5-14-1.5-5(f)(2). The “administrative function” meeting must be held in the public, since the notice provision of the ODL is the only provision that does not apply to an “administrative function” meeting. I.C. § 5-14-1.5-5(f)(2).

62. 61 Open Door Law Agenda and Memoranda Covered in Section 4 of the ODL. I.C. § 5-14-1.5-4) The ODL does not require an agency to utilize an agenda. If the governing body utilizes an agenda, the agenda must be posted outside the meeting before the meeting begins – the ODL does not provide a time by when the agenda must be posted.

63. 62 Open Door Law Agenda and Memoranda (cont.) An agency may deviate from its posted agenda unless a specific statute provides otherwise. A final action adopted by reference to agenda number or item alone is void (e.g. “all in favor of item III?”)

64. 63 Open Door Law Agenda and Memoranda (cont.) ODL does not require minutes Memoranda must be kept as the meeting progresses and must contain:  Date, time and location of meeting  Members present and absent  The general substance of all matters, proposed, discussed, or decided  A record of all votes taken, by individual members if there is a roll call

65. 64 Open Door Law Agenda and Memoranda (cont.) The memoranda are to be available within a reasonable period of time after the meeting. The minutes, if any, are to be open for inspection and copying. Draft minutes of a public meeting are disclosable public records despite not being in final form or adopted by the governing body.

66. 65 Open Door Law Memoranda Requirements for Executive Sessions Same requirements as for meetings, except the memoranda and minutes must identify the subject matter considered by specific reference to the enumerated instance or instances for which public notice was given. The memoranda and minutes must certify no other matter was discussed.

67. 66 Open Door Law  A right of the public to record meetings, found at I.C. § 5-14-1.5-3(a) includes the right to audio or video record the meeting. Berry v. Peoples Broadcasting Corp., 547 N.E.2d 231 (Ind. 1989).  A governing body may place reasonable restrictions on the use of such equipment, but may not ban the use of audio or video recorders.

68. 67 Open Door Law Use of Technology  Access laws do not always keep pace with technological advances.  The purpose of the ODL is constant and should be considered when addressing new issues in public access.

69. 68 Open Door Law  Teleconferencing or videoconferencing of meetings Generally, a member of a governing body who is not physically present but communicates by electronic or telephonic means may not vote and may not be counted present Some specific statutes allow for teleconferencing or videoconferencing

70. 69 Open Door Law Is Electronic Mail a Meeting? Members of governing body must be cautious in use of email when it is used between and among members to conduct official business. Indiana courts have not addressed the issue, but the Virginia high court ruled that email communications did not constitute a meeting. Beck v. Shelton, 593 S.E.2d 195 (Va. 2004). Email communication lacked simultaneity. Previous PACs have opined that email is not a “meeting” under the ODL***  ***Keep in mind the APRA

71. 70 Access to Public Records Act The Access to Public Records Act (“APRA”)  Purpose: “Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information.”  The full text of APRA can be found at Ind. Code 5-14-3-1 et seq.

72. 71 Access to Public Records Act  “Public records” are broadly defined: can be summarized as “any material that is created, received, retained, maintained or filed by or with a public agency.” I.C. § 5-14-3-2(n).  The Indiana Court of Appeals has added to this definition any material created for or on behalf of a public agency. Knightstown Banner v. Town of Knightstown, 838 N.E.2d 1137 (Ind. Ct. App. 2005). In Knightstown, the record in question was a settlement agreement held in a private attorney’s office. The settlement agreement was created for the public agency but not physically maintained by the agency.

73. 72 Access to Public Records Act  “Copy” includes photocopying as well as making a digital copy using a digital camera or a hand-held scanner.  “Inspect” includes the right to make notes, abstracts and memoranda, or to listen to an audiotape.

74. 73 Access to Public Records Act  The agency may require a person to submit a request for a public record in writing, or in a form supplied by the agency. I.C. § 5- 14-3-3(a).  The agency shall either make the requested copy or allow the person to make a copy on the agency’s equipment or on the person’s own equipment. If the requester wants to use personal equipment, the agency has the burden of demonstrating its reason(s) for any refusal

75. 74 Access to Public Records Act  An agency must make reasonable efforts to provide a copy of electronic data to a person if the medium requested is compatible with the agency’s system.  If a record contains disclosable and nondisclosable information, the agency shall separate the disclosable material and make it available. I.C. § 5-14-3-6. Senate Bill 232: in camera review

76. 75 Access to Public Records Act Electronic Mail Any record, including electronic media, created received, retained, maintained, or filed by or with a public agency is a public record. Therefore, electronic mail is a public record if it is created, received, retained, maintained, or filed with a public agency, including a governing body.

77. 76 Access to Public Records Act  Electronic mail must be available for inspection and copying by the governing body unless an exception to disclosure, based on the content of the email, applies.  Electronic mail must be maintained in accordance with records retention schedules, pursuant to I.C. 5-15.

78. 77 Access to Public Records Act  Email messages maintained in a personal email account (e.g. Yahoo! account) are generally not public record.  If the personal email is submitted to the agency, it becomes a public record. Example: A council member prints a personal email message from a neighbor and gives it to a city employee for follow-up.

79. 78 Access to Public Records Act Public Agency’s Responsibilities Respond to requests made in person or via telephone within 24 hours of receipt. Respond to mailed, faxed, or e-mailed requests within seven days of receipt. Respond in writing to written requests for records; best practice is to respond to all requests in writing.

80. 79 Access to Public Records Act Responding is not necessarily producing the record; the PAC’s opinions have consistently been that the records should be produced within a reasonable time PACs have considered factors such as  the nature of the requests (whether they are broad or narrow),  how old the records are, and  whether the records must be reviewed and edited to delete nondisclosable material

81. 80 Access to Public Records Act  The burden lies with the public agency to show the time period for producing documents is reasonable.  Suggestions: Communicate with the requester. Give yourself a production deadline and explain your reasoning. If you need an extension, notify the requester in advance of the deadline. Demonstrate good faith by making portions of a production available from time to time when voluminous documents are being reviewed for disclosure.

82. 81 Access to Public Records Act  Section 7 of the APRA requires a public agency to regulate any material interference with the regular discharge of the functions or duties of the public agency or public employees. I.C. §5-14-3-7(a).  Section 7 does not operate to otherwise deny a requester’s rights under the APRA. I.C. §5-14-3-7(c).

83. 82 Access to Public Records Act Denials If denying records, state reason for denial with citation to specific authority, and give name and title or position of person responsible for denial. I.C. § 5-14-3-9.  Citing unnamed “privacy laws” or referring generally to “HIPAA” is not sufficient; citations must be specific. Produce records in reasonable time; communication with requestor is key.

84. 83 Access to Public Records Act Exceptions to Disclosure I.C. § 5-14-3-4. Section 4(a) categories are confidential  Declared confidential by federal/state statute  Patient medical records created by a provider  Declared confidential by rule adopted by Indiana supreme court (Admin. Rule 9)

85. 84 Access to Public Records Act Section 4(b): Discretionary Exemptions Investigatory records of law enforcement Attorney-client privileged/work product Personnel file information, except for information in 4(b)(8) Telephone number, address, and social security number of a customer of a municipally-owned utility

86. 85 Access to Public Records Act Copy Fees Local agencies may charge only the fee schedule adopted by the fiscal body of the agency and authorized by I.C. § 5-14-3-8. May not exceed the actual cost for providing a copy of the public record. Actual cost is the cost of the paper and per page cost for use of the equipment.  Actual cost cannot include labor or overhead. I.C. § 5-14-3-8(d)(2).

87. 86 Access to Public Records Act Copy Fees, cont. APRA’s general provisions regarding fees are sometimes superseded by a specific statute allowing higher fee.  County recorders – I.C. § 36-2-7-10.  County clerks and court records - I.C. § 33-37-5-1. Agencies may require advance payment.

88. 87 Access to Public Records Act Retention of records The APRA requires an agency to protect records from loss, alteration, mutilation, or destruction. Each county has a commission on public records to adopt retention schedules. The state oversight committee on public records has set general retention schedules for cities and towns. More information can be found at www.in.gov/icpr/county/coretention.

89. 88 APRA and ODL Enforcement Provisions  A person may file a complaint with the public access counselor alleging a denial of a right under APRA or ODL.  The PAC sends formal complaint to the agency for response and issues a formal advisory opinion within 30 days.  A person may file a lawsuit in superior court to compel the agency to produce a record or declare an action void.

90. 89 APRA and ODL Enforcement Provisions, cont.  If a person prevails in court and has received an advisory opinion from the PAC prior to going to court, the person shall be awarded reasonable attorney’s fees, court costs, and other reasonable costs of litigation.

91. 90 Office of the Public Access Counselor  Our contact information 402 West Washington Street, W470 Indianapolis 46204 Fax: 317.233.3091 Toll free: 800.228.6013 Phone: 317.234.0906  Visit our website at www.in.gov/pac for the Handbook on Indiana’s Public Access Laws, advisory opinions, and other resources.

92. 2009

93. Judicial Reform Chief Judge John Baker Indiana Court of Appeals

94. 2009

95. The Hatch Act: Does it Apply to Me? Erica Hamrick Deputy Chief, Hatch Act Unit U.S. Office of Special Counsel

96. 10/7/2015 95 POLITICAL ACTIVITY AND THE STATE AND LOCAL EMPLOYEE

97. STATE AND LOCAL HATCH ACT 5 U.S.C. §§ 1501-08 lTHE ACT WAS ORIGINALLY ENACTED IN 1939. INITIALLY IT ONLY APPLIED TO FEDERAL EMPLOYEES lIN 1940, THE HATCH ACT WAS AMENDED TO EXTEND COVERAGE TO STATE AND LOCAL EMPLOYEES 10/7/201596

98. STATE AND LOCAL HATCH ACT: COVERAGE 5 U.S.C. §§ 1501-08 lTHE ACT APPLIES TO INDIVIDUALS WHO ARE —  EMPLOYED BY A STATE OR LOCAL AGENCY  IN THE EXECUTIVE BRANCH OF GOVERNMENT  WHOSE PRINCIPAL EMPLOYMENT IS  IN CONNECTION WITH AN ACTIVITY FINANCED  IN WHOLE OR IN PART  BY A FEDERAL LOAN OR GRANT 10/7/201597

99. STATE AND LOCAL HATCH ACT: COVERAGE 5 U.S.C. §§ 1501 lEMPLOYED BY A STATE OR LOCAL AGENCY  INCLUDES BOTH EMPLOYEES AND INDIVIDUALS HOLDING OFFICE  INCLUDES STATE, COUNTY, AND MUNICIPAL AGENCIES OR DEPARTMENTS THEREOF  INCLUDES A TERRITORY OR POSSESSION OF THE UNITED STATES 10/7/201598

100. STATE AND LOCAL HATCH ACT: COVERAGE 5 U.S.C. §§ 1501 lIN THE EXECUTIVE BRANCH OF GOVERNMENT  INDIVIDUALS EMPLOYED OR HOLDING OFFICE IN THE LEGISLATIVE BRANCH OR THE JUDICIAL BRANCH ARE NOT COVERED 10/7/201599

101. STATE AND LOCAL HATCH ACT: COVERAGE 5 U.S.C. §§ 1501 lMUST BE THE INDIVIDUAL’S PRINCIPAL EMPLOYMENT  ONLY AN ISSUE WHEN THE INDIVIDUAL HAS 2 OR MORE JOBS  KEY FACTORS TO CONSIDER: (1) AMOUNT OF HOURS WORKED (2) SALARY AMOUNT  WHERE IS THE INDIVIDUAL DURING NORMAL BUSINESS HOURS? 10/7/2015100

102. STATE AND LOCAL HATCH ACT: COVERAGE 5 U.S.C. §§ 1501 lPRINCIPAL EMPLOYMENT MUST BE IN CONNECTION WITH ACTIVITY FINANCED BY FEDERAL LOAN OR GRANT 10/7/2015101

103. STATE AND LOCAL HATCH ACT: COVERAGE 5 U.S.C. §§ 1501 lINDIVIDUAL IS COVERED BY THE ACT IF “AS A NORMAL AND FORSEEABLE INCIDENT TO PRINICIPAL POSITION OR JOB, THE INDIVIDUAL PERFORMS DUTIES IN CONNNECTION WITH AN ACTIVITY FINANCED IN WHOLE OR IN PART BY A FEDERAL LOAN OR GRANT.” Special Counsel v. Williams, 56 MSPR 277, 283 (1993). 10/7/2015102

104. STATE AND LOCAL HATCH ACT: COVERAGE 5 U.S.C. §§ 1501 PRACTICIONER’S TIP: lLOOK AT THE PROGRAMS THAT AN INDIVIDUAL WORKS ON AND ASK WHETHER THERE ARE ANY FEDERAL LOANS OR GRANTS FINANCING THOSE PROGRAMS. lCONSIDER ALL DUTIES OF THE INDIVIDUAL lREMEMBER TO CONSIDER HOW OPERATING COSTS, EQUIPMENT COSTS, AND ADMINISTRATIVE COSTS ARE PAID 10/7/2015103

105. STATE AND LOCAL HATCH ACT: COVERAGE 5 U.S.C. §§ 1501 EXAMPLES OF COVERED EMPLOYEES: Executive Secretary of Housing Authority covered when agency receives an operating subsidy and secretary reviews & signs requests for subsidy. Special Counsel v. Hayes, 16 MSPR 166 (1983). Employee covered because part of his travel expenses – a mere $350- came from a federal grant received through the state board of health. In Re Lyle, 2 PAR 413 (1951). 10/7/2015104

106. STATE AND LOCAL HATCH ACT: COVERAGE 5 U.S.C. §§ 1501 EXAMPLES OF COVERED EMPLOYEES: lEmployee who had general supervision of all engineering work for the State Department of Highway covered by the Act because engineering projects financed in part by federal grants. In re Grant, 2 PAR 156 (1944). 10/7/2015105

107. STATE AND LOCAL HATCH ACT: COVERAGE 5 U.S.C. §§ 1501 SUPERVISORY EMPLOYEES & DIRECTORS INDIVIDUAL WHO SUPERVISES EMPLOYEES WHO WORK ON FEDERALLY FUNDED PROGRAMS GENERALLY WILL BE HELD TO HAVE DUTIES IN CONNECTION WITH FEDERALLY FUNDED ACTIVITIES BECAUSE OF OVERSIGHT RESPONSIBILITIES Palmer v. United States Civil Service Commission, 297 F.2d 450 (7 th Cir. 1962) (Director of Department of Conservation covered even though he claimed he spent less than one percent of his time on federally funded projects). 10/7/2015106

108. STATE AND LOCAL HATCH ACT: COVERAGE 5 U.S.C. §§ 1501 FEDERAL LOAN OR GRANT INCLUDES: lGRANTS THAT PASS THROUGH THE STATE OR OTHER AGENCY lFEDERAL REIMBURSEMENTS lFEDERAL SUBSIDIES lMEDICAID – ( Special Counsel v. Alexander, 71 MSPR 636) BUT NOT lMEDICARE 10/7/2015107

109. STATE AND LOCAL HATCH ACT: COVERAGE 5 U.S.C. §§ 1501 FACTS ABOUT COVERAGE: lIT IS NOT NECESSARY THAT AN INDIVIDUAL’S SALARY BE PAID WITH FEDERAL FUNDS lTHE INDIVIDUAL DOES NOT HAVE TO HAVE ADMINISTRATIVE OR EXECUTIVE DISCRETION OVER FEDERAL FUNDS OR DECIDE HOW THEY ARE SPENT lPROGRAM DOES NOT HAVE TO BE FUNDED AT LEAST 50% BY FEDERAL FUNDS – ANY AMOUNT CAN TRIGGER COVERAGE 10/7/2015 108

110. STATE AND LOCAL HATCH ACT: COVERAGE 5 U.S.C. §§ 1501 FACTS ABOUT COVERAGE: lTHE ACT CONTINUES TO APPLY TO INDIVIDUALS WHILE ON ANNUAL LEAVE, SICK LEAVE, LEAVE WITHOUT PAY, ADMINISTRATIVE LEAVE OR FURLOUGH lPART-TIME, TEMPORARY OR SEASONAL EMPLOYEES ARE COVERED BY THE ACT 10/7/2015109

111. STATE AND LOCAL HATCH ACT: EXEMPTIONS 5 U.S.C. §§ 1501(4)(B) EDUCATIONAL EXEMPTION INDIVIDUAL IS NOT COVERED IF: lEMPLOYED BY EDUCATIONAL OR RESEACH INSTITUTION, ESTABLISHMENT, OR AGENCY THAT IS SUPPORT IN PART BY STATE OR LOCAL AGENCY lFOR EXAMPLE: TEACHERS, PROFESSORS SCHOOL ADMINISTRATORS 10/7/2015110

112. STATE AND LOCAL HATCH ACT: COVERAGE – PRIVATE, NONPROFIT 5 U.S.C. §§ 1501 PRIVATE NONPROFIT CORPORATIONS lGENERAL RULE: HATCH ACT DOES NOT APPLY TO EMPLOYEES OF PRIVATE, NONPROFIT CORPORATIONS. lEXCEPTION: SOME FEDERAL STATUTES CONTAIN A PROVISION THAT RECEIPIENT ORGANIZATIONS WILL BE TREATED AS “STATE OR LOCAL” AGENCIES FOR PURPOSES OF HATCH ACT. - HEAD START (42 U.S.C. 9851) - COMMUNITY SERVICE BLOCK GRANT (42 U.S.C. 9918) 10/7/2015111

113. HATCH ACT DO’s 5 U.S.C. § 1502 HATCH ACT COVERED EMPLOYEES MAY – lATTEND AND BE ACTIVE AT POLITICAL RALLIES AND MEETINGS lJOIN AND BE ACTIVE MEMBER OF A POLITICAL PARTY OR CLUB, INCLUDING HOLDING OFFICE lSIGN NOMINATING PETITIONS lCAMPAIGN FOR OR AGAINST REFERENDUM QUESTIONS, CONSTITUTIONAL AMENDMENTS, MUNICIPAL ORDINANCES 10/7/2015112

114. HATCH ACT DO’s 5 U.S.C. § 1502 HATCH ACT COVERED EMPLOYEES MAY – lCAMPAIGN FOR OR AGAINST CANDIDATES IN PARTISAN ELECTIONS lMAKE CAMPAIGN SPEECHES FOR CANDIDATES IN PARTISAN ELECTIONS lDISTRIBUTE CAMPAIGN LITERATURE IN PARTISAN ELECTIONS lBE CANDIDATE FOR PUBLIC OFFICE IN NONPARTISAN ELECTION 10/7/2015113

115. HATCH ACT DON’Ts 5 U.S.C. § 1502; 5 C.F.R. Part 151 COVERED EMPLOYEES MAY NOT — lUSE OFFICIAL AUTHORITY OR INFLUENCE TO INTERFERE WITH OR AFFECT AN ELECTION lDIRECTLY OR INDIRECTLY COERCE, ATTEMPT TO COERCE, COMMAND, OR ADVISE A STATE OR LOCAL OFFICER OR EMPLOYEE TO PAY, LEND, OR CONTRIBUTE ANYTHING OF VALUE TO A PARTY, COMMITTEE, AGENCY OR PERSON FOR POLITICAL PURPOSES lBE CANDIDATES FOR PUBLIC OFFICE IN PARTISAN ELECTIONS 10/7/2015114

116. HATCH ACT DON’Ts 5 U.S.C. § 1502(a)(1); 5 C.F.R. PART 151 COVERED EMPLOYEES MAY NOT — USE OFFICIAL AUTHORITY OR INFLUENCE TO INTERFERE WITH AN ELECTION lUse of official title lCoercion of subordinates lSolicit the uncompensated volunteer services of subordinates lE-mail 10/7/2015115

117. HATCH ACT DON’Ts 5 U.S.C. § 1502(a)(2); 5 C.F.R. PART 151 COVERED EMPLOYEES MAY NOT — DIRECTLY OR INDIRECTLY COERCE, ATTEMPT TO COERCE, COMMAND, OR ADVISE A STATE OR LOCAL OFFICER OR EMPLOYEE TO PAY, LEND, OR CONTRIBUTE ANYTHING OF VALUE TO A PARTY, COMMITTEE, ORGANIZATION, AGENCY OR PERSON FOR POLITICAL PURPOSE. 10/7/2015116

118. HATCH ACT DON’Ts 5 U.S.C. § 1502(a)(3); 5 C.F.R. PART 151 COVERED EMPLOYEES MAY NOT — BE CANDIDATES FOR PUBLIC OFFICE IN PARTISAN ELECTIONS lElection is partisan if ANY candidate is nominated or elected as representing a political party, for example, the Democratic or Republican Party. lWrite-in candidacy (must be spontaneous) lParty office is permissible (Precinct Committee person) 10/7/2015117

119. HATCH ACT DON’Ts 5 U.S.C. § 1502(a)(3); 5 C.F.R. PART 151 CROSS FILING FOR OFFICE ELECTION IS PARTISAN EVEN IF CANDIDATES ARE PERMITTED TO CROSS FILE FOR THE OFFICE. SPECIAL COUNSEL V. YOHO, 15 MSPR 409 (1983) 10/7/2015118

120. HATCH ACT DON’Ts 5 U.S.C. § 1502(b; 5 C.F.R. PART 151 EXEMPTION FOR CERTAIN ELECTED OFFICIALS THE PROHIBITION AGAINST BEING A CANDIDATE DOES NOT APPLY TO: 1.The Governor or Lieutenant Governor of a State; 2.The mayor of a city; 3.A duly elected head of an executive department who is not classified under a merit or civil service system; or 4.An individual holding elective office. INDIVIDUAL MUST QUALIFY FOR EXEMPTION BASED ON THEIR PRINCIPAL EMPLOYMENT. THESE INDIVIDUALS STILL SUBJECT TO OTHER PROHIBITIONS 10/7/2015119

121. CANDIDACY 5 U.S.C. § 1502 WHEN DOES IT BEGIN? lWHEN AN INDIVIDUAL BEGINS TO COLLECT SIGNATURES FOR NOMINATING PETITIONS lWHEN AN INDIVIDUAL BEGINS TO FUNDRAISE lWHEN AN INDIVIDUAL MAKES AN ANNOUNCEMENT TO THE PRESS lWHEN AN INDIVIDUAL FILES NOMINATING PETITIONS lWHEN AN INDIVIDUAL PUTS A CAMPAIGN COMMITTEE TOGETHER 10/7/2015120

122. BEWARE OF NONPARTISAN ELECTIONS/CANDIDACIES 5 U.S.C. § 1502 NONPARTISAN CAN BECOME PARTISAN ELECTION WHEN: lStandard: There is evidence showing that partisan politics actually entered the campaign of a candidate. lEmployee/candidate seeks and receives endorsement of political party. lEmployee/candidate advertises endorsement of political party. lEmployee/candidate uses political party resources. lEmployee/candidate announces he is political party candidate. 10/7/2015121

123. THE OFFICE OF SPECIAL COUNSEL’S ROLE& THE STATE AND LOCAL HATCH ACT 5 U.S.C. § 1504 10/7/2015122 THE OFFICE OF SPECIAL COUNSEL SERVES TWO FUNCTIONS: 1.ISSUE ADVISORY OPINIONS CONCERNING THE HATCH ACT; 2.INVESTIGATE ALLEGATIONS OF POLITICAL ACTIVITIES PROHIBITED BY THE HATCH ACT AND SEEK DISCIPLINARY ACTION AGAINST THOSE WHO VIOLATE THE ACT.

124. PENALTIES FOR VIOLATION (STATE AND LOCAL HATCH ACT) 5 U.S.C. § 1505 10/7/2015123 MERIT SYSTEMS PROTECTION BOARD DETERMINES — 1.IF THERE HAS BEEN A VIOLATION OF THE HATCH ACT; AND 2.DOES THE VIOLATION WARRANT REMOVAL OF THE EMPLOYEE FROM THE COVERED POSITION.

125. PENALTIES FOR VIOLATION (STATE AND LOCAL HATCH ACT) 5 U.S.C. § 1506 10/7/2015124 WHEN VIOLATION WARRANTS REMOVAL OF THE EMPLOYEE, THE MERIT SYSTEMS PROTECTION BOARD -NOTIFIES AGENCY TO REMOVE EMPLOYEE FROM POSITION -IF AGENCY REFUSES TO REMOVE EMPLOYEE, AGENCY FORFEITS FEDERAL FUNDS IN AN AMOUNT EQUAL TO TWO YEARS OF THE PERSON’S SALARY

126. PENALTIES FOR VIOLATION (STATE AND LOCAL HATCH ACT) 5 U.S.C. § 1506 DEBARMENT INDIVIDUAL ORDERED REMOVED CANNOT BE HIRED BY ANY OTHER STATE OR LOCAL AGENCY WITHIN THE SAME STATE FOR A PERIOD OF 18 MONTHS 10/7/2015125

127. HATCH ACT INFORMATION / ADVICE 5 U.S.C. § 1212 (f) EMPLOYEES MAY: ●OBTAIN ANSWERS TO SPECIFIC QUESTIONS ABOUT POLITICAL ACTIVITY BY CALLING OSC, AT ― 800-85-HATCH OR 202-254-3650 ●OBTAIN WRITTEN ADVISORY OPINIONS ABOUT THE HATCH ACT BY CONTACTING OSC ― BY MAIL, AT:U.S. OFFICE OF SPECIAL COUNSEL 1730 M STREET, NW (SUITE 218) WASHINGTON, DC 20036-4505 ATTN: HATCH ACT UNIT BY FAX, AT: (202) 254-3700 10/7/2015126

128. OSC WEB SITE (http://www.osc.gov) 10/7/2015127

129. 2009

130. Ethics: A Federal and State Perspective Mark Everson Indiana Department of Administration

131. Legal & Ethics Conference December 1, 2009 Ed Charbonneau State Senator

132. Legal & Ethics Conference Sen. Ed Charbonneau Early Ethics Lesson

133. Legal & Ethics Conference Sen. Ed Charbonneau Perspective –Business –Local Government Academy –Economic Development –Health Care –Lobbyist –Ethics Commission –State Senator

134. Legal & Ethics Conference Sen. Ed Charbonneau September 5, 2003 –Agenda –Resolution –Ethics Pledge April 2004 –15 Cities & Towns Adopt Ethics Codes –4 Community Joint Code & Shared Ethics Officer –HB1033 C. Brown December 4, 2003 –Crown Point becomes a City of Character

135. Legal & Ethics Conference Sen. Ed Charbonneau “The public has a right to know whether their public officials are honest, and the public officials need to know that someone is watching them. A little paranoia is not a bad thing.” Joe Van Bokkelen U.S. Attorney Northern District of Indiana

136. Legal & Ethics Conference Sen. Ed Charbonneau What is ethics? –Choices –Not tough to understand but tough to live with –Addressed when problems arise –Starts small and escalates Let’s return to the alley

137. Legal & Ethics Conference Sen. Ed Charbonneau Issues –Conflict of Interest –Gifts –Nepotism –That Free Lunch –Inappropriate Use of Position –Dishonesty

138. Legal & Ethics Conference Sen. Ed Charbonneau Conflict of Interest –Doctor Admitting Patients –City Employee on City Council –Revolving Door –Part-Time Legislature

139. Legal & Ethics Conference Sen. Ed Charbonneau Gifts –Teacher –Cop in the Donut Shop –$75 Cash

140. Legal & Ethics Conference Sen. Ed Charbonneau Nepotism –Fire Department –City of Anderson

141. Legal & Ethics Conference Sen. Ed Charbonneau That Free Lunch –Pharmaceutical Companies –Engineering Firms –Lobbyists

142. Legal & Ethics Conference Sen. Ed Charbonneau Inappropriate Use of Position –Emergency Room –Line in the permitting office –Letter from Mayor’s office

143. Legal & Ethics Conference Sen. Ed Charbonneau Dishonesty –Splitting Contracts –Performance Reviews –Letters of Reference –Copy Machine –Using computer to run second job –Taking “stuff” home from work

144. Legal & Ethics Conference Sen. Ed Charbonneau PEOPLE

145. Legal & Ethics Conference Sen. Ed Charbonneau ORGANIZATION

146. Legal & Ethics Conference Sen. Ed Charbonneau LEADERSHIP

147. Legal & Ethics Conference Sen. Ed Charbonneau Since “wrongdoing” is an ethical concept, not a legal one, the ability of administrators and managers to perceive, avoid and deal effectively with such accusations is a critical competence that suggests a new paradigm looking beyond compliance to the issue of organizational culture

148. Legal & Ethics Conference Sen. Ed Charbonneau Why be ethical? –Professional Dimension –Moral Dimension –Personal Dimension

149. Legal & Ethics Conference Sen. Ed Charbonneau Why be Ethical? –Risk Management Strategy –Good Business –More professional and efficient –Improved Quality of Life

150. Legal & Ethics Conference Sen. Ed Charbonneau Ethics Codes –Framework for decision making –Easier to do the right thing when we know what it is –Need to be reminded more than to be educated –Consequences

151. Legal & Ethics Conference Sen. Ed Charbonneau Training –Establish Expectations –Educate –Enforce

152. Legal & Ethics Conference Sen. Ed Charbonneau Final Thoughts – Character Training “We pay a price when we deprive children of the exposure to the values, principles and education they need to make them good citizens.” Sandra Day O’Connor

153. Legal & Ethics Conference Sen. Ed Charbonneau Final Thoughts –The Stakes Are Higher Than Violating an Ethics Code

154. Legal & Ethics Conference Sen. Ed Charbonneau Carol, I am so sorry for this. I feel I just can’t go on. I have always tried to do the right thing but where there was once great pride now it’s gone. I love you and the children so much. I just can’t be any good to you or myself. The pain is overwhelming. Please try to forgive me. Cliff

155. Legal & Ethics Conference Sen. Ed Charbonneau Ethics is about being better.

156. 2009