Oregon Government Ethics Commission Revises its “Guide for Public Officials”

Government Ethics Alert
Oregon Government Ethics Commission Revises its “Guide for Public Officials”

On April 3, 2008, the Oregon Government Ethics Commission (Commission) unveiled its new
edition of the “Guide for Public Officials.” ORS 224.320 requires the Commission to prepare
and publish a manual on government ethics that explains the ethics statutes, and the
Commission’s interpretation of those statutes, in terms understandable to public officials and the
public. The revised edition of the Guide is available on the Commission’s website at
//www.oregon.gov/OGEC/forms_publications.shtml.

The new edition of the Guide is different in several respects from previous editions.
First, and most importantly, the current edition of the Guide, unlike previous editions, is not an
advisory opinion of the Commission as described by ORS 244.280. Previous editions of the
Guide specifically provided that they were advisory opinions. The revised edition of the Guide
does not contain such a provision. As Commission advisory opinions, previous editions of the
Guide offered public officials who followed the strictures of the Guide a safe harbor from
Commission investigation and sanctions. In contrast, the revised Guide is likely the equivalent
of a staff advisory opinion, and while the Commission may consider whether an action subject to
penalty was taken in reliance on the Guide, the safe harbor provision no longer exists.

Second, the revised Guide contains an extensive discussion of what constitutes a “legislative or
administrative interest” for purposes of the ethics statutes. ORS 244.020(8) defines “legislative
or administrative interest” as “an economic interest, distinct from that of the general public, in
one or more bills, resolutions, regulations, proposals or other matters subject to the action or
vote of a person acting in the capacity of a public official.” Among other examples of “legislative
or administrative interest” the Guide provides that public employees may have a legislative or
administrative interest in the actions of their own agency or supervisor because they may have
an economic interest in those actions different from that of the general public.

The following is a list of observations related to statements contained in the Guide.

1. The Guide contains a list of allowed and prohibited activities by public officials. The list of
prohibited activities should be read in conjunction with the list of allowed activities
because the prohibited activities list does not take into account certain statutory
exemptions. For example: the prohibited activities list provides that public officials may
accept neither honoraria nor gifts of entertainment – both of which are allowed under
certain circumstances.

2. The Guide provides that in order to take advantage of the gift exemption of ORS
244.020(5)(b)(K), (travel expenses provided by one public official to another) the two
public officials must travel together. The statutory language does not support such an
interpretation.

3. The Guide provides that public officials must file Quarterly Disclosure Forms even if the
public official has no activity to report. The language of ORS 244.100 does not clearly
support such an interpretation.

4. Finally, the Guide provides that the “rule of necessity” which allows a public official with
an actual conflict to vote when that official’s vote is necessary for action on a matter,
does not apply “when there are insufficient votes because of a member’s absence when
the governing body is convened.” According to the Guide, the rule of necessity only
applies when a governing body cannot take official action only because too many of its
members are faced with an actual conflict of interest. The language of ORS
244.120(2)(b)(B) does not clearly support such an interpretation.

The ethics laws can be very confusing and public officials should be careful about relying on any
single source of information to interpret them. In order to determine whether an ethics issue
exists, public officials should consult the ethics statutes, administrative rules, any appropriate
filing forms and the Guide for Public Officials. Reliance on a single source may not provide an
accurate picture of the public official’s obligations under the ethics laws.

If you have further questions or we can be of assistance, please feel free to contact us.

HARRANG LONG GARY RUDNICK P.C.

Lauren Sommers
(541) 485-0220
[email protected]

Bruce Bishop
(503) 371-3330
[email protected]

Jerry Lidz
(541) 485-0220
[email protected]

Jim Mountain
(503) 242-0000
[email protected]

* * *
Our firm’s Government Ethics Alerts are intended to provide general information regarding
recent changes and developments in the government ethics area. These publications do
not constitute legal advice, and the reader should consult legal counsel to determine how
this information may apply to any specific situation.

HARRANG LONG GARY RUDNICK P.C.
www.harrang.com

042108-Government-Ethics1.pdf
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