Conflict of Interest or Just Conflicting Opinion | The Hoglawyer

Conflict of Interest or Just Conflicting Opinion

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Yesterday, I wrote my city rep, Stacy Hurst, as well as the at-large reps and told them I didn't want Jane Dickey to be re-appointed to the Central Arkansas Water Commission. I quickly got a very nice note back from Mrs. Hurst, in which she agreed it was an important vote ( but she didn't hint which way she was leaning)   The matter was tabled for at least a week - and we will see what happens.

I'll admit I jumped on the bandwagon on this issue and I'm still not 100% sure what the fuss is all about.  I understand that Mrs. Dickey works for the Rose Law Firm, who used to represent Deltic Timber.  Deltic Timber owns chunks of land around Lake Maumelle, and have been trying for years to for Central Arkansas Water to either pay exorbitant prices to give up their real estate - or to be allowed to develop the land dangerously close to the water's edge. I also understand that she is accused of giving some poor advice that ended up costing CAW thousands in the long run.

In general, I'd prefer someone on the board that reflects my values of course. Like many people, I don't drink Perrier or Fiji water - I drink out of the tap so I would prefer that we keep any pollutants as far away from Lake Maumelle as possible. Obviously Deltic Timber has other plans in mind - so in general I would prefer their former lawyer not be allowed to decide what goes in my tap water. I think a former CAW employee would have much more subject matter expertise and passion  than most attorneys.

All that being said -- does Dickey really have a "conflict of interest"   ?   Lawyers don't always love their clients, and they especially don't have to love former clients. They do have a duty of loyalty though. Meaning, because Mrs. Dickey's firm once represented Deltic Timber - they can't turn around and represent someone who is suing Deltic Timber without Deltic's permission ( and why would they permit that)  If she was privy to confidential discussions with Deltic's CEO, the substance of those conversations is still private. So, if Deltic is in negotiations with CAW, once again trying to fleece the customers, and they make statements Dickey knows to be false -- she is ethically bound to refrain from divulging her knowledge even though her firm no longer represents Deltic. This issue is sure to come up again. Dickey can refrain from voting on any Deltic Timber issues if she thinks there is a conflict but wouldn't it be better to let someone else step in that has no duty to CAW's biggest adversary ? 

The city has a policy on what constitutes a conflict of interest:

 

ARTICLE VIII.  CODE OF ETHICS*


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*Editor's note:  Ord. No. 17,050, §§ 1--8, adopted Dec. 5, 1995, did not specifically amend the Code; hence, inclusion herein as Art. VIII, §§ 2-331--2-338, was at the discretion of the editor. 

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Our government is a representative democracy. Those who are elected or appointed to serve others as representatives accept a public trust, which they share with those whom they hire, appoint, or otherwise enlist to help them serve the public. The public entrusts its power and resources to its servants to be used only in the public interest. Public trust requires public servants to faithfully and diligently fulfill their public responsibilities, and to steadfastly subordinate to the public interest any personal and private interests, whether their own or those of others, which are contrary to the public interest.
It is the responsibility of each public servant to cultivate public trust in the integrity of government. Public trust in the integrity of government can be cultivated only when public servants act with integrity. Therefore, it is the responsibility of each public servant to act accordingly and to contribute to a work environment which supports integrity in others.
This article should encourage members of the public to seek public office or employment, to serve on public boards, to assist public servants as volunteers and to take pride in participating in the governmental process. It is designed to clearly state principles of ethics which all citizens may easily understand and apply in their individual circumstances while serving as public servants.
(Ord. No. 17,050, § 1, 12-5-95)

[The purposes of this article are:]
(1)   To state principles of ethics which are to be applied in public service;
(2)   To provide a process by which public servants may identify and resolve ethical issues;
(3)   To promote public confidence in the integrity of public servants; and
(4)   To establish penalties, when appropriate, for public servants who violate the public trust.
(Ord. No. 17,050, § 2, 12-5-95)

(a)   Business entity  means any corporation, general or limited partnership, sole proprietorship (including a private consultant business), joint venture, unincorporated association or firm, institution, trust, foundation, or other organization, whether or not organized for profit. Business entity does not include local, state or federal agencies or political subdivisions thereof, or officially recognized neighborhood associations of the City of Little Rock. 
(b)   Subject to the provisions of section 2-337 of this article, gift  means anything of economic value, regardless of the form, without adequate and lawful consideration, but not including: The solicitation, acceptance, receipt, or regulation of political campaign contributions regulated in accordance with provisions of federal, state, or local laws governing campaign finances. 
(c)   Interest  shall mean any material, direct or indirect benefit accruing to a public servant or the public servant's immediate family whether in the public servant's own name or the name of any person, firm, corporation, association or trust from which the public servant is entitled to receive any financial benefit, as a result of a contract or transaction which is or which will become the subject of any official act or action by or with the city. Interest in a corporation, firm or association, means a minimum ten (10) percent ownership of such firm, corporation or association by the public servant or his or her relatives. 
(d)   Relative  means a person who is related to a public servant as spouse or as any of the following, whether by marriage, blood or adoption: Parent, child, brother, sister, aunt, uncle, niece, nephew, grandparent, grandchild, father-in-law, mother-in-law, son-in-law, daughter-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half-brother, half-sister, brother-in-law or sister-in-law. 
(Ord. No. 17,050, § 3, 12-5-95)

This code of ethics shall be applicable to members of the city board of directors, members of all boards and commissions of the city, the city manager and the city attorney. In addition, municipal government involves administrative, legislative and quasi-judicial procedures. Members of the city board of directors, as well as city boards and commissions, are necessarily affected by the advice and conduct of city staff, particularly the advice of professional and executive employees. It shall be the policy of the city that professional and executive employees adhere to the letter and spirit of the principles set forth in this ethics code. Professional and executive employees shall include all department directors and their first level assistants. Henceforth, all persons covered by this code of ethics shall be called "public servants".
(Ord. No. 17,050, § 4, 12-5-95)

(a)   Public servants covered by this code of ethics shall disclose any matters which would, to their knowledge, have a direct or indirect financial impact, as distinguished from the public generally, on them or their relatives. Furthermore, if any public servant has a direct interest or shall be a director, officer or employee of or have an ownership in any business entity with a direct interest in any contract or business relationship with the city, the fact there is such an interest shall be disclosed to the board or commission and shall be set forth in the minutes of the board, and the public servants having such interest shall not participate or vote in any proceedings relating to the authorization of such contract or relationship.
(b)   Any public servant who believes that he or she has an interest in any agenda item before the board or a commission shall to the extent permitted by law or any relevant contractual agreement, disclose the nature of such interest. The city clerk, or the clerk's designee, shall make a record of such disclosure in the minutes of the board or commission. Such disclosure shall be made no later than the first meeting of the voting body, at which the agenda item concerned is to be taken up for consideration, recommendation, discussion or vote at which the public servant is present. This disclosure does not preclude the public servant from asking points of inquiry as to whether there is a conflict of interest which are made during the meeting.
(c)   To avoid even the appearance of impropriety, after the public servant determines he or she has a conflict of interest in respect to any agenda item and the public servant determines he or she will abstain, once all conflict of interest questions relating to the agenda item concerned have been determined, the public servant shall immediately remove himself or herself from the meeting room or to the area of the room occupied by the general public. He or she shall not return to his or her regular seat as a member of the body until deliberation and action on the item is completed. Nothing herein shall require a public servant to remove himself or herself for any item contained on a "consent agenda" on which there is no deliberation, the individual's conflict has been disclosed, and the public servant has abstained from voting on the item.
(d)   Actions conducted in accordance with an ethics advisory opinion described below are not conflicts of interest. Actions which might otherwise constitute a conflict of interest shall be deemed to comply with this article if:
(1)   Before acting, the public servant requested and received a written or verbal advisory ethics opinion in accordance with the procedures established in this article; and
(2)   The material facts, as stated in the opinion request, were true and complete; and
(3)   The actions taken by the public servant were consistent with the ethics opinion.
(e)   Political fundraising. This article does not prohibit an elected official properly soliciting contributions are permitted and to be reported under federal and state laws. However, use of the City of Little Rock logo and letterhead stationery for purposes of political fundraising is prohibited.
(Ord. No. 17,050, § 5, 12-5-95)

(a)   The city attorney shall issue a formal opinion as to whether a person to which this code of ethics is applicable has a conflict of interest with respect to a matter pending before any city board on which that person sits and votes. This opinion may be requested by the person voting or by any other person concerned about a potential conflict. The request for an advisory opinion shall be made to the city attorney in writing and the opinion shall be issued within three (3) working days of receipt of the request. The document requesting the opinion, and the opinion itself, are subject to disclosure pursuant to the provisions of the Arkansas Freedom of Information Act.
(b)   Any person to whom this code of ethics applies may also request informal opinions from the city attorney as to whether a conflict of interest exists in a particular case. The city attorney shall provide advise to the person requesting this information as soon as possible after the request. In addition, the city attorney shall note in writing the date of the request, the person making it, the question or questions asked, and the informal advice provided. A copy of this notation shall be provided to the city clerk and to other members of the involved board or commission. Should the city attorney receive such a request, but the person chooses not to follow the advice given the city attorney's shall assure that the minutes or record of the involved board or commission action contain a notation that the city attorney's advice was not followed. With respect to board or commission meetings at which the city attorney is not present, the city attorney's designee or other counsel appearing at the meeting, shall transmit to the city attorney a copy of the minutes of the meetings which will reflect whether or not the person to which this code of ethics is applicable followed the advice of the city attorney.
(c)   In addition to advance requests for an advisory opinion from the city attorney, a member of the board of directors, and other individuals to whom this code of ethics applies, may recuse from the consideration of any issue before the body on which the individual serves if they believe they have a conflict of interest. Under such circumstances, the individual shall state for the record the fact that he or she is recusing from the issue being considered and the reason for the recusal. The city clerk, or other individuals responsible for keeping the minutes of the meeting, shall specifically note the statements of the individual recusing and memorialize them in the minutes so that there will be written record of the recusal.
(d)   Only the city attorney appointed by the city board of directors, is authorized to issue the opinions set forth in this section. Any board or commission that otherwise uses outside counsel shall deal exclusively with the city attorney on questions of conflict of interest. In the event the city attorney suffers a conflict of interest in issuing such an opinion, and all senior members of his staff suffer the same conflict, the city board of directors shall designate someone to serve as a special city attorney for purposes of issuing the opinion requested pursuant to this section.
(Ord. No. 17,050, § 6, 12-5-95)
Sec. 2-336.  Opinions on conflicts of interests.Sec. 2-335.  Disclosure and conflict of interest.Sec. 2-334.  Who is covered.Sec. 2-333.  Definitions.Sec. 2-332.  Purposes.Sec. 2-331.  Declaration of policy.

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