HJR 31: Joint Subcommittee Studying
the State and Local Government Conflict of Interest Act
October 3, 2002
The joint subcommittee reviewed
each issue contained in the LGA committee report presented at the joint
sub-committee's August meeting. The following is a summary of each
issue and the action taken by the joint subcommittee.
COIA does not cross-reference the Ethics in Contracting provisions of
the Virginia Public Procurement Act, which prohibits certain contracts
involving public officers or employees who have procurement authority
on behalf of a public body.
Include a cross-reference to the Ethics in Public Contracting provisions
of the Virginia Public Procurement Act in §§ 2.2-3100 and 2.2-3105
The definition of "personal interest" does not explicitly include
option contracts, and thus some officials have concluded that such contracts
do not have to be disclosed.
Provide that an option for ownership of a business or property shall be
included in the definition of "personal interest."
A member of a locality's governing body who is also a public employee
may vote on contracts with his agency, his own salary, and other matters
involving his governmental employer because one's salary can only
create a personal interest if the salary is from a "business,"
and under the act, the term "business" does not include governmental
Expand the definition of "business" to include governmental
An official with a personal interest in a business can vote on matters
involving a different business which shares the same principals and/or
shareholders or is a subsidiary of the business in which he has an interest,
because COIA's definition of "business" does not address
Amend the definition of "business" to address related entities.
COIA does not provide guidance to a local government official in a transaction
where a client of his firm (whom he does not personally represent or provide
services) is the subject of the transaction, and the firm will not realize
a reasonably foreseeable benefit or detriment. Also, COIA provides no
guidance as to the scope of the term "representation."
Require an officer to disclose that the party to a transaction is a client
of the officer's firm, and so long as the officer does not personally
represent or provide services to the client and the firm will not realize
a reasonably foreseeable benefit or detriment, the officer may vote on
the transaction. Also, add language to the definition of "personal
interest in a transaction" that makes it clear that "representation"
includes providing services to a client.
COIA prohibits an employee from accepting anything that reasonably tends
to influence him in the performance of his duties. The term "reasonably
tends to influence" is undefined and will vary depending upon the
officer's position and/or wealth. Unless circumstances are extreme,
this is an unenforceable standard.
Explicitly authorize localities to (i) require all public officers and
employees to disclose when any gift is received and (ii) set a dollar
amount limit on gifts that may be accepted.
COIA makes an exception to the rule against personal interests in a transaction
for members of a group affected by the transaction. Because the term "group"
is not defined, some have broadly interpreted the term concluding that
two similarly situated people can constitute a "group."
Define the term "group" as consisting of more than two people.
COIA does not define the term "participation," and thus there
is no explicit prohibition precluding an officer from either discussing
an issue for which he has a conflict, outside of a formal meeting, with
government employees and elected officials or attending (but not participating
in) closed session meetings on the issue.
Explicitly provide that the prohibition against participation precludes
both the attendance at portions of any closed session meetings in which
the matter is discussed and the discussion of the matter with members
of the governing body and government employees at any time.
Disclosure requirements regarding interest in real property or businesses
do not require the official to identify the specific property or business
that causes an official to have a personal interest.
Require the disclosure of the name of the business or address or parcel
number of the real estate that creates a personal interest.
The act unintentionally incorporates inherent conflicts for an attorney
for the Commonwealth in that he has two conflicting roles: prosecutor
and advisor. Also, although officials should not be discouraged from seeking
advisory opinions, failure to release a COIA opinion of an attorney for
the Commonwealth may result in erosion of public confidence when the opinion
is relied upon to permit the official to vote.
Clarify that when a local government official requests a written opinion
from an attorney for the Commonwealth under COIA, such written opinion
is a public document subject to disclosure upon request.
COIA purports to assure the public that the judgment of public officers
and employees will not be compromised or affected by inappropriate conflicts.
Few disqualifications, however, are required and in many instances officials
may simply disclose the interest and vote after certifying that they are
acting in the public interest.
1. Amend the COIA policy statement to make it less sweeping and
state that COIA merely sets forth certain prohibited acts and the requirements
for disclosure and disqualification. Also state that COIA sets a minimum
standard of conduct.
2. Amend COIA to require that all disclosures must be included
in the minutes and that officials must orally disclose the interest during
each meeting in which the matter for which disclosure is required is discussed.
Officials, lay people, and even attorneys cannot readily understand COIA's
intricate and often confusing provisions, and those provisions are often
interpreted differently by local government attorneys and attorneys for
the Commonwealth of various localities. It is suggested that either a
legislative council similar to the Freedom of Information Advisory Council
be created or that a special unit of the Attorney General's Office be
created to answer conflicts questions from all persons covered by COIA
and to ensure more uniform application.
It was the consensus of the joint subcommittee that neither of the suggested
solutions be accepted.
At the conclusion of the meeting,
Chairman Marshall directed staff to draft legislation incorporating the
actions taken by the joint subcommittee. The next meeting of the joint
subcommittee will focus on finalizing the draft as a part of the joint
subcommittee's final report.
The Hon. Robert G. Marshall
For information, contact:
Amigo R. Wade
Division of Legislative Services
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