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.

Issue #1:
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 of COIA.

Issue #2:
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."

Issue #3:
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 employers.
Expand the definition of "business" to include governmental employers.

Issue #4:
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 related entities.
Amend the definition of "business" to address related entities.

Issue #5:
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.

Issue #6:
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.

Issue #7:
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.

Issue #8:
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.

Issue #9:
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.

Issue #10:
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.

Issue #11:
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.

Issue #12:
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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