No. 06-I-1 State Ethics Commission Official Advisory Opinion January 19, 2006
Summary
42 IAC 1-5-6 Conflicts of interest; decisions and voting (IC 4-2-6-9)
42 IAC 1-5-7 Conflicts of interest; contracts (IC 4-2-6-10.5)
A state employee was offered contract employment with the OAG but his wife was also working out of the OAG as an INDOT employee. SEC found neither conflict of interest provision applied since neither spouse would supervise nor be involved in decisions related to the other spouse.
Background
A state employee is an attorney licensed to practice in the State of Indiana and has been offered contract employment with the Office of the Indiana Attorney General (hereinafter “OAG”). He also has four other projects that he will handle for Jay County, Marion County, Southwest Sullivan School Corporation, and the Town of French Lick in addition to the contract for services with the OAG. The OAG contract position will allow him to serve as in-house counsel on all work that requires private sector knowledge and experience and to provide specialized services to client state agencies. These duties shall include, but not be limited to, (1) reviewing and advising the OAG on complex transactional work; (2) assisting with oversight of non-profits; (3) assisting with review of bond matters; and (4) other duties as assigned by the OAG.
The state employee’s wife is an employee of the Indiana Department of Transportation (hereinafter “INDOT”) that is housed in the Office of the Attorney General. Her salary, benefits, and time reports are overseen by INDOT. Her day-to-day work is overseen by to the head of the Indiana Transportation Practice Group. The state employee’s wife will not be responsible for, supervise, or be directly involved in the matters he will be working on for the OAG. Likewise, he will not be responsible for, supervise, or be directly involved in the matters his wife is working on for INDOT. Furthermore, his wife is not involved whatsoever with the negotiation, drafting, or approval of OAG contracts for service.
One of the standard state boilerplate clauses in the state employee’s contract with the OAG is the “conflict of interest” clause. This clause provides in pertinent part that “Contractor represents and warrants that he has reviewed and is familiar with the statutes and regulations relating to the ethical conduct of state employees. Contractor certifies that, after due inquiry, no partner or any spouse or unemancipated child of any partner (collectively, an Interested Party), is an employee of the State of Indiana. If an Interested Party is an employee of the State of Indiana, Contractor shall provide the OAG with an opinion by the State Ethics Commission indicating that the existence of this Agreement and the employment by the State of Indiana of the Interested Party does not violate any statute or regulation relating to the ethical conduct of state employees.”
Issue
Does the state employee’s contract to provide legal services for the OAG violate an ethics law or rule, given the fact that his wife is an employee of the State of Indiana?
Relevant Law
Conflict of Interest: IC 4-2-6-9 (AMENDED, 2005)
IC 4-2-6-10.5
Conclusions
Even though the state employee’s spouse is employed by the State of Indiana and is physically placed in the Office of the Attorney General, neither of the relevant statutes is violated by the arrangement. The state employee’s wife actually works for the Department of Transportation. She is currently working in the OAG pursuant to a Memorandum of Understanding between INDOT and the AG. However, neither spouse will supervise or be involved in employment decisions regarding the other. The state employee’s Employment Agreement with the OAG and the employment by the State of Indiana of the state employee’s spouse do not violate any statute or regulation relating to the ethical conduct of state employees.