The Indiana State Ethics Commission (“Commission”) issues the following advisory opinion concerning the State Code of Ethics pursuant to IC 4-2-6-4(b)(1).
Background
The Chairman Designee of the Indiana Emergency Response Commission (IERC) requests a formal advisory opinion from the Commission on behalf of the members of the Local Emergency Planning Committee (LEPC Members).
The Chairman Designee requests further clarification regarding the impact that a previous opinion issued by the Commission to the Indiana Department of Homeland Security (IDHS), opinion number 06-I-13, has on LEPC Members. In opinion number 06-I-13, the Commission determined that LEPC Members were “special state appointees” who are subject to the application of IC 4-2-6-10.5 when contracting with any state agency.
Issues
Relevant Law
IC 4-2-6-10.5, Prohibition against financial interest in contract; exceptions
42 IAC 1-5-4 Political activity
Authority: IC 4-2-7-3; IC 4-2-7-5
Affected: IC 3-9-2; IC 4-2-6-1
Analysis
Issue 1:
For purposes of IC 4-2-6-10.5, LEPC members are not required to obtain a list of all stocks held in mutual funds or other similar securities. The prohibition against having a financial interest in a contract is intended to apply when a state officer, employee, or special state appointee has a direct interest in a contract made by an agency.
Issue 2:
The restrictions set forth in 42 IAC 1-5-4, the political activity rule, apply to special state appointees. As special state appointees, LEPC Members are prohibited from engaging in various activities while on duty or acting in an official capacity. Specifically, the rule prohibits a special state appointee from conducting any political activity, including solicitation of funds. See 42 IAC 1-5-4(a). While the term “on duty” is not defined by rule or statute, the term refers to the time that a special state appointee is working on or attending activities of the LEPC. For example “on duty” would refer to attending LEPC meetings or working on projects related to the LEPC. An LEPC Member is further prohibited from engaging in political activity when acting in an official capacity as an LEPC Member. Id.
In addition, an LEPC Member may, at no time, solicit political contributions from persons whom the LEPC Member knows to have a business relationship with the IDHS or is directly supervised by the LEPC member. 42 IAC 1-5-4(c)
Finally, any LEPC Member that has purchasing or procurement authority on behalf of the State is prohibited from soliciting political contributions on behalf of any candidate for public office, unless that LEPC Member is a candidate for public office himself or herself 42 IAC 1-5-4(d). Solicitation of political contributions on the LEPC Member’s own behalf must still be in accordance with the restrictions set forth in 42 IAC 1-5-4.
Conclusion
LEPC members are not required to obtain a list of all stocks held in mutual funds or other similar securities for purposes of IC 4-2-6-10.5.
With respect to political activity, the restrictions set forth in 42 IAC 1-5-4 apply to members of the LEPC as special state appointees. Accordingly, all members of the LEPC, including those who are elected officials, must abide by the restrictions set forth in 42 IAC 1-5-2 as detailed above.