Conflict of Interest - 101

The following is the Readers Write article in The Courier in April 2011.

At last month’s planning meeting of the Hardin County Board of Commissioners, Commissioner Mike Jerrolds (Dist.7) made a motion, and got it seconded, to amend the agenda for the business meeting to allow a discussion and possible action on a motion to include several of the nonprofit community center-type corporations around the county for a county contributions to help with the development and necessary improvements at the various community centers.

Several of the communities were left with stripped–and I mean really stripped–former school buildings to use as community centers, after the school board seems to have retaliated for objections made to their closing plans.

County Budget Director Linda Franks advised she had received and reviewed eight requests for contributions and in her opinion they all complied with the new county charitable contributions ordinance and the state law.

Kevin Davis, our county mayor and chairman of the commission announced that a commissioner (it was later learned it was Commissioner Emery White (Dist.9), who has also been an outspoken opponent of almost anything that doesn’t directly benefit his own district), had asked, in private, I guess, if a commissioner could vote on the motion if he was also an officer of one of the these 501(c)(3) (non-profit) corporations seeking a contribution.

Mayor Davis seems to admit doesn’t know the answer and would have to defer to the county attorney, Curt Hopper.

Quick quiz. Have you ever gotten any bad or wrong advice, based on a shot from the hip, from your attorney?

Lawyer Hopper advised that in his opinion, it would be "a conflict of interest" for the two commissioners, both supporters of the motion, to vote because of their relationship with the community centers and therefore Commissioner Nickie Cagle (Dist. 6) and Commissioner Jonas Morris (Dist. 7) would have to abstain from voting.

Lawyer Hopper did not cite any legal authority for his opinion other than he remembered that he had read a statute at one time that would support his opinion.

That opinion of Lawyer Hopper, our county attorney for over five years, actually made my ole mind say, "Hey, wait a minute, there ain’t no way that’s right." But I didn’t say it out loud. I wondered what statute he could be talking about and I knew I would just have to try to find it in the current version of the code when I got home." I looked for a long time. I couldn’t find it.

Let us hope Lawyer Hopper just misunderstood the question he was being asked to express his "learned legal" opinion on. I think Mayor Davis may have bush-wacked Lawyer Hopper by not telling him about the question until just before the meeting. Accidentally, of course.

But then again, Lawyer Hopper does have a very lucrative and public criminal law practice. Maybe he didn’t have time to be county attorney and look it up himself. All speculation on my part, of course.

The right answer is that if there is no financial or like gain for the public officials, there is no conflict of interest and they can vote on the matter.

The Back Story: Since there didn’t appear to be enough votes to stop the community center funding proposal on a level playing field, Commissioner White approached the mayor to raise the question, although he should know what is a conflict of interest and what is not. After all, he has been a commissioner and vice chairman of the board as long as I have been watching the commissioners. That is a long time.

Of course, our mayor who obviously didn’t have a clue, as normal, would have to contact the County Technical Assistance Service, and ask them. And he did. But the big question is, what was asked and how was it asked?

One would assume Mayor Davis would have learned early on what is a conflict of interest and what is not.

CTAS has always preached that "Every county official should be familiar with the conflict of interest, ethics, and disclosure laws applicable to their offices."

Unable to determine what statute Lawyer Hopper could possibly be relying on for his opinion, contact was made with the mayor’s office to see if they could find out what Lawyer Hopper was using as his authority. It was learned, at that time, that the opinion came from CTAS in response to the mayor’s inquiry, not Lawyer Hopper.

At the planning meeting, neither Lawyer Hopper or the mayor let the commissioners know the county attorney’s opinion was actually a product of the mayor’s contact with CTAS.

What happens if the CTAS opinion was based on an incomplete understanding of the facts?

I learned from the mayor’s office that the now CTAS-Hopper opinion was relying on the part of the Code that deals with public contracts. However, the matter before the commission comes under the part of the Code that deals with charitable contributions.

Strike One: We’re not talking about a contract.

Even under public contracts, the public official has to be "directly interested," meaning any contract with the official personally.

Strike Two: We’re not talking about contracting with the commissioner "personally."

Then we have "controlling interest." Which, of course, includes the individual with the ownership or control of the largest number of outstanding shares owned by any single individual or corporation.

Strike Three: Neither commissioners have have controlling interest in the monprofit corporation making the request and derive no personal or corporate gain. They are doing what all the commissioners should be doing. They are participating in their community’s affairs.

Sorry Mr. Emery, you can quit grinning. I think they told you wrong.

Mr. Mayor, would you please ask the county attorney, since it is not a contract, where is the conflict of interest? I would, but he won’t take my calls.
　
Ted G. Cook
Savannah, TN