History of the State Board of Ethics
The genesis of the Board of Ethics is the "Standards of Conduct for State Employees" originally issued in 1963. At the request of Governor William G. Milliken, a review and updating of this code was undertaken in 1972 by a committee charged with "drafting standards of conduct for state employees and public officials."
The committee reviewed information from the literature on governmental activities in the area of ethics which covered the federal government, a number of states, and many municipalities. Also reviewed were standards prepared by the Michigan Civil Service Commission, appropriate State Legislation (Act 317 and 318, PA 1968). The State Constitution, Article IV, Section 10 and Article V, Section 10, which addresses this subject, were also carefully examined. Many issues were discussed, including those which were being litigated and covered in the press. Post-employment prohibitions were considered at some length, as well as the traditional prohibitions found in other public jurisdictions which involved confidential information, gifts and favors, representation of private interests, supplementary employment, disclosure and disqualification, personal and financial investments in conflict with public responsibilities, representing personal opinions as those of an employee's agency, and improper use of manpower, property, and funds under an employee's care and control.
The committee submitted its report to the Governor in November 1972, and on January 25, 1973, the Governor issued Executive Order 1973-4, "Code of Ethics for State Employees and Appointed Officials." The Executive Order contained a "code for state employees and public officials comprised of provisions for avoiding situations involving the suspicion of conflict," and included the mechanism for enforcing the code (a Board of Ethics), disclosure and disqualification provisions, and a section on application of the code which defined persons covered by the code and the rights of these individuals.
The newly established Board consisted of seven members appointed May 3, 1973, and serving at the pleasure of the Governor. The Board's first meeting was held June 21, 1973. In addressing the new Board, the Governor stressed the "need for conducting the public's business with integrity and honesty. . . such that. . . it is done with public assurance." He stressed the need for "openness and accessibility, by the public, in bringing matters before the Board for their consideration." He concluded by reiterating "the independence of the Board [from the Governor and the Legislature] and said it should function in a manner that instills public confidence in the procedures and the manner in which it will conduct itself from the beginning."
While the Board continued to meet on a monthly basis, on July 31, 1973, the Attorney General requested that the Governor consider legislation establishing an Ethics Act and creating a Board of Ethics to carry out the provisions of the Act. There was a need for this course of action because the Executive Order caused some serious constitutional problems which could only be remedied by legislation. The Governor consented to this request, and along with the Board, drafted the proposed legislation which contained the Governor's "Code of Ethics for State Employees and Appointed Officials."
The legislation was introduced and quickly passed both the House and the Senate and was signed by the Governor January 8, 1974. Public Act 196 of 1973 provided the statutory basis for the Ethics program with "...An Act to provide standards of conduct for public officers and employees; creates a state board of ethics and prescribes its powers and duties; and prescribes remedies and penalties."
The Ethics Act prescribes standards of conduct for public officers and employees, defining unethical conduct as violation of any of the standards included in Section 2 of the Act. These standards have formed the basis for Board decision-making, and should be considered carefully when a question of ethical behavior or situations arises with respect to an individual covered by the Act.
The Ethics Act was amended three times. The first amendment occurred with Public Act 352 of 1978, which contained provisions enabling public officers and employees to engage in teaching or instruction during off duty hours so long as there was no direct dealing or influence between the individual and the employing facility, and protection for whistleblowers. The second amendment was Public Act 481 of 1980, which expanded the whistleblower provisions broadening the coverage, providing penalties, and the mechanism for adjudicating pertinent cases. The third amendment to the Ethics Act was Public Act 53 of 1984, which prescribed certain conditions and provisions for individuals participating in matters in which they have a potential for conflict of interest or where unethical conduct may arise.
The Attorney General has opined that, while the amendatory acts broadened the scope of the standards found in Section 2 to include public officials of Michigan at local levels, it did not expand the jurisdiction of the Board to hear complaints or render advisory opinions at the local level (see OAG 1981 82 No. 6005, p. 439 at p. 441).
The Board's function is to serve as an advisory and investigatory body, without power to take direct action against any person or agency. Instead, it discovers facts and develops recommendations to deal with the situation in conformity with ethical standards. The Board is empowered by the Act to receive complaints concerning alleged unethical conduct by an individual covered under the Act, to inquire of the circumstances surrounding the alleged conduct, and to make recommendations to the appointing authority which has supervisory power over the person whose activities are being questioned.
The members of the Board serve without compensation, but may be reimbursed for necessary and actual expenses which they incur in the performance of their duties. The law provides that the State Personnel Director designate an employee Civil Service to act as Executive Secretary of the Board, and to provide the administrative services required by the Board. Operational costs for the Board are supported by a line item appropriation from the legislature, while staff salaries are borne by the Civil Service Commission.
The Board also has the power to initiate investigations of practices that could affect the ethical conduct of a public officer or employee. It is empowered to hold public hearings, administer oaths, and receive sworn testimony. The staff serves as a resource to respond to numerous information requests directed to the Board. Staff members have no authority to render opinions concerning the Act.
The Board is directed by the Act to issue advisory opinions relating to matters affecting ethical conduct upon request from either a public officer or employee or their appointing authority or supervisory authority. In the issuance of investigative reports, the Act provides that the Attorney General shall advise the Board on legal matters.
The jurisdiction of the Board includes those "public officers and employees..." mentioned in the Act. Thus, those persons under jurisdiction of the Act and the Board include classified and unclassified employees in the state principal departments, excluding the Legislative Branch (and Auditor General). It includes persons employed through the merit system, as well as those in appointive positions, providing they were appointed by either the Governor or by another official of the Executive Branch.
The Act also empowers the Board to investigate and issue an advisory opinion concerning the conduct of a covered individual even though that individual is no longer in government service, but the Board may not make a recommendation to the appointing authority of the former officer or employee. However, the Attorney General has stated that the departure of the individual from government service prior to a recommendation (to the appointing authority) terminates the Board's responsibility to issue such a recommendation, as the individual no longer comes under the definition of "public officer or employee" in the Act.
The Rules of Practice and Procedure of the Board of Ethics require that the Board meet at least four times a year, or as the workload dictates, to consider matters brought before it. All meetings fall under the Open Meetings Act, which dictates they be open to the public, with meeting time and location posted in advance. The rules also provide for closed sessions when necessary for the protection of individual rights. The Chairman presides at all meetings, and a temporary chair is selected in the Chairman's absence. Minutes of all meetings are recorded and the executive secretary distributes them to the Board. The minutes of public meetings are available to the public as well.
The Board is comprised of seven members, appointed for four year terms by the Governor, with the advice and consent of the Senate. Board members must be residents of the state, not associated with state employment, and not more than four may be of the same political party. One of the seven must be designated by the Governor as the chairman. The Attorney General and the State Personnel Director serve as ex-officio members without the right to vote. To constitute a quorum, four members are required, and an affirmative vote of four members is necessary for any action to become official.