The Oregon Government Ethics Commission has responded to my concerns the appointment of Fred Messerle may run afoul of conflicts of interest. In summary, Oregon statutes do not restrict the “appearance of impropriety” but “…conflict of interest provisions in ORS 244.120(2)(a) require that public notice be given before the public official on a commission participates in any action, decision, or recommendation which could result in a private economic benefit or detriment to the public official, one of their relatives or household members, or a business with which any of them are associated”.

May 23, 2011

Dear Ms. Geddry,

Thank you for your inquiry to the Oregon Government Ethics Commission regarding conflicts of interest. You asked what kinds of situations would present a conflict of interest to a public official who is appointed to a county Board of Commissioners. The following guidance is offered in response to your question.

Oregon government ethics law prohibits all public officials from using or attempting to use their official position to obtain a financial gain or avoid a financial cost for themselves, a relative or member of their household, or business with which they or their relative or household member is associated, if that financial benefit is only available to them because of the official position they hold. [ORS 244.040(1)]

In addition, the conflict of interest provisions in ORS 244.120(2)(a) require that public notice be given before the public official on a commission participates in any action, decision, or recommendation which could result in a private economic benefit or detriment to the public official, one of their relatives or household members, or a business with which any of them are associated. If the action the public official on the commission has the opportunity to make would result in a private economic benefit or detriment to any of the people listed above, then statute requires the public official to both publicly announce the nature of the conflict of interest, and to refrain from any discussion, debate, or vote on that issue. [ORS 244.120(2)(b)]

When conducting the activities of their official position, all public officials need to be sure that their actions comply with all statutes, including the prohibited use of office and the conflict of interest provisions. A public official with multiple land and business holdings, who also has relatives that are associated with additional business, would need to vigilantly watch for conflicts of interest, and diligently consider every action, decision and recommendation they have the opportunity to make. [emphasis mine]

No statutes in Oregon government ethics law prevent an individual with business or family ties that may present a conflict of interest from holding a position as a public official. The law also does not restrict actions that may have an appearance of impropriety, as long as those actions comply with statute. While a public official has the option not to participate in actions that may be perceived as improper, no public official is required to act more restrictively than what is allowed by the law.

If you believe that a public official has failed to comply with one more government ethics statutes while performing his official duties, you are welcome to file a complaint. I have attached a complaint form for your convenience. You might also wish to visit the Oregon Government Ethics Commission website for additional information and resources. http://www.oregon.gov/OGEC/

I hope you find this guidance useful. If you have any additional questions about the application of ethics laws, please feel free to contact me directly.

You may also find that the Guide for Public Officials is a useful resource. The conflict of interest section starts on page 21. You can download it for free at: http://www.oregon.gov/OGEC/docs/Public_Official_Guide/2010-10_PO_Guide_October_Final_Adopted.pdf

Thank you again for your inquiry to the Oregon Government Ethics Commission.

Bethany Reeves

Program Analyst/Trainer

Oregon Government Ethics Commission

3218 Pringle Rd SE, Suite 220

Salem, OR 97302

Phone: 503-378-8066

Fax: 503-378-1456

**Disclaimer**

This staff advice is provided under the authority given in ORS 244.284(1). This opinion offers guidance on how Oregon Government Ethics law may apply to the specific facts described in your request. This opinion is based on my understanding and analysis of the specific circumstances you described and should not be applied to circumstances that differ from those discussed in this request.

Addendum of Relevant Statutes:

ORS 244.040(1) Prohibited use of official position or office Except as provided in subsection (2) of this section, a public official may not use or attempt to use official position or office to obtain financial gain or avoidance of financial detriment for the public official, a relative or member of the household of the public official, or any business with which the public official or a relative or member of the household of the public official is associated, if the financial gain or avoidance of financial detriment would not otherwise be available but for the public official’s holding of the official position or office.

ORS 244.020(15) “Relative” means:

(a) The spouse of the public official or candidate;

(b) Any children of the public official or of the public official’s spouse;

(c) Any children of the candidate or of the candidate’s spouse;

(d) Siblings, spouses of siblings or parents of the public official or of the public official’s spouse;

(e) Siblings, spouses of siblings or parents of the candidate or of the candidate’s spouse;

(f) Any individual for whom the public official or candidate has a legal support obligation;

(g) Any individual for whom the public official provides benefits arising from the public official’s public employment or from whom the public official receives benefits arising from that individual’s employment; or

(h) Any individual from whom the candidate receives benefits arising from that individual’s employment.

ORS 244.020(3) “Business with which the person is associated” means:

(a) Any private business or closely held corporation of which the person or the person’s relative is a director, officer, owner or employee, or agent or any private business or closely held corporation in which the person or the person’s relative owns or has owned stock, another form of equity interest, stock options or debt instruments worth $1,000 or more at any point in the preceding calendar year;

(b) Any publicly held corporation in which the person or the person’s relative owns or has owned $100,000 or more in stock or another form of equity interest, stock options or debt instruments at any point in the preceding calendar year;

(c) Any publicly held corporation of which the person or the person’s relative is a director or officer; or

(d) For public officials required to file a statement of economic interest under ORS 244.050, any business listed as a source of income as required under ORS 244.060 (3).

ORS 244.020 (1) “Actual conflict of interest” means any action or any decision or recommendation by a person acting in a capacity as a public official, the effect of which would be to the private pecuniary benefit or detriment of the person or the person’s relative or any business with which the person or a relative of the person is associated unless the pecuniary benefit or detriment arises out of circumstances described in subsection (12) of this section.

ORS 244.020(12) “Potential conflict of interest” means any action or any decision or recommendation by a person acting in a capacity as a public official, the effect of which could be to the private pecuniary benefit or detriment of the person or the person’s relative, or a business with which the person or the person’s relative is associated, unless the pecuniary benefit or detriment arises out of the following:

244.120(2) Methods of handling conflicts

(2) An elected public official, or an appointed public official serving on a board or commission, shall:

(a) When met with a potential conflict of interest, announce publicly the nature of the potential conflict prior to taking any action thereon in the capacity of a public official; or

(b) When met with an actual conflict of interest, announce publicly the nature of the actual conflict and:

(A) Except as provided in subparagraph (B) of this paragraph, refrain from participating as a public official in any discussion or debate on the issue out of which the actual conflict arises or from voting on the issue.

(B) If any public official’s vote is necessary to meet a requirement of a minimum number of votes to take official action, be eligible to vote, but not to participate as a public official in any discussion or debate on the issue out of which the actual conflict arises.