The Forgotten Ethics Law (Not so forgotten)
The Forgotten Ethics Law – (Not so forgotten)
By David Ferguson
UPDATED 10:40 AM 7/2/2018
Ethics law not totally forgotten – see end of article.
The names of executives of Preferred Family Healthcare who had also been former employees of the Department of Human Services keep popping up in criminal investigations of bribery and Medicaid fraud.
The latest person who name came up is Robin Raveendran who was an executive vice president of PFH and prior to that was an administrator with the state Medicaid program. He was arrested for Medicaid fraud.
The transition from employee of the regulatory body, DHS, to employee of a Medicaid provider that wants state contracts must be quite common. That in itself is a concern.
But we must ask, in any of these instances was a little noticed state ethics law broken by the former state employee by them being involved in certain Medicaid contracts? Perhaps PFH somehow insulated them from being involved or perhaps they weren’t involved in the contracts when they were DHS employees. In any event this is an issue that should be investigated. And, Governor Asa Hutchinson’s DHS and his other state agencies should be investigated to see whether the agencies have been following the ethics law.
The law I am referring to is Arkansas Code § 19-11-701 et seq. The law doesn’t have a name but has been referred to in the past by the old compilation of Arkansas laws, Arkansas Statutes Annotated, as Ethics in Contracting. Much of this 1979 law is written with an eye on contracts for the purchase or sale of commodities but it also applies to contracts involving services. Medicaid contracts are for services.
The ethics in contracting law is quite detailed and addresses gratuities, kickbacks, disclosures of financial conflicts, restrictions on being involved when the employee has a conflict, and a temporary or permanent ban on being involved in certain matters after leaving state employment. The law also includes some good statements on ethical standards for state employees.
I want to highlight the provision imposing a permanent ban on a former state employee from being involved in certain matters. (A.C.A § 19-11-709 (b)(1)) Be aware there is also a similar provision applying a one-year ban and a disqualification when a former employee is a partner.
(1) Permanent Disqualification of Former Employee Personally Involved in a Particular Matter. It shall be a breach of ethical standards for any former employee knowingly to act as a principal or as an agent for anyone other than the state in connection with any:
(A) Judicial or other proceeding, application, request for a ruling, or other determination;
(B) Contract;
(C) Claim; or
(D) Charge or controversy,
in which the employee participated personally and substantially through decision, approval, disapproval, recommendation, rendering of advice, investigation, or otherwise while an employee, where the state is a party or has a direct and substantial interest.
Again, I am not insinuating any of the former employees of DHS have violated any provision of the ethics in public contracting law. I am raising this issue as one for consideration, because the ethics in contracting law is rarely noticed.
Here are my recommendations:
- Governor Hutchinson should make sure his state agency directors and appointees are informed and are enforcing the law;
- Some state employees involved in purchasing receive training in ethics but all state employees involved in contracts should receive training in compliance;
- Former employees involved in contracts should be required to disclose that fact on contracts with the state;
- The legislature should review the law to see if it should be updated to address loopholes; and
- The legislature should consider moving enforcement of the law from Governor Hutchinson’s director of the Department of Finance and Administration to the Arkansas Ethics Commission.
The ethics in contracting law might also be an example of — if current ethics laws had been observed, amending the Senate Code of Ethics might not have been necessary. I recall an opinion by the Department of Finance and Administration that applied part of commodities contracting rule to sales by legislators, since legislators receive a salary and could be considered state employees. I do not have a copy of the old ruling but it is my recollection it had to do with sales of fuel by Knox Nelson who at the time was a state senator.
Because the ethics in contracting law has gone largely unnoticed for nearly 40 years I am including the law in its entirety in the notes, including some sections added to the subchapter by other acts.[i] The statutes listed below will be primarily of interest to state employees involved in contracts, to those individuals researching ways to improve Arkansas’ ethics laws, and perhaps to investigators.
UPDATE: Kudos to the Office of State Procurement. After approving this article for release, I found an example where the Office of State Procurement raised concerns over contract because of the involvement of a former state employee.
By the time the contract came up for review in the Legislative Council’s Review Subcommittee in review in January of this year the former state employee had been fired by the company. Can you guess the name of the company?
If you guessed Preferred Family Healthcare you are right. The former employee, Charles Green, had been director of the Human Services Department’s Behavioral Health Services Division. The Office of State Procurement was concerned he was in a position of control in PFH. (See Democrat-Gazette article)
I hate to post anything that is not correct!
Ethics in Contracting is still a law of which few are aware and deserves to be reviewed for possible improvement and enforcement. With Green, Robin Raveendran, and other former DHS employees landing jobs at PFH a review of the law seems appropriate. – David Ferguson
David Ferguson is a former Director of Arkansas’ Bureau of Legislative Research, having a thirty-two-year career as an attorney for the Arkansas legislature. After retirement from state service his primary focus has been beef cattle farming. He is also a former officer of Conduit for Action.
NOTES
[i] 19-11-701. Definitions.
As used in this subchapter:
(1) “Blind trust” means an independently managed trust in which the employee-beneficiary has no management rights and in which the employee-beneficiary is not given notice of alterations in or other dispositions of the property subject to the trust;
(2) “Business” means any corporation, partnership, individual, sole proprietorship, joint-stock company, joint venture, or any other legal entity;
(3) “Commodities” means all property, including, but not limited to:
(A) Equipment;
(B) Printing;
(C) Stationery;
(D) Supplies;
(E) Insurance; and
(F) Real property;
(4) “Confidential information” means any information which is available to an employee only because of the employee’s status as an employee of this state and is not a matter of public knowledge or available to the public on request;
(5) “Conspicuously” means written in such special or distinctive format, print, or manner that a reasonable person against whom it is to operate ought to have noticed it;
(6) “Contract” means all types of state agreements, regardless of what they may be called, for the purchase or disposal of commodities and services. “Contract” includes awards and notices of award; contracts of a fixed-price, cost, cost-plus-a-fixed-fee, or incentive type; contracts providing for the issuance of job or task orders; leases; letter contracts; and purchase orders. “Contract” also includes supplemental agreements with respect to any of the foregoing;
(7) “Contractor” means any person having a contract with a state agency;
(8) “Employee” means an individual drawing a salary from a state agency, whether elected or not, and any nonsalaried individual performing personal services for any state agency;
(9) “Financial interest” means:
(A) Ownership of any interest or involvement in any relationship from which, or as a result of which, a person within the past year has received, or is presently or in the future entitled to receive, more than one thousand dollars ($1,000) per year, or its equivalent;
(B) Ownership of more than a five percent (5%) interest in any business; or
(C) Holding a position in a business such as an officer, director, trustee, partner, employee, or the like, or holding any position of management;
(10) “Gratuity” means a payment, loan, subscription, advance, deposit of money, services, or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value is received;
(11) “Immediate family” means a spouse, children, parents, brothers and sisters, and grandparents;
(12) “Official responsibility” means direct administrative or operating authority, whether intermediate or final, either exercisable alone or with others, either personally or through subordinates, to approve, disapprove, or otherwise direct state action;
(13) “Person” means any business, individual, union, committee, club, or other organization or group of individuals;
(14) “Procurement” means the buying, purchasing, renting, leasing, or otherwise obtaining of any commodities or services. “Procurement” also includes all functions that pertain to the obtaining of any public procurement, including description of requirements, selection and solicitation of sources, preparation and award of contract, and all phases of contract administration;
(15) “Services” means technical, professional, or other services involving the furnishing of labor, time, or effort by a contractor; and
(16) “State agency” means any office, department, commission, council, board, bureau, committee, institution, legislative body, agency, government corporation, or other establishment or official of the executive, judicial, or legislative branch of this state.
History Acts 1979, No. 483, § 1; A.S.A. 1947, § 14-1101; Acts 2003, No. 1093, §§ 1, 2.
19-11-702. Penalties.
Any employee or nonemployee who shall knowingly violate any of the provisions of this subchapter shall be guilty of a felony and upon conviction shall be fined in any sum not to exceed ten thousand dollars ($10,000) or shall be imprisoned not less than one (1) nor more than five (5) years, or shall be punished by both.
History Acts 1979, No. 483, § 15; A.S.A. 1947, § 14-1115; Acts 1995, No. 1296, § 77.
19-11-703. Statement of policy.
(a) Public employment is a public trust. It is the policy of the state to promote and balance the objective of protecting government integrity and the objective of facilitating the recruitment and retention of personnel needed by the state. The policy is implemented by prescribing essential restrictions against conflict of interest without creating unnecessary obstacles to entering public service.
(b) Public employees must discharge their duties impartially so as to assure fair competitive access to governmental procurement by responsible contractors. Moreover, they should conduct themselves in such a manner as to foster public confidence in the integrity of the state procurement organization.
(c) To achieve the purpose of this subchapter, it is essential that those doing business with the state also observe the ethical standards prescribed in this subchapter.
History Acts 1979, No. 483, § 2; A.S.A. 1947, § 14-1102.
19-11-704. General standards of ethical conduct.
(a) General Ethical Standards for Employees.
(1) Any attempt to realize personal gain through public employment by conduct inconsistent with the proper discharge of the employee’s duties is a breach of a public trust.
(2) In order to fulfill this general prescribed standard, employees must also meet the specific standards set forth in § 19-11-705, which refers to employee conflict of interest; § 19-11-706, which refers to employee disclosure requirements; § 19-11-707, which refers to gratuities and kickbacks; § 19-11-708, which refers to prohibition against contingent fees; § 19-11-709, which refers to restrictions on employment of present and former employees; and § 19-11-710, which refers to use of confidential information.
(b) General Ethical Standards for Nonemployees. Any effort to influence any public employee to breach the standards of ethical conduct set forth in this subchapter is also a breach of ethical standards.
History Acts 1979, No. 483, § 3; A.S.A. 1947, § 14-1103.
19-11-705. Employee conflict of interest.
(a) Conflict of Interest. (1) It shall be a breach of ethical standards for any employee to participate directly or indirectly in any proceeding or application, in any request for ruling or other determination, in any claim or controversy, or in any other particular matter pertaining to any contract or subcontract, and any solicitation or proposal therefor, in which to the employee’s knowledge:
(A) The employee or any member of the employee’s immediate family has a financial interest;
(B) A business or organization has a financial interest, in which business or organization the employee, or any member of the employee’s immediate family, has a financial interest; or
(C) Any other person, business, or organization with whom the employee or any member of the employee’s immediate family is negotiating or has an arrangement concerning prospective employment is a party.
(2) “Direct or indirect participation” shall include, but not be limited to, involvement through decision, approval, disapproval, recommendation, preparation of any part of a procurement request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity.
(b) Financial Interest in a Blind Trust. Where an employee or any member of the employee’s immediate family holds a financial interest in a blind trust, the employee shall not be deemed to have a conflict of interest with regard to matters pertaining to that financial interest if disclosure of the existence of the blind trust has been made to the Director of the Department of Finance and Administration.
(c) Discovery of Conflict of Interest, Disqualification, and Waiver. Upon discovery of a possible conflict of interest, an employee shall promptly file a written statement of disqualification with the director and shall withdraw from further participation in the transaction involved. The employee may, at the same time, apply to the director in accordance with § 19-11-715(b) for an advisory opinion as to what further application, if any, the employee may have in the transaction, or for a waiver in accordance with § 19-11-715(c).
History Acts 1979, No. 483, § 4; A.S.A. 1947, § 14-1104.
19-11-706. Employee disclosure requirements.
(a) Disclosure of Benefit Received from Contract. Any employee who has or obtains any benefit from any state contract with a business in which the employee has a financial interest shall report such benefit to the Director of the Department of Finance and Administration. However, this section shall not apply to a contract with a business where the employee’s interest in the business has been placed in a disclosed blind trust.
(b) Failure to Disclose Benefit Received. Any employee who knows or should have known of such benefit and fails to report the benefit to the director is in breach of the ethical standards of this section.
History Acts 1979, No. 483, § 5; A.S.A. 1947, § 14-1105.
19-11-707. Gratuities and kickbacks.
(a) Gratuities. It is a breach of ethical standards for any person to offer, give, or agree to give any employee or former employee, or for any employee or former employee to solicit, demand, accept, or agree to accept from another person, a gratuity or an offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim, or controversy, or other particular matter, pertaining to any contract or subcontract and any solicitation or proposal therefor.
(b) Kickbacks. It is a breach of ethical standards for any payment, gratuity, or offer of employment to be made by or on behalf of a subcontractor under a contract to the prime contractor or higher tier subcontractor, or any person associated therewith, as an inducement for the award of a subcontract or order.
History Acts 1979, No. 483, § 6; A.S.A. 1947, § 14-1106.
19-11-708. Prohibition against contingent fees.
(a) Contingent Fees. It shall be a breach of ethical standards for a person to be retained, or to retain a person, to solicit or secure a state contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, except for retention of bona fide employees or bona fide established commercial selling agencies maintained by the contractor for the purpose of securing business.
(b) Representation of Contractor. Before being awarded a state contract other than by procedures set forth in the Arkansas Procurement Law, § 19-11-201 et seq., and regulations promulgated under the Arkansas Procurement Law, § 19-11-201 et seq., for small purchases, every person shall represent, in writing, that such person has not retained anyone in violation of subsection (a) of this section. Failure to do so constitutes a breach of ethical standards.
(c) Notice. The representation prescribed in subsection (b) of this section shall be conspicuously set forth in all contracts and solicitations therefor.
History Acts 1979, No. 483, § 7; A.S.A. 1947, § 14-1107.
19-11-709. Restrictions on employment of present and former employees — Definition.
(a) Contemporaneous Employment Prohibited. It shall be a breach of ethical standards for any employee who is involved in procurement to become or be, while such an employee, the employee of any party contracting with the state agency by which the employee is employed.
(b) Restrictions on Former Employees in Matters Connected with Their Former Duties. (1) Permanent Disqualification of Former Employee Personally Involved in a Particular Matter. It shall be a breach of ethical standards for any former employee knowingly to act as a principal or as an agent for anyone other than the state in connection with any:
(A) Judicial or other proceeding, application, request for a ruling, or other determination;
(B) Contract;
(C) Claim; or
(D) Charge or controversy,
in which the employee participated personally and substantially through decision, approval, disapproval, recommendation, rendering of advice, investigation, or otherwise while an employee, where the state is a party or has a direct and substantial interest.
(2) One-Year Representation Restriction Regarding Matters for Which a Former Employee Was Officially Responsible. It shall be a breach of ethical standards for any former employee, within one (1) year after cessation of the former employee’s official responsibility in connection with any:
(A) Judicial or other proceeding, application, request for a ruling, or other determination;
(B) Contract;
(C) Claim; or
(D) Charge or controversy,
knowingly to act as a principal or as an agent for anyone other than the state in matters which were within the former employee’s official responsibility, where the state is a party or has a direct or substantial interest.
(c) Disqualification of Partners. (1) When Partner Is a State Employee. It shall be a breach of ethical standards for a person who is a partner of an employee knowingly to act as a principal or as an agent for anyone other than the state in connection with any:
(A) Judicial or other proceeding, application, request for a ruling, or other determination;
(B) Contract;
(C) Claim; or
(D) Charge or controversy,
in which the employee either participates personally and substantially through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, or which is the subject of the employee’s official responsibility, where the state is a party or has a direct and substantial interest.
(2) When a Partner Is a Former State Employee. It shall be a breach of ethical standards for a partner of a former employee knowingly to act as a principal or as an agent for anyone other than the state where such former employee is barred under subsection (b) of this section.
(d) Selling to State After Termination of Employment Is Prohibited.
(1) It is a breach of ethical standards for a former employee, unless the former employee’s last annual salary based on the state fiscal year did not exceed fifteen thousand dollars ($15,000), to engage in selling or attempting to sell commodities or services, including technical or professional consultant services, to the state for one (1) year following the date employment ceased.
(2) As used in this subsection, “sell” means:
(A) Signing a bid, proposal, or contract;
(B) Negotiating a contract;
(C) Contacting any employee for the purpose of obtaining, negotiating, or discussing changes in specifications, price, cost allowances, or other terms of a contract;
(D) Settling disputes concerning performance of a contract; or
(E) Any other liaison activity with a view toward the ultimate consummation of a sale although the actual contract for the sale is subsequently negotiated by another person.
(e)
(1) This section is not intended to preclude a former employee from accepting employment with private industry solely because his or her employer is a contractor with this state.
(2) This section is not intended to preclude an employee, a former employee, or a partner of an employee or former employee from filing an action as a taxpayer for alleged violations of this subchapter.
History Acts 1979, No. 483, § 8; A.S.A. 1947, § 14-1108; Acts 2003, No. 1093, § 3; 2015, No. 966, § 1.
19-11-710. Use of confidential information.
It shall be a breach of ethical standards for any employee or former employee knowingly to use confidential information for actual or anticipated personal gain or for the actual or anticipated personal gain of any other person.
History Acts 1979, No. 483, § 9; A.S.A. 1947, § 14-1109.
19-11-711. Public access to procurement information.
Procurement information shall be public record to the extent provided in the Freedom of Information Act of 1967, § 25-19-101 et seq., except as otherwise provided in this subchapter and the Arkansas Procurement Law, § 19-11-201 et seq.
History Acts 1979, No. 483, § 10; A.S.A. 1947, § 14-1110.
19-11-712. Civil and administrative remedies against employees who breach ethical standards.
(a) Existing Remedies Not Impaired. Civil and administrative remedies against employees which are in existence on July 1, 1979, shall not be impaired.
(b) Supplemental Remedies. In addition to existing remedies for breach of the ethical standards of this subchapter, or regulations promulgated under this subchapter, the Director of the Department of Finance and Administration may impose any one (1) or more of the following:
(1) Oral or written warnings or reprimands;
(2) Forfeiture of pay without suspension;
(3) Suspension with or without pay for specified periods of time; and
(4) Termination of employment.
(c) Right to Recover from Employee Value Received in Breach of Ethical Standards. The value of anything received by an employee in breach of the ethical standards of this subchapter, or regulations promulgated under this subchapter, shall be recoverable by the state as provided in § 19-11-714, which refers to recovery of value transferred or received in breach of ethical standards.
(d) Due Process. Notice and an opportunity for a hearing shall be provided prior to imposition of any of the remedies set forth in subsection (b) of this section.
History Acts 1979, No. 483, § 11; A.S.A. 1947, § 14-1111.
19-11-713. Civil and administrative remedies against nonemployees who breach ethical standards.
(a) Existing Remedies Not Impaired. Civil and administrative remedies against nonemployees which are in existence on July 1, 1979, shall not be impaired.
(b) Supplemental Remedies. In addition to the existing remedies for breach of the ethical standards of this subchapter, or regulations promulgated under this subchapter, the Director of the Department of Finance and Administration may impose any one (1) or more of the following:
(1) Oral or written warnings or reprimands;
(2) Termination of transactions; and
(3) Suspension or debarment from being a contractor or subcontractor under state contracts.
(c) Right to Recover from Nonemployee Value Transferred in Breach of Ethical Standards. The value of anything transferred in breach of the ethical standards of this subchapter, or regulations promulgated under this subchapter, by a nonemployee shall be recoverable by the state from such person as provided in § 19-11-714, which refers to recovery of value transferred or received in breach of ethical standards.
(d) Due Process. Notice and an opportunity for a hearing shall be provided prior to imposition of any of the remedies set forth in subsection (b) of this section.
History Acts 1979, No. 483, § 12; A.S.A. 1947, § 14-1112.
19-11-714. Recovery of value transferred or received in breach of ethical standards.
(a) General Provisions. The value of anything transferred or received in breach of the ethical standards of this subchapter, or regulations promulgated under this subchapter, by an employee or a nonemployee may be recovered from both the employee and the nonemployee.
(b) Recovery of Kickbacks by the State. Upon a showing that a subcontractor made a kickback to a prime contractor or a higher tier subcontractor in connection with the award of a subcontract or order thereunder, it shall be conclusively presumed that the amount thereof was included in the price of the subcontract or order and ultimately borne by the state and will be recoverable under this subchapter from the recipient. In addition, this value may also be recovered from the subcontractor making such kickbacks. Recovery from one (1) offending party shall not preclude recovery from other offending parties.
History Acts 1979, No. 483, § 13; A.S.A. 1947, § 14-1113.
19-11-715. Duties of Director of Department of Finance and Administration.
(a) Regulations. The Director of the Department of Finance and Administration shall promulgate regulations to implement this subchapter and shall do so in accordance with this subchapter and the applicable provisions of the Arkansas Administrative Procedure Act, § 25-15-201 et seq.
(b) Advisory Opinions. On written request of employees or contractors and in consultation with the Attorney General, the director may render written advisory opinions regarding the appropriateness of the course of conduct to be followed in proposed transactions. Such requests and advisory opinions may be duly published in the manner in which regulations of this state are published. Compliance with the requirements of a duly promulgated advisory opinion of the director shall be deemed to constitute compliance with the ethical standards of this subchapter.
(c) Waiver. On written request of an employee, the director may grant an employee a written waiver from the application of § 19-11-705, which refers to employee conflict of interest, and grant permission to proceed with the transaction to such extent and upon such terms and conditions as may be specified. Such waiver and permission may be granted when the interests of the state so require or when the ethical conflict is insubstantial or remote.
History Acts 1979, No. 483, § 14; A.S.A. 1947, § 14-1114.
19-11-716. Participation in business incubators — Regulations and guidelines.
(a) The provisions of this subchapter shall not be applicable to faculty or staff of state-supported institutions of higher education participating in business incubators within this state.
(b)
(1) The Director of the Department of Finance and Administration shall promulgate rules and regulations pursuant to the procedure for adoption as provided under the Arkansas Administrative Procedure Act, § 25-15-201 et seq., and under § 10-3-309 to implement a program allowing admittance to business incubators by faculty or staff of state-supported institutions of higher education or admittance by companies in which faculty or staff may hold an ownership interest.
(2) The program may include guidelines setting forth full disclosure requirements, any limitations on ownership interests, maximum income amounts to be received, annual reporting to the General Assembly, mandatory levels of student participation and such other reasonable restrictions and requirements as are necessary to maintain the public trust while encouraging the facilitation of commercialization of university-generated technology or discovery.
History Acts 1989, No. 29, § 1.
19-11-717. State-supported institutions of higher education.
(a) (1) Notwithstanding anything in this subchapter to the contrary, if, in either of the events in subdivisions (a)(1)(A) and (B) of this section, the contract or subcontract, solicitation, or proposal involves patents, copyrights, or other proprietary information in which a state-supported institution of higher education and an employee or former employee of the state-supported institution of higher education have rights or interests, provided that a contract or subcontract shall be approved by the governing board of the state-supported institution of higher education in a public meeting, it shall not be a violation of § 19-11-709, a conflict of interest, or a breach of ethical standards for:
(A) The state-supported institution of higher education to contract with a person or firm in which an employee or former employee of the state-supported institution of higher education has a financial interest; or
(B) The employee or former employee of the state-supported institution of higher education to participate directly or indirectly in a matter pertaining to a contract, subcontract, solicitation, or proposal for a contract or subcontract between a state-supported institution of higher education and a person or firm in which the employee or former employee has a financial interest.
(2)
(A) Within thirty (30) days of the approval by the governing board of a state-supported institution of higher education of a contract, subcontract, solicitation, or proposal executed under subdivision (a)(1) of this section, the state-supported institution of higher education shall file a summary of the contract, subcontract, solicitation, or proposal with the president of the state-supported institution of higher education.
(B) Failure to file the required summary with the president of the state-supported institution of higher education as required under subdivision (a)(2)(A) of this section renders the contract null and void.
(b)
(1) Nothing in the Arkansas Procurement Law, § 19-11-201 et seq., or in § 19-11-1001 et seq. shall prevent a state agency from contracting for goods or services, including professional or consultant services, with an organization that employs or contracts with a regular, full-time, or part-time employee of a state-supported institution of higher education in situations in which the employee of the state-supported institution of higher education will provide some or all of the goods or services under the contract.
(2) An organization or state agency entering into a contract described under this subsection shall comply with the Arkansas Procurement Law, § 19-11-201 et seq., and § 19-11-1001 et seq. to the extent that the Arkansas Procurement Law, § 19-11-201 et seq., and § 19-11-1001 et seq. do not conflict with this section.
(3) An employee of a state-supported institution of higher education who provides goods or services to a state agency through his or her association with an organization that has a contract with the state agency to provide goods or services shall obtain the requisite approvals under the policies of the state-supported institution of higher education by which he or she is employed and comply with all provisions of this subchapter.
(c)
(1) No later than January 31 each year, an employee or former employee contracting or receiving benefits under this section shall file with the Secretary of State on a form provided by the Secretary of State a disclosure of the type and amount of the contract or benefits received during the previous year.
(2) Failure to file the required form with the Secretary of State as required under subdivision (c)(1) of this section is a breach of ethical standards.
History Acts 1989, No. 875, § 1; 2005, No. 949, § 1; 2009, No. 735, § 1.
19-11-718. Special state employees — Conflicts of interest — Definitions.
(a) As used in this section:
(1)
(A) “Conflict of interest” means a special state employee’s direct or indirect pecuniary or other interest in a matter before a covered board.
(B) “Conflict of interest” includes without limitation the following:
(i) An offer of employment from an entity that is involved in a procurement matter with the covered board or is involved in a discussion of a procurement matter with the covered board;
(ii) Being an officer or employee of a business, association, or nonprofit organization that is involved in a procurement matter with the covered board or is involved in a discussion of a procurement matter with the covered board; and
(iii) Receiving compensation from an entity that is involved in a procurement matter or is involved in a discussion of a procurement matter with the covered board;
(2) (A) “Covered board” means:
(i) A commission, board, bureau, office, or other state instrumentality created within the executive branch; and
(ii) An entity that is created by regulation, statute, legislative direction, executive order, or other informal means if the entity has decision-making authority over procurement criteria, contracts, appointment of individuals to negotiate procurement directly or indirectly, or the approval of procurements.
(B) “Covered board” does not include the following:
(i) The constitutional departments of the state;
(ii) The elected constitutional offices of the state;
(iii) The General Assembly, including the Legislative Council, the Legislative Joint Auditing Committee, and supporting agencies and bureaus of the General Assembly;
(iv) The Supreme Court;
(v) The Court of Appeals;
(vi) The circuit courts;
(vii) Prosecuting attorneys;
(viii) The Administrative Office of the Courts;
(ix) An institution of higher education;
(x) A municipal government;
(xi) A county government;
(xii) An interstate agency; or
(xiii) A legislative task force or committee if the legislative task force or committee only advises the General Assembly; and
(3) (A) “Special state employee” means a person appointed to a covered board, regardless of whether the person:
(i) Receives compensation for his or her services;
(ii) Receives reimbursement for travel expenses;
(iii) Receives per diem; or
(iv) Was appointed formally or informally.
(B) “Special state employee” does not include a constitutional officeholder or an ex officio or nonvoting member of an entity described in subdivision (a)(2)(A) of this section.
(b) A special state employee shall disclose a conflict of interest in a procurement matter before the covered board:
(1) Either:
(A) In writing to the head of a covered board; or
(B) Orally or in writing at a public meeting of the covered board if the disclosure is included in the minutes of the public meeting; and
(2) By filing a conflict of interest disclosure report with the Secretary of State within five (5) business days of the date the special state employee becomes aware of the conflict of interest.
(c) A special state employee shall not vote on, receive or read confidential materials related to, participate in discussion of, or attempt to influence the covered board’s decision on a procurement matter if the special state employee has a conflict of interest in the procurement matter.
(d) A special state employee who is a lobbyist registered under § 21-8-601 shall recuse himself or herself from a procurement matter before the covered board if:
(1) The special state employee receives compensation as a lobbyist from an entity involved in the procurement matter; or
(2) The procurement matter involves a person or entity that is a competitor of a lobbying client of the special state employee.
(e) A special state employee or former special state employee shall not:
(1) Represent an entity other than the state in a matter in which he or she participated in making a decision, rendering approval or disapproval, making a recommendation, or rendering advice on behalf of the covered board; or
(2) Assist or represent a party for contingent compensation in a matter involving a covered board other than in a judicial, administrative, or quasi-judicial proceeding.
(f) A former special state employee shall not lobby the members or staff of a covered board of which he or she is a former member for one (1) year after the cessation of the special state employee’s membership on the covered board.
(g) A contract entered into by a covered board, including a renewal, extension, or amendment of a contract entered into by a covered board, shall include a statement that no special state employee has been influenced by the vendor in the course of the procurement.
(h)
(1) A complaint about a violation of this section may be filed with the Arkansas Ethics Commission.
(2) A violation of this section is grounds for discipline or removal of the special state employee by the commission.
(i) The commission shall promulgate rules regarding disciplinary and removal proceedings for special state employees.
History Acts 2015, No. 1287, § 2.
