STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6046

March 22, 1982

STATE BOARD OF ETHICS:

Authority with respect to unethical conduct of public officer or employee who subsequently leaves government service

The State Board of Ethics is empowered by the Legislature to investigate and issue an advisory opinion concerning the conduct of a public officer or employee even though the officer or employee is no longer in government service, but the board may not make a recommendation to the appointing authority of the former officer or employee.

Honorable Curtis Hertel

State Representative

The Capitol

Lansing, Michigan

Honorable James Barcia

State Representative

The Capitol

Lansing, Michigan

In separate letters you have requested my opinion on several questions concerning the authority of the Board of Ethics with respect to alleged unethical conduct by a public officer or employee who has subsequently left government service. Your questions may be stated as follows:

1973 PA 196, as amended; MCLA 15.341 et seq; MSA 4.1700(71) et seq, prescribes standards of conduct for public officers and employees and, as a mechanism to implement those standards, establishes a Board of Ethics within the executive office of the Governor. 1973 PA 196, supra, Sec. 3(2) provides:

Nevertheless, the board is empowered to take certain significant steps to identify and, where appropriate, recommend corrective action for actual or potential violations of the ethical standards established by the Act. 1973 PA 196, supra, Sec. 5 provides, in pertinent part:

It is immediately apparent that 1973 PA 196, Sec. 5, supra, contemplates two very distinct types of proceedings by the board. 1973 PA 196, Sec. 5(1)(b) and (e), supra, authorize the board to investigate practices or matters which affect the ethical conduct of public officers or employees and to issue advisory opinions relating to such practices or matters. In contrast, the report and recommendation function established by 1973 PA 196, Sec. 5(1)(a), supra, is retrospective. The board is required to focus on the past conduct of specific individuals and make recommendations to the appointing authority as to the appropriate disciplinary action, if any, which should be taken against the individual officer or employee. Although the board is not itself empowered to take or order disciplinary action against the individual, the Act clearly contemplates that such disciplinary action is to be enforced, where appropriate. 1973 PA 196, Sec. 5(3) and (4), supra, mandates:

Thus, the board's recommendation function established by 1973 PA 196, Sec. 5(1)(a), supra, unlike its advisory opinion function, is intended to result in the taking of specific corrective action by the appointing authority including, where appropriate, disciplinary action against an individual officer or employee.

It is my understanding that your present inquiry was prompted by the recurrence of a situation which has periodically confronted the Board of Ethics. The board has received a complaint alleging that a former public officer or employee engaged in unethical conduct while in office. However, prior to the review of this complaint by the board, the individual left government service. You have inquired as to whether the individual's departure from government service deprives the board of its authority to exercise either of the two functions described above.

Your first question concerns the impact of an individual's departure from government service upon the board's recommendation function as established by 1973 PA 196, Sec. 5(1)(a), supra. The primary purpose of the board's recommendation function is to render a finding in an individual case as to whether specific conduct by a particular officer or employee constitutes a violation of the ethical standards established by the Act and to recommend appropriate disciplinary action against that individual if a violation is found to have occurred. The focus of this activity is the particular individual who has engaged in the alleged unethical conduct. By its express terms, 1973 PA 196, Sec. 5(1)(a), supra, applies only to 'conduct by a public officer or employee.' Once an individual has left government service, he or she is no longer a public officer or employee. More importantly, once the individual has left government service, the appointing authority may no longer take the disciplinary action contemplated by 1973 PA 196, Sec. 5(3) and (4), supra, thus rendering the board's recommendation moot.

It is my opinion, therefore, in response to your first question, that the departure of the officer or employee from government service prior to the recommendation by the board upon a complaint terminates the responsibility of the board to issue a recommendation pursuant to 1973 PA 196, Sec. 5(1)(a), supra.

Your second question concerns the impact of an individual's departure from government service upon the board's investigatory and advisory opinion functions established by 1973 PA 196, Sec. 5(1)(b) and (e), supra. Unlike the board's recommendation function under 1973 PA 196, Sec. 5(1)(a), supra, the focus of the board's investigatory and advisory opinion functions is to issue an advisory opinion. The primary purpose of such advisory opinions is to clarify ethical standards and to provide counseling and guidance to public officers and employees generally so as to assist them in avoiding potential violations in the future. The departure of a particular individual from government service does not lessen the usefulness of such an opinion.

It is my opinion, therefore, in response to your second question, that the departure of an individual officer or employee from government service does not serve to terminate the responsibility of the Board of Ethics to conduct an investigation and to issue an advisory opinion on the question of whether certain conduct or activities may violate the ethical standards established by 1973 PA 196, supra.

Frank J. Kelley