HomeMy WebLinkAboutMemo from Frank Cassidy to Deb Thalasitis RE: membership on Board of Directors for NW Fire District~~--'~^~
MARANA
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LEGAL DEPARTMENT
MEMORANDUM
To: Deb Thalasitis, Assistant Town Manage • ~
From: Frank Cassidy, Town Attorney
Subject: Whether your membership e b of directo of the Northwest Fire
District would create a conflict of int est
Date: October 1, 2008
You are applying for a current vacancy on the five-member Northwest Fire District
(NWFD) Board of Directors, and have asked whether there is any prohibition or conflict of
interest to doing this as an employee of the Town under the Arizona conflict of interest
statutes (A.R.S. ~ 38-501 et .req.).
The Arizona conflict of interest statutes do not prohibit a public officer or employee from
taking on substantial interests that may give rise to conflicts of interest. Rather, the conflict
of interest statutes determine under what circumstances a public officer or employee with
substantial interests must refrain from participating in discussions or decisions in which the
officer or employee or his or her relative has a substantial interest.
Simply put, the Arizona conflict of interest statutes do not preclude a Marana employee
from becoming a member of the NWFD Board of Directors. The conflict of interest
statutes explain under what circumstances a Marana employee who is a NWFD Board
member must refrain from participating as a Marana employee in matters involving NWFD.
This Office concludes that if you are selected to the NWFD Board of Directors, your
membership on the NWFD Board will not preclude you from participating as a Town
employee in matters involving NWFD, except in situations where the decision in question
will result in a direct economic benefit or detriment to you or a relative and the direct
economic benefit or detriment does not involve public services you or your relatives receive
from NWFD on the same terms and conditions as those received by the public.
FACTUAL BACKGROUND
NWFD is a full service, community-based emergency services provider funded through
property taxes, serving about 120,000 residents in a 140 square mile area of northwest
metropolitan Tucson. NWFD is one of Arizona's many fire districts-"constitutional and
statutory entities, much like municipal corporations." Northwest Fire Dirt. v. U.S. Home of
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TOWN OF MARANA ~ LEGAL DEPARTMENT
11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653
PHONE: (520) 382-1940 ~ FAX: (520) 382-1945
Deb Thalasitis, Assistant Town Manager
Conflict of Interest Opinion
October 7, 2008
Page 2
Arizona Const. Co., 215 Ariz. 492, 494, 161 P.3d 535, 537 (2007); see also ARIZ. CONST.
ART. 13 ~ 7 and A.R.S. ~ 48-802 et seq.
ARIZONA CONFLICT OF INTEREST LAW
The Arizona conflict of interest statutes are found at A.R.S. ~ 38-501 et seq. In general, they
provide that all public officers and employees must refrain from participating in any way in
decisions in which the officer or employee, or any "relative" of the officer or employee, has
a "substantial interest." The law includes the following definitions:
"Substantial interest" means any pecuniary or proprietary interest, either direct
or indirect, other than a remote interest.
"Relative" means the spouse, child, child's child, parent, grandparent, brother
or sister of the whole or half blood and their spouses and the parent, brother,
sister or child of a spouse.
"Remote interest" means:....
(g) That of a recipient of public services generally provided by the
incorporated city or town, political subdivision or state department,
commission, agency, body or board of which he is a public officer or
employee, on the same terms and conditions as if he were not an officer or
employee... .
(i) That of a public officer or employee, or that of a relative of a public
officer or employee, unless the contract or decision involved would confer a
direct economic benefit or detriment upon the officer, employee or his
relative, of any of the following:
(i) Another political subdivision.
(ii) A public agency of another political subdivision.
(iii) A public agency except if it is the same governmental entity.....
In a nutshell, the law prohibits you from participating in any Town action or decision in
which you have, or any relative of yours has, a direct or indirect financial or ownership
interest, unless it falls within the definition of "remote interest." A substantial interest creates
a conflict even if your participation is contrary to your or your relative's interest. The law
also requires you to disclose in writing all your substantial interests to the town clerk, who is
required to keep a special file containing all such disclosures.
ANALYSIS AND OPINION
If you are selected, your activities as a member of the NWFD Board of Directors will fit
directly within the definition of "remote interest" and therefore will not constitute a conflict
of interest under Arizona law, except where a decision will provide direct economic benefit
or detriment to you or a relative and does not involve public services you or your relatives
receive from NWFD on the same terms and conditions as those received by the public.
Your NWFD activities will typically fall within two subparagraphs of the "remote interest"
definition. As a customer of NWFD, the public services you receive from NWFD are on the
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Deb Thalasitis, Assistant Toavri Manager
Conflict of Interest Opinion
October >, 2008
Page 3
same terms and conditions as if you were not a member of the NWFD Board of Directors.
This brings you within subparagraph (g) of the "remote interest" definition. NWFD is a
government entity, so the "another political subdivision" exception of subparagraph (i) will
apply unless the contract or decision involved confers a direct benefit or detriment on you or
a relative of yours.
To harmonize subparagraphs (g) and (i) of the "remote interest" definition, the "direct
benefit or detriment" language of subparagraph (i) logically excludes the financial benefit or
detriment that may result from receiving "public services generally provided ... on the same
terms and conditions as if [you] were not an officer or employee." In other words, even if a
Town action or decision would arguably affect your direct out-of-pocket costs as a NWFD
customer, your participation in that action or decision would not constitute a conflict of
interest as long as you receive NWFD services on the same terms and conditions as other
NWFD customers.
CONCLUSION
If you are selected for membership on the NWFD Board of Directors, you will have only a
"remote interest" in matters involving NWFD. Arizona conflict of interest law will only
require you to refrain from participating in Town deliberations and actions involving NWFD
when the decision will result in a direct economic benefit or detriment to you or a relative.1
Even then, you will be permitted to participate if the direct economic benefit or detriment is
only from public services you or your relatives receive from NWFD on the same terms and
conditions as those received by the general public.
Even though almost all NWFD matters you will deal with as a Town employee will fall
within the "remote interest" exception, you may choose to avoid even the appearance of a
conflict by not participating in any Town discussions and decisions involving NWFD.
Do not hesitate to contact me if you would like to discuss this directly.
xc: Gilbert Davidson, Town Manager
Jocelyn Bronson, Town Clerk (for conflict of interest file)
1 In all likelihood, the legal staff of NWFD will advise you not to act as a board member in actions that result
in this type of direct benefit to you or a relative of yours.
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