WWA states: Lost
and found items will be returned to the finder in accordance with State law
(within thirty (30) days if legally permissable).
A
Determination letter dated 2/2/2011 denying Grievance #7979, stated in part…
·
“TriMet
employees are subject to State public ethics laws and TriMet’s Ethic’s Policy prohibits
TriMet employees from claiming or retaining items found as a result of their
employment regardless of whether an item(s) is unclaimed.”
·
“Oregon
Revised Statute (ORS) 244.040 (1) prohibits employees from using or attempting
to use their position for personal gain.
Operators find an item on their Portland Streetcar [PSC], TriMet bus, rail
vehicle or property only by virtue of their “official position.”
·
“Also,
under ORS Chapter 98 regarding lost and found property- TriMet or the Bureau of
Transportation would be considered the “finder” as the employee finds the item
during the performance of their official duties.”
My position…
·
POLICIES
DO NOT SUPERSEDE CONTRACTS. TO BREAK A CONTRACT IS UNLAWFUL AND UNETHICAL. Claiming
turned-in, unclaimed “lost and found”…. is not.
o
Our
contract states that “Rules shall not be
in conflict with existing agreement.”
(Reference: WWA-
Article I, Section 4, Para. 1)
o
TriMet’s
and the City of Portland’s own “ethics” policies both state that they are not legal documents.
(References: TriMet’s “Legal Disclaimer-Human Resources
Manual” in part…”Therefore, this manual is not an employment contract or legal
document.” The City of Portland’s “Code of Ethics” 1.03.010 in part…”The
provisions of this Chapter which are not elsewhere enforced by law shall be
considered advisory only.”)
o
“Business
Ethics Policies” are “mandatory bargaining subjects.” The Lost and found
policies were not bargained over; in the guise that TriMet… and now PSC, are supposedly abiding by State law.
(Reference: “The Legal
Rights of Union Stewards,” page 86)
·
Neither
TriMet nor PSC has proven that claiming lost and found items is against State law (as the contract requires). Within the contract’s context…the
“thirty (30) days if legally permissible,”
refers to item(s) valued over $100.00. ORS 98.005 requires a 90-day wait, along
with other requirements, to claim item(s) valued over $100.00. Therefore, one
could not legally claim an item valued over $100.00 within 30-days (ORS 98 does not
mention found items under $100.00 in value).
o
Since TriMet and PSC agreed to the “Lost
and Found” clause in our contract; they have transferred the rights of the
“finder” to the employee who found interest in the item(s); in spite of the
item(s) value.
c.566 §9; 1989 c.340 §3; 1991 c.146
§1; 1991 c.770 §6; 1991 c.911 §4; 1993 c.743 §9; 2007 c.877 §17; 2009 c.68 §4]
·
Our contract is considered our “official
compensation package.”
o
As
stated under …TriMet’s HR 134 “APPENDIX 1 OREGON GOVERNMENT ETHICS COMMISSION” 199-005-0035
Guidelines for compliance with ORS 244.020(5), 244.025, 244.040, 244.042
and 244.047
(3)
An “official compensation package” means the wages and other benefits
provided to the public official. To be
part of the public official's “official compensation package”, the wages
and benefits must have been specifically approved by the public body in a
formal manner, such as through a union contract, an employment contract,
or other adopted personnel policies that apply generally to employees or other
public officials. “Official compensation package” also includes the direct
payment of a public official's expenses by the public body, in accordance with
the public body's policies.
·
I asked The Oregon Government Ethics
Commission (OGEC) if
claiming lost and found would be a violation of ORS 244. They could not give a definite answer.
They used the term “could be a violation of ORS 244.040.
·
The City of Portland’s own policy (5.36.015)
states …
A. “Unclaimed Property:
Unless directed otherwise by State law or a specific provision of this Code,
all tangible personal property not owned
by the City, that is under the control
of a bureau and not reclaimed after notice has been sent, by the
bureau in possession, to all parties who
reasonably appear to have an interest in such property, of their right to
claim such property within a specified period of time, shall become the
property of the City, designated as surplus property, and, shall be disposed of
as provided by this Chapter.”
o
This indicates, the employee who marked “Hold for Operator” (according
to original SOP 026 dated 6-01-01) would be a ‘party that has interest in such property;’ and they have “their right to claim such property within a specified period
of time,”before it becomes the
“property of the City.” The contract gives us that “right.”
o
THE FACT THAT THE CITY IS ALLOWED TO KEEP LOST AND FOUND ITEMS
THAT ARE UNCLAIMED, IMPLIES THAT IT IS NOT EITHER “UNETHICAL” OR “ILLEGAL” AS
THEY (AND TRIMET) CLAIM.
(Reference:
City of Portland Policy 5.36.015 (B))
·
Nowhere
in ORS 244.040 (1) does it use the term “personal
gain.” ORS 244.040 (1) uses the terms “financial gain or avoidance of
financial detriment.” The term “personal gain” is imprecise; and is no part of
the law in question.
o
Below
is ORS 244.040. The number one exception to this law is if
“Any part of an official compensation package
as determined by the public body that the public official serves….”
allows for the financial gain (or detriment).
o
Whether
or not TriMet and/or PSC consider lost and found items to be “financial gain or
avoidance of financial detriment,” under legal terms lost and found items would
be considered compensation.
o
Legally,
“compensation” in the employment context,
is defined as all rewards
received by a worker for duty and
services rendered related to a
job.
(Reference: US Legal
Definitions).
The law in question...
244.040 Prohibited use of official
position or office; exceptions; other prohibited actions. (1) 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.
(2) Subsection (1) of this
section does not apply to:
(a) Any part of an official compensation package as determined by the
public body that the public official serves.
(b)
The receipt by a public official or a relative or member of the household of
the public official of an honorarium or any other item allowed under ORS
244.042.
(c)
Reimbursement of expenses.
(d)
An unsolicited award for professional achievement.
(e)
Gifts that do not exceed the limits specified in ORS 244.025 received by a
public official or a relative or member of the household of the public official
from a source that could reasonably be known to have a legislative or
administrative interest.
(f)
Gifts received by a public official or a relative or member of the household of
the public official from a source that could not reasonably be known to have a
legislative or administrative interest.
(g)
The receipt by a public official or a relative or member of the household of
the public official of any item, regardless of value, that is expressly
excluded from the definition of “gift” in ORS 244.020.
(h)
Contributions made to a legal expense trust fund established under ORS 244.209
for the benefit of the public official.
(3) A
public official may not solicit or receive, either directly or indirectly, and
a person may not offer or give to any public official any pledge or promise of
future employment, based on any understanding that the vote, official action or
judgment of the public official would be influenced by the pledge or promise.
(4) A
public official may not attempt to further or further the personal gain of the
public official through the use of confidential information gained in the
course of or by reason of holding position as a public official or activities
of the public official.
(5) A
person who has ceased to be a public official may not attempt to further or
further the c.566 §9; 1989 c.340 §3; 1991 c.146 §1; 1991 c.770 §6; 1991 c.911
§4; 1993 c.743 §9; 2007 c.877 §17; 2009 c.68 §4]
·
Our contract is considered our “official
compensation package.”
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