I begin the "Intent" section of my book Local Government Ethics Programs by noting that, "One of the distinguishing aspects of government ethics is the fact that it does not deal with or require a showing of intent, willfulness, knowledge, or motive."

The next sentence is, "This is yet another reason why the criminal enforcement paradigm is not a very good fit for government ethics."

I raise this issue now because, according to an article in yesterday's Tampa Times, the Florida Senate passed ethics reform bills this week that (1) require the state ethics commission (which has jurisdiction over local officials) to dismiss complaints where the conduct was the result of "inadvertent or unintentional error," and (2) make it a felony when an officeholder's ethical misconduct is "motivated by money."

In this, the third blog post on the Colorado ethics commission situation, I would like to look at the problems that can arise from placing an ethics code in a constitutional document, either a charter or, as in the Colorado case, the state constitution.

It is an unfortunate fact that, in many jurisdictions, legislators are so opposed to the creation of an effective government ethics program that the task of ethics reform can be accomplished only via charter revision or a referendum. In other instances, ethics reformers recognize that, if an ethics code is not placed in a charter, the legislative body will scrape away at it, undermining the program's independence, jurisdiction, authority, and resources.

But success in ethics reform through citizen or charter revision initiative, as occurred in Colorado in 2006, can make it extremely difficult to fix the problems an ethics commission finds in the code. Sometimes, problems can be solved through interpretations made via rules and regulations, advisory opinions, and decisions in ethics proceedings. Sometimes, there is room for legislation to correct mistakes. But sometimes an ethics program is stuck with poorly written language, and has to make the best of it, as the Colorado ethics commission is doing right now, stuck as it is with a total gift ban, and the state attorney general as its counsel and an insufficient budget.

The Colorado ethics commission matter that I discussed in my last blog post points to yet another reason why ethics commissions must have their own counsel, and a sufficient budget to pay that counsel.

According to a January article in the Colorado Independent, Colorado's Attorney General issued an opinion on January 8 supporting the Secretary of State's request for approval of his legal defense fund, through either transparency or a blind trust. The ethics commission's draft opinion opts for transparency. A blind trust in this situation would require that the public's trust be blind, that is, without any evidence or reason to believe the Secretary of State would not know about any of the gifts to the fund.

The AG opinion is problematic, not just because of its conclusions, but also because the AG is the ethics commission's counsel, just as the city or county attorney is in most local government ethics programs.

A February draft advisory opinion from the Colorado Independent Ethics Commission (attached; see below) raises two different issues. One is the problematic nature of a total gift ban, that is, a ban on all gifts from anyone, accompanied by a whole host of exceptions. The other is the important differences among gifts, campaign contributions, and contributions to an official's legal defense fund.

The draft advisory opinion relates to the solicitation of contributions to the secretary of state's legal defense fund. The defense involves a criminal investigation.

Most of George Frederickson's lecture, "Searching for Virtue in the Public Life: Revisiting the Vulgar Ethics Thesis," involves what he calls "the modern extended state," the "vast public sea" in which governments float. This public sea includes entities with various "shades of publicness":  nonprofit and professional organizations, contractors and developers, lobbying firms, political parties, unions (public, construction, and others), and watchdog groups, as well as single-purpose jurisdictions (school, water, transit, and sewer districts and authorities), public-private organizations of all sorts, charter schools, utilities and other public monopolies, tribes, and numerous quasi-governmental agencies.

After reading my recent blog post about bridging the gulf between administrative and government ethics, one of the great scholars of public administration, George Frederickson, sent me a copy of a 2009 lecture of his, which appeared in 2010 in the journal Public Integrity. Entitled "Searching for Virtue in the Public Life: Revisiting the Vulgar Ethics Thesis," this lecture introduced me to the term "vulgar ethics," which first appeared in a 1991 essay by Lewis Mainzer. This amazing lecture also presents a great summary of a problem that I have written about a bit, but have not emphasized nearly enough:  the effect on government ethics of growing privatization of government. My next blog post will discuss this problem.