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Many government ethics professionals don't like waivers. I think they're valuable. Basically, they are requests for an advisory opinion in which the official recognizes that certain conduct would constitute an ethics violation, but wants a determination that he can engage in the conduct due to special circumstances. The result of such a determination is the creation of a new, narrow exception to a rule. This is a good way of preventing bad unforeseen consequences of a rule. But waivers must be given only after a public hearing.

The value of a government ethics waiver is completely different when it is not an independent ethics officer or commission who makes the determination, and when there are no special circumstances that require a new exception. In fact, a waiver given by one or more officials without a very good reason sends the message that officials won't apply ethics rules when they don't feel like it or will favor certain of their colleagues (and, if they are in need of a waiver in the future, themselves). This makes a mockery of an ethics program and undermines the public's trust.

According to a post in the Crain's Insider blog last week, the New York City council hired as deputy general counsel a lobbyist whose firm recently had been the council speaker's campaign consultant (the speaker is the leader of the NY city council, elected by its members). This raises an interesting conflict issue relating not only to hiring, but also to firms that both provide campaign services and lobby local government officials.

When a firm advises a local government official with respect to a campaign, this creates a special relationship — personal, business, and political — that creates the impression that anything that is done for the firm, its members, or its clients involves some level of preferential treatment based on this relationship. It can appear that an official owes her election to such a firm, and she can feel this way about it, too.

There is nothing more natural and, in most circumstances, ethical than a mother doing her best to help her son when he is in trouble. And yet, in most jurisdictions, there are multiple government ethics laws that prohibit this very conduct when the mother is a government official. This is as good an example as there is of the fact that government ethics is not about ethical conduct in general, but rather about government fiduciaries dealing responsibly with their conflicts of interest.

According to an article in the Eagle Tribune last week, a hearing was held by the Massachusetts ethics commission regarding a complaint against a member of the Groveland, MA board of selectmen (its governing body). She was alleged to have used her position to try to help her son, a Groveland police officer who had been placed on administrative leave.

According to the EC's press release, this otherwise commendable conduct might have violated four different ethics provisions:

Ethics reform can take the oddest forms, especially when those doing it put on blinders and consider nothing but the situation before them, thereby failing to consider best practices or, in fact, the practices of any other jurisdiction.

This is the kind of ethics reform that recently happened in Park Ridge, IL, a suburb of Chicago with 37,000 inhabitants. According to an article in the Chicago Tribune, someone filing an ethics complaint must henceforth cite a law that the respondent has violated. This is a good change. In the past, apparently, one need only say that certain conduct created an appearance of impropriety.

However, the other part of the ethics reform took the enforcement program from bad to worse. Simply focusing ethics reform on enforcement — rather than training, advice, and disclosure — is a problem. But giving high-level officials more involvement in enforcement is seriously problematic.

How much jurisdiction need a government ethics program have over procurement matters when there is a procurement program dealing with them? This question, common to all cities and counties, is being asked in Honolulu, with respect to the Honolulu Authority for Rapid Transportation (HART), which will be soon awarding about a billion dollars in contracts.

According to an article Friday in Honolulu Civil Beat, Honolulu's ethics commission "is worried that there isn't enough government oversight to ensure that private companies aren't given sweetheart deals." According to the EC, in a letter to the mayor and council, there has been an increasing number of complaints about contractors relating to “unauthorized access to confidential city information, nepotism, and use of taxpayer dollars for political purposes." The problem is exacerbated by the fact that HART is an independent authority, over which the EC does not clearly have jurisdiction, even though the authority pays its contractors with city taxpayer funds.

A conflict situation in my state of Connecticut is instructive regarding a basic concept of government ethics, as well as a basic concept of legislative immunity.

Legislators insist that they require immunity because their motives in making decisions cannot be questioned outside their body. Government ethics, on the other hand, does not consider motive, only conduct and relationships. This is one of the principal reasons why I argue that legislative immunity does not protect legislators from government ethics enforcement.

But when the talk is not about legislative immunity, it turns out to be perfectly okay to discuss a legislator's motives, as well as others' motives.

Background
According to a Jon Lender column in the Hartford Courant this weekend, (Disclosure: the Courant occasionally hires me to write op-ed columns on government ethics issues), the state's house minority leader made a strenuous argument against a bill requiring increased financial disclosures by for-profit nursing homes. His law firm lobbies for the Connecticut Association of Health Care Facilities, which opposed this bill.