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Rhode Island's lawmakers really know how to protect themselves. They have fought hard and long to effectively preserve their immunity from state ethics commission jurisdiction. However, with pressure on them to recommend to their constituents a constitutional amendment that would give the EC jurisdiction over them, despite the state's Speech in (sic) Debate Clause, they have planted a bomb in their proposed amendment that will ensure that even the state's good government organizations would oppose it (and that few ordinary citizens would understand what all the fuss was about).

What the state legislature did was to add in a de novo review process, which would allow any state or local official the EC found in violation of the state ethics code to seek a new court trial. The court would not be able to consider the EC's factual findings. In other words, instead of a right to appeal an EC ruling (where the court would determine whether the EC had done anything inappropriate), all officials would get a second chance to argue the facts and the law, and to have their case decided by a judge who would likely care far less about government ethics and have less expertise than the EC.

Good news and bad news about lobbying from New York City's new mayor. The good news, according to a recent article on the Capital New York website, is that the mayor has said that his administration will disclose "substantive" meetings that members of his administration conduct with lobbyists. This is, he says, a practice he followed when he was the city's public advocate (a sort of ombuds), before he was elected mayor.

Disclosure of such meetings by officials is an excellent check on disclosure by lobbyists, and provides an official-by-official view of the lobbying that is done. This could be required by ordinance or regulation, but when it is not, it is good to see high-level officials setting up a procedure in the meantime.

However, voluntary disclosure is not a replacement for making disclosure part of the lobbying or conflicts of interest program, because a voluntary procedure usually lacks detailed definitions and requirements, training, neutral advice, and independent enforcement. It is a valuable gesture, and can provide useful information, but it works best for a mayor – as opposed to an independent office like an ombuds — as a step toward the goal of institutionalizing the procedure.

"Trials are primarily about the truth. Consent decrees are primarily about pragmatism."


— Second Circuit Court of Appeals in SEC v. Citigroup Global Markets, Inc., Nos. 11-5227-cv, 11-5375-cv and 11-5242-cv (2nd Cir., June 4, 2014).

These words from an important court decision yesterday will most likely be quoted in all sorts of contexts, including with respect to ethics settlements, the consent decrees of government ethics.

It's important to recognize why what may be appropriate when a government agency sues a private company is not appropriate when a citizen oversight body handles an administrative action brought against a public servant.

A week ago, I wrote about a poorly written provision in Denver's ethics code, and the danger it poses not only to Denver, but also elsewhere, since local governments in Colorado and in other states are apt to look at the ethics code of such a large, well-respected city (although now that its highness has two meanings, who knows).

On a happier note, this post will look at an excellent decision by Denver's ethics board (attached; see below) relating to this very provision, as well as other, related provisions, and the situation that led to the editorial on which I based my post. The board dismissed the complaint because, even if all its facts were true, it determined that there would be no ethics violation.

What is special is that the board did not simply dismiss the complaint, as most do, either without another word or with a short look at the stated facts and the law. The board effectively acknowledged the limitations of the gift provision:  "[T]he Board’s decision should not be read to constitute an endorsement of the practice of accepting gifts by elected officials under circumstances akin to those at issue here."

It's been six years since I last wrote about how asset forfeiture is a serious temptation to engage in ethical misconduct. I was planning to write about it again in light of a recent U.S. Supreme Court decision on the subject, Kaley v. United States, when I read that, according to an article in today's New York Daily News, a former Brooklyn district attorney was found by NYC's Department of Investigation to have improperly used money seized from drug dealers and other criminal defendants (that is, by asset forfeiture) to pay a consultant hundreds of thousands of dollars for work on his re-election campaign last year.

Should any official, especially an elected official with pressures to spend as much money as possible for re-election, have access to this kind of money? It is arguable that assets seized by the criminal justice system should be used for the criminal justice system, as has been allowed since the 1984 passage of the Comprehensive Drug Abuse and Prevention Act. It only seems fair. But that is only from the agency's point of view.

One of the great things about discussions of the conflicts of interest of people in the securities world is that "fiduciary duty" is considered the basis for the rules that govern their relationship with government officials and others. In discussions of the conflicts of interest of those whom they deal with in municipal governments and those who provide other sorts of advice or products to municipal governments, "fiduciary duty" often goes unmentioned.

I say this as an introduction to a discussion of the Municipal Securities Rulemaking Board's (MSRB) draft Rule G-42, entitled "Duties of Non-Solicitor Municipal Advisors" (the MSRB's text webinar on the draft rule is attached; see below). "Municipal advisors" are the people who advise municipalities with respect to their issuance of bonds and related transactions (the definition is complex and outside the bounds of this post).