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Ethics Commissions

This is the place to discuss the establishment and the role of an Ethics Commission. The most important issue here is an Ethics Commission's independence: how important it is and how best a municipality can achieve it. With respect to EC independence and competence, please share your thoughts or experiences regarding regional and state Ethics Commissions vs. municipal ECs. Other important issues include: who can (or cannot) sit on an EC; what limits should be placed on EC members' political activities; terms of office and term limits; and the removal of EC members for misconduct.

203 Ethics Commission: Establishment; Qualifications of Members; Appointment of Members; Term of Office.

1. There is hereby established an Ethics Commission consisting of five members, plus two alternate members. All members and alternate members must be residents of the city.

2. No member of the Ethics Commission may be, or have been within the three years prior to appointment, an appointed official or employee* of the city. Nor may a member of the Ethics Commission hold office in a political party or be employed or act as a lobbyist. An Ethics Commission member may make campaign contributions but may not participate in any election campaign.

3. Of the regular membership of the Board, no more than two may be registered in the same political party, and at least one must be registered as unaffiliated. The alternate members may not be registered in the same political party.

4. Within sixty days after the effective date of this code, and no later than December 31 each year thereafter, the city's legislative body will appoint the members of the Ethics Commission from a list of nominees prepared by the local branch of the League of Women Voters.

Comment: Subsection 1: Five is not a magic number for an ethics commission. In large cities, if there is a lot of activity, it would be best to have a larger number of members, and then allow, say, five-member panels for proceedings, and three-member panels for advisory opinions. When there is little activity, it is often difficult to get a quorum at ethics commission meetings, so it is best to keep the number of members low. This is especially important since an ethics commission may only act by the majority vote of its total membership, not just those members who attend a meeting.

Subsection 2: There are constitutional problems with excluding elected officials from ethics commissions, but it is a terrible idea to have an elected or appointed official on a commission that is supposed to be independent and without its own conflicts of interest. It undermines the spirit of the ethics code.

The restriction on municipal officials and employees, and lobbyists and party officers, serving on ethics commissions seeks to ensure that the board is as free as possible from pressure from other officials, co-workers and superiors alike.

Subsection 3: The restriction on the political make-up of the board aims to strengthen both the perception and the reality of a board that is not partisan. Ethics commissions must not become political footballs, because this will undermine trust in them and cause people not to file complaints or seek advisory opinions, nor to have faith in their determinations. For the same reason, this code restricts the political activities of ethics commission members.

Subsection 4: The idea of having one or more nonpartisan civic organizations select a city's ethics commission is unusual, but there are no better alternatives to preventing such a commission from being (and appearing) political or to ensuring that either party cannot block a member of its party from being disciplined or from getting no more than a reprimand. Another alternative is to require that each member be selected by unanimous vote of the legislative body, but this would still allow the parties to trade votes and make the same selections the two party committees would have made (or in fact did make). An ethics commission should be as nonpartisan, and without its own conflicts, as possible, and answerable to no one. Only a nonpartisan body can ensure this, at least on a city level (that is, without having a regional or state commission handle city ethics matters; see the next comment for more on this). In any event, instead of politicians (or even nonpartisan civic organizations) selecting only people they know, a vacancy on an ethics commission should be widely publicized, and citizens who are not politically involved should be encouraged to apply.

Smaller municipalities may choose to form joint or regional ethics commissions. Since, in towns, most politically active residents have personal biases and relationships with those most likely to be brought before an ethics commission, a regional ethics commission can provide a truly neutral, independent solution. The decisions of a regional ethics commission will demand much more respect and make people more certain that ethical matters are not being decided based on local loyalties. In addition, towns lack the resources to educate ethics commission members pursuant to 211, and they have too few matters brought before them to allow members to gain the necessary experience. Another alternative, which several states employ, is to have a state ethics commission deal with municipal as well as state matters (the commission can be the same one, or a separate one that focuses on municipal matters, but has access to the same staff expertise). I would like to hear people's feelings about regional and state ethics commissions, as well as their experiences with them.

5. The term of office of Ethics Commission members is three years and runs from January 1 through December 31, except that, of the regular members first appointed, one member will serve until December 31 of the year in which the Board is established, two regular members and one alternate member will serve until the second December 31, and two regular members and one alternate member will serve until the third December 31.

6. An Ethics Commission member will serve until his or her successor has been appointed, in the same manner as the original appointments. Consecutive service on the Ethics Commission may not exceed two full terms, except that a one-term alternate member may thereafter serve two terms as a regular member, and a two-term alternate member may thereafter serve one term as a regular member.

7. Members of the Ethics Commission will not receive compensation but will be reimbursed for reasonable expenses incurred in the performance of their official duties.

8. The unexcused absence of any member from three consecutive meetings, unless the Ethics Commission has excused the absence for good and sufficient reason, shall constitute a resignation.

Comment: Subsection 5: The terms of office of members should be staggered, to provide continuity in the work and philosophy of the board. Municipalities may wish to increase or decrease the length of the term of office or establish a different year of service than the calendar year. However, terms of office should be sufficiently long to ensure that the members acquire expertise, but not so long as to discourage people from serving on the commission. In addition, ethics commission members should not be allowed to become entrenched on the commission; the model law therefore contains a term limitation. However, interested, experienced members may return to the commission after a term off.

204. Ethics Commission: Vacancies.

When a vacancy occurs in the membership of the Ethics Commission, the vacancy will, within sixty days, be filled for the unexpired portion of the term in the same manner as regular appointments. Any person appointed to fill a vacancy on the Ethics Commission must meet the qualifications and limitations set forth in 203 of this code.

205. Ethics Commission: Removal of Members.

An Ethics Commission member may be removed from office by at least a three-fourths majority of the legislative body, after written notice, including a clear statement of the grounds for removal, and opportunity for reply, at least thirty days before voting on removal. The only grounds for removal are failure to meet the qualifications or limitations set forth in 203 of this code, substantial neglect of duty, gross misconduct in office, inability to discharge the powers or duties of office, and violation of this code.

Comment: The party in power cannot be allowed to change the membership of the ethics commission when a colleague comes before it. This does happen, and it can be very damaging to a city's trust in its government. It is preferable that it be made very difficult to get rid of ethics commission members. Please share experiences with the removal or attempted removal of ethics commission members.

206. Ethics Commission: Meetings.

At its first meeting each calendar year, the Ethics Commission will elect a chair and a vice-chair from among its regular members; alternate members may vote for chair and vice-chair. A majority of the regular members is required for the Commission to take any action. The chair or a majority of the regular members may call a meeting of the Commission.

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Robert Wechsler says:

I mention regional ethics commissions in my comments to this Model Code provision. I think it is an important topic for discussion. It is an experiment that has not, as far as I can tell, been tried very often, even though it provides the relative independence and experience of a state commission, and yet keeps proceedings closer to home and provides a more local solution than having the state rule on local government ethics.

There is a Shared Ethics Commission among three towns in Northwest Indiana, not far from that great ethics center of Chicago. The SEC (are the initials intentional?) hopes to include 15 communities. It is the work of Ed Charbonneau, executive director of the NW Indiana Local Government Academy at Indiana University Northwest. But there appears to be nothing about the SEC on-line.

There is also talk of a regional ethics commission in Northwest Connecticut, but again nothing on-line.

If you know more about these experiments or other such experiments, please share your knowledge. Also please share your opinions about the value of regional ethics commissions, about how you would think they could be formed (e.g., required or recommended by state, spontaneously), and whatever.

Robert Wechsler
Director of Research, City Ethics
[email protected]

Robert Wechsler says:

Should restrictions on EC members go beyond current city and party officials? What about lawyers who work for the city or lawyers who work for those who do business with the city, such as contractors and developers? What about anyone who works for a contractor or developer? What about lobbyists?

The first response to such things is that if you exclude all these people, who will serve? The answer is that there are many businesspeople, professionals, and others who do no business with a city or town. Even with lawyers, there are those whose work has nothing to do with local government (my practice, for example, was solely at the federal level).

And there are many other professions that have ethics codes, so that their practitioners are knowledgeable about professional ethics. Not just the usual suspects, such as clergy, but also the many professions in health care, professors, those in large companies that do no business with the city, even state and federal government workers.

But how do you find such people? Most people nominated for posts are involved in politics. They're people you know. But for ECs, this is exactly the group who should be passed by. All you have to do is ask. Advertise. Send out a press release. Get the word out. It's really not that hard.

In fact, the same thing can be done for all volunteer positions. Send out an application form asking what positions people might be interested in, and when a position opens, let them know. They did it in the town I lived in in New Jersey, although I don't know how seriously they took it (I was shunted to a commission that was completely ineffective).

New York State EC chair Paul Shechtman was recently quoted in the Albany Times-Union as saying that public boards, such as an EC, cannot afford to get people who are "hermetically sealed" from public affairs. I would respond that participation in government is not the same thing as public affairs (many of us deal with the public and public concerns in our work, and follow public events), and that a life in government service is often too hermetically sealed and needs to be opened. For an EC chair to say this suggests that he himself is too hermetically sealed off from ethics concerns, such as how it looks for the law firm of someone in his position to be suing the state legislature on behalf of the governor.

Robert Wechsler
Director of Research, City Ethics
[email protected]

Robert Wechsler says:

How involved should ethics commission members be in local politics? Should an elected city official ever serve? Should an appointed city official (paid or volunteer) or department head or even city employee serve? Should a political party leader or very active party member serve? Should there be a time period before a former official should serve? Should an elected official for another branch of government serve, or even someone who serves in or works for another local government, either the county or a nearby municipality? What about consultants and advisers, paid or otherwise?

For me, the most important consideration is that there should not be a hint of an appearance of impropriety with respect to the conduct of someone who is to determine whether there is an appearance of impropriety in someone else's conduct. Anyone who appears to have loyalties, whether partisan or personal, should not, I feel, be on an ethics commission.

How can a politician or active party person appear neutral when a politician comes before them? How can a department head or even a city employee appear neutral when either an employee or official comes before them? Even consultants and advisers have loyalties.

In every city and town, there are many people whose work does not involve them with the municipal government, and who are not very politically involved. Many of these work in professions with ethics standards, so that they understand the basic concepts. There are also people who are considered by virtue of their position to be relatively neutral, particularly clergy members. There is no reason not to seek these people out instead of depending on the usual suspects. The usual suspects will always be suspect.

And yet some local governments not only do not restrict membership on ethics commissions, but require that some members be officials. For example, Knox County, Tennessee's new ethics ordinance (Tennessee is requiring its local governments to have one, but it doesn't want to tell them what to do) requires that at least three of its five members be county commissioners (five appears to be fine, too), in addition to one constitutional officer and a member of a county board. The County Mayor chooses the members. How could this ethics commission ever be considered without its own conflicts of interest?

One need only look at the U.S. Congress, which has long kept its ethics in-house, to see how well-respected officials' ethics self-regulation is. But is even partial self-regulation a good idea?

Robert Wechsler
Director of Research, City Ethics
[email protected]

Robert Wechsler says:

I came across a good alternative way of selecting ethics commmission members in order to preserve the commission's independence: allowing its members to choose future members.

This keeps the selection system completely out of the hands of politicians, and it is easier than getting community organization members together every time a vacancy opens on an ethics commission.

Robert Wechsler
Director of Research, City Ethics
[email protected]

Robert Wechsler says:

My comments to Subsection 4 provide a few alternatives for selecting ethics commission members. The goal is a nonpolitical membership, a group of individuals perceived by the community not to be biased. This goal means more than merely the balancing of biased individuals (or individuals seen as biased) from both major parties, which is too often the result of politicians selecting ethics commission members.

Most local governments allow the mayor or council, or both, to select the members. They may do the right thing, but they may also select people they know would protect them or their party members (with supermajority votes common on ethics commissions, two sympathethic members can be enough).

Atlanta has chosen to use community organizations. Each of seven community organizations selects one of the city's Board of Ethics' members.

League of Women Voters
Chamber of Commerce
Planning Advisory Board
The Six Major Universities
City Bar Association
Gate City Bar Association
Business League

I think Atlanta's choice of organizations is too business-oriented, but at least it is nonpartisan and nongovernmental. The people selecting the members are unlikely to ever come before the Board, and the perception will be that the selection involves no conflict of interest.

Robert Wechsler
Director of Research, City Ethics
[email protected]

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