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Advice on Advisory Opinions
Wednesday, April 28th, 2010
Robert Wechsler
Again and again, local government officials say that there is no need
for an improved ethics program in their town because no one is filing
complaints. If there were ethical problems, they argue, there would be
lots of complaints. But complaints are not an indication of the need
for a better government ethics program. The reason is that no one files
a complaint when they do not expect a fair hearing of the complaint
(most basic programs do not have a body that is considered independent
and neutral).
In any event, complaints are not central to an ethics program. What is central to an ethics program are advisory opinions.
When few people are requesting ethics advice from an independent ethics officer or other ethics commission staff, that is an indication that the ethics program is not working well. Trained employees and officials in a good organizational ethics environment will want to be sure they are acting professionally when dealing with potential conflicts, offered gifts, and the like.
It should come as no surprise that some of the best ethics programs have the largest numbers of requests for advisory opinions. I was reminded of this yesterday when an advisory opinion survey done for last December's COGEL conference was sent to me. Here is a list of the responding ethics commissions that fielded over 200 requests for advisory opinions in 2008 (11 of 72 commissions):
Here is some advice on advisory opinions from those who have a great deal of experience giving advice.
From Honolulu: Use the KISS approach. An opinion isn’t a law review article. If your commission members don't understand it, public servants certainly won't.
However (from NJ), When you’re writing an advisory opinion, always keep in mind that this could be the one that goes up on appeal.
From Canada: Always indicate that your opinion is based on and only applicable to information given.
And from Texas: Brainstorm about unintended consequences especially with respect to opinions that have broad applicability. People will dissect the opinions in search of potential loopholes.
From Alberta: Use an internal database of opinions to find precedent rapidly. This ensures easy access to the ethics program's "corporate memory."
From RI: When the answer to a request for advice is clearly going to be "no," the person asking for advice is offered the chance to withdraw the request, conform to our informal opinion, and recuse. This eliminates about a quarter of requests for formal advisory opinions.
From FL: Always restate the facts in the opinion, so that it's very clear what facts were relied on in giving the advice. Also, sometimes you have to go beyond what is requested, because the official is asking the wrong question.
From VA: Keep log sheets of all telephone requests and opinions, and keep records of all e-mail requests and opinions. Enter them into a database to keep opinions consistent.
From OH and PA (this advice is more valuable than you'd think): Develop a style manual and boilerplate language on each issue to make sure opinions are stylistically uniform.
Here are some interesting ideas. Connecticut puts draft written opinions online for comment before the EC meets to discuss them. Iowa issues opinions without a request when it wants to announce policies.
And here's some more advice from my notes on the panel discussion held at last year's COGEL conference. If the facts don't seem right or you need more facts, go back to requester with questions. If the request came by phone, and it's not something simple and easily answered right away, e-mail the statement of facts to the requester and ask it to be confirmed before providing an opinion.
Related blog posts:
Model Advisory Opinion and Links to Major Local and State Advisory Opinions
Citizens and the Advisory Opinion Process
Advisory Opinions Model Code Provisions and Forum
Robert Wechsler
Director of Research-Retired, City Ethics
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In any event, complaints are not central to an ethics program. What is central to an ethics program are advisory opinions.
When few people are requesting ethics advice from an independent ethics officer or other ethics commission staff, that is an indication that the ethics program is not working well. Trained employees and officials in a good organizational ethics environment will want to be sure they are acting professionally when dealing with potential conflicts, offered gifts, and the like.
It should come as no surprise that some of the best ethics programs have the largest numbers of requests for advisory opinions. I was reminded of this yesterday when an advisory opinion survey done for last December's COGEL conference was sent to me. Here is a list of the responding ethics commissions that fielded over 200 requests for advisory opinions in 2008 (11 of 72 commissions):
-
Honolulu
New York City
Seattle
California
Connecticut
Hawaii
Indiana
Massachusetts
New York state FOI
Ohio
Virginia
Here is some advice on advisory opinions from those who have a great deal of experience giving advice.
From Honolulu: Use the KISS approach. An opinion isn’t a law review article. If your commission members don't understand it, public servants certainly won't.
However (from NJ), When you’re writing an advisory opinion, always keep in mind that this could be the one that goes up on appeal.
From Canada: Always indicate that your opinion is based on and only applicable to information given.
And from Texas: Brainstorm about unintended consequences especially with respect to opinions that have broad applicability. People will dissect the opinions in search of potential loopholes.
From Alberta: Use an internal database of opinions to find precedent rapidly. This ensures easy access to the ethics program's "corporate memory."
From RI: When the answer to a request for advice is clearly going to be "no," the person asking for advice is offered the chance to withdraw the request, conform to our informal opinion, and recuse. This eliminates about a quarter of requests for formal advisory opinions.
From FL: Always restate the facts in the opinion, so that it's very clear what facts were relied on in giving the advice. Also, sometimes you have to go beyond what is requested, because the official is asking the wrong question.
From VA: Keep log sheets of all telephone requests and opinions, and keep records of all e-mail requests and opinions. Enter them into a database to keep opinions consistent.
From OH and PA (this advice is more valuable than you'd think): Develop a style manual and boilerplate language on each issue to make sure opinions are stylistically uniform.
Here are some interesting ideas. Connecticut puts draft written opinions online for comment before the EC meets to discuss them. Iowa issues opinions without a request when it wants to announce policies.
And here's some more advice from my notes on the panel discussion held at last year's COGEL conference. If the facts don't seem right or you need more facts, go back to requester with questions. If the request came by phone, and it's not something simple and easily answered right away, e-mail the statement of facts to the requester and ask it to be confirmed before providing an opinion.
Related blog posts:
Model Advisory Opinion and Links to Major Local and State Advisory Opinions
Citizens and the Advisory Opinion Process
Advisory Opinions Model Code Provisions and Forum
Robert Wechsler
Director of Research-Retired, City Ethics
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