Advice on Ethics Advice Falls on Deaf Ears

Last week, a resident from one of the towns next to mine (Wallingford, CT) called me for advice regarding his request for an advisory opinion. The request involved the appropriateness of council members affiliated with a church participating in a matter that involved funding for renovation of a wall along the church's parking lot. This is a difficult conflict situation, but some town officials made it much more complicated than it had to be. Not only did the ethics board, mayor, and council show a lack of understanding of government ethics, but sadly, none of them seemed to want to gain an understanding.

When the matter involving the church’s wall first came before the council, the resident asked council members affiliated with the church to seek an advisory opinion on whether they had a conflict. When they failed to do so, he asked the ethics board for an advisory opinion. The ethics board said it had no authority to provide an advisory opinion to a citizen. The resident went to the corporation counsel, who suggested that the council members seek an advisory opinion. The council members did not do so.

The resident was told to file a complaint, so he filed one seeking an advisory opinion, since the matter was still before the council and, therefore, council members could still withdraw if the ethics board felt that was appropriate. The ethics board told the resident to amend the complaint to state a violation of the ethics code. So the resident filed a complaint, and the ethics board held a probable cause hearing.

The resident contacted me the morning of the hearing. I wrote a letter to the ethics board recommending that it treat the complaint as a request for an advisory opinion. I gave two reasons. One is that the council members had sent a very damaging message to the rest of the town’s officers and employees. The message is that, when an official has a gray area conflict, even when someone (a citizen, subordinate, colleague, or supervisor) has raised the issue, the official has no obligation to seek advice from the body that is assigned to provide ethics advice.

I pointed out that ethics advice is the single most important part of a government ethics program, and that officials should be encouraged to seek advice whenever there is any question regarding a conflict situation. If a conflict situation as difficult as this one does not merit a request for ethics advice, then no conflict situation does. The failure to seek ethics advice, or even allow ethics advice to be given, seriously undermines the purpose of an ethics program. I said that the ethics board should not allow this to happen.

Since the matter involving the church wall is still alive, I argued, an advisory opinion would still allow the council members to deal responsibly with their conflict situation. This is far better than focusing on the past and treating the matter as a possible violation. It is better because an advisory opinion deals with the matter more swiftly, clears the air in a contentious matter, is less expensive for everyone involved, and is more in keeping with what should be the priorities of an ethics program, where enforcement is a last resort (even most enforcement proceedings are settled).

The second reason I gave was that, were the ethics board to find a violation, the matter would go to the council for disciplinary action. It is bad enough, I said, that the ethics board members were selected by the mayor and approved by the council and, therefore, are not seen by town residents as wholly impartial (noting that the best practice is to have ethics board members selected by community organizations, so that they appear impartial with respect to those over whom they have jurisdiction). It is much worse to have council members' own colleagues determine whether and how to penalize them for an ethics violation.

With respect to the issue of the ethics board's authority, I wrote that, although the town charter refers only to the fact that the ethics board is required to provide an advisory opinion when requested to by a town officer or employee, the charter does not require that the ethics board reject a request for an advisory opinion by a town citizen. It has the authority to consider anyone's request for an advisory opinion; however, it is not required to consider it.

I concluded my letter by recommending that the ethics board make an advisory opinion and treat this matter as a way to educate government officials, as well as town citizens, about the importance of requesting ethics advice and about the town’s ethics program in general.

At the hearing, the resident once again requested an advisory opinion rather than an ethics proceeding. He read part of my letter out loud and gave the letter to members of the ethics board. Apparently, the ethics board did not even discuss the issues raised in my letter, but instead rejected the resident's request. He withdrew his complaint, and the matter was over.

Independence of Advice Giver
One good thing that came out of this matter was a discussion elicited by a local reporter, Laura Richie Salerno, about the independence of those providing ethics advice. In an article in the Meriden Record-Journal last week, Ms. Salerno reported on how officials in local towns felt about ethics board member selection and government ethics advice.

The Wallingford mayor responded directly to the statement in my letter regarding the best practice of having community organizations select ethics board members. "So what community group has no conflict with anyone?” he said. One conflict they don't have is being under the ethics board's jurisdiction. Another is that, unlike the council, community organizations don't make the decision of how to penalize those who have been found to have violated the ethics code.

Cheshire's town attorney agreed with me "that politics can play an unappealing role on ethics boards," recommending that instead of an ethics board, a town attorney — as long as he or she is not a political appointee — provide ethics advice.

Wallingford's corporation counsel disagreed. “I wouldn’t want this department to be the be-all, end-all. You can look to seek some advice from your law department, but they’re not the end decision.”

Meriden's corporation counsel said that, as a political appointee of the city council majority, the concerns expressed by Cheshire's town attorney apply to him. And since the city attorney is an employee, she could be considered to have a conflict of interest dealing with ethics issues involving another employee. But then he dismissed these concerns, saying, “I don’t know that there’s ever any really 100 percent absolute way of preventing any possible political conflict like that. It’s just a reality. Every community has to do it the way they think works best for them. In Meriden, this is how we’ve done it and I think it’s worked well.”

It is great that this discussion, through a reporter, occurred. But what it shows is that intelligent individuals are willing to take positions regarding the best way to run a government ethics program without having considered the range of alternatives. There are ways to prevent political conflicts in an ethics program, and there are certainly ways to prevent forum shopping, which occurs when a corporation counsel, town attorney, ethics board, and city manager all are willing and able to provide ethics advice.

This discussion should occur in and among cities and counties across the country. However, the participants need to be better informed. That is the principal purpose behind City Ethics' work.

Robert Wechsler
Director of Research-Retired, City Ethics

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