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Arguments Against Centralized Ethics Advice Argue for It
Monday, March 3rd, 2014
Robert Wechsler
A month ago, I wrote a
blog post about the Broward County (FL) inspector general's
recommendations for ethics reform. A principal recommendation
was to require all local officials, who are under the county ethics
program's jurisdiction, to seek ethics advice from an ethics officer
rather than from their city attorneys.
According to an article this weekend in the Sun-Sentinel, the local officials in at least two cities, Coral Springs and Tamarac, are not happy about this recommendation. What they are saying is good evidence for the need to take ethics advice out of the hands of numerous untrained lawyers and placing it in the hands of a trained, centralized individual or commission that can provide consistent and independent advice.
City Attorneys Don't Understand Government Ethics
Here is the central scenario presented in the article. A Tamarac city commissioner won the grand prize (a cruise ticket) at a draw that took place during a recent Community Emergency Response Team training session. When cameras started filming her accepting the prize, she panicked and decide to accept the prize and turn it back to the organization to raise money.
Later, she texted the city attorney, who told her she was right in accepting the gift. Considering his response a "safe harbor" opinion, they had it put in writing to be sure that "every ethics inch was covered."
Maybe the inches were covered, but not the mile. Ethics advice cannot be given after an official has engaged in conduct. Ethics advice can only be given prospectively. Once conduct has been engaged in, it is an enforcement matter. The fact that the city attorney did not know this shows how dangerous it can be (for officials as well as for the community) for untrained city attorneys to provide advice, and why it is so much better for an ethics professional to do it.
Having Too Much Information Isn't Good When Providing Ethics Advice
The Tamarac city commissioner is quoted as saying that the IG recommends having an ethics commission that "would provide a person that we will go to for all our opinions. We wouldn't get anything instantly... We would have to wait for a meeting with that particular person who wouldn't know us, wouldn't know our city, and wouldn't have the access to any of the information that our city attorney has."
How does she know that she couldn't call the ethics officer and get an instant answer? The ethics officer is just under discussion at this point. She is assuming the worst.
As for information, an ethics officer may not know as much about the situation the official is in, but it is this very ignorance that gives an ethics officer a professional, neutral perspective on the situation. An ethics officer also doesn't know, or care, if the commissioner is a member of a particular party or faction, favors keeping or dumping the city attorney, might help the city attorney get elected to office or get a good client down the road, etc. What the ethics officer doesn't know is good for the community, because it not only ensures neutral advice, but gains the community's trust that the advice is not intended to favor the individual in any way. That is worth a great deal of ignorance.
The Way Cities Differ Makes Consistent Ethics Advice More, Not Less, Important
The Tamarac city commissioner thinks it's a problem that the ethics officer doesn't know her city. A Coral Springs commissioner says, in the same vein, that the proposed ethics commission would not have the best interests of individual cities at heart. "Each city is different and operates differently," he says.
Yes, each city operates differently. Each city has its own unwritten rules that allow, or sometimes effectively require, officials to engage in certain conduct that may be seen as questionable, and not to speak up when others engage in the conduct. I mean such things as nepotism, "district courtesy," and ticket fixing. That is why it is so beneficial to have ethics laws written not by those engaging in such conduct, who try to preserve it, but rather by those at a different level of government, who recognize that this conduct undermines citizens' trust in their city government.
That is why there is one law for the cities of Broward County, and why to make that one law meaningful, it has to be interpreted consistently for all cities by those who are independent of city officials and their unwritten rules.
What I have found with statements such as, "Each city is different," is that they almost never come with specific, relevant examples (the way my statement does). It is possible that I could be convinced to change my mind about the consistent application of an ethics code to multiple cities (or departments or agencies), but only if there were multiple examples that make it clear that consistent application is damaging to communities (or departments or agencies). The few examples I've seen relate to uniformed departments, and they don't really hold up. And when they do, an ethics officer or commission can provide officials with waivers, or even interpret a provision so that it does not, for example, apply to police departments or to city commissioners in cities where a citizen referendum has clearly stated that they want their officials to accept large gifts from companies seeking or doing business with the city.
It Can Be Ridiculous to Say "Ridiculous"
Finally, the Coral Springs mayor is quoted as saying, "Having an ethics code is not a bad thing, but let us not be ridiculous. If people are going to be corrupt, it is not going to be a $50 bill or a cup of coffee." Yes, it is ridiculous to use ridiculous examples, and to speak of corruption with respect to a code that is not about corruption, but rather about conduct that undermines the public's trust in those who manage their community. Everyone knows it is ridiculous to believe that when a contractor gives a mayor a $50 bill, that is all that's going on between them. People don't go around handing out $50 bills to people, unless it's their child or someone who needs the money in an emergency.
And cups of coffee aren't what ethics codes prohibit. If Broward County's does, that's something that should be changed. But when it comes down to it, why can't the mayor have the city government pay for his cup of coffee when he's meeting with someone who is seeking special benefits from the government? Is that really such a problem that it's worth calling an ethics code "ridiculous"?
Robert Wechsler
Director of Research-Retired, City Ethics
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According to an article this weekend in the Sun-Sentinel, the local officials in at least two cities, Coral Springs and Tamarac, are not happy about this recommendation. What they are saying is good evidence for the need to take ethics advice out of the hands of numerous untrained lawyers and placing it in the hands of a trained, centralized individual or commission that can provide consistent and independent advice.
City Attorneys Don't Understand Government Ethics
Here is the central scenario presented in the article. A Tamarac city commissioner won the grand prize (a cruise ticket) at a draw that took place during a recent Community Emergency Response Team training session. When cameras started filming her accepting the prize, she panicked and decide to accept the prize and turn it back to the organization to raise money.
Later, she texted the city attorney, who told her she was right in accepting the gift. Considering his response a "safe harbor" opinion, they had it put in writing to be sure that "every ethics inch was covered."
Maybe the inches were covered, but not the mile. Ethics advice cannot be given after an official has engaged in conduct. Ethics advice can only be given prospectively. Once conduct has been engaged in, it is an enforcement matter. The fact that the city attorney did not know this shows how dangerous it can be (for officials as well as for the community) for untrained city attorneys to provide advice, and why it is so much better for an ethics professional to do it.
Having Too Much Information Isn't Good When Providing Ethics Advice
The Tamarac city commissioner is quoted as saying that the IG recommends having an ethics commission that "would provide a person that we will go to for all our opinions. We wouldn't get anything instantly... We would have to wait for a meeting with that particular person who wouldn't know us, wouldn't know our city, and wouldn't have the access to any of the information that our city attorney has."
How does she know that she couldn't call the ethics officer and get an instant answer? The ethics officer is just under discussion at this point. She is assuming the worst.
As for information, an ethics officer may not know as much about the situation the official is in, but it is this very ignorance that gives an ethics officer a professional, neutral perspective on the situation. An ethics officer also doesn't know, or care, if the commissioner is a member of a particular party or faction, favors keeping or dumping the city attorney, might help the city attorney get elected to office or get a good client down the road, etc. What the ethics officer doesn't know is good for the community, because it not only ensures neutral advice, but gains the community's trust that the advice is not intended to favor the individual in any way. That is worth a great deal of ignorance.
The Way Cities Differ Makes Consistent Ethics Advice More, Not Less, Important
The Tamarac city commissioner thinks it's a problem that the ethics officer doesn't know her city. A Coral Springs commissioner says, in the same vein, that the proposed ethics commission would not have the best interests of individual cities at heart. "Each city is different and operates differently," he says.
Yes, each city operates differently. Each city has its own unwritten rules that allow, or sometimes effectively require, officials to engage in certain conduct that may be seen as questionable, and not to speak up when others engage in the conduct. I mean such things as nepotism, "district courtesy," and ticket fixing. That is why it is so beneficial to have ethics laws written not by those engaging in such conduct, who try to preserve it, but rather by those at a different level of government, who recognize that this conduct undermines citizens' trust in their city government.
That is why there is one law for the cities of Broward County, and why to make that one law meaningful, it has to be interpreted consistently for all cities by those who are independent of city officials and their unwritten rules.
What I have found with statements such as, "Each city is different," is that they almost never come with specific, relevant examples (the way my statement does). It is possible that I could be convinced to change my mind about the consistent application of an ethics code to multiple cities (or departments or agencies), but only if there were multiple examples that make it clear that consistent application is damaging to communities (or departments or agencies). The few examples I've seen relate to uniformed departments, and they don't really hold up. And when they do, an ethics officer or commission can provide officials with waivers, or even interpret a provision so that it does not, for example, apply to police departments or to city commissioners in cities where a citizen referendum has clearly stated that they want their officials to accept large gifts from companies seeking or doing business with the city.
It Can Be Ridiculous to Say "Ridiculous"
Finally, the Coral Springs mayor is quoted as saying, "Having an ethics code is not a bad thing, but let us not be ridiculous. If people are going to be corrupt, it is not going to be a $50 bill or a cup of coffee." Yes, it is ridiculous to use ridiculous examples, and to speak of corruption with respect to a code that is not about corruption, but rather about conduct that undermines the public's trust in those who manage their community. Everyone knows it is ridiculous to believe that when a contractor gives a mayor a $50 bill, that is all that's going on between them. People don't go around handing out $50 bills to people, unless it's their child or someone who needs the money in an emergency.
And cups of coffee aren't what ethics codes prohibit. If Broward County's does, that's something that should be changed. But when it comes down to it, why can't the mayor have the city government pay for his cup of coffee when he's meeting with someone who is seeking special benefits from the government? Is that really such a problem that it's worth calling an ethics code "ridiculous"?
Robert Wechsler
Director of Research-Retired, City Ethics
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