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Best Practices from the Book "Local Government Ethics Programs"

The second edition of the resource book Local Government Ethics Programs will be put up on the City Ethics website in the next few days. It is updated, improved, and expanded. One of the new features is an extensive list of Best Practices. Here is the list:

Basic Matters
1. Speaking not in terms of personal integrity, but rather in terms of the responsible, professional handling of conflict situations.

2. Recognition, as the basis for local government ethics rules and administration, of the fiduciary duties of government officials and employees, the appearance of their conduct to the community, and how officials’ handling of conflict situations affects the public’s trust in those who manage their community and public participation in the government.

3. Transparency as the default position of the ethics program, with respect to advice, disclosure, and enforcement. Whenever there is confidentiality, an ethics officer should ask the official involved to waive it.

Ethics Program Independence
1. The involvement in an ethics program of no one under its jurisdiction, including the selection of ethics commission members by community organizations rather than by local government officials.

2. Ethics commission monopoly on ethics advice and enforcement.

3. Ethics commission initiation of investigations on the basis of tips, news reports, or other information, with a hotline for the communication of information about possible ethical misconduct.

4. A guaranteed ethics program budget.

Ethics Commission Authority and Jurisdiction
1. Ethics commission authority to amend and consolidate complaints.

2. Ethics commission authority to provide waivers after a public hearing and upon public explanation of the reasons for a waiver.

3. Ethics commission to authority to impose sanctions short of the dismissal of an official or the suspension or termination of an employee.

4. Ethics commission authority to subpoena witnesses and documents.

5. Ethics commission jurisdiction over all officials and employees, including volunteers, government attorneys, and independent agencies (including public-private partnerships); and over candidates, former officials and employees, consultants, members of advisory boards, those who do government work, and those who seek special benefits from or are regulated by the government.

6. Ethics commission jurisdiction only over conflict-related official conduct, that is, conduct related to a government office or position, or involving government resources or personnel, not personal conduct.

The Ethics Commission
1. Staff: at least a full-time or part-time ethics officer, or one shared with other local governments, to be selected by the ethics commission.

2. Ethics commission membership of at least five, with at least one additional alternate member.

3. An annual report of the ethics commission, including recommendations to the local legislative body for improvement of the ethics program.

4. Monthly ethics commission meetings, even when there is no proceeding or request for a formal advisory opinion.

5. Ethics commission discussion of and recommendations regarding institutional norms, formal processes, and situational forces in areas where there have been reports of ethical misconduct.

6. Ethics commission votes: a majority of those present and voting.

7. Ethics commission member limitations, including no one under ethics commission jurisdiction, no party officials, recent government officials, individuals who have done substantial work in local political campaigns, large contributors, or political advisers.

8. Restrictions on ethics commission member political activity.

9. An ethics commission website that contains information and forms for obtaining ethics advice, making disclosures, and reporting information about possible ethical misconduct; ethics training materials; searchable advice, decisions, and disclosures; ethics commission meeting notices, agendas, and minutes; laws and regulations; and contact information.

10. The giving of awards and other forms of recognition for the responsible handling of conflict situations, the reporting of ethical misconduct, ethical leadership, and other conduct helpful to the local government ethics program and environment. Awards should be for conduct, not for the person.

11. Ethics advice to ethics commission members and staff, and ethics enforcement against them, by another local ethics commission, pursuant to a formal exchange arrangement, or by a state ethics commission.

12. Recognition that ethical misconduct usually involves teamwork, and that addressing it can only be done by working with the rest of the government to prevent it and enforce against it.

Guidance: Advice and Training
1. Timely informal ethics advice from the ethics officer, taking into consideration that ethics laws are minimum requirements.

2. Informal advice to anyone, relating to real or hypothetical situations; formal advisory opinions only to those under the ethics program’s jurisdiction and only about real situations. Advice only regarding future or ongoing conduct, and taking into account precedents.

3. Advice binding on both the individual seeking advice and the ethics commission, but only to the extent the facts provided were accurate and complete.

4. Formal advisory opinions written in clear, simple language, with a restatement of the facts.

5. Mandatory ethics training followed by continuing ethics education.

6. Ethics training on the blind spots, institutional norms, and situational forces that interfere with officials’ ability to deal responsibly with conflict situations.

Disclosure
1. Three kinds of sensible disclosure: annual, transactional, and applicant disclosure.

2. Annual disclosure only by high-level officials and those in a position to affect contracts, permits, grants, licenses, property purchases and sales, and other matters that specially benefit individuals and entities.

3. Timely updating of annual disclosure statements.

4. A list of everyone who is required to file an annual disclosure statement.

5. Disclosure of all gifts to the government or its agencies, including the names of the gift giver’s officers and principals.

Enforcement
1. Administrative rather than criminal enforcement of ethics laws, with no criminal sanctions.

2. Initial review of complaint, with quick dismissal of the complaint if it fails to state an ethics violation against someone under the ethics commission’s jurisdiction; if the conduct was based on ethics advice; if there has already been a decision on the matter; if the statute of limitations has run; or if what is alleged would be a de minimis violation (in which case, a warning letter should be sent to the respondent). If it is merely a matter of a poorly written complaint, the ethics officer should offer the complainant help in writing a proper complaint.

3. No limits on who may file an unsworn complaint or make a tip.

4. Instead of defining “de minimis” interests, benefits, or violations in an ethics code, leaving what is “de minimis” up to the ethics commission with respect to enforcement decisions.

5. Separation of investigative/advocacy and adjudicative roles in ethics proceedings.

6. Standards of proof: for probable cause, “reasonable grounds that a violation has occurred”; for the finding of a violation, “preponderance of the evidence.”

7. Ethics commission authority to enter into a settlement of an ethics proceeding at any time after the filing of a complaint. Settlement is the preferable way to conclude an ethics proceeding when a complaint is not dismissed in the initial review or after a preliminary investigation.

8. Requirement of an admission of the respondent’s misconduct in a settlement agreement.

9. Requirement of cooperation in an ethics investigation by everyone under the ethics program’s jurisdiction.

10. Statute of limitations based on the discovery of possible misconduct rather than on the occurrence of the conduct.

11. Limited role of a complainant in an ethics proceeding (not a party to it), including the ability to file a response to a respondent’s response to the complaint, to recommend changes or additions to the complaint, and to attend a public hearing, but with no formal role except, perhaps, as a witness, if called.

12. Limitations on ex parte communications with the ethics commission and staff.

13. A list of mitigating and aggravating circumstances to take into account when imposing sanctions.

14. Sanctions including reprimand, censure, fine, damages, disciplinary action, civil forfeiture, voidance of contracts and other transactions, injunctive relief, and debarment from contracts. Only disciplinary action should require approval by the local legislative body (official) or the CEO (employee).

15. The payment of all fines, damages, and other monetary penalties into the government’s general fund, not into the ethics commission budget.

16. Judicial review only of ethics commission final decisions on violations.

17. The reimbursement to a respondent of reasonable ethics proceeding legal fees only when there is a finding of no probable cause.

The Ethics Code
1. The placement of aspirational provisions in a Declaration of Policy section at the beginning of an ethics code, with a clear statement that these provisions are not enforceable.

2. The use of clear, simple language in ethics provisions, recognizing that they are intended to provide guidance to non-lawyer officials and employees.

3. The treatment of appearance of impropriety, preferential treatment, and favoritism as values behind ethics rules, not as enforceable ethics language.

4. Placement of the parts of an ethics code most useful to the ordinary official, that is, the ethics and disclosure provisions, before the administrative and enforcement provisions. Placement of definitions after the ethics provisions, not before.

5. No use in ethics provisions of “impairment of judgment” or “intent to influence” or other language that deals with motive, knowledge, or other internal states.

Basic Conflict Provisions
1. Defining conflicts not in terms of interests, but in terms of benefits and relationships.

2. Not prohibiting conflicts of interest, but instead requiring conflicts to be dealt with responsibly.

3. Regular inclusion in conflict provisions of the phrase “directly or indirectly.”

4. Withdrawal from any participation whatsoever in a matter as soon as an official or employee recognizes he or she may benefit, directly or indirectly, or has a special relationship, directly or indirectly, with anyone who may benefit, with public disclosure of the relevant conflict.

5. The word “may” preceding the word “benefit” in a conflict provision.

6. The inclusion of non-financial benefits in conflict provisions.

7. Requirement that officials with ongoing conflicts either resign or remove the conflict.

Other Ethics Provisions
1. The prohibition of officials wearing multiple hats, including the holding of incompatible jobs or offices and the representation of clients before their agency or board.
2. The limitation of gift bans to direct and indirect gifts from those seeking special benefits from the government.

3. Gift bans with very few exceptions.

4. Gift provisions that cover both influence and pay to play.

5. Handling of gratuities as a personnel, not ethics issue.

6. The prohibition of sharing or using confidential information for one’s own or another’s financial benefit, but not prohibiting the general disclosure of confidential information for another purpose.

7. Nepotism prohibition that covers hiring, managing, and oversight of relatives, and applies to all officials, employees, and consultants, with no exclusions for uniformed departments.

8. The prohibition on transactions with subordinates.

9. The prohibition of officials representing clients in suits against the city or county.

10. A requirement to report possible ethical misconduct.

11. Complicity in ethical misconduct as an ethics violation.

12. Whistleblower protection.

Best Practices for Government Officials
1. Recognition that, despite one’s integrity, one has blind spots, one can be influenced, one is vulnerable to one’s unconscious biases as well as the unhealthy aspects and pressures of a government organization’s ethics environment, and that whatever one thinks about one’s relationships or transactions, it is what the public thinks that matters and that the public is right to make its assumptions considering the information it has.

2. Recognition that, as a public servant, one has special obligations, gives up some of one’s rights, and needs to make certain sacrifices.

3. Standing up for the victims of intimidation, pay to play, and SLAPP suits.

4. Board chairs: asking, each time a new matter comes before a board, if anyone has a special relationship, directly or indirectly, with anyone involved in the matter, or if anyone may benefit, directly or indirectly, from the matter.

Ethics Reform
1. A start-at-the-top approach to ethics reform, considering all the possible provisions and elements of an ethics program.

2. In smaller jurisdictions, consideration of a countywide or regional ethics program, to allow for independent, professional administration.

3. “Organizational molting” when a local government ethics program is instituted or improved in an unhealthy ethics environment: new stories, new language, new priorities in hiring and promoting, new norms, and new conduct, including the encouragement of open, honest discussions not only about ethics matters, but also about the fears that come from an environment of intimidation and the ways that feelings of loyalty, betrayal, and disrespect for the public support an unhealthy ethics environment.

Other Best Practices
1. Firewalls are not a best practice because they are completely self-enforced, more of a screen than a wall.

2. Lists of contractors and subcontractors, and their officers and principals; of grantees and their officers and principals; of permittees and their officers and principals.

3. Limitations on ex parte communications with procurement officials (“Cone of Silence” provision).

4. Getting lawyers fully on board: two or three government, or even private, attorneys can prevent or bring to an end institutional misconduct by recognizing their duties as lawyers and exposing the misconduct or threatening to expose it if is engaged in.

5. Oversight of earmarks and discretionary funds by ethics commission, auditor, or other independent board or office.

6. Express institutional and/or personal waiver of legislative immunity with respect to an ethics program, and express designation of an ethics commission as either a part of the legislative branch (where the branches are separate) or a hybrid that is part of both branches, so that ethics enforcement does not occur in an “other place” than the legislative branch.
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