making local government more ethical

A City Attorney Providing Ethics Advice in a Big City Is Indefensible

Update: December 19, 2012 (see below)

I am always amazed at what contraptions people are willing to set up to justify the participation of a city attorney in the ethics program of a large city or county that has sufficient resources to hire an ethics commission staff member or independent ethics officer. I raise this issue because controversial ethics reforms are being voted on today by Fort Worth's council, and one of them includes making a city attorney's ethics advice an "absolute defense," even though there is an Ethics Review Committee that currently has the authority to provide ethics advice.

A Fort Worth Star-Telegram editorial on Sunday defends the council's reform on the grounds that an ethics complaint can still be filed against an official who has been given ethics advice by the city attorney. If the official uses the advice as an absolute defense, the editorial notes, he waives his attorney-client privilege. This allows the ethics commission to question the city attorney, and the commission can decide that the advice was wrong, "calling public attention to the problem."

That sounds like an awfully complex and expensive way to deal with faulty advice or to confirm good advice. The process is also based on a few questionable assumptions. First, it assumes that someone is actually going to file a complaint if she knows that the city attorney provided advice and believes that, therefore, there will be no finding of a violation. Second, it assumes that the city attorney is not going to run circles around the ethics commission members in defense of her advice. Third, it assumes that the ethics commission is actually going to override the city attorney's advice, even if its members disagree with the advice. It's more likely that the commission will allow the city attorney to save face, while making a recommendation about a change in language or something. And four, it assumes that, if the commission actually slaps the city attorney's hand, the public will know which one was right and will care.

Creating a problematic situation and hoping that wrong advice will call the public's attention to the problem, after a tortuous process, seems to me an ass-backwards way of constructing an ethics program. In any event, the situation is not problematic just because the city attorney may give bad advice. It's problematic because even when the city attorney gives good advice, it will look like he's protecting officials he works for. An ethics commission or ethics officer doesn't work with or for government officials. Therefore, their independent advice will be accepted by the public.

As I said in a recent blog post, and at length in a section of my free book Local Government Ethics Programs, city attorneys should not be involved in an ethics program in any way. Fort Worth's mayor defends the city attorney's role primarily to save money. Fort Worth is the 15th largest city in the U.S. Here's a list of who provides ethics advice in the other large cities in the U.S.

NYC - ethics commission (EC) staff
Los Angeles - EC staff
Chicago - EC staff
Houston - city attorney
Philadelphia - EC staff
Phoenix - city attorney
San Antonio - city attorney
San Diego - EC staff
Dallas - city attorney
San Jose - state EC
Jacksonville - ethics officer
Indianapolis - corporation counsel
San Francisco - EC staff
Austin - integrity officer
Columbus - state EC
Fort Worth
Charlotte - city or county attorney
Detroit - EC staff
El Paso - EC
Memphis - ethics officer
Boston - state EC
Seattle - EC staff
Denver - EC staff
Baltimore - ethics officer
Washington, DC - EC staff
Nashville - EC
Louisville - EC
Milwaukee - EC

Of these 27 cities, 21 of them provide for independent ethics advice from the EC, its staff, an ethics officer, or the state EC staff. Of the 6 cities where the city attorney provides advice, half of them are in Texas. The other outliers are in Arizona, North Carolina, and Indiana.

It's also worth noting that the trend is opposite to Fort Worth's. Washington, D.C. and Memphis recently shifted to EC staff and an ethics officer, respectively. Dallas is looking into ethics reform. Houston's reforms came primarily from the city attorney, and gave his office a lot of power in the program (I criticized the reforms severely in three blog posts).

Fort Worth is not doing the right thing. It's not going in the right direction. It is doing something radical and against the trend. And what it's doing has nothing to do with saving money. It's all about power and control. Those under an ethics program's jurisdiction should have no power and no control over the program. This not only includes the city attorney; it applies especially to the city attorney. No city attorney with integrity would allow herself to provide ethics advice, unless she simply didn't understand government ethics. In which case, what sort of advice could she possibly provide?

Update: December 19, 2012
Not surprisingly, the council approved the ethics reforms. Now, of the 28 largest cities in the U.S., only seven (25%) of them have the city attorney as their ethics adviser. And four of those (57%) are in Texas. I think it's reasonable to call this wrongheaded role of the city attorney the Texas Approach. Let's hope that Dallas goes against the Texas grain and forces its neighboring city council to rethink the wrong direction it has taken.

Robert Wechsler
Director of Research, City Ethics
rwechsler@cityethics.org
203-230-2548