An Ethics Commission's Role and Authority: Two Case Studies

Here are two interesting situations where it is not clear what an ethics commission's role and authority are. One in Baltimore, the other in Philadelphia.

Ethics Commission or Agency, Ethics or Personnel?
In Baltimore, according to an article in yesterday's Baltimore Sun, the school system investigated a principal charged with recruiting teachers to buy and sell cosmetics. The school system treated it as a personnel issue, but the city's ethics board admonished the school system for not notifying it about the ethics complaint, since the ethics board administrates the school system's ethics law.

There is often overlap between personnel standards of conduct and government ethics code provisions. In addition, agencies, especially those not central to local government, such as school systems, transportation authorities, and district attorney offices, often want to keep control over their turf, and will do what they can to accomplish this, including framing ethics violations as personnel issues.

Where there is overlap, how is it to be decided who has authority over the matter, that is, whether it is an ethics or a personnel matter? As with everything in government, this determination should be made openly. That is, if there is any question about authority, the agency should notify the ethics commission and try to work out who has jurisdiction. If they cannot, there should be some formal way of determining jurisdiction. And that way should not include any local government officials, including the city or county attorney, who has both political and representational conflicts, or the administrators (e.g., school superintendent and city or county manager), who should not have say over the ethics process, since they and their subordinates may be involved.

The Ethics Commission's Role in Ethics Reform
In Philadelphia, according to an article in yesterday's Philadelphia Inquirer, the issue is how involved an ethics commission should be in the process of ethics reform. As I've discussed in recent blog posts (1 and 2), a special ethics task force was appointed to recommend ethics reforms, and then the city council drafted new ethics bills that differ greatly from the recommended reforms, and even include provisions that actually weaken the city's ethics program.

Since the task force is no longer in session, there is no city body other than the board of ethics to critique the council's ethics bills. According to the article, "All [ethics board] members agreed they should offer an opinion on the recent legislation."

The board was especially concerned about a proposed November ballot question that "would give Council the power to change 59-year-old strict rules against civil-service employees' taking part in political activity outside of work." However, the board focused less on the actual rule change than on its members' concern that "the ballot question would not clearly explain what voters were being asked to do — surrender the people's ballot power over political activity and other rules to Council, which in the future could change those provisions by ordinance."

Despite the recent attacks by the council on the ethics board, the ethics board magnanimously decided to discuss these matters with the council before officially pronouncing on them.

This is a very diplomatic approach, but if it is effectively ignored, as is most likely, I think that the ethics board has not only the right, but the responsibility to take an official position on each of the proposed ethics reforms. Not only do they and their staff understand them better than anyone else in the city, but they will also have the responsibility of enforcing them.

It is common for ethics commissions to themselves make ethics reform recommendations to their local legislative body, sometimes ad hoc, sometimes as part of its annual report, sometimes as required by law (say, every three years). The fact that a special task force was instead asked to make recommendations does not change the ethics commission's role in the process. Although it cannot make the reforms itself, it is the city or county's ethics guardian, and it should not be shy in playing this role when it feels that proposed ethics bills are bad for the ethics program.

Robert Wechsler
Director of Research-Retired, City Ethics

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