An Ethics Pledge Proposal Turns Ugly

Local government ethics can quickly become an ugly circus when officials don't really understand it. A good example occurred in Royal Oak, Michigan last week, when a city commissioner who had recently pointed out a legitimate conflict situation involving a fellow commissioner took an "ethics pledge" at a commission meeting, without any warning, and then asked that the commissioners agree to take the pledge at the beginning of every meeting, according to an article in the Observer & Eccentric. Here's the pledge:

[I agree to] conduct myself professionally, with truth, accuracy, impartiality and responsibility to the public. To disclose any and all relationships, business or personal, before deliberating or voting on issues before this body. To recuse myself when relationships, past or present, exist, or when the public perception of impartiality would be questioned.

Further, I swear: that no applicant with business before this commission today has ever been a client of the business or entity I work for or worked for; that no applicant with business before this commission today has ever provided any product or service to the business or entity I work for; that no applicant with business before this commission today has ever contributed to my political campaign fund; that no applicant with business before this commission today is in any way related to me by blood or marriage ties; and that all opinions, considerations and votes that I make are my reflections and beliefs of what would serve the community best. If any applicant with business before this commission today does not meet the above criteria, I swear that I will disclose the relationship before deliberating.

The principal idea behind the pledge — that commissioners be reminded at the beginning of every meeting, or even when each matter is raised, to disclose and deal responsibly with any possible conflicts — is a good one. But springing the idea on the commission by reciting a pledge, rather than raising the issue of disclosing conflicts, is the perfect way (1) to make government ethics look like self-righteousness and (2) to set your colleagues off defending their honor and integrity.

At least two of the commissioners were truly set off, using the classic lines, and more. One commissioner called the pledge “demeaning” because it assumes that commissioners are guilty and corrupt, and that they must reassure the public every day that they aren't. “I am offended and everyone at this table should be offended that Commissioner Capello has the audacity to ask us to stand up at the beginning of every meeting and tell the public ‘I am not a crook.'” And “That is offensive. That is an accusation. We are accusing ourselves every time we start a meeting. That’s the culture you want to breed here and you think that will somehow improve the climate, the public’s faith in our ethics?”

The commissioner whose conflict situation had been raised by the ethics pledger at the last meeting ratcheted the emotions up a notch:  "This is the stuff of witch hunts and Salem and Ku Klux Klan activities. It's reprehensible. And I'm surprised, with as much respect as I have for you, that you would even think of asking this board to consider such a ridiculous concept.”

An attorney, he also said that he has confidential legal relationships he wouldn’t be able to disclose, according to an article in the Daily Tribune.

The mayor focused on the part about disclosing campaign contributors and clients, noting that his recycling company has thousands of clients and that his campaign contributions came “with no promises to anyone. The assumption with this line is that because we took campaign contributions, which are absolutely legal to do, the assumption is we've been bought. I'm insulted. I'm offended.”

What's Wrong with What Was Said
I am including all these reactions because despite being wrong in so many ways, they are typical. Both officials and the public need to understand why they are wrong.

Agreeing to disclose and deal responsibly with conflicts is not in any way demeaning or an admission of corruption or of a crime. It is acting responsibly and professionally. It has nothing to do with witch hunts, even though officials use this phrase often (in any event, witch hunts were directed by community leaders against citizens). The goal is to have officials deal responsibly with their conflict situations so that there is no need for investigations or enforcement.

Disclosing campaign contributions is not an admission that a promise has been made or that an official can be bought. It is an acknowledgment of the fact that people are very upset when they find that their elected representatives are pushing a project that benefits people who gave them substantial contributions. The public has a right to be told this, and elected officials have an obligation to take into account whether they have received too much money for them to be seen as acting in the public interest rather than in the interest of their past and, one assumes, future contributors.

As for an official's legal clients, if they are involved in a matter, an official is still required to deal responsibly with the conflict. As a 2010 New York City Bar Association report entitled Reforming New York State's Financial Disclosure Requirements for Attorney-Legislators states, "Courts have routinely held that the identity of a client does not come within the purview of the attorney-client privilege, because the disclosure of representation does not reveal the substance of any such communications between the attorney and client." Officials should not hide their unwillingness to deal responsibly with their conflicts behind mistaken presentations of the attorney-client privilege. Even if a client's name was protected by the attorney-client privilege, if the client wants a benefit from the government, she should be required to disclose her relationship with an official or waive the attorney-client privilege and allow the official to disclose it.

For those who are interested in logical fallacies, the one in use most at this meeting was the Straw Man fallacy. This begins with a misrepresentation about what was said, in this case that one must admit one is a crook and that one can be bought, and then saying that one is offended, insulted, and that the Straw Woman created by the speaker (because the actual woman never said any such thing) is reprehensible. (see my blog post on the Straw Man Fallacy).

What to Do
Fortunately, a majority of the commission decided to have the rules committee consider the ethics pledge, and there was talk about taking a look at the city's ethics ordinance. This is a good time for the commission to learn about government ethics and recognize that it's about responsible conduct, not crookedness, witch hunts, or pledges to be truthful or impartial.

Officials should be regularly reminded to disclose and deal responsibly with their conflicts. As I say in my book Local Government Ethics Programs, "whenever a board or commission moves on to a new agenda item, the chair [should] read out the names of all individuals and entities involved in the matter, and ask if anyone has or knows of an official or employee who has a special relationship with any individual or entity involved in the matter."

But it is important to know that withdrawal from a matter due to a conflict should not wait until the matter comes to a vote. It should begin as soon as one is aware of a matter. And withdrawal should include all communications, direct and indirect, that might affect, or be seen as trying to affect, the matter.

Robert Wechsler
Director of Research-Retired, City Ethics

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