making local government more ethical

An Excellent Report Recommending an Ethics Program for a Regional Transit Authority

In October, I wrote a blog post about a report commissioned by the Washington Metropolitan Area Transit Authority (WMATA), based on an investigation of an ethics issue involving a Washington, D.C. council member and transit authority board member. The focus of my post was on the conflicted situation of a city council member on a regional board.

Fortunately, this situation led the WMATA to hire the same law firm, Cadwalader, Wickersham & Taft, to make recommendations to it regarding improvements to its governance rules and its code of ethics.

Cadwalader's ethics-related recommendations, which appeared in a report dated November 9, are for the most part excellent. The report emphasizes the importance of having a truly independent ethics commission, selected by community organizations and with a guaranteed budget. The report also emphasizes the importance of advice (although considers it "non-binding"), all three kinds of disclosure, and the obligations of those doing and seeking business with the authority, thus bringing them into the ethics program. The report even recommends that board members (although not employees, for some reason) be required to report possible ethics violations.

The report discusses problems with some of WMATA's ethics provisions, especially the gift provisions, but recognizes that clarity is the most important characteristic of these provisions. It is also recognizes the importance of the perception of impropriety, and that ethics provisions are minimum standards that need to be interpreted in each situation by an independent ethics commission.

The most serious weaknesses I found in this part of the report were (i) its confusion between preventing and avoiding conflicts, on the one hand, and dealing responsibly with them, and (ii) its use of the language of "interest" rather than "benefit." But at least the report does recommend defining conflicts in terms of relationships, thus allowing the ethics program to deal with indirect conflicts.

I should disclose the fact that my delight with this report is partially due to the fact that its authors borrowed from my free e-book Local Government Ethics Programs. Even one of the unusual provisions I recommend in my book shows up in the report:  a prohibition on vote trading.
Vote trading would occur when a Board Member who is recused from a matter asks a second Board Member to vote in accordance with the first Board Member’s interest in exchange for a reciprocal consideration in the future. Vote trading could be used to circumvent the requirements of the Code of Ethics when a Board Member is recused from a matter.
This is only a 31-page report and provides limited detail to most of its recommendations. Many things are missing from the report, such as any mention of ethics commission staff or enforcement procedures, and its position on some things, such as confidentiality, are wrongheaded (it would have all ethics proceedings be confidential at the ethics commission's discretion). But as opposed to most reports, this one goes beyond recommending a few minor changes to recommending the creation of a comprehensive, independent ethics program. It should, therefore, be a model on which other such reports should build.

Robert Wechsler
Director of Research, City Ethics