making local government more ethical

Fitting Conflicts to Agencies and Departments

One of the rarely questioned truisms of local government ethics is, "One size does not fit all." Usually this means that one ethics code is not right for every city or county, that every jurisdiction has its own issues and problems.

In some ways this is true. New York City's huge ethics program is hardly appropriate to a small town, because there is such a large difference in available resources. But there is no difference when it comes to ethics rules or the need for training or independent advice and enforcement.

Think of it this way:  NYC has a huge corporation counsel office, which no town would think of copying. But every small town has a town attorney, and officials turn to the town attorney just as NYC officials turn to the corporation counsel for legal advice. Why shouldn't small town officials have access to professional ethics advice, as well, even if it's only from someone on contract, who bills only three hours a month?

"One size does not fit all" does not apply to basic ethics provisions, to enforcement processes, or to the administration of an ethics program. In other words, the truism is rarely appropriate to the situations where it is used, such as the drafting of a state model ethics code or the application of a good county ethics program's rules to one's own county.

One place where it does apply, however, is in the specifics. The specifics of conflicts in a procurement program are different from those for a planning commission or a local legislative body. Los Angeles has a unique system of conflict of interest codes that takes into account the true differences among agencies, departments, and boards.

The conflict codes are limited to disclosure, but since disclosure involves possible conflict situations, the codes also give officials a good idea of the different sorts of conflict situation to look out for. Therefore, they provide more concrete guidance as to what conflict situations may arise and, when they do, require the seeking of advice from the ethics commission's staff.

Links to the 52 different conflict of interest codes, from Aging to Zoo can be found on one webpage, along with an explanation of the purpose behind the codes and a description of the code format. The departments do not create their codes in isolation. They are each reviewed by the ethics commission and by the city attorney's office, and they have to be approved by the city council.

The Convention Center code, for example, requires the disclosure not only of benefits from companies that do business with the convention center, but from any company that "Manufactures, sells or leases any furniture, supplies, materials, machinery or equipment of the type utilized by the Los Angeles Convention Center" or any company that "Provides consulting and/or contractual services, including but not limited to the following: a. crowd handling or control, ticket taking or ticket selling; b. security; c. electrical and/or electronics installation, maintenance and repair..."

Convention centers are notorious for contract problems. Therefore, the L.A. convention center wants to make sure that its officials and higher-level employees disclose, and recognize as problematic, a relationship with a company that may seek business from the convention center. There is even a requirement that an official disclose a relationship with a company that "Is or within the past twelve months was a competitor [emphasis mine] of any person or business entity in any of the above." It is unusual, but very mature, to recognize that being involved with the competitor of someone seeking or doing business with a government agency can itself cause problems, both in fact and in perception.

Starting with a basic but strong requirement allows agencies to make more pertinent and stronger requirements. Starting by saying that one size does not fit all tends to lead to the weakening of requirements ("why should our officials have to disclose information about their private affairs?"). In Los Angeles, agencies cannot undermine requirements, only make them more pertinent and, in some cases, stronger.

Here are some pertinent provisions for Disability commission staff, who must disclose:
A. Any investment in, or income from, any person that designs, manufactures, distributes, sells or repairs adaptive equipment or assistive technology.

B. Any investment in, or income from, any person that publishes, designs, manufactures, distributes, sells or repairs materials in alternative format for persons with disabilities.

C. Any investment in, or income from, any person that provides sign language services.

D. Any investment in, or income from, any person that engages in construction, design or repair of facilities or structures for the purpose of increasing access.
Impertinent Differences
Sometimes, however, special requirements combine pertinence with, well, impertinence. Take the proximity of an official's real property to government operations (see the section on Proximity in my book Local Government Ethics Programs). The Airport department's basic proximity rule is to disclose "Any interest in real property located on or within two miles of the boundaries of any land owned or used by the Department of Airports of the City of Los Angeles, or land jointly held with any of its tenants and concessionaires, or their agents or trusts." The rules for other departments differ. For the Convention Center, for example, the proximity rule is one mile, and for the Harbor department it is one-half mile. However, considering that the California proximity rule is only 500 feet, all of these distances are an improvement. But it would be best if there was a standard proximity rule, unless a department could make a good case that a shorter distance was more appropriate.

Different Folks
It's worth noting that, in these conflict codes, even rules such as the proximity rule are not the same for all officials. Many of the conflict codes have different categories of official, with the highest-level officials in Category 1. With respect to Airport officials, the two-mile proximity rule applies only to Category 1 officials. Those in Categories 2, 4, 7, and 9 are required to disclose any real property "within the jurisdiction," which I assume means the city of Los Angeles, but may refer to a larger area in which all the airports are. Other disclosing officials need not disclose real property at all. These others include accountants, auditors, engineers, managers, etc. It would be useful if there was an explanation of why some and not others are required to disclose real property holdings.

These conflict of interest codes are far from perfect, but they do provide valuable specifics for any department, agency, or board considering how disclosure requirements or conflict provisions may be applied specifically to their officials, employees, and consultants. Conflict provisions do fit all, but they fit each department differently, and it is valuable to discuss this and even put the results down in writing, either as guidelines or in the form of a separate code to make general ethics provisions fit the department more snugly.

However, it is important to ensure that this process not be used to weaken government ethics rules. It should only be used to apply them in a way that provides more guidance, more understanding and, therefore, more responsible handling of conflict situations.

Robert Wechsler
Director of Research, City Ethics