making local government more ethical

The Fort Worth Council, Mayor, and City Attorney Deal Irresponsibly With a Conflict Situation

Updates: August 24 and 26, 2010 (see below)

For those who, like me, believe that neither a mayor nor a local legislative body nor a city attorney has any business getting involved in the government ethics process, here's an example you can use of the mess they can make when they do get involved.

First, here is the background of the Fort Worth situation. According to an article in the Star-Telegram last Thursday, in late June the city's Ethics Review Committee (ERC) determined that three members of an Air Quality Study Committee (AQSC) who work for major drilling companies had a conflict of interest (for more on the decision, see another Star-Telegram article, from June). According to a city government press release dated March 22, the ten-member AQSC was formed this year "to address recent air-quality studies regarding the short- and long-term health effects of emissions from gas facilities. The committee is charged with ensuring that data regarding air quality are comprehensive, specific to Fort Worth and sufficient to answer residents’ questions. The committee will evaluate and make a recommendation to the City Council on the qualifications of proposed companies and a scope of work for an air-emission study."

In addition to three gas company representatives, the AQSC also has one environmental representative, one representative of the local area council of governments, and two advisory members from state and federal environmental agencies. The other five members are listed as "citizens."

Mistake #1: Overturning the ERC Ruling
According to the Star-Telegram article, on Thursday the council unanimously overturned the ERC ruling. The mayor said, "It is a typical and standard procedure to ask citizens who are subject matter experts ... to serve on our boards. We want to protect those individuals who volunteer their expertise."

This is a clever way of covering both the council's responsibility for the problem, and the council's conflict in considering whether to overturn the ERC's decision concerning the problem. The council appointed the AQSC members, and it should have recognized its conflict and taken responsibility for the problem. That would have been the best and most honest way of protecting the AQSC members.

In fact, the ERC's decision was actually a criticism of the council, not of the AQSC members. The council did not follow the ethics code in appointing the members and, therefore, it should have apologized to the members and taken full responsibility for the mistake. Instead, it voted unanimously to cover up its mistake and effectively placed the blame on the ERC. The council's responsibility for the problem is described in a Star-Telegram editorial that appeared yesterday.

What I love about the editorial is this sentence: "it has been pointed out that the Star-Telegram was represented similarly on an advisory committee a few years back when the city was considering limits on newspaper racks on sidewalks. It wasn't OK then, either. Shame on us."

The council's mistake was exacerbated by the fact that some council members earn money from gas leases (including relationships with at least two of the companies that appealed the ERC ruling) and, therefore, look like they're giving preferential treatment to the gas companies pleading their case before them.

Mistake #2: Overturning the Decision at a Special Meeting
Another mistake was overturning the decision at a special meeting, for which I could find no agenda or minutes on the city website, and for which members of the ERC itself were not given notice, according to the Fort Worth Weekly.

Mistake #3: Replacing the ERC Members
According to the same article, the mayor called the ERC members and told them they were being replaced. What's interesting is that, according to one ERC member, the call came the morning of the special council meeting and yet the ERC members, whose decision was to be considered, were not told about the meeting.

Mistake #4: Changing the City's Policy on Advisory Board Members with Conflicts
The fourth mistake is that tomorrow the council will suddenly be considering changes to the ethics code (Part II, Ch. 2, Art. VII), after years of ignoring it (see an earlier blog post of mine). One of those changes is to allow members of task forces to serve even if they have a conflict of interest.

Here is the explanation given for the proposed amendment:
    The City Council regularly creates task forces to make recommendations to the City Council regarding a variety of issues that are highly technical, specialized and complex.  The members of these task forces are citizens who are volunteering their time in response to a request by the City Council for assistance and service.

    In order for such task forces to be able to address these issues in any substantive and effective way, members of these task forces often need to have personal or professional knowledge, insight and expertise with respect to the issues before their committees.  Therefore, it is sometimes inevitable that a member of one of these boards will be an employee of, or have some other remunerative relationship with, a business or industry interest that is, in some way, tied to the issues before the task force.  In fact, these professional connections typically are not only known by the City Council at the time of the member's appointment to the board, but are actually prerequisites or a primary basis for the appointment.
As I explained in my last blog post, it is not inevitable that members of task forces will have conflicts of interest, because there are many alternative solutions to this problem. It would have made the argument look far worse if the drafter had responsibly considered alternatives rather than declared conflicts "inevitable."

Mistake #5: Letting the City Attorney Compete with the ERC on Ethics Advice
It's worth noting that the council requested the city attorney to prepare amendments to the code of ethics only last Thursday, and they were already up on the website on Saturday. It's also worth noting that another amendment would give the city attorney the authority "to review all [ethics] complaints and to notify the Ethics Review Committee if he or she believes that the conduct asserted in the complaint was undertaken in reliance upon an opinion of the City Attorney." In addition, such reliance would create "prima facie evidence that the person complained against did not violate the Code of Ethics."

In other words, the city attorney wants to give himself the authority to be an alternative to the ERC in giving ethics opinions and, in addition, the city attorney wants to be the sole individual who can determine whether his own client's conduct was taken in reliance upon the city attorney's opinion. This creates a serious conflict situation, and allows officials to choose whether they'll get a more sympathetic opinion from the unknown ERC or from their very own counsel.

The bottom line: we have the council making ethics decisions about its own appointees and refusing to take responsibility for a conflict situation it created; we have the mayor firing ERC members when they do something he disapproves of (after doing almost nothing for years); and we have the city attorney recommending that he effectively takes over the ERC's most important role, that of independent ethics advisor — to those he represents. With the city's top officials ignoring their own conflicts like this, how can they be expected to fix the ethics code and make decisions regarding ERC decisions?

This is why officials should have no role in the ethics process other than passing ethics laws.

Update: August 24, 2010
An informal poll by the Star-Telegram asked the question, "Do you think that gas company employees should serve on city committees that oversee their industry?" 21% chose the answer, "Why not? They know the business." 79% chose the answer, "Never - a conflict of interest, plain and simple." This is an ongoing issue that has apparently undermined the public's trust in Forth Worth's government. In government, expertise is extremely important. But in government ethics, public perception is the most important thing. The council should recognize this and decide not to make an exception from the ethics code for task forces.

Update: August 26, 2010
According to an editorial in yesterday's Star-Telegram, the Fort Worth council met on Tuesday and did only one of the things that had been proposed: it filled three open spots on the Ethics Review Committee. This is long overdue. Crises shouldn't be required to fill vacant seats on an ethics commission. Two long-serving members will be replaced only after two pending cases are over.

The council acknowledged that it did not have time to study the proposed changes to the ethics code, nor was there time for public review and comment. The mayor said the changes wouldn't be considered until after the Ethics Review Committee could give the council its advice.

Robert Wechsler
Director of Research, City Ethics