making local government more ethical

Independent Non-Sitting Ethics Panels in Georgia

I'm a big supporter of making ethics commissions independent of those over whom they have jurisdiction. Milton, Georgia and, now, Forsyth County, Georgia have come up with an interesting approach to ethics commission independence that has one good point and several bad points.

The recent amendments to the Forsyth County ethics code (the ethics provisions are here) were modeled after Milton's code (this is the complaint procedure; the code is in Ch. 2, Art. VIII), which was passed in 2010 (Forsyth County's county attorney, Ken Jarrard, is also Milton's city attorney) .

The Milton code requires that, after determining that an ethics complaint meets the basic requirements, the city clerk create a special ethics panel by picking three names randomly from a list of between nine and fifteen out-of-town attorneys, whose qualifications need not include any knowledge of government ethics. In Forsyth County, a panel is also created to respond to a request for an advisory opinion.

The good point of this idea is that it ensures that complaints and advisory opinions are dealt with by individuals who are, and are perceived to be, independent.

I will look at four of the idea's bad points. One, the idea does not provide the county with an ethics program. There cannot be an ethics program without a sitting body or an office that is entrusted with doing more than holding hearings and giving formal advice. An ethics program involves training, timely advice, disclosure, and ongoing oversight. Milton's program does not provide for any ethics advice, which is the most important part of an ethics program.

Two, limiting membership on an ethics panel to lawyers ensures a legal rather than government ethics approach to ethics advice and enforcement. There is no reason to believe that lawyers will do a better job than any other professionals or educated individuals, as long as they have legal counsel. There is, however, reason to believe that lawyers will treat ethics questions as legal questions, for example, failing to treat ethics provisions as the minimum requirements they are. It is telling that members of the ethics panel are required to have civil litigation experience, but no training or experience in government ethics.

Three, creating panels of lawyers is an expensive way to deal with ethics complaints and requests for advice, and ensures that advice will almost never be timely. It would be better to hire a part-time ethics officer, or to share an ethics officer with neighboring cities and counties. At least you would be paying for someone with expertise, who has experience and understanding of government ethics. Add a volunteer ethics commission selected by community organizations, or a regional commission, and you do not increase the costs at all.

Four, the creation of independent ethics panels does not solve the biggest problem with the Milton and Forsyth County codes:  the fact that their ethics provisions use aspirational language. For example, the first provision for county employees is, "Put loyalty to the highest moral principles and to country above loyalty to persons, party, or government department." Or take the fifth provision for elected officials and board members, "Expose corruption wherever discovered."

These rules are taken from a state statute §45-10-1. And the idea of a non-sitting ethics panel derives from one of the enforcement alternatives in the Georgia Municipal Association's sample ethics ordinance, part of its Cities of Ethics program. But need local officials look no further than their own state, especially when their state is not known for its great ethics programs? And even then, why not look at the best program in the state, Atlanta's, which has an independent, sitting ethics board selected by community organizations, an independent ethics officer selected by the board, and no aspirational provisions?

It appears from the articles that a principal reason for changing the rules in Forsyth County was that there were so many ethics complaints being filed. Of course there were. Every time an official opened his mouth, or didn't, he could be cited for an ethics violation. And there is no one to help potential complainants determine whether their allegations are actually ethics allegations. An ethics panel can't do this, because it doesn't exist until the complaint has been filed. An ethics officer can prevent the filing of inappropriate complaints, or dismiss them immediately (the clerk can do this, but a clerk has no ethics training, and is not independent, so that his or her dismissal of a complaint could be seen as favoring political allies).

A recent Atlanta Journal-Constitution article notes that since Milton changed to the ethics panel approach, there have been no ethics complaints. But there could be many reasons for this. A principal one was rejected in Forsyth County:  a wrongful use provision that can turn any complaint into a complaint against the complainant, with the complainant open to paying expenses, being convicted of perjury, and being publicly reprimanded by the mayor and city council.

The only good reason for wanting an end to ethics complaints is that an ethics program has done a good job of preventing ethical misconduct by providing training, timely advice, and ongoing discussion among officials of the ethics issues in matters that come before them. An ethics panel approach to government ethics does none of these things.

Forsyth County's approach is better than Milton's, because it includes advice and does not have a wrongful use provision. But it still rests of the enforcement of aspirational language. It is very hard for anyone, especially lawyers, to enforce these rules in a fair manner.

It's great to see new ideas being tried, especially when they provide independence. I consider ethics commission independence the single most important feature of a local government ethics program, but this means having an ethics commission, not a series of separate panels. An ethics program is an oversight program, and oversight can best be provided by a body or office that has an ongoing existence and feels a responsibility for the maintenance and continuing improvement of the ethics program and the government's ethics environment.

Robert Wechsler
Director of Research, City Ethics
rwechsler@cityethics.org
203-230-2548