making local government more ethical

Interesting Ethics Issues in Santa Fe

A lot of interesting issues have arisen with respect to Santa Fe's Ethics and Campaign Review Board.

A Majority of Lawyers on an Ethics Board
First, a new selection process was created, and the ethics board members were replaced some time between the July and August meetings. Instead of having council members individually select ethics board members, which was a terrible idea, now a local bar association selects 8 lawyers, from which the mayor appoints 4, plus 3 non-lawyers of his choice. The involvement of nonpartisan civic organizations in the selection of ethics board members is a great idea, but not (1) when there is only one such organization and (2) when it is required to select only lawyers.

There is no doubt that lawyers understand procedures better than laypersons, but an ethics board's counsel can handle procedural matters perfectly well, without four lawyers squabbling about them (see the August meeting minutes for what can be expected from a majority of lawyers on an ethics board).

What is in doubt is whether lawyers understand government ethics better than laypersons. From my experience, the opposite may be true, for two reasons. One is that legal ethics is very different from government ethics, and most lawyers (even most judges) do not appear to understand the difference. Two is that lawyers think in terms of legality, that is, the words of the law are what matters most. Other people tend to give more weight to the spirit of an ethics code, which is to prevent appearances of impropriety from undermining the public's trust in government. It is lawyers' involvement in local government ethics programs, as drafters, advisers, and politicians, that is the single most important reason that these ethics programs are so poor.

One would think that having a professional organization make ethics board selections would at least make the process more professional. But the bar association did not act very competently. According to an article in the Santa Fe New Mexican, two of its eight selections did not even live in the city, and already at the first meeting one lawyer stated that he might have a conflict with respect to council members, while the new chair himself said that he had to consider his participation in matters, because his firm represents government entities. At the September meeting, three of the new members recused themselves from participating in the matter before them (see below). Couldn't the bar association have asked prospective members about possible conflicts before it made its selections? And couldn't the bar association have been perceptive enough to recognize that many, if not most, lawyers in the city would have conflicts that would require recusal in numerous cases involving higher-level officials?

It is also ironic that the mayor was given appointment authority when, according to a Santa Fe New Mexican editorial in July, the board was created due to the then mayor's ethical misconduct.

Use of Government Resources for Personal Benefit
The current matter before the board raises interesting issues with respect to the use of local government resources for personal benefit. According to an editorial in the Albuquerque Journal this week, a council member traveled all over the world as honorary chair of the UNESCO Creative Cities Network conference, but was "sketchy" in her disclosure of who paid for the trips.

Then she organized the city’s first “creative tourism” conference, which led to the publication of a "coffee-table book" on the subject, at a total cost to taxpayers of "well over half a million bucks." Then she "used her professional experience gleaned from these activities as advertising for her creative tourism consulting company."

According to another New Mexican article, the council member has defended herself by saying that "no one has made any money off the book. Doing a book as a support to the conference is totally legitimate." And she also says that her consulting business has not earned a profit yet, so there is no personal gain.

The editorial, on the other hand, argues that, "To the average person-on-the-street (as opposed to a member of the ethics board), [the council member's] activities look pretty close to the definition of an ethics violation spelled out in the new code, namely 'using municipal services, personnel or equipment' for personal benefit."

Does Personal Benefit Require Profit?
One question here is that if someone starts a business, does it have to turn a profit before there is "personal benefit"? I don't think it does. The success or failure of an attempt to profit from one's position should not be relevant to whether there is an ethics violation.

Using City Resources to Further One's Reputation
Another question is whether there was anything untoward about the city paying for the conference and the book in the first place, even if the council member had not started a related business. The council member says that no one directly benefitted from the conference or the book, but the appearance is that the council member was using her position to get the city to spend a lot of money on matters that did little or nothing to benefit the city, but rather helped the council member's reputation as an international leader in the tourism field.

It is difficult to characterize the city paying for the conference and book alone as an ethics violation, but it certainly should lead to a discussion about why the other council members went along with the conference and book, and what deals might have been made in return.

A third question involves motive. It would seem that the council member's motive would be important here. Did she take the trips, hold the conference, and have the book published at a great expense to the city in order to profit financially, to give her a new career, or just because it was exciting for her?

Although this seems important, motive is not an issue in ethics proceedings, because motive is something very hard to know, not to mention prove. The public has reason to believe that the council member sought to profit from her actions, and that's what matters.

The views of two major newspapers' editorial boards shows how serious the appearance of impropriety is in this case. As in so many ethics cases, one side focuses on appearances while the other focuses on the language in the ordinance, interpreting it as narrowly as possible.

When this matter arose and it became clear that there was a serious appearance problem, the council member should have shut down her business and promised that she would not work in the travel field either while a council member or, if she retires or is not re-elected, for a reasonable number of years (say, five) after the book was published. It is not too late for her to do this.

Robert Wechsler
Director of Research, City Ethics