making local government more ethical

Kansas City (MO) Takes a Big Step Toward Ethics Reform

According to the blog of Kansas City, MO's mayor, Sly James, the KC Commission on Ethics Reform will be holding a public hearing tomorrow on its draft ethics code.

It's clear from the draft that the commission made excellent use of the City Ethics Model Code. The result is a good draft that falls short in a few very important areas.

Most important, the ethics commission would be selected by the mayor. The mayor would even select who the chair is, something that is ordinarily left to a board or commission. Any time the commission is seen as letting off the mayor or a mayoral ally, or coming down hard on a mayoral opponent, it will undermine the public's trust in the ethics program. There would be a big conflict at the heart of a program designed to prevent conflicts and to gain the public's trust in its city government. Ethics commission independence, real and perceived, is the single most important part of an ethics program. It is the foundation on which everything else stands.

Second, there is no provision for informal ethics advice. Guidance is the principal goal of a government ethics program. It should be easily and quickly available. And it should be independent. The draft code provides for an ethics compliance officer, but does not say who will appoint her. Will it be the mayor, the city manager, or the ethics commission? The best practice is to have the officer appointed by and responsible to no one but the commission.

A summary of the changes proposed by the draft code, which was written by the city attorney, has a sentence that is particularly ominous, because it actually adds something to the draft code:
    If an ethics compliance officer is not appointed, the City Attorney must perform the duties of the ethics compliance officer.
Since there is only one reason the commission would not appoint a staff member – an insufficient or nonexistent budget – this means that the city attorney is contemplating that the ethics officer will either not be appointed by the ethics commission, or that the commission will not be given a budget by the mayor and council. And it is no surprise who the city attorney recommends to act as ethics officer in the event the mayor and council do not appoint someone for the position. No city attorney (or, for that matter, no high-level official) should have a role in ethics advice or enforcement.

Third, those doing and seeking business with the city are not brought into the program by this draft code. There is no applicant disclosure. There is no limitation on making gifts to officials. Businesses, including consultants, are not even brought under the commission's jurisdiction.

Lesser problems include:

(1) the gift limit of $3,000 for the mayor and council members is far too high;

(2) the most unusual provision of the code, allowing all sort of officials to make their own ethics rules and regulations, as long as they're more strict, spreads ethics authority (and training, advice, disclosure, and discussion of ethics reform?) too broadly. It is true that ethics provisions are minimum rules, but there are other ways than more rules to require more of officials and employees. City leaders can let it be known that doing the minimum is not enough, and they can require that their charges seek ethics advice whenever there is a question. Presumably, the ethics compliance officer, if one is permitted, will treat ethics provisions as minimum requirements and provide officials and employees with the guidance they need to prevent conduct that appears improper.

(3) the ethics commission and ethics officer should oversee ethics training, not the city manager;

(4) disclosure of confidential information should not an ethics violation; it only becomes an ethics violation when it is done to benefit someone. Sometimes, it is important to disclose confidential information, for example, information improperly disclosed in a closed session or that has been made confidential in order to keep it secret from the public;

(5) votes of the ethics commission should not require four votes, because there will be many times when there are no more than four or five members in attendance. A frequent problem is an ethics commission with open seats, often because the appointing authority does not want it to function. Requiring four votes to investigate or enforce makes it easier for the appointing authority to prevent the commission from enforcing the code. Another reason why officials should not be selecting commission members.

(6) 90 days is far too short a time for an ethics commission to make a decision on a complaint. The procedures should be better worked out, including a provision for settlement. It is odd that the respondent is the one who determines whether there will be a hearing or not. There might be occasions where the commission feels it is the best course.

Despite these criticisms, this is a better-than-average draft code. It is an excellent start to what will hopefully be a process that ends with an independent, comprehensive government ethics program for Kansas City.

Robert Wechsler
Director of Research, City Ethics