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A Look at 2013
Monday, December 30th, 2013
Robert Wechsler
2013 was not a particularly good year for government ethics. This
blog started out by noting how little Tennessee's model code had
done for its municipalities' ethics programs. Early-year hopes for
improvement of New Jersey's terrible state local government ethics
program were dashed by the program's October request to renew its
rules without any changes whatsoever.
Ethics Reform
There was not much in the way of ethics reform in 2013. San Antonio proposed some good changes to its ethics program, such as taking it out of the hands of the city attorney, but it appears that nothing has been done yet. Phoenix's task force filed a disappointing report, and the mayor and council have focused on "toughness" rather than the creation of an effective government ethics program. Some excellent reform recommendations from Tallahassee's ethics task force were opposed by high-level officials. The D.C. ethics board's mixed recommendations for reform, and some excellent reform proposals by a council member, did not become law this year. The Prince George's County, MD county executive's ethics reform promises do not appear to have given the famous corrupt county much of an ethics program yet. The plan of Kenosha and Racine, WI to have their ethics boards deal with proceedings from the other city is getting closer to becoming reality.
Meanwhile, in Orange County, CA, high-level officials rejected an ethics program even after a grand jury set out forty years of corruption and recommended a comprehensive program. Instead, county officials focused solely on enforcement via other alternatives.
Ethics reform was instituted by the American Society for Public Administration in 2013, but the results were mixed. The best changes were a requirement to report ethical misconduct, a requirement to resist pressures to compromise ethical principles, and encouragement to public administrators to adopt ethics codes for their governments (but why not "ethics programs"?).
Judicial Decisions
As usual, there were not a lot of important judicial decisions relating to government ethics. But the most important one was pretty important. On remand, the Nevada Supreme Court followed some judicial comments made during the oral argument of the long-running Carrigan case, deciding to effectively treat the opportunity to seek ethics advice as the only, or at least most important, process due a local official faced with a possible conflict situation.
This somewhat radical view opens up all sorts of possibilities for a government ethics program. For one thing, it allows an ethics program to plug up loopholes via a catchall provision that allows the ethics officer or commission to define the provision's coverage rather than have the provision limited to the limited letter of the law. For example, a conflict provision can be made applicable to a relationship with a close friend via an open-ended relationship list, even though this relationship cannot be adequately defined in a relationship list (in the alternative, the ethics officer or commission can, throught ethics advice, define a vague term such as "close friend."
The decision also made it clear that an official cannot depend on the ethics advice of a city attorney if the official can seek such advice from an ethics officer or commission.
Regulations, Publications, Indictments, and Threats
One of my longest blog posts of the year was about the Philadelphia ethics board's proposed gift regulation. This proposal raised a number of important issues involving gift bans. Local good government groups and newspaper editors were as opposed to the regulation as I was, but they focused on a small number of the issues.
As for publications, I do not know of any new book on state or local government ethics other than the second edition of my book Local Government Ethics Programs and the new Nutshell version. The book was cited in several reports from ethics commissions, task forces, grand juries, auditors, and independent ethics advisers.
Indictments against local officials across the country showed the weaknesses of local government ethics programs. And yet much reform talk continued to involve the criminalization of government ethics, making government ethics more about enforcement than prevention (and doing much of this through sting operations), and placing the power in the hands of district attorneys rather than ethics commissions and their staff.
It is never a surprise when an ethics program is threatened by politicians. This year, the threats included a Florida legislative committee's call for the suspension of Palm Beach County's ethics program and the insistence by Honolulu's corporation counsel on providing ethics advice and its other attempts to interfere with the ethics program's independence and jurisdiction over ethics.
Modern Technology
Most ethics commission websites continue to provide little or no information about their programs, including no training materials, no advisory opinions, no disclosures, no information about enforcement proceedings or how to file complaints or provide tips, not even meeting minutes. It is inexcusable that ethics programs show so little interest in transparency (which is, after all, one of the three areas of government ethics) and make so little use of the internet. And most of the more sophisticated programs still have websites designed from the program's perspective rather than with respect to viewers' needs.
However, the first government ethics app appeared, where else but in California. The app involves the disclosure of gifts. Perhaps some day soon, the public will also be able to follow, in real time, the appointment schedules of high-level officials and lobbyists, as well as transactional and applicant disclosures.
New Terms
This year, the St. Louis Post-Dispatch coined a new government ethics term, dyscronia, which I have defined as "characterized by difficulty with learning to accurately comprehend conflict of interest situations and to deal with them responsibly, despite normal ethics." I proposed an alternate term, "dysaffinia," based on the Latin word "affinitas," which means a relationship, affinity, or union. I defined this new term as "the inability to see how damaging one's relationships, and alternate hats, can be to the public's trust in those who govern its community." I also coined the term "dysdysaffinia," defining it as "the inability to recognize and deal with the problems that arise from dysaffinia." According to a Google search, none of these terms has been picked up by anyone.
2014
Among my quixotic wishes for 2014 are these three:
Director of Research-Retired, City Ethics
---
Ethics Reform
There was not much in the way of ethics reform in 2013. San Antonio proposed some good changes to its ethics program, such as taking it out of the hands of the city attorney, but it appears that nothing has been done yet. Phoenix's task force filed a disappointing report, and the mayor and council have focused on "toughness" rather than the creation of an effective government ethics program. Some excellent reform recommendations from Tallahassee's ethics task force were opposed by high-level officials. The D.C. ethics board's mixed recommendations for reform, and some excellent reform proposals by a council member, did not become law this year. The Prince George's County, MD county executive's ethics reform promises do not appear to have given the famous corrupt county much of an ethics program yet. The plan of Kenosha and Racine, WI to have their ethics boards deal with proceedings from the other city is getting closer to becoming reality.
Meanwhile, in Orange County, CA, high-level officials rejected an ethics program even after a grand jury set out forty years of corruption and recommended a comprehensive program. Instead, county officials focused solely on enforcement via other alternatives.
Ethics reform was instituted by the American Society for Public Administration in 2013, but the results were mixed. The best changes were a requirement to report ethical misconduct, a requirement to resist pressures to compromise ethical principles, and encouragement to public administrators to adopt ethics codes for their governments (but why not "ethics programs"?).
Judicial Decisions
As usual, there were not a lot of important judicial decisions relating to government ethics. But the most important one was pretty important. On remand, the Nevada Supreme Court followed some judicial comments made during the oral argument of the long-running Carrigan case, deciding to effectively treat the opportunity to seek ethics advice as the only, or at least most important, process due a local official faced with a possible conflict situation.
This somewhat radical view opens up all sorts of possibilities for a government ethics program. For one thing, it allows an ethics program to plug up loopholes via a catchall provision that allows the ethics officer or commission to define the provision's coverage rather than have the provision limited to the limited letter of the law. For example, a conflict provision can be made applicable to a relationship with a close friend via an open-ended relationship list, even though this relationship cannot be adequately defined in a relationship list (in the alternative, the ethics officer or commission can, throught ethics advice, define a vague term such as "close friend."
The decision also made it clear that an official cannot depend on the ethics advice of a city attorney if the official can seek such advice from an ethics officer or commission.
Regulations, Publications, Indictments, and Threats
One of my longest blog posts of the year was about the Philadelphia ethics board's proposed gift regulation. This proposal raised a number of important issues involving gift bans. Local good government groups and newspaper editors were as opposed to the regulation as I was, but they focused on a small number of the issues.
As for publications, I do not know of any new book on state or local government ethics other than the second edition of my book Local Government Ethics Programs and the new Nutshell version. The book was cited in several reports from ethics commissions, task forces, grand juries, auditors, and independent ethics advisers.
Indictments against local officials across the country showed the weaknesses of local government ethics programs. And yet much reform talk continued to involve the criminalization of government ethics, making government ethics more about enforcement than prevention (and doing much of this through sting operations), and placing the power in the hands of district attorneys rather than ethics commissions and their staff.
It is never a surprise when an ethics program is threatened by politicians. This year, the threats included a Florida legislative committee's call for the suspension of Palm Beach County's ethics program and the insistence by Honolulu's corporation counsel on providing ethics advice and its other attempts to interfere with the ethics program's independence and jurisdiction over ethics.
Modern Technology
Most ethics commission websites continue to provide little or no information about their programs, including no training materials, no advisory opinions, no disclosures, no information about enforcement proceedings or how to file complaints or provide tips, not even meeting minutes. It is inexcusable that ethics programs show so little interest in transparency (which is, after all, one of the three areas of government ethics) and make so little use of the internet. And most of the more sophisticated programs still have websites designed from the program's perspective rather than with respect to viewers' needs.
However, the first government ethics app appeared, where else but in California. The app involves the disclosure of gifts. Perhaps some day soon, the public will also be able to follow, in real time, the appointment schedules of high-level officials and lobbyists, as well as transactional and applicant disclosures.
New Terms
This year, the St. Louis Post-Dispatch coined a new government ethics term, dyscronia, which I have defined as "characterized by difficulty with learning to accurately comprehend conflict of interest situations and to deal with them responsibly, despite normal ethics." I proposed an alternate term, "dysaffinia," based on the Latin word "affinitas," which means a relationship, affinity, or union. I defined this new term as "the inability to see how damaging one's relationships, and alternate hats, can be to the public's trust in those who govern its community." I also coined the term "dysdysaffinia," defining it as "the inability to recognize and deal with the problems that arise from dysaffinia." According to a Google search, none of these terms has been picked up by anyone.
2014
Among my quixotic wishes for 2014 are these three:
The consideration by high-level local officials of (1) best practices, (2) the fact that their participation in a conflicts of interest program involves, and appears to the public, as a serious conflict of interest, and (3) the fact that an independent ethics program is actually in their self-interestRobert Wechsler
A general recognition of the importance of independent ethics advice
A national discussion about local government ethics that includes practitioners, academics, and municipal attorneys
Director of Research-Retired, City Ethics
---
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