making local government more ethical

New Wayne County, MI Ethics Code Falls Short

On April 5, the county commission in Wayne County, MI (which includes Detroit) passed a new ethics ordinance (attached; see below), following multiple scandals. It contains many good provisions, but it does not create a government ethics program. By this, I mean that it does not provide an independent ethics commission, it does not provide for an ethics officer or other independent staff member, it does not provide for ethics training and only provides for written advice at an ethics board meeting within thirty days, which can be very difficult to achieve. Its disclosure requirements are minimal. And it does not provide for the ethics board to initiate its own complaints when it is given information but no individual is willing to risk filing a complaint (and here the principal burden of providing information is on the complainant, not on the ethics board).

Like so many attempts at ethics reform, this one appears to be too focused on solving problems that have arisen. In this case, the focus is on procurement, so that conflicts relating to land use, grants, and other areas where individuals and businesses benefit from government are ignored. And like so many attempts at ethics reform, this one appears to be lawyer-driven, focused on laws rather than ethics, that is, on provisions and enforcement rather than training, advice, and disclosure, which are the heart of any government ethics program.

It's not too late to fix the problems with this ordinance. Very few people understand government ethics, not to mention have experience writing ethics ordinances. An admission by the county commission that its first attempt has some problems that should be fixed should be far more respected than misplaced pride in a job half done.

The principal way in which the ordinance limits its focus to procurement is by creating the concept of a "County business," which is defined as "any business which, or person who, has taken part in a County procurement directly or indirectly within the previous 24 months, or which is expected to take part in a County procurement within the next 12 months." Then it says that a conflict is created if an official or employee is (1) employed by a County business in a "key" position, (2) has negotiated or is negotiating for employment with a County business or a prospective subcontractor or consultant; or (the most interesting) (3) "has a substantial financial interest in a business in which one or more of the principal beneficiaries of this County business also has a substantial financial interest."

The rest of the ordinance also applies primarily to "County businesses," excluding other areas of government activity.

Below is some more specific analysis of the new ethics ordinance.

Indirect Relationships
One interesting aspect of the definition of "County business" is subparagraph 3, which tries to deal with the situation where an official is involved with a business that is owned or otherwise associated with a business seeking benefits from a local government. This sort of situation, when it comes out, can create a serious appearance of impropriety, but it is very hard to spell out in an ethics provision. The Wayne County provision deals with one variation of this situation.

Selection of Ethics Board Members
It is bad enough to have ethics board members selected by anyone subject to their jurisdiction. It is worse to have each member selected by a separate county commission member, because each member will be seen as representing that representative. Ethics board members should be selected by community organizations, so that they both are and appear to be independent and non-political.

Waivers and Penalties
The waiver process should also not involve the county commission. The ethics board should be allowed to provide waivers on its own. The ethics board should be also allowed to penalize in ways other than small fines, including reprimands, restitution, avoidance, and debarment, where relevant. Also, it should be made clear that waivers should be handled in a formal public process, with good cause shown.

Time Limits, Investigations and Settlements
The time limits on ethics board action are far too short. Sixty days from complaint to decision is nearly impossible. And what happens if the board fails to reach a decision within this time period? An investigation alone can take far longer than sixty days, as can settlement negotiations. As it is, however, the ordinance does not clearly allow the ethics board to investigate, putting the burden on a complainant who may only have limited information. And there is no mention of settlement, which is the way most complaints should end.

Non-Financial Interests
In this ordinance, conflicts are limited to financial interests. This allows, for example, an official on the board of an organization seeking a contract or grant from her agency to participate in helping her organization, both as official and board member, get the contract or grant (in fact, there is an express exception for this). No official should be allowed to wear more than one hat in any matter, whether that hat cost money or not.

Gift Exceptions
Making an exception to a gift rule for friends is a problem. Everyone is a politician's friend, and no definition can prevent an official from saying someone is his friend. This means that a provision has to fall back on something like Wayne County's "has reason to believe that, under the circumstances, the gift was provided because of the employment position of the public servant and not because of the personal friendship." That doesn't supply much guidance, and won't prevent a lot of conduct that appears to the public as improper.

There are far too many other exceptions that allow large gifts to officials, as well as pay to play.

Confidential Information
The confidential information provision should have ended with the first paragraph, which prohibits the use of confidential information for gain. Keeping confidential information secret is not a government ethics matter and, in fact, there are times where it is important to disclose confidential information, including information obtained or discussed in closed session.

The disclosure requirements are limited to information relevant to procurement. Why shouldn't the public know who their elected officials work for and what local businesses or organizations they own or have a high-level position in? There are so many issues other than procurement where this information can be important. And what about property owned in the county? This is important for land use and related matters.

Also, why should official disclosure be under the clerk's control, while lobbying disclosure is under the ethics board's control? The ethics board should be in control of all ethics matters.

Finally, it looks really bad to have the first financial disclosure occur a full year after an ethics ordinance is passed. Even if nothing else is done to improve this ethics ordinance, the filing date should immediately be changed to June.

Unusual Provisions
The definition of "relative" includes all the inlaws and steps-, but it also includes two groups I've never seen included before:  "a former spouse or an individual with whom the public servant has had a child in common."

The political activity provision includes a paragraph that goes beyond the usual prohibition of coercing subordinates into helping out with campaigns. It also prohibits the flip side, that is, preventing subordinates from helping out in others' campaigns:
    A public servant, personally or through an agent, is prohibited from directing or coercing any other public servant from participating in any political activity.
Robert Wechsler
Director of Research, City Ethics