making local government more ethical

A Proposed Ethics Code for Memphis Falls Short

Three years ago, I featured Memphis in a blog post, noting that, in the last six years, 66 government officials, employees, and contractors had been found guilty of various sorts of government-related crimes. Last year, I noted that the city's mayor had resigned under a cloud of accusations. In between, the city and the county (Shelby County) passed ethics codes, but not only did they give the ethics commissions little in the way of teeth, but no sign of the commissions actually working could be found on the respective websites (Memphis  / Shelby County).

Now there is a movement to consolidate city and county, and the proposed consolidated charter (to be voted on in a referendum next month) contains an ethics code (attached; see below), which requires an ethics ordinance, following the code's requirements, to be passed by the council within 120 days.

Despite ethics problems with past mayors, the mayor is the one chosen to select the ethics commission members, with the council's approval (the current Memphis code allows each council member to select an ethics commission member, which makes every EC member look like he or she is in someone's pocket).

If there is any city in the country where an ethics commission should be independent from government officials, it's Memphis. There are two principal reasons not to:  a failure to consider alternatives, or a decision to have a politicized EC, despite the fact that few will place any trust in it.

The charter commission told the council that the new charter would have "the most stringent, binding ethics rules of any government in Tennessee." That's not saying much, clearly, because the new commission would have no enforcement power other than making recommendations and referring matters. The ethics officer can only provide legal advice to the commission (under the current Memphis code, the ethics officer can make informal advisory opinions, as well as report on and prosecute complaints).

The draft code does require ethics training, although there are no details, but it requires no disclosure either annually or for applicants. It also provides for no revolving door provisions, no whistleblower protection, no hotline, no budgetary requirements, and no staff beyond the ethics officer. There are also no transparency requirements, as there are in the Memphis code, although these don't appear to be followed.

For a summary of what is in the draft ethics code, read an article that appeared in the Daily News on Friday.

The proposed ethics code falls far short of setting up the sort of government ethics program Memphis deserves. If the consolidation goes through, the council could improve the program, but it would feel no pressure to improve on what is being sold as the best there is. The council will also not be able to take politics out of the ethics program.

A note on the ethics of the ethics amendment to the charter:  The ethics amendment will be described as follows on the referendum ballot:
    This amendment to the charter would come into play if an elected or appointed official is charged with an ethical or legal violation or misconduct. In such a case, the official would be suspended, with pay, until the charges are resolved.
This makes the ethics code look like it's all about enforcement against unethical officials, feeding on the public's desire for retribution, which must be pretty strong in Memphis. This might be an effective way to get the amendment passed, from a utilitarian or ends-based ethics viewpoint. But ethics codes reflect a rules-based ethics viewpoint, according to which such a description would be considered manipulative and inappropriate. (See my blog post on the difference between ends-based and rules-based ethics approaches.)

Robert Wechsler
Director of Research, City Ethics