Questioning the Assumption of An Official's Sole Responsibility for Ethics Violations

It is assumed in government ethics enforcement that an official who mishandles a conflict situation is solely responsible for her misconduct. This assumption is rarely questioned. The official might have received no training, or poor training. The official might not have been encouraged to seek advice; in fact, she might not have had access to professional ethics advice from anyone, or only from a city attorney who was an important player from the other political party. The official might not have been required to disclose her possible conflicts annually, and the individual or entity with whom she had a special relationship might not have had to disclose the relationship with her. The chair of her board or director of her agency might not have asked if anyone had a possible conflict, so that the situation could be discussed and, if it was a gray area, put before an ethics officer.

In other words, the assumption is that no matter how poor the local government ethics program, it is the official who is solely at fault. Not everyone accepts this assumption. For example, the Securities and Exchange Commission (SEC) does not.

According to a Pay to Play Law Blog post today, the SEC announced yesterday that it had reached an agreement with Goldman Sachs for the payment of over $14 million in fines on the basis of charges against a Goldman employee. That employee made substantial in-kind contributions to a gubernatorial candidate, and then, in violation of SEC rules, Goldman Sachs did not disclose the contributions and illegally underwrote municipal bonds in the state. When Goldman Sachs discovered the violations, it fired the employee and reported the violations to the SEC. Goldman Sachs had even trained the employee on the relevant SEC provisions. But Goldman Sachs paid a hefty fine for the inadequacies of its ethics program (the employee is still under investigation).

Wouldn't it be nice if an ethics commission not only found an official in violation, but also found the mayor, council, manager, and city or county attorney responsible for the inadequacies of the local ethics program, including the refusal to provide funds for adequate ethics training or for even a part-time, independent ethics officer, and the refusal to require annual and applicant disclosure? Of course, such a finding would best be preceded by the EC making recommendations to take these steps.

How better could an EC make it clear that prevention is key to government ethics, and that if high-level officials do not take the prevention of ethics violations seriously, they deserve to share in the responsibility for violations when they occur? Raising the issue of the government's ethics environment, and institutional pressures that make it an unhealthy one, would also be helpful.

Considering the responsibility of high-level officials would give an EC the opportunity to require them to explain how they will take responsibility for preventing ethical misconduct. As it is now, most of a council's responses to an ethics scandal focus on enforcement (usually criminal) against bad apples, as if the council members were not responsible for the failure to create an effective, comprehensive ethics program and a good ethics environment. Bringing high-level officials into an enforcement proceeding is a good way to change this dynamic and place the focus of ethics reform on prevention.

Robert Wechsler
Director of Research-Retired, City Ethics

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