making local government more ethical

A Stamford Ethics Controversy Involving Time Limits, Enforcement of Policy Declarations, and More

Update: October 8, 2010 (see below)

There's a fascinating ethics controversy going on in Stamford, CT which raises a number of issues involving time limits, the enforcement of declarations of policy, intimidation, and the roles of ethics commissions and inspectors general.

Time Limits
Stamford's Code of Ethics requires that a decision on probable cause be made within 60 days of receiving a complaint. Only under "extraordinary circumstances" may this period be extended, and then only for another 60 days. Considering how many impediments there can be to an investigation, including problems obtaining information, problems getting a quorum for a meeting to decide on probable cause or vote for an extension, and actions brought by respondents, such time limits are unreasonable. Guidelines are preferable.

There is the also the question, What happens if the time limits aren't met? According to an article in the Stamford Advocate, one respondent asked to have the complaint against him dismissed due to a failure to properly extend a time period.

Time limits such as this appear in ethics codes for two reasons. One is to ensure that ethics proceedings are not drawn out. This is the reason that the City Ethics Model Code contained strict time limits for the hearing process, although not for the investigation process. But after more thought, we decided to ease the time limits and the extension process, because of the many reasons extension can become necessary and the many ways in which a respondent can take advantage of time limits in order to seek the dismissal of a complaint. (Click here to read the City Ethics Model Code provision.)

The other reason for strict time limits is to make it difficult to actually have an ethics enforcement process work. Time limits are one of the ways in which an ethics code that appears to be serious about enforcement can actually undermine enforcement via what appear, to non-lawyers, to be reasonable provisions. As long as delay is a principal legal tactic and volunteer boards have trouble obtaining information, meeting, and making decisions, time and extension limits should not be too strict.

Declarations of Policy
Stamford's ethics code contains a three-paragraph Declaration of Policy. Such policy declarations usually state the policies behind the ethics code, such as ensuring public trust. Here is the essence of the City Ethics Model Code purposes provision:

    The purposes of this ethics code are:

    (a) To establish standards of ethical conduct - especially those dealing with conflicts between personal interests and those of the city - for city officials, employees, consultants, candidates, and those who do business with the city;

    (b) To provide clear guidance with respect to such standards by clarifying which acts are allowed and which are not;

    (c) To promote public confidence in the integrity of our city's governance and administration;

    (d) To provide for the consideration of potential ethical problems before they arise, to minimize unwarranted suspicion and to enhance the accountability of our city's government to city residents; and

    (e) To provide for the fair and effective administration and enforcement of this code.

What is important about this list is that nothing is required. No one would consider these enforceable provisions.

The Stamford policy declarations are not so clearly unenforceable. Here's the one that is at issue in the current matter:
    Officers and employees of the City of Stamford must refrain from personal, business, financial and political activities that can reasonably be interpreted to reflect adversely on the individual's fidelity and impartiality, having regard for the nature and scope of their official responsibilities.
The words "must refrain from" make this sound like an enforceable provision. And that's how the ethics board sees it, as well. According to an article in the Connecticut Post, the board of ethics found "sufficient evidence that all three respondents engaged in activities outside the nature and scope of their official responsibilities and that such conduct can reasonably be interpreted to reflect adversely on their fidelity and impartiality." And the board of ethics found probable cause that the respondents "engaged in a process of targeted inquiry" that "blurred the lines of their official authority and was inspired by personal, punitive motives."

"Fidelity and impartiality" and "nature and scope of their official responsibilities" come right out of the policy declaration, and "official authority" appears to be a reference to "scope of their official responsibilities."

However, the respondents aren't saying that this policy declaration is not enforceable. Two of them (elected members of the city's Board of Finance) are arguing that the code is unconstitutionally vague and that it impinges on their freedom of speech by limiting their communications with city employees.

Policy declarations are by their nature vague. That is why they should not be enforced. But it is a common error of ethics commissions to try to enforce them. City counsel should recommend that they do not enforce them.

The Respondents' Conduct
The respondents appear not to be simply the victims of a slow ethics process or the inappropriate application of policy declarations. One, they themselves have sought extensions.

Two, instead of correctly identifying the problem, according to an article in the Stamford Advocate last Friday, they have induced the Board of Finance, in a hastily organized special meeting that did not include members of the opposition party, to hire special counsel. According to one of the respondents, the purpose of the hiring is to obtain a "legal opinion from an impartial legal scholar to evaluate the city ethics code and decide whether it is constitutional, because it restricts the First Amendment right of elected officials to ask questions." Another respondent "intends to seek an opinion only to give board members guidance about their rights and powers as elected officials under the city Charter and state statutes. Though he said it is necessary to hire someone who specializes in constitutional law, the intent is not specifically to evaluate the validity of the ethics code."

If the second respondent is accurately stating the purpose, why make the decision in a special meeting where the opposition party is not present and where there are questions about the legality of the meeting? When you are accused of, and deny, ethical misconduct, why act in an apparently unethical manner?

Three, what is especially troubling is that the two respondents voted on hiring counsel, even though the city law office told them multiple times that it might not be proper to do so, considering their personal involvement in ethics board proceedings. They insist that the complaints are false and partisan, and deal with vague provisions, and yet they openly ignore a clear conflict of interest. And this problem is likely to continue if the respondents have anything to do with selecting, overseeing, or discussing the conclusions of the special counsel.

Intimidation
The problem at the center of this matter is intimidation. According to a Stamford Advocate editorial on Friday, "to a sizeable bloc of residents in the city, [one of the respondents is] the taxpayers' most dedicated financial watchdog. To many others, particularly in government, he's a bully."

The editors say that this case reflects what has been said for years:  "In this corner: [the respondent] at times abuses his power in pursuit of personal vendettas. In that corner: People who wish he'd stop poking around, or who just don't like him, accuse him of all kinds of things that aren't grounded in reality."

The complaint alleges a "campaign of harassment and retaliation." The other respondent, in an op-ed piece in the Stamford Advocate on Friday, defends this harassment ("I could not be more proud") and totally ignores the allegation of retaliation.

As I've written before, intimidation of subordinates and of employees by elected officials is the worst offense in government ethics. But it is not very easy to prohibit in an ethics code, because it is hard to describe, hard to prove, and hard to enforce without allegations, as in this matter, of first amendment free speech problems.

But the arrogance and personal viciousness that these respondents defend, in this matter, as a "relentless fight to eliminate government waste" is a major force in scaring citizens away from involvement in local government. It is a misuse of office to publicly spew venom at other government officials, even if the cause is a good and just one. And it contributes to a poor ethical environment.

Personally investigating officials and spewing venom is meant for citizens, not for officials. When you are elected, you're supposed to follow official means, just as the respondents want the board of ethics to follow official means. If you believe the board of finance has the power to investigate waste, ask the board to investigate waste; don't do it yourself. If you do, then you have to expect personal retaliation.

This is a misuse of office that is difficult to deal with in a legal process. If a board member gets out of line, the board should do the responsible thing and censure him and make it clear to all members that this sort of conduct is not acceptable. But it's rare for this to happen, especially to a chair and vice-chair, as in this matter.

What is happening in Stamford is common. When a legal process is employed, arrogant officials don't make an attempt to work it out. They attack right back in any way they can. This escalates rather than resolves the controversy. And, of course, the ethics board is intimidated just as the other officials say they were.

Resolution
It's unlikely that the ethics board can bring a widely accepted resolution to this matter, or even that they should. There is only one responsible resolution, which has three parts. One, the respondents should stop defending themselves and instead apologize for going beyond what was appropriate to their legitimate attempt to cut waste in government.

Two, as chair and vice-chair, they should work to establish clear guidelines for communications by individual members of the board of finance.

Three, Stamford should hire an inspector general to investigate waste. IGs are neutral professionals with the appropriate training and responsible, impersonal approach to government waste. Elected officials should do no more than present matters to a  professional office, and then turn the investigative report into policy.

Elected boards of finance, which are the norm in Connecticut, are not appropriate investigative bodies, especially in a city the size of Stamford (about 117,000 pop.). And individual members of such a board are certainly not appropriate investigators. It's time for Stamford to establish an independent inspector general office.

Update: October 8, 2010
According to an article in today's Stamford Advocate, one of the board of finance members made a motion to dismiss, effectively using the argument above (in the Declarations of Policy section), that (in the words of the motion) "declarations of policy and preambles may not be treated as substantive enforceable parts of the statute." This provides the ethics board with an opportunity to correct its error.

Unfortunately, the respondent went on to argue that the complaint was, therefore, frivolous, which is itself a frivolous thing to say, because the board made the same mistake, and its members were certainly not being frivolous. This accusation of frivolity does not bode well for the three-part solution I recommend above. It suggests that the board of finance member is seeking vindication, not a long-term solution to the problem. In other words, it's about him, not about the people he represents. I hope I'm wrong.

Robert Wechsler
Director of Research, City Ethics
rwechsler@cityethics.org
203-230-2548
randomness