Taking State Laws Into Account When Drafting Ethics Provisions

It is important to take state laws into account when drafting ethics provisions, especially in local governments that do not have home rule charters. Here are two situations in the news where this was not done, and ethics reform has been undermined. Dealing with the state laws from the beginning could have made the ethics codes, and the ethics reform process, far better.

Numerous Ethics Provisions Declared Illegal in Kane County, IL
According to an article in today's Daily Herald, the former state's attorney for Kane County, IL felt that the county ethics code (Ch. 2, Art III, Div. 3), passed in 2010, was in several ways illegal. The biggest problem with the code, he said, is that twelve of its provisions could not be imposed on any elected official other than the county board members who passed it. These provisions include bans on pension double-dipping, hiring relatives, and campaigning for local politicians.

The powers of elected officials are controlled by the state's internal control statute, which gives each elected official the right to run his office independently. Therefore, each of these officials must sign over authority to whoever is to enforce the ethics code, or even provide advice regarding it. It is important to take this into account at the beginning of the ethics reform process, so that all elected officials are involved throughout and, therefore, feel obliged to have the ethics provisions apply to their offices.

The state's attorney also said that the county board had no power to insist that the ethics adviser not be a politician, a member of any political party, or a Kane County employee or contractor. It is common for ethics codes to require ethics commission members and staff not be local government employees or involved in politics, so that they appear, and hopefully are, as free of possible conflicts or political biases as possible. A state law that prevents this should be questioned and, if possible, changed.

In addition, according to a Daily Herald article from January, the state's attorney deemed the county's contribution limit illegal because it was lower than the state's new contribution limit, and the county does not have home rule authority, which would allow it to have a lower contribution limit.

It's important for local governments to make sure that their home rule authority or lack thereof are fully taken into account when drafting an ethics code. If a provision is considered important enough, it is often possible for local state representatives to seek an exception from the state legislature or amend a law to allow local governments to pass stronger ethics provisions.

Pennsylvania Supreme Court Strikes Montgomery County Ethics Provision
According to an article in yesterday's Times Herald, the Pennsylvania Supreme Court confirmed the Commonwealth Court's rejection of a Montgomery County's ethics code provision because, pursuant to the state’s Public Official and Employee Ethics Act, county commissioners in Second Class A counties (that is, counties that do not have home rule authority) do not have the right to supplement the Ethics Act with regard to employees not under the county commission's control, that is, employees who work for other elected officials. In effect, this is the same conclusion arrived at by the state's attorney in Kane County, with respect to Illinois law.

The ethics code provision in question bans about a hundred county workers from political activities, such as raising money or campaigning for candidates. For more information, see my 2009 blog post on the ban and the suit.

Robert Wechsler
Director of Research-Retired, City Ethics

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