making local government more ethical

Tennessee's Model Ethics Codes Fail to Create Local Ethics Programs

It's been six years since I last wrote about local government ethics in Tennessee. In a January 2007 comment to the forum on recusal, I focused on the fact that the University of Tennessee's Municipal Technical Advisory Service (MTAS) (which operates in cooperation with the Tennessee Municipal League) had prepared a model municipal ethics code that allowed, but did not require, officials with a conflict to withdraw from voting.

My eye was caught by a recent article in the Tennessean about the mayor of Cheatham County, who asked the county commission to create an ethics committee as required by the county's 2007 ethics code. The county commission voted against creating this committee, even though it would consist of from three to five county commissioners, with zero to two other officials.

One county commissioner pointed out that, in its model ethics code, University of Tennessee’s County Technical Advisory Service (CTAS), the county equivalent of the MTAS, did not require that counties create an ethics committee. Therefore, he argued, even though the county commission had passed an ordinance requiring one, one wasn't required.

Model Ethics Codes
It's not surprising that a politician would make such a ridiculous argument. But it is surprising that two university advisory services would not use the opportunity given them by the state to require local governments to set up an independent ethics program. Instead, the county service recommended an ethics committee consisting of at least three county commissioners and two other officials (who could also be county commissioners), with nothing about training, advice, or disclosure (except for disclosure of conflicts). And the city service put ethics administration completely in the hands of the city attorney.

Actual Ethics Codes
Neither service required that their models be followed (although something had to be done). But it's not surprising that the great majority of jurisdictions turned the model codes into ordinances, word for word. Of the 39 cities and towns from A to B, 35 put ethics administration in the hands of the city attorney, two did nothing, one put ethics administration in the hands of an independent attorney selected by the council, and one created an ethics commission consisting of council members, the mayor, and other officials, and said nothing about advice (the county model).

The same thing happened with counties. I started from the end of the alphabet and found that 35 counties called for the all-official ethics committee recommended by the county service. None of these ethics codes mentioned ethics advice or training. One county had the county attorney get involved, and one county did nothing. Only one created an ethics commission consisting of citizens, appointed by the mayor and legislative body, but the ethics code still says nothing about advice or training.

However, two of the three biggest counties have created independent ethics commissions consisting of citizens rather than officials. Metropolitan Nashville\Davidson County even has ethics commission members selected by community organizations.

No Regional Approach
None of the smaller towns and counties appears to have taken a regional approach, despite the fact that this approach has been taken in neighboring Kentucky. It would have been helpful if the city and county advisory services had pointed out this way of getting a better ethics program at a lower cost.

The Harm That's Been Done
What is most harmful about the Tennessee approach to ethics reform is that the advisory services do not appear to have had any concept of an ethics program, nor of the value of independence (or the problems that arise from a politicized ethics program). They were focused on an ethics code, and a very limited one at that. They looked at what existed in Tennessee municipalities, rather than looking at best practices. And they don't appear to have made an attempt to keep up with changes, even in their own state.

The worst part about requiring an ethics code rather than an ethics program is that local governments need only pass an ordinance. As happened in Cheatham County, the one without an ethics committee, there is no requirement that anything in the ethics code actually be instituted.

At least the city service provided for ethics advice, even if only from the city attorney. The county service ignored the most important part of an ethics program. And neither provided for training or any other role for an ethics committee or city attorney beyond enforcement.

City Attorney Conflict
It's worth noting that the city service has on its site an opinion letter from the state Board of Professional Responsibility telling a concerned city attorney that he has no conflict in investigating and enforcing the ethics code against officials he represents. The opinion letter certainly did not satisfy my concerns, and it should not satisfy the city service either. The conflict is real, even if it is not recognized by the state courts' disciplinary program.

Something Is Not Necessarily Better Than Nothing
It is a good idea for the state to create model ethics codes and requirements that local governments institute the ethics programs included in such codes. But it's not such a great idea when the ethics codes are just words without a program, when the few elements of an ethics program are run by high-level officials, when even the model ethics provisions are not required, and when even those provisions that are passed do not have to be followed.

Something is not better than nothing. When a legislative body passes a paper tiger of a code, and its members engage in ethical misconduct, the public sees them as doubly unethical. What saves local officials in Tennessee is that they can say they did what the state and the University of Tennessee required. Their creation of a paper tiger was not their fault at all. Model codes such as those in Tennessee are gifts to local officials who don't want an ethics program and don't want to take responsibility for not having one. Why hire an ethics officer or create an independent ethics commission, locally or regionally, when all you have to do is pass a model ethics code?

I wanted to end this blog post by giving credit to the officials in Ashland City, a town of 3,600 inhabitants, who somehow overcame the lack of initiative that accompanies model state codes, and provided for the hiring of an independent, part-time ethics investigator, who would act as an ethics officer (with the city attorney as "ethics coordinator"). Unfortunately, outside of the city's ethics code, I cannot find any mention of this position. It appears that, as with Cheatham County's unformed ethics committee, no ethics investigator was actually hired.

But it's not just the city and county governments that have cheathamed their communities. It's the university's city and county services, the municipal associations they collaborate with, and the state government that set up the model code system. The good news is that it's not too late to do better.

Robert Wechsler
Director of Research, City Ethics