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Too Conflicted to Sit on an Ethics Commission
Friday, November 22nd, 2013
Robert Wechsler
It should be heartening to announce that the head of an important
good government organization has been appointed to the North
Carolina Ethics Commission. But sadly, it is not.
Francis X. De Luca is the president of the Civitas Institute, which has taken strong stands for improving North Carolina's state ethics program. He is, therefore, someone who should understand government ethics and act to improve the program from within.
But he is also the president of Civitas Action, a 501(c)(4) political organization that supports and attacks candidates in North Carolina, the very individuals who will seek advice from the EC and will come before it as complainants, respondents, and witnesses. And he has run campaigns for and against other officials who are under the EC's jurisdiction.
And, according to sourcewatch.com, both organizations are primarily funded by North Carolina's Budget Director.
If Mr. De Luca truly understands government ethics, he must see that his decisions in quasi-judicial ethics proceedings will not be considered unbiased. This will be especially true with respect to EC-initiated actions. If he supports or opposes action with respect to officials his organizations have supported or opposed, how would this look?
He should also see that his involvement in Civitas Action is problematic in terms of the following restriction on EC members:
Also, if the Civitas Institute continues to discuss ethics matters in North Carolina, which hat will De Luca be wearing, his EC hat or his CI hat? Or will it stop discussing ethics matters during De Luca's term in office? This would be a serious loss. But if it does discuss ethics matters, think of how conflicted its writers, reporting to an EC member, would be. A member of a commission charged with ethics oversight should not also be the head of an organization that provides ethics oversight and criticism of ethics matters that should include criticism of the commission on which its own president sits.
An official who comes to his position with conflicts should disclose the conflicts and say how he will handle them. This may not be the law, but it is the responsible way to handle conflict situations. Yet his own institute's press release announcing his nomination to the EC says nothing about his conflicts.
As it is, I think that Mr. De Luca's conflicts are such that they can only be dealt with by his decision not to accept the nomination. Even his resignation from the presidency of the two related organizations would leave this political operative appearing too biased for a position on the EC.
According to a NC Policy Watch blog post, his predecessor on the EC had to resign because he accepted a $312,000 personal services contract with a state agency (he did not resign immediately, but only when questioned by the news media several months later) (see my blog post on this situation). He should not be replaced with someone who already is conflicted. It is in the best interests of the state ethics program, and of the public, that the next nominee to the ethics commission be someone without any government ties.
In fact, this might be a good time to change the nomination process and put it in the hands of people who are not under the EC's jurisdiction (a best practice). This would be a good cause for the Civitas Institute (it has been an important City Ethics cause, and it has become a national trend), but this is not something the institute can push for when its president has been selected by the old process. If De Luca turns down the nomination, then the institute can push for the best practice and show that it can do more with its president outside the ethics program than within it.
Robert Wechsler
Director of Research-Retired, City Ethics
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Francis X. De Luca is the president of the Civitas Institute, which has taken strong stands for improving North Carolina's state ethics program. He is, therefore, someone who should understand government ethics and act to improve the program from within.
But he is also the president of Civitas Action, a 501(c)(4) political organization that supports and attacks candidates in North Carolina, the very individuals who will seek advice from the EC and will come before it as complainants, respondents, and witnesses. And he has run campaigns for and against other officials who are under the EC's jurisdiction.
And, according to sourcewatch.com, both organizations are primarily funded by North Carolina's Budget Director.
If Mr. De Luca truly understands government ethics, he must see that his decisions in quasi-judicial ethics proceedings will not be considered unbiased. This will be especially true with respect to EC-initiated actions. If he supports or opposes action with respect to officials his organizations have supported or opposed, how would this look?
He should also see that his involvement in Civitas Action is problematic in terms of the following restriction on EC members:
No member while serving on the Commission [shall] Participate in or contribute to the political campaign of any covered person or any candidate for a public office as a covered person over which the Commission would have jurisdiction or authority.A lawyer may argue that De Luca would not be directly participating in or contributing to a campaign, but rather indirectly and independently, through his organizations, supporting or opposing candidates and officials. But an EC member should look at the spirit of this restriction and recognize that he should not run an organization that supports or opposes candidates and officials.
Also, if the Civitas Institute continues to discuss ethics matters in North Carolina, which hat will De Luca be wearing, his EC hat or his CI hat? Or will it stop discussing ethics matters during De Luca's term in office? This would be a serious loss. But if it does discuss ethics matters, think of how conflicted its writers, reporting to an EC member, would be. A member of a commission charged with ethics oversight should not also be the head of an organization that provides ethics oversight and criticism of ethics matters that should include criticism of the commission on which its own president sits.
An official who comes to his position with conflicts should disclose the conflicts and say how he will handle them. This may not be the law, but it is the responsible way to handle conflict situations. Yet his own institute's press release announcing his nomination to the EC says nothing about his conflicts.
As it is, I think that Mr. De Luca's conflicts are such that they can only be dealt with by his decision not to accept the nomination. Even his resignation from the presidency of the two related organizations would leave this political operative appearing too biased for a position on the EC.
According to a NC Policy Watch blog post, his predecessor on the EC had to resign because he accepted a $312,000 personal services contract with a state agency (he did not resign immediately, but only when questioned by the news media several months later) (see my blog post on this situation). He should not be replaced with someone who already is conflicted. It is in the best interests of the state ethics program, and of the public, that the next nominee to the ethics commission be someone without any government ties.
In fact, this might be a good time to change the nomination process and put it in the hands of people who are not under the EC's jurisdiction (a best practice). This would be a good cause for the Civitas Institute (it has been an important City Ethics cause, and it has become a national trend), but this is not something the institute can push for when its president has been selected by the old process. If De Luca turns down the nomination, then the institute can push for the best practice and show that it can do more with its president outside the ethics program than within it.
Robert Wechsler
Director of Research-Retired, City Ethics
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