making local government more ethical

When an EC Is Dependent

The Colorado ethics commission matter that I discussed in my last blog post points to yet another reason why ethics commissions must have their own counsel, and a sufficient budget to pay that counsel.

According to a January article in the Colorado Independent, Colorado's Attorney General issued an opinion on January 8 supporting the Secretary of State's request for approval of his legal defense fund, through either transparency or a blind trust. The ethics commission's draft opinion opts for transparency. A blind trust in this situation would require that the public's trust be blind, that is, without any evidence or reason to believe the Secretary of State would not know about any of the gifts to the fund.

The AG opinion is problematic, not just because of its conclusions, but also because the AG is the ethics commission's counsel, just as the city or county attorney is in most local government ethics programs.

By issuing its opinion, the AG conflicted itself out of representing the commission in this matter, and possibly in anything to do with the Secretary of State (other matters relating to him are pending). In fact, the reason the draft advisory opinion has been made public is that the assistant secretary of state made a request for it, and the commission lacked counsel to oppose the request. It has a small legal budget.

In addition, the AG and the secretary of state are members of the same political party, which leads to the appearance that the AG is willing to interfere in ethics issues, instead of providing professional support to a government body, in order to help a partisan friend.

The result of the AG's opinion, the assistant secretary of state's request for a working paper, and the EC's inability to fight this request is, according to the Independent article, that the secretary of state's "alleged misuse of a relatively small amount of public money seems to grow into a larger story about government ethical standards and oversight each month as new chapters pile onto the narrative."

This is the sort of narrative that undermines trust in a government ethics program. It is the sort of narrative that occurs when an "independent" ethics commission is not independent. An independent ethics commission is not selected by or dependent in any way on officials under its jurisdiction. If an AG wants to state his opinion, that's fine, because it would have no effect on a truly independent ethics commission. When the AG is the EC's lawyer, it has a serious effect, both on the current case and on future cases that look like they have been manipulated for political purposes. Politics, and politicians, must be kept out of government ethics as much as possible in order to ensure trust in an ethics program and in the fairness of its decisions. And to ensure trust in the politicians and their government, as well. The goals of a government ethics program cannot be attained without its independence.

Robert Wechsler
Director of Research, City Ethics