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When a Job Is Given to an EC Member
Wednesday, September 12th, 2012
Robert Wechsler
Now that I am no longer administrator of the New Haven Democracy
Fund, a public campaign financing program, I can once again write
about ethics issues that arise in New Haven. An interesting issue
arose when, according to an article in Monday's New Haven Register, a member of the city's
ethics board took a part-time job with the city. The questions this
raises are (1) does this create a conflict? and (2) how (and by
whom) should the situation be dealt with?
EC Membership Rules
Most ethics codes or ethics commission bylaws prohibit local government officials and employees from being members of an EC. Such a rule would make this situation easy to deal with, but New Haven does not have such a provision.
Prohibiting officials and employees from sitting on an EC is not, however, universally the case. In fact, some ethics codes require that one or more EC members be a municipal official or employee. And there are ECs that consist totally of high-level government officials, attorneys, and employees, either independently or as members of a council committee.
But the best practice is that no one under an EC's jurisdiction should sit on the EC. The reasons for this include (1) situations could arise when the EC would be called upon to deal with the conflict of a member or a member's superior, colleague, or subordinate; and (2) the public will not trust the decisions of EC members who work for the government which they are expected to oversee independently and without bias. Since ECs are quasi-judicial bodies, the conflict rules for their members should be stricter than those for legislative and administrative officials.
Another way to look at this issue is by seeing an EC as a way for the community to make sure that those managing the community put the community ahead of their personal interests. To accomplish this, an EC should include only members of the community who are not also officials or employees of the government.
Recent High-Level Officials and Employees on an EC
In fact, it is best if EC members have not recently been high-level officials or employees, that is, it is best that an EC member not have special relationships with and, therefore, appear to favor individuals who come before them. This is a problem when EC members are selected by government officials, because officials know and feel comfortable with former officials and employees and, therefore, often appoint them to ECs.
This is the case with the New Haven ethics board member. Until 2008, she was the city's director of human resources, appointed by the same mayor who selected her for the EC. Someone like this will be seen by the public as favoring the mayor, his colleagues and his appointees. Therefore, she should not have been selected by the mayor or appointed by the board of aldermen, even though there is no rule to prevent this.
EC Members Taking a Job with the City
The more difficult problem involves someone who has never been a city employee, and then takes a part-time job after joining the EC. Since this EC member has a part-time job, with the parks department, the wearing of two hats is not so important an issue. Such an employee will have contact with a small number of employees and, most likely, no officials. And such an employee is not in a position to put her personal interest ahead of the public interest in any significant manner. However, other jobs, even part-time ones, may be more problematic, especially considering the EC's quasi-judicial nature.
The bigger problem here is the hiring. The hiring of the EC member, even on a part-time basis, creates the appearance, especially in this economy (her position pays $22 an hour), that she was favored due to what she could possibly do for high-level officials (the hiring could even be construed as a gift). It creates the appearance of a favor done, which might mean the repaying of the favor by her conduct on the ethics board. This is especially true since most part-time parks employees are paid far less than $22 an hour (the stated reason is that she has some clerical and payroll processing duties that others do not have). The employee union president is making waves about her hiring.
How to Deal with This Situation
Here is how New Haven has dealt with this situation so far. The ethics board member's alderman sent a letter to the mayor expressing concern about the situation. The mayor has apparently handed the matter off to the corporation counsel.
This raises several questions. Should an EC member's appointing authority, or the counsel he has appointed, be involved in an ethics matter involving that member? Should a mayor be involved in an ethics matter relating to a city employee? And to what extent should an EC be involved in an ethics matter involving a member?
It is not a best practice for EC members to be selected by local officials. One of the many reasons is that doing this gives an extra hat to the mayor. He is the appointing authority of individuals who have jurisdiction over him, and he is the boss of other individuals over whom the EC has authority. By selecting EC members, the mayor is effectively conflicted whenever an ethics matter arises and, therefore, he should not participate in it in any manner, other than as respondent. The best thing a mayor or council can do when a difficult ethics issue such as this arises is learn from the situation and make changes to the ethics program's rules that prevent such a situation from occurring in the future.The city's ethics code does not have any limitations on who may be an ethics board member. This should be changed by amending the city's Ethics in Local Government ordinance.
The corporation counsel, as a mayoral appointee and an official under the EC's jurisdiction, is also not in a great position to deal with this situation. In any event, I don't see any strictly legal solution to this situation. New Haven's ethics code is the sort of short code so many officials prefer, but which provides little or no guidance in difficult situations.
Ethics board involvement is a more difficult issue. It is a best practice to provide an alternate means for dealing with complaints against ethics board members, which is effectively what has occurred so far (with the alderman's complaint to the mayor), although not formally and not according to any rules. The city's ethics code does not provide for alternate means.
What would an ordinary board do when faced with a member's conflict? It is common for ordinary boards to deal with a particular conflict that arises at a meeting when a matter comes before it. If a conflicted board member does not want to withdraw, and a matter cannot be postponed while waiting for advice from an ethics officer, the board will sometimes vote on the issue of withdrawal pursuant to Robert's Rules of Order.
The problem here is that this is an unusual conflict, because it does not involve any particular matter from which the EC member could withdraw. The other two members of the ethics board could ask the conflicted member to either give up her job or resign from the ethics board, but this request would only be advisory. And doing this would put the members in an uncomfortable position. It really shouldn't be up to them to decide. But it might be helpful to the conflicted board member and the public to discuss the issue at a public ethics board meeting.
I feel that, in the short run, it is up to the ethics board member to decide what to do. She needs to recognize what the issues and alternatives are, and what harm her position does to the ethics program's credibility and to the community's trust in the city government. On this basis, I think she should decide to resign her position on the ethics board, not just because she holds a part-time position, but also because there is an appearance that she was given preferential treatment in getting it and in the pay she receives, and because she was the city's director of human resources who has a special relationship with many people under the ethics board's jurisdiction.
If she does not resign, her term will end on January 1. Therefore, the search for a replacement should begin immediately, no matter what she decides to do. But the most important thing the mayor and the board of aldermen can do is use this situation as an excuse to start an in-depth discussion of the sort of comprehensive, independent ethics program New Haven deserves. Considering that funds are limited, it might want to join with neighboring cities, such as Hamden and West Haven, to hire a joint ethics officer to provide professional and independent ethics training and advice.
If the member did not decide to resign and her term was longer, the ethics board would do well to put together a statement of the facts of the situation, along with any possibly relevant laws and rules, and seek an opinion either from the state ethics commission or its staff, or if the state did not want to get involved, seek an opinion from an ethics officer or other government ethics professional elsewhere. It would be difficult to enforce this independent decision, but it would be even more difficult for the ethics board member to ignore it. It's important in seeking ethics advice that the request does not limit the adviser strictly to the law, since (1) the very limited ethics code does not anticipate such a situation and (2) the advice being sought is ethics advice, not legal advice.
Robert Wechsler
Director of Research-Retired, City Ethics
---
EC Membership Rules
Most ethics codes or ethics commission bylaws prohibit local government officials and employees from being members of an EC. Such a rule would make this situation easy to deal with, but New Haven does not have such a provision.
Prohibiting officials and employees from sitting on an EC is not, however, universally the case. In fact, some ethics codes require that one or more EC members be a municipal official or employee. And there are ECs that consist totally of high-level government officials, attorneys, and employees, either independently or as members of a council committee.
But the best practice is that no one under an EC's jurisdiction should sit on the EC. The reasons for this include (1) situations could arise when the EC would be called upon to deal with the conflict of a member or a member's superior, colleague, or subordinate; and (2) the public will not trust the decisions of EC members who work for the government which they are expected to oversee independently and without bias. Since ECs are quasi-judicial bodies, the conflict rules for their members should be stricter than those for legislative and administrative officials.
Another way to look at this issue is by seeing an EC as a way for the community to make sure that those managing the community put the community ahead of their personal interests. To accomplish this, an EC should include only members of the community who are not also officials or employees of the government.
Recent High-Level Officials and Employees on an EC
In fact, it is best if EC members have not recently been high-level officials or employees, that is, it is best that an EC member not have special relationships with and, therefore, appear to favor individuals who come before them. This is a problem when EC members are selected by government officials, because officials know and feel comfortable with former officials and employees and, therefore, often appoint them to ECs.
This is the case with the New Haven ethics board member. Until 2008, she was the city's director of human resources, appointed by the same mayor who selected her for the EC. Someone like this will be seen by the public as favoring the mayor, his colleagues and his appointees. Therefore, she should not have been selected by the mayor or appointed by the board of aldermen, even though there is no rule to prevent this.
EC Members Taking a Job with the City
The more difficult problem involves someone who has never been a city employee, and then takes a part-time job after joining the EC. Since this EC member has a part-time job, with the parks department, the wearing of two hats is not so important an issue. Such an employee will have contact with a small number of employees and, most likely, no officials. And such an employee is not in a position to put her personal interest ahead of the public interest in any significant manner. However, other jobs, even part-time ones, may be more problematic, especially considering the EC's quasi-judicial nature.
The bigger problem here is the hiring. The hiring of the EC member, even on a part-time basis, creates the appearance, especially in this economy (her position pays $22 an hour), that she was favored due to what she could possibly do for high-level officials (the hiring could even be construed as a gift). It creates the appearance of a favor done, which might mean the repaying of the favor by her conduct on the ethics board. This is especially true since most part-time parks employees are paid far less than $22 an hour (the stated reason is that she has some clerical and payroll processing duties that others do not have). The employee union president is making waves about her hiring.
How to Deal with This Situation
Here is how New Haven has dealt with this situation so far. The ethics board member's alderman sent a letter to the mayor expressing concern about the situation. The mayor has apparently handed the matter off to the corporation counsel.
This raises several questions. Should an EC member's appointing authority, or the counsel he has appointed, be involved in an ethics matter involving that member? Should a mayor be involved in an ethics matter relating to a city employee? And to what extent should an EC be involved in an ethics matter involving a member?
It is not a best practice for EC members to be selected by local officials. One of the many reasons is that doing this gives an extra hat to the mayor. He is the appointing authority of individuals who have jurisdiction over him, and he is the boss of other individuals over whom the EC has authority. By selecting EC members, the mayor is effectively conflicted whenever an ethics matter arises and, therefore, he should not participate in it in any manner, other than as respondent. The best thing a mayor or council can do when a difficult ethics issue such as this arises is learn from the situation and make changes to the ethics program's rules that prevent such a situation from occurring in the future.The city's ethics code does not have any limitations on who may be an ethics board member. This should be changed by amending the city's Ethics in Local Government ordinance.
The corporation counsel, as a mayoral appointee and an official under the EC's jurisdiction, is also not in a great position to deal with this situation. In any event, I don't see any strictly legal solution to this situation. New Haven's ethics code is the sort of short code so many officials prefer, but which provides little or no guidance in difficult situations.
Ethics board involvement is a more difficult issue. It is a best practice to provide an alternate means for dealing with complaints against ethics board members, which is effectively what has occurred so far (with the alderman's complaint to the mayor), although not formally and not according to any rules. The city's ethics code does not provide for alternate means.
What would an ordinary board do when faced with a member's conflict? It is common for ordinary boards to deal with a particular conflict that arises at a meeting when a matter comes before it. If a conflicted board member does not want to withdraw, and a matter cannot be postponed while waiting for advice from an ethics officer, the board will sometimes vote on the issue of withdrawal pursuant to Robert's Rules of Order.
The problem here is that this is an unusual conflict, because it does not involve any particular matter from which the EC member could withdraw. The other two members of the ethics board could ask the conflicted member to either give up her job or resign from the ethics board, but this request would only be advisory. And doing this would put the members in an uncomfortable position. It really shouldn't be up to them to decide. But it might be helpful to the conflicted board member and the public to discuss the issue at a public ethics board meeting.
I feel that, in the short run, it is up to the ethics board member to decide what to do. She needs to recognize what the issues and alternatives are, and what harm her position does to the ethics program's credibility and to the community's trust in the city government. On this basis, I think she should decide to resign her position on the ethics board, not just because she holds a part-time position, but also because there is an appearance that she was given preferential treatment in getting it and in the pay she receives, and because she was the city's director of human resources who has a special relationship with many people under the ethics board's jurisdiction.
If she does not resign, her term will end on January 1. Therefore, the search for a replacement should begin immediately, no matter what she decides to do. But the most important thing the mayor and the board of aldermen can do is use this situation as an excuse to start an in-depth discussion of the sort of comprehensive, independent ethics program New Haven deserves. Considering that funds are limited, it might want to join with neighboring cities, such as Hamden and West Haven, to hire a joint ethics officer to provide professional and independent ethics training and advice.
If the member did not decide to resign and her term was longer, the ethics board would do well to put together a statement of the facts of the situation, along with any possibly relevant laws and rules, and seek an opinion either from the state ethics commission or its staff, or if the state did not want to get involved, seek an opinion from an ethics officer or other government ethics professional elsewhere. It would be difficult to enforce this independent decision, but it would be even more difficult for the ethics board member to ignore it. It's important in seeking ethics advice that the request does not limit the adviser strictly to the law, since (1) the very limited ethics code does not anticipate such a situation and (2) the advice being sought is ethics advice, not legal advice.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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