Yorba Linda's Proposed Ethics Ordinance Falls Short

It's not an unfamiliar story. Council candidates promise ethics reform. They are elected, and actually fulfill their promises with a proposed ethics ordinance. But there's not really much to the proposed ethics ordinance, and there's no enforcement mechanism.

This is what is happening in Yorba Linda (pop. 71,000), just outside Anaheim. The proposed ethics ordinance has few provisions, most of them involving campaign finance and city contractors and developers.

One provision prohibits the solicitation (but not acceptance) of contributions from city contractors. Another prohibits the acceptance of contributions of $250 or more for twelve months after making a decision or approval to the individual's benefit, and there is a companion provision that prohibits participating in any matter involving anyone who has made a $250 or greater campaign contribution in the previous twelve months. This pair deals very well with a certain aspect of pay-to-play.

However, all other aspects of pay-to-play are ignored. And the rules are only aspirational, since there is no enforcement body or mechanism.

There is also a provision dealing with the use of public resources for election purposes, but it only prevents coercion of city employees, not their participation in election activities (it's almost impossible to prove coercion). And there's an odd confidential information subsection that says nothing about using such information to benefit anyone. This subsection has no place in an ethics ordinance.

The other provisions include an ethics training requirement (at least every two years), a whistleblower provision (which goes far beyond ethics matters), a provision that prohibits seeking endorsements specifically from city employees and board members, and a couple of transparency provisions (no ad hoc council committee meetings, which are used to get around quorum requirements, and video recording of closed council sessions).

There is also an extensive code of conduct, which deals primarily with civility and council procedures.

The two council members who did not sign the ethics reform promise oppose the ethics ordinance but, it appears, mostly for the wrong reasons. One of the council members is quoted in the minutes of the September 30 meeting:

She believes it should be a collaborative effort that includes council members, staff, the public and the business community. She expressed that the proposed ordinance is overreaching in scope and has no identifiable source of monitoring or enforcement. Councilwoman Horton also stated that a person is either ethical or they are not and a list of rules will not make them ethical.

It is good to make an ethics ordinance a collaborative effort, but in practice this is very hard to do. Few people have much knowledge or strong opinions regarding ethics provisions. They generally seek ethical conduct, but do not know how to achieve it.

The council member is right that the ethics ordinance has no "identifiable source of monitoring or enforcement," but it is hardly overreaching. It does very little. And she shows a complete lack of understanding of ethics programs by stating that people can't be made ethical by rules. Government ethics rules are not intended to make people ethical, but rather to require them to do or not do certain things, so that they act, and are perceived as acting, in the public rather than in their personal interest.

The same council member asks, on her website, "If we are to consider adding additional specific rules to this statement, where do we stop? And as someone finds a way around this new list, do we just keep adding additional rules until it is unmanageable? Is this what we want our City Government doing, controlling behavior?"

This is an odd way of asking the question. It's not about government controlling behavior, but about controlling the behavior of government officials, which is certainly legitimate. Also, for someone who considers the ordinance's few provisions "overreaching," it's not a matter of adding more provisions, because she opposes the idea of an ethics ordinance, not the number of provisions. Her questions here do not ring true.

This is especially clear from a quote from her in an Orange County Register article this week: "I object to convoluted nanny laws put in place that require extraordinary management to comply."

The Yorba Linda ethics ordinance seems to be doing nothing more than responding to a few, miscellaneous perceived problems. The council majority is making no attempt to give its government an ethics program, and the council minority seems to oppose any ethics code at all.

Robert Wechsler
Director of Research-Retired, City Ethics

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