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Advisory Opinions

Like penalties, the topic of advisory opinions appears in both the ethics provision and administration sections of the Model Code.

Advisory opinions are the most important of an Ethics Commission's responsibilities, and often the most underutilized. Regular use of this option, and the creation of a body of opinions, can go far to providing concrete guidance to municipal officials and employees. It can also prevent many violations of the ethics code.

Issues to discuss here include whether there should be formal and informal advisory opinions, who may ask for them, who should provide them (the Ethics Commission alone, ethics officers, city attorneys, fellow board members?), and swiftness of providing opinions. Please share your experiences with various aspects of the advisory opinion process.



105. Advisory Opinions.

1. Upon the written request of any official or employee*, including former officials and employees whose position was terminated within three years as well as people who intend to soon become an official or employee, as well as any candidate, consultant, or person or entity doing business with the city or intending to soon do business with the city, the Ethics Commission must render, within fifteen days after the date of its next regular meeting, a written advisory opinion with respect to the interpretation or application of this code. If an earlier response is desired, an informal verbal or e-mail opinion will be provided by the Ethics Officer. For more information about advisory opinions, see Section 209 of this code.

2. Any person or entity may request informal advice from the Ethics Officer about any situation, including hypothetical situations, but such advice is not binding and there are no time requirements. With respect to the ASPA Ethics Code, only informal advice may be requested.

Comment: For more information about advisory opinions, see 209, in the Administration part of this code. The Ethics Commission's other duties are set forth in the Administration part of this code, which is of interest to most people only in extreme situations. But all officials and employees, as well as many residents, will have occasion to take advantage of the Ethics Commission's or Ethics Officer's advice. And this is the Ethics Commission's most important responsibility. It is very important for local government officials and employees, whenever they are uncertain as to whether they should proceed with a matter, to immediately seek advice. This will prevent unethical conduct from occurring due to a lack of knowledge or understanding, and will create a series of precedents to guide officials and employees in the future.

In smaller jurisdictions that do not provide for paid staff, Ethics Officers work on a volunteer basis. They can be very helpful in providing quick advice before possible conflicts can cause problems. Ethics Commissions rarely meet often enough to provide timely advice, and town, city, and county attorneys rarely have the training, and rarely are unbiased enough, or seen as unbiased enough, to provide trustworthy advice. There is nothing worse than having an official told by a government attorney that he or she can do (or not do) something which, whether a violation of the ethics code or not, would undermine citizens' trust in their government officials. And yet this happens all the time. A truly neutral ethics officer can prevent this from happening.

Cities might also consider allowing ordinary citizens to request advisory opinions when they believe there is a difficult conflicts question, and the relevant official or employee will not discuss the problem.



209. Advisory Opinions.

1. Upon the written request of any official or employee,* including former officials and employees who served or were employed within the prior three years, and also including those who intend to soon become an official or employee, as well as any candidate, consultant, or person or entity doing business with the city or intending to soon do business with the city, the Ethics Commission must render, within fifteen days after the date of its next regular meeting, a written advisory opinion with respect to the interpretation or application of this Code. If an earlier response is desired, or upon the request of an individual or entity not included above, an informal verbal or e-mail opinion will be provided by the Ethics Officer.

2. The Ethics Commission will designate one of its members or alternate members, or another individual selected by the votes of at least four sitting members, to be the Ethics Officer, for the purpose of quickly responding to questions regarding the requirements of this Code. The Ethics Officer’s phone number and e-mail address will be made available on the Commission's website. The Ethics Officer's informal opinions may be relied upon, in good faith, but will not be binding upon the Commission or upon the person making the request. With respect to the ASPA Ethics Code, only informal advice may be requested.

3. An advisory opinion rendered by the Ethics Commission, until and unless amended or revoked, is binding upon the Ethics Commission in any subsequent proceeding concerning the person or entity that requested the opinion and acted in good faith, unless he, she, or it omitted or misstated a material fact in requesting the advisory opinion. The advisory opinion may also be relied upon by the person or entity, and may be introduced and used as a defense in any civil action brought by the Ethics Commission or the city.

4. If the Ethics Commission has reason to believe that an advisory opinion has not been complied with, it will take appropriate action to ensure compliance, including but not limited to the filing of a complaint pursuant to 213(3).

5. Advisory opinions and requests for advisory opinions (with names and other necessary details omitted to protect anonymity, unless the requesting party states otherwise) will be indexed and maintained on file by the Ethics Commission and will also be available on the city website. Relevant officials, employees, and businesses should be notified about advisory opinions that might affect their conduct.

6. Any person aggrieved by an advisory opinion of the Ethics Commission may seek judicial review and relief.

Comment: This is the Ethics Commission's most important responsibility. It is very important for local government officials and employees, whenever they are uncertain as to whether they should proceed with a matter, to immediately seek advice. This will prevent unethical conduct from occurring due to a lack of knowledge or understanding, and will create a series of precedents to guide officials and employees in the future.

In smaller jurisdictions that do not provide for paid staff, Ethics Officers work on a volunteer basis. They can be very helpful in providing quick advice before possible conflicts can cause problems. Ethics Commissions rarely meet often enough to provide timely advice, and town, city, and county attorneys rarely have the training, and rarely are unbiased enough, or seen as unbiased enough, to provide trustworthy advice. There is nothing worse than having an official told by a government attorney that he or she can do (or not do) something which, whether a violation of the ethics code or not, would undermine citizens' trust in their government officials. And yet this happens all the time. A truly neutral ethics officer can prevent this from happening.

Cities might also consider allowing ordinary citizens to request advisory opinions when they believe there is a difficult conflicts question, and the relevant official or employee will not discuss the problem.

The reference to civil actions in subsection 3 refers to actions for damages, civil forfeiture, debarment, or injunctive relief.

Subsection 5: Here, cities might want to reference specific privacy laws or laws regarding public records, or refer more generally to such laws.

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