making local government more ethical

Ethics Commission: Jurisdiction, Powers, and Duties

This is the place to discuss the Ethics Commission's jurisdiction, powers, and duties. The most controversial matter here is over whom an Ethics Commission should have jurisdiction: elected officials, unionized employees, consultants, candidates, people and entities that do business with the city or apply for something from the city, former officials and employees (and if so, for how long?)?

Another important matter here is staffing and, to the extent outside staffing is used, how to do this without compromising confidentiality or, in the case of appointed officials such as the city attorney, without bringing partisan politics into the process.

207. Ethics Commission: Jurisdiction, Powers, and Duties.

1. The Ethics Commission may only act with respect to current and former officials and employees, consultants*, applicants*, candidates, and persons and entities that do business with the city, give gifts* to officials and employees or their families, or are otherwise covered by the provisions of this code.

2. The termination of an official's or employee's term of office or employment with the city does not affect the jurisdiction of the Ethics Commission with respect to the requirements imposed on him or her by this code.

Comment: Jurisdiction over former officials and employees, as well as over those who do business with the city or give gifts, can be controversial. The extent of jurisdiction allowed by courts (when they have had to decide this issue) varies among states, but often it is unclear, and many lawyers, especially those involved politically, will automatically say that there is no such jurisdiction. Nothing makes government officials and employees feel more secure than knowing all they have to do is quit in order to prevent an ethics or corruption matter from being investigated. Therefore, it is important to make it clear in advance to officials and employees that quitting is not an antidote to ethics violations. I would like to hear about the law in various states, and experiences people have had or know about where jurisdiction has been successfully or unsuccessfully challenged, and the effects of such challenges on ethics systems.

3. Unless otherwise stated, the Ethics Commission must send all official correspondence by registered or certified mail, or by personal service.

4. Unless otherwise stated, all Ethics Commission decisions or determinations must be made by the affirmative vote of three sitting members.

5. The Ethics Commission has the following powers and duties:

(a) To prescribe and promulgate rules and regulations governing its own internal organization and procedures in a manner consistent with this code;

(b) To appoint hearing officials, an executive director, if necessary, and such other staff as are necessary to carry out its duties under this code, and to delegate authority to the executive director, if any, to act in the name of the Commission between meetings of the Commission, provided that the delegation is in writing and the specific powers to be delegated are enumerated, and further provided that the Commission may not delegate the power to render a formal advisory opinion, determine a violation, impose a penalty, seek any remedy not otherwise delegated in this code to the legislative body, or refer a matter to a prosecutor. An executive director must meet the qualifications of an Ethics Commission member as specified in 203 of this code;

(c) To prepare and provide forms for complaints and for annual, applicant, and transactional disclosure statements, pursuant to section 208;

(d) To review, index, and maintain on file disclosure statements filed with the Commission, pursuant to sections 202 and 208 of this code;

(e) To render, index, and maintain on file advisory opinions pursuant to section 209;

(f) To review, index, maintain on file, and dispose of sworn complaints, and to make notifications and conduct investigations pursuant to section 213;

(g) To conduct hearings, apply and recommend disciplinary action, assess penalties, make referrals, and initiate appropriate actions and proceedings pursuant to sections 214 and 215;

(h) To dispose of waiver requests pursuant to section 210;

(i) To provide training and education to officials, employees, and those doing business with the city pursuant to section 211;

(j) To prepare an annual report and recommend changes to this code pursuant to section 212;

(k) To provide for public inspection of certain records pursuant to section 217; and

(l) To make this code and explanations of it available for reproduction and distribution pursuant to section 219.

Comment: Subsection 4: "Sitting members" means those members, regular or alternate, who are sitting to make a determination about the relevant matter. This could mean a panel made up of members, or simply the members who hear a case (with one or more alternates sitting for regular members) and who can, therefore, be the only ones able to decide it.

Subsection 5: This model code is intended to minimize the administrative burden on municipalities. For that reason, only sizeable cities will find it necessary to hire an executive director and staff for their ethics commissions. In such instances, the code should specify the powers and duties of the executive director, for example, carrying out investigations or overseeing ethics officers. All other municipalities can rely upon other municipal staff members for the occasional secretarial services or legal advice the enforcement of the law will require.

However, care must be taken that any municipal staff used by the ethics commission maintain the confidentiality of commission actions and remain free from conflicts of interest and political and other pressures from superiors and peers. In particular, where the city attorney is a political appointee or is otherwise beholden to the chief elective official or a majority of the governing body, the commission must have the authority, when necessary, to obtain independent counsel. For that reason, some municipalities may wish to require, in their ethics code, funding for such counsel.

This raises the general issue of funding. One of the most popular ways to prevent an ethics commission from doing too good a job investigating alleged violations of the ethics code is to restrict its budget. With a small budget, it will be forced to depend on the city attorney and will have to cut corners and delay investigations. If it is possible, a city seeking to improve its ethical environment should set a healthy budget for the next few years, with minimum increases tied to inflation.

How do people feel about ex parte communications? Generally, they should not be allowed, but since ethics commissions do not meet very often (unlike courts), often have no staff, and have an interest in resolving disputes quickly and through settlement, restricting ex parte communications can make the process slower and more difficult for everyone. What approaches have worked or been problematic?

208. Lists, Complaint Forms, and Disclosure Statements.

1. The Ethics Commission will annually review the list of officials and employees required to file annual disclosure statements, to determine whether the lists are complete and accurate. Within ninety days after it has been formed, and by February 1 each year thereafter, the Ethics Commission must (a) cause to be filed with the City Clerk a list of the names and offices, or positions, of all officials and employees* and others required to file annual disclosure statements pursuant to 103 of this code; and (b) notify all such persons of their obligation to file an annual disclosure statement.

2. The Ethics Commission will prepare forms for complaints and for annual, applicant, and transactional disclosure statements, and will make these forms available at the City Clerk's office and on the city's website, for easy downloading.

3. By June 15 of each year, the Ethics Commission must review all annual disclosure statements filed with it to determine whether any person required to file such a statement has failed to file it, has filed a deficient statement, or has filed a statement that reveals a possible or potential violation of this code.

4. The Ethics Commission must review all transactional disclosure statements filed with it.

5. If the Commission determines that an annual or transactional disclosure statement is deficient or reveals a possible or potential violation of this code, the Commission will notify the person in writing of the deficiency or possible or potential violation, and of the penalties for failure to comply with this code.

Robert Wechsler says:

See my blog entry on funding ethics commissions.

Robert Wechsler
Director of Research, City Ethics

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