making local government more ethical

You are here

Waivers and Exclusions

This is the place to share opinions about and experiences with waivers and exclusions (or "exemptions"). Waivers can be a controversial topic, so arguments for and against, and especially good and bad experiences with waivers will be helpful to communities considering them. Another important topic is the standards that are set for obtaining waivers.

102. Exclusions from the Code of Ethics and from Transactional Disclosure.

The provisions of 100 and 101 of this code do not require recusal or transactional disclosure as a result of:

  • An action specifically authorized by statute, rule, or regulation of the State of __________ or of the United States.
  • A ministerial act*.
  • Gifts* (a) received by the official or employee* from his or her parent, spouse or domestic partner*, child or step-child, or sibling or step-sibling; (b) received by the official or employee, his or her spouse or domestic partner, child or step-child, parent, and member of his or her household*, from a person or entity (any person who works for or is otherwise related to an entity is considered as having given on behalf of that entity), having an aggregate value of $50 or less during any twelve-month period; or (c) accepted on behalf of the city and transferred to the city pursuant to 100(4)(b).
  • Gifts* or benefits having a value of $50 or less that are received by a city official or employee for the solemnization of a marriage officiated by that official or employee at a place other than his or her normal public place of business and at a time other than his or her normal work hours.
  • Public awards from charitable organizations having a value of $100 or less.
  • Comments: Subsection 3 contains an annual dollar limit for gifts given to an official or employee plus his close relations. Many ethics codes' dollar limits are per gift, usually around $50, in the belief that taking an official out to lunch is acceptable. However, such a limit is easy to get around by giving lots of small gifts to officials and their relatives, which add up to large gifts over time. Another way around such a rule is to give large gifts that are naturally spread out over time, such as a restaurant or club tab, or season tickets. Other codes' gift rules contain many detailed instances and amounts, for such things as private or public or charitable functions. A simpler rule, with an annual limit, is more clear and therefore provides better guidance. I would like to hear people's opinions about this, as well as their experiences with the approaches: how successful they've been, how they've been enforced, etc.

    210. Waivers.

    1. Upon written application and upon a showing of compelling need by the applicant, at an open session after public notice, the Ethics Commission may in exceptional circumstances grant the applicant a waiver of subsections 1-10, 13-19, and 22 of 100, 101(1)(a), 106, or 108 of this code.

    2. Waivers must be in writing and must state the grounds upon which they are granted. Within ten days after granting a waiver, the Ethics Commission must publish a notice setting forth the name of the person or entity requesting the waiver and a general description of the nature of the waiver in the official newspaper designated by the city for legal notices. All waiver applications, decisions, and other records and proceedings relating to waivers will be indexed and maintained on file by the Ethics Commission.

    Comment: A provision for waivers of ethics provisions is dangerous because it opens the door to the wholesale gutting of an ethics code, encourages political pressure on ethics commissions by individuals and groups within the community, and leads to charges of partiality, all of which undercut the perception of the ethics commission as an impartial body of high integrity. For those reasons, many municipalities may wish to forego a provision for waivers. Other municipalities, concerned about the need to remedy unnecessary hardship that ethics provisions may impose upon an individual in a particular instance, will wish to run these risks.

    To minimize the risks, this section sets a high standard for granting a waiver ("compelling need" and "exceptional circumstances"), restricts waivers to certain specified provisions, and requires that the waiver be published. Moreover, the meeting of the ethics commission at which the waiver is considered must be held in open session after public notice.

    Some cities may want to list criteria for providing waivers. For example, here are the criteria that Baltimore considers sufficient (one of either (1)-(4) plus (5)):

    (1) the action would constitute an unreasonable invasion of privacy;

    (2) compliance would constitute a hardship;

    (3) the nature of the activities of the person, agency, board, or commission does not require compliance;

    (4) compliance would significantly reduce the availability of qualified people for public service;

    (5) the particular exemption would not be contrary to the purposes of this article.

    Some cities may want to list possible reasons for waivers as a guide for both officials and the ethics commission. For example, here are Denver's sample waivers for nepotism:

    (1) The relative who was proposed to be hired was certified through a competitive process conducted pursuant to law, and the officer, official, or employee who would make the appointment did not influence or affect the certification.

    (2) The officer, official, or employee who would officially make the appointment is acting ministerially and did not select the relative or attempt to influence the person who did.

    (3) The relative who would be in the line of supervision was already working in the agency before the officer, official, or employee came into the line of supervision, and the officer, official, or employee can and will abstain from participating in any personnel actions involving the relative.

    And then there are exemptions. Some codes include a number of exemptions, providing an alternative list of provisions that show what is acceptable, as opposed to what constitutes a violation. These exemptions have been omitted from this model code, because I feel they are self-evident and because, although they are self-evident, they can be used as defenses by respondents who can say they misconstrued their conduct as falling within one of the exemptions. For example, as I said above, the standard of interference with discharge of duties is too ambiguous a criterion; when it is applied in the negative sense (as in (b) below) - that there is no conflict of interest where there is no such interference - it is easy to argue that there was no such interference. Here is what the IMLA Model Code lists as exemptions:

    (a) No provision of this Ordinance shall be construed to prohibit or restrict any City employee from negotiating, entering into or enforcing a collective bargaining agreement between the City and a labor union to which the employee belongs pursuant to state or federal law. No public servant shall be deemed to have a conflict of interest due to any lawful action taken pursuant to a collective bargaining agreement. The mere fact that public servants have entered into a collective bargaining agreement, however, shall not exempt them from any provision of this Ordinance unless the City is barred by the collective bargaining agreement from adopting the provision in question.

    (b) This Ordinance does not prevent any public servant from accepting other employment or following any pursuit which in no way interferes with the full and faithful discharge of his or her public duties, provided that the public servant complies with all applicable City requirements, including any requirements imposed by this Ordinance.

    (c) No public servant shall be deemed to have a conflict of interest by virtue of carrying out any contract pursuant to which the public servant directly or indirectly received income or benefits in the form of compensation for the performance of official duties.

    (d) A former public servant is not prohibited from entering into a contract to represent the City in any matter.

    (e) No public servant shall be deemed to have a conflict of interest by virtue of sharing, directly or indirectly, in the benefit of a lawful City action when the benefit to the public servant is substantially the same as the benefit to the public at large or to a segment of the public to whom the benefit is provided in a nondiscriminatory manner.

    (f) This Ordinance does not prohibit any public servant from taking any action to approve the lawful payment of salaries, employee benefits, reimbursements of actual and necessary expenses, or other lawful payments which are authorized in accordance with City policies.

    (g) This Ordinance does not prohibit public servants from taking any official action properly within the scope of their duties with respect to any proposal to enact or modify law or public policy.

    (h) This Ordinance does not prohibit an elected official from raising campaign contributions in any manner which is otherwise permitted by law.

    (i) This Ordinance does not prohibit communication between an individual or organization and a candidate regarding the candidate's views, record or plans for future action regarding an issue or measure in an attempt to determine a candidate's viewpoints or how the candidate plans to act in the future, if such communication results in an endorsement of the candidate, a decision not to endorse the candidate, or a contribution or expenditure required to be recorded or reported under a state statute.

    (j) Actions which might otherwise be alleged to constitute a conflict of interest shall be deemed to comply with this Ordinance and not to be a conflict of interest if:

    (1) before acting, the public servant requested and received a written opinion from the City Attorney or a formal ethics opinion or a confidential advisory opinion from theBoard in accordance with the procedures established in this Ordinance; and

    (2) the material facts, as stated in the request for an opinion, are true and complete; and

    (3) the actions taken were consistent with the opinion.

    Story Topics: 
    randomness