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Misuse of City Property and Reimbursements

One conflict of interest is so basic it is sometimes left out of ethics codes: using city property or money for one's own use. Please share your thoughts about this conflict and your experiences with attempts to control it.

100(12). Misuse of City Property and Reimbursements

An official or employee* may not use, or permit others to use, any property owned by the city for profit or personal convenience or benefit*, except (a) when available to the public generally, or to a class of residents, on the same terms and conditions, (b) when permitted by policies approved by the city's legislative body, or (c) when, in the conduct of official business, used in a minor way for personal convenience. This applies not only to objects such as cars and trucks, but also to travel and other expense reimbursements, which may not be requested for nor spent on anything but official business.

Comment: The IMLA Model Code takes this further by requiring care in the use of city property, so that there is no waste. This is an essential element of government ethics, but it is a difficult thing to put into law. People - especially opposition parties - often paint other people's actions as wasteful and negligent. The duty to use city property and resources with care belongs in the aspirational section of an ethics code, or it invites frivolous complaints, making it almost impossible to reject any complaint as frivolous.

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Robert Wechsler says:

In Jacksonville, Florida, according to an article in the Times-Union, people are up in arms over the discovery of how much city officials have been spending on food and drinks (including liquor) at the free city luxury boxes in the city's stadium and arena.

To the extent that city officials are meant to use these boxes for entertainment, I don't think this is a conflict of interest issue pursuant to Section 110(12). But this does raise two ethical questions: Who should be allowed to use these boxes, and what limits should there be on refreshments, both in terms of cost and in terms of liquor? and What level of transparency should there be?

It would be fair to offer tickets to the widest possible range of city employees, either as specific rewards or, perhaps, in the form of a lottery if there aren't enough tickets to go around. But there are also legitimate business uses, such as entertaining business people interested in investing in the city; making nice with, say, city union leaders; and rewarding people who have done a lot of work for the community (not just the elite, but activists and people who have simply picked up a lot of garbage or cleared city trails).

There would certainly be less of an appearance of impropriety if the entertainment were spread around more, and it seemed like they were city boxes rather than city leader boxes. And if city officials were required to report the names of everyone in attendance, this would make it harder to allow top officials to attend at the expense of others, and this would assure city residents that there was nothing that needed to be hidden.

Is an ethics code the right place to deal with this sort of matter? I don't think so. But it's possible. Or a city's ethics commission could rule on the matter, as an interpretation of this provision. But there should be a clear statement of the policy somewhere, to help officials and to let the public know there are limitations, and what their goal is.

Robert Wechsler
Director of Research, City Ethics
[email protected]

Robert Wechsler says:

According to an article in the Honolulu Advertiser, the Hawaii Supreme Court recently determined that a city prosecutor may not use city resources to campaign for a change in the law, in this instance for a constitutional amendment that would make it easier for prosecutors to send certain felony cases to trial. A city official may comment publicly about ballot measures and use city resources to provide information to the public, but it cannot go beyond this to lead the fight for a measure.

However, because the Honolulu's Ethics Commission told the prosecutor that he could use city resources to advocate for the amendment, the court did not feel it was fair to fine the prosecutor or ask him to pay for the resources used.

This reflects a common problem in municipal government. Municipal resources are often used to advocate for and against laws, and officials often go beyond taking a position or trying to educate the people, instead leading the fight and using a great deal of their paid time, as well as that of their subordinates, as well as municipal computers, printing and xeroxing facilities, etc. It is important for ethics codes and bodies to set clearer demarcations between allowed speech and education on the one hand, and prohibited advocacy on the other hand.

The language in the City Ethics Model Code is common, referring to use of municipal property 'for profit or personal convenience or benefit.' What first comes to mind is taking a vacation in a municipal truck or van. It is more difficult to find language that allows officials to take positions publicly and to educate people while preventing them from abusing their position and control of resources to, as a Hawaii ACLU lawyer said, 'give the government an unfair advantage. They get to use funds that belong to all of us to promote one side.'

Please share your ideas about language that would prevent this.

Robert Wechsler
Director of Research, City Ethics
[email protected]

Robert Wechsler says:

Another sort of municipal property that an official or employee should not misuse is the respect given to the municipality and that accompanies municipal positions, along with the perceived power of those positions. More concretely, when officials and employees express their opinions, the assumption is that they are speaking for and with the authority of the municipality.  However, sometimes they are not.  Therefore, municipalities might consider adding a subsection, or separate section, like the following:

No official or employee may act, or create the appearance of acting, on behalf of the city by making a policy statement, or by promising to authorize or to prevent any future official action of any kind, when the official or employee has not been authorized to do so.

Robert Wechsler
Director of Research, City Ethics
[email protected]
203-230-2548

Robert Wechsler says:

Another sort of public property that is often misused by city officials is the public document. There are freedom of information laws on this, but these are at the state level and have a slow response time. They are, after all, government ethics laws, involving the public interest in timely access to public information versus officials' private interest in keeping information secret.

A rule on public documents and information could take two forms, one positive, the other negative.

Officials and employees must make all public information as quickly and as easily available (including on the city website) as is feasible and appropriate, considering the importance of and general interest in access to the information.

Officials and employees may not suppress or delay any public document, record, report, or any other public information that by law should be made available to the public.

Robert Wechsler
Director of Research, City Ethics
[email protected]
203-230-2548

Visitor (not verified) says:

I WORK FOR THE CITY OF JACKSONVILLE IN THE FELONY DEPARTMENT DOING SEALING AND EXPUNGEMENTS. IF I OPEN A LEGAL CLINIC WOULD THAT BE A CONFLICT OF INTEREST.