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Maryland Local Ethics Requirements
Wednesday, August 1st, 2012
Robert Wechsler
It's a good idea for states to encourage the creation of local
government ethics programs by drafting model ethics codes. It's also
a good idea for states to require minimal local government ethics
provisions. What is not good is model codes and minimal requirements
that are not accompanied by explanations and do not provide
alternatives and recommendations for improvements. Such codes and requirements can, among other things, provide support for officials who prefer a poor, limited, ineffective ethics program to a good, comprehensive, effective one.
Problems can occur when states take other approaches, and this has happened in Maryland, which amended its state ethics code effective October 1, 2010, with a requirement that local government ethics codes be brought into compliance by October 1, 2011.
Asking Too Much
One of the problems with Maryland's approach is that it insists that local government requirements be at least equivalent to state requirements for state officials. At first blush, this may seem appropriate: what's good for state officials is good for local officials. But there are two areas especially where this comparison does not hold. One is the idea that every local government should have its own ethics commission, just like the state. The state is large enough to have its own ethics commission, but smaller cities and counties, or counties and the cities within them, may want to both save money and ensure more expertise and independence than they could otherwise afford.
The second way in which the state asks too much is its financial disclosure requirements. State officials need to report property and business interests outside of their municipalities, but why should local officials? In fact, high-level state officials are generally asked to report more than local officials. The rules should not be the same.
The disclosure requirements have been the controversial issue, of course. Many people have criticized the state requirements on the basis that they will scare people away from running for office or serving on commissions. It is damaging for an ethics program to be identified as bad for a city or county, especially when the requirements themselves are inappropriate and imposed from outside. Local officials need to be supportive of rather than antagonistic to the local ethics program.
Administration
Maryland's Model Ethics Laws (A and B, which don't differ all that much) provide no alternatives with respect either to provisions or administration. Nor do they provide any explanation of why they are pushing each particular approach or choice of language (not to mention why they have left out important elements of an ethics program).
The state does not even raise the issue of EC independence. One model has the CEO appoint EC members, the other has the CEO appoint, with legislative approval. There is no mention of having EC members selected by community organizations. Nor is there mention of EC staff or budget guarantees.
There is nothing to make any city or county feel that it need do more than create a volunteer EC, chosen by and dependent on the very officials who are most likely to come before it. I understand that the state is reluctant to require local expenditures, but it could at least let local citizens and the press know the problems this leads to and some possible solutions to these problems.
The state also does not provide much guidance with respect to ethics advice. The possibility of having an ethics officer is ignored, and since all advice must be published, according to the models, informal advice appears to be prohibited.
There are no training requirements, just a Model Law provision for a "public information and education program regarding the purpose and implementation of this chapter," with no guidance on how to do this.
You would never know from the Model Laws that training and advice are the most important parts of an ethics program.
Transparency
You would know, however, that confidentiality is extremely important. The Model Laws provide that the only part of an ethics proceeding that is public is a finding of a violation. If a complaint is dismissed or there is a finding on no violation, no one will know how, why, or when. Hearings are closed. The public will reasonably believe that the ethics process exists to protect officials, not the community.
And the state leaves it to local governments to figure out what to do if the confidentiality rule is violated. Officials will argue that the complaint should be thrown out, and what basis is there to argue otherwise?
Whistleblowers, Etc.
While officials are overly protected, whistleblowers don't rate a mention in either Model Law. There is also no mention of hotlines, EC power to investigate and make allegations without a complaint, or EC subpoena power.
Ongoing Problem
One problem with the state requiring equivalent provisions is that, every time the state amends a provision, all the local governments have to follow suit, and the state EC has to sign off. With amendments constantly being proposed, this can be a great excuse for ongoing delay. For example, according to a Rockville, MD city attorney memo this week (Rockville is the state's third largest city):
Conclusion
State ethics rules should have requirements, certainly, but the focus should be on guidance and the provision of alternative approaches. The guidance should be not simply toward following the law, but toward establishing the best and most affordable ethics programs across the state. Regional and countywide programs should be encouraged, not ignored. The advantages of EC independence should be discussed as well as the ways of providing this independence. Similarly, the importance of EC initiative and subpoena power. And transparency should be provided except in the early stages of an ethics proceeding. Local governments should be told that transparency is an important part of government ethics. Otherwise, they'll think confidentiality and secrecy are.
What Maryland has done is overly legalistic, focusing on the "law" part of an "ethics law." Although it at least goes beyond some states, whose models say almost nothing about administration, Maryland should take a different approach, focusing on ethics programs, training, advice, independence, and initiative rather than the difference between such things as "equivalent" and "similar" provisions.
The State EC also has to make very public the failure of any local government to establish an ethics program. Its page on local government ethics law activity has a link to a page entitled "Municipal Corporations With Local Ethics Provisions", but this page only says which local governments are exempted from complying, not which ones have not, like Rockville, complied.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Problems can occur when states take other approaches, and this has happened in Maryland, which amended its state ethics code effective October 1, 2010, with a requirement that local government ethics codes be brought into compliance by October 1, 2011.
Asking Too Much
One of the problems with Maryland's approach is that it insists that local government requirements be at least equivalent to state requirements for state officials. At first blush, this may seem appropriate: what's good for state officials is good for local officials. But there are two areas especially where this comparison does not hold. One is the idea that every local government should have its own ethics commission, just like the state. The state is large enough to have its own ethics commission, but smaller cities and counties, or counties and the cities within them, may want to both save money and ensure more expertise and independence than they could otherwise afford.
The second way in which the state asks too much is its financial disclosure requirements. State officials need to report property and business interests outside of their municipalities, but why should local officials? In fact, high-level state officials are generally asked to report more than local officials. The rules should not be the same.
The disclosure requirements have been the controversial issue, of course. Many people have criticized the state requirements on the basis that they will scare people away from running for office or serving on commissions. It is damaging for an ethics program to be identified as bad for a city or county, especially when the requirements themselves are inappropriate and imposed from outside. Local officials need to be supportive of rather than antagonistic to the local ethics program.
Administration
Maryland's Model Ethics Laws (A and B, which don't differ all that much) provide no alternatives with respect either to provisions or administration. Nor do they provide any explanation of why they are pushing each particular approach or choice of language (not to mention why they have left out important elements of an ethics program).
The state does not even raise the issue of EC independence. One model has the CEO appoint EC members, the other has the CEO appoint, with legislative approval. There is no mention of having EC members selected by community organizations. Nor is there mention of EC staff or budget guarantees.
There is nothing to make any city or county feel that it need do more than create a volunteer EC, chosen by and dependent on the very officials who are most likely to come before it. I understand that the state is reluctant to require local expenditures, but it could at least let local citizens and the press know the problems this leads to and some possible solutions to these problems.
The state also does not provide much guidance with respect to ethics advice. The possibility of having an ethics officer is ignored, and since all advice must be published, according to the models, informal advice appears to be prohibited.
There are no training requirements, just a Model Law provision for a "public information and education program regarding the purpose and implementation of this chapter," with no guidance on how to do this.
You would never know from the Model Laws that training and advice are the most important parts of an ethics program.
Transparency
You would know, however, that confidentiality is extremely important. The Model Laws provide that the only part of an ethics proceeding that is public is a finding of a violation. If a complaint is dismissed or there is a finding on no violation, no one will know how, why, or when. Hearings are closed. The public will reasonably believe that the ethics process exists to protect officials, not the community.
And the state leaves it to local governments to figure out what to do if the confidentiality rule is violated. Officials will argue that the complaint should be thrown out, and what basis is there to argue otherwise?
Whistleblowers, Etc.
While officials are overly protected, whistleblowers don't rate a mention in either Model Law. There is also no mention of hotlines, EC power to investigate and make allegations without a complaint, or EC subpoena power.
Ongoing Problem
One problem with the state requiring equivalent provisions is that, every time the state amends a provision, all the local governments have to follow suit, and the state EC has to sign off. With amendments constantly being proposed, this can be a great excuse for ongoing delay. For example, according to a Rockville, MD city attorney memo this week (Rockville is the state's third largest city):
-
On August 15, 2011, the Mayor and Council
introduced an ordinance revising the Ethics Ordinance so as to
comply with the new state requirements. The ordinance was
scheduled to be adopted on October 26, but since the State Ethics
Commission had not yet reviewed the proposed ordinance, the Mayor
and Council deferred adoption but requested additional changes.
The requested changes were made and the Mayor and Council reviewed
the revised ordinance at its meeting of December 12, 2011.
During the 2012 legislative session, there were several amendments to the State ethics provisions that were introduced again, delaying the Mayor and Council's action on the pending amendments. None of the amendments that would have affected the City's pending ordinance were passed.
The City has now received comments from the legal staff of the State Ethics Commission and the proposed ordinance has been revised to address these comments....
Conclusion
State ethics rules should have requirements, certainly, but the focus should be on guidance and the provision of alternative approaches. The guidance should be not simply toward following the law, but toward establishing the best and most affordable ethics programs across the state. Regional and countywide programs should be encouraged, not ignored. The advantages of EC independence should be discussed as well as the ways of providing this independence. Similarly, the importance of EC initiative and subpoena power. And transparency should be provided except in the early stages of an ethics proceeding. Local governments should be told that transparency is an important part of government ethics. Otherwise, they'll think confidentiality and secrecy are.
What Maryland has done is overly legalistic, focusing on the "law" part of an "ethics law." Although it at least goes beyond some states, whose models say almost nothing about administration, Maryland should take a different approach, focusing on ethics programs, training, advice, independence, and initiative rather than the difference between such things as "equivalent" and "similar" provisions.
The State EC also has to make very public the failure of any local government to establish an ethics program. Its page on local government ethics law activity has a link to a page entitled "Municipal Corporations With Local Ethics Provisions", but this page only says which local governments are exempted from complying, not which ones have not, like Rockville, complied.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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