making local government more ethical

Ethics Rules for Local Government Attorneys?

Local government attorneys have special conflict of interest problems. Should there be ethics rules particularly aimed toward them?

Here's a recent example of a situation that could have been prevented by such rules. In Reading, Pennsylvania, a city councilman asked the city's Board of Ethics for an advisory opinion concerning the fact that the Reading Area Water Authority had contracts with a company owned by the authority's executive director. The Board of Ethics determined that there was a conflict of interest, even though the contracts had been entered into before the company's owner became executive director.

So far, so good. However, the authority's Solicitor, according to an editorial in the Reading Eagle, said that the Board of Ethics has no oversight over the authority. "The authority," he said, "can do essentially anything about [the opinion] it wants to do, starting with doing nothing. There isn't anything the city can do if the authority chooses to do nothing."

The Solicitor was speaking for the chairman of the authority's board, who felt that "nothing untoward" was going on. But the Solicitor went beyond stating the board's disagreement with the advisory opinion.

The Solicitor responded to an ethics opinion purely in legal terms, stating that there is no validity to something that cannot be enforced. Such a statement seriously undermines government ethics.

Further, the Solicitor apparently misstated the legal situation. According to a comment to the Reading Eagle's editorial, the authority is wholly owned by the city of Reading, which leases city assets to it, and which can revoke the lease without cause. Further, the board members are selected by the city. So were the authority to ignore a decision of the Board of Ethics, the city could replace the authority's board with people who would respect the decision.

The point here is that a local government attorney represents not only his client, but also, I feel, the public interest. If a board tells its attorney to misrepresent the law, I feel that he should tell the board that he cannot do that, that he represents not only the individuals who happen to be in the majority on the board, but the public interest that the board is itself supposed to be representing.

Because this distinction between government and public interest can often be very fine (and even when clear put an attorney in a difficult position) and because attorneys are accustomed to representing only one interest, I believe there need to be clear ethical rules to guide such attorneys' behavior. Here it is clear: an attorney should never misrepresent the law on behalf of a government client. And yet it happens all the time. A government attorney should also not show disrespect to opinions or decisions of ethics commissions, even if they cannot be enforced. Most important, with clear rules, it is easier for honest government attorneys to say No to unethical officials.

What do you think? Should local government attorneys be given the same sort of guidance as other local government officials? Do you know of any good examples of such rules or guidelines?