Who's in Charge? - An Introduction to Writing and Revising An Ethics Code

Who should be in charge of writing and revising municipal ethics codes?

Generally, ethics codes are the work of a mayor or a council, or sometimes they both jockey for the position of being seen as more ethical (this is especially true when a council member is considering a run for mayor). Sometimes they're the work of the city attorney, who in any event often does the drafting for his or her boss, who may be the council, the mayor, or the city manager. And sometimes they're the work of an ethics commission or, when there is no ethics commission, a formal or informal committee, or a community organization such as the League of Women Voters or Common Cause.

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Too often, the writing or revision of an ethics code is a response to a scandal or series of scandals in an environment where unethical behavior has been accepted, up to a point. Top officials feel they have to prove to the voters that they are ethical, even if indicted officials were not.

But the writing or revision of an ethics code can also be an occasion for, and centerpiece of, the creation of a more ethical environment. The discussion of a new or improved ethics code can help a community determine its goals and values, and identify conduct that is consistent and inconsistent with them. Such a discussion can also provide guidance that will help people in and out of government think and act more ethically. Out of this process should come, besides the code itself, an ongoing ethics education system and an organized as well as informal system of rewarding ethical behavior and examining issues through an ethical as well as a practical perspective.

When there already is an ethics code, the code may specify the process for its revision. The City Ethics Model Code recommends an ongoing revision process with the independent ethics commission in charge:

212 Annual Reports; Review of Ethics Laws.
1. The Ethics Commission must prepare and submit an annual report to the legislative body, summarizing the activities, decisions, and advisory opinions of the Commission. The report may also recommend changes to the text or administration of this code. ...

2. The Ethics Commission will periodically (no less than every five years) review this code, the enforcement of the code, and the Commission's rules, regulations, and administrative procedures to determine whether they promote integrity, public confidence, and participation in city government, and whether they set forth clear and enforceable, common-sense standards of conduct. After at least one public hearing, it may recommend to the legislative body amendments to this code.

The Model Code places responsibility for ethics code revision on the body that has the most experience with municipal ethics and has the least political motivation in its recommendation of changes. It is difficult for a legislative body to reject recommendations from a truly independent ethics commission.

In smaller towns and in towns without ethics commissions or with an ethics commission that has had little experience, the town attorney appears to be in a better position to revise an ethics code. But the town attorney is not necessarily the best choice, for two reasons. One, the town attorney is usually a political appointee without the independence of an independent ethics commission. Two, town attorneys tend to take an overly legalistic approach to ethics legislation.

I feel the drafting of ethics provisions is better left to a commission charged with looking at model codes, rather than an attorney, for the appropriate language. However, the commission may hire an independent attorney for advice, as may ethics commissions that do not have their own counsel.

The ethics commission or other commission should not just hold public hearings, but do what it can to get people to participate in the process. It should speak with community and religious leaders, invite people to come to town to speak on government ethics issues, do surveys and the like.

It is important to keep ethics code creation and revision as nonpolitical as possible. Starting out this way will be more likely to keep the entire enforcement process independent, to have things done for the right reason (not for appearance's sake), and to prevent squabbles over irrelevant issues.