Providing Counsel for Officials in Ethics Proceedings

When should governments provide counsel for officials who have had an ethics complaint brought against them? This has become a big issue recently in my state, Connecticut.

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In March, a lawyer for the Office of State Ethics proposed a legal opinion that would not allow lawmakers to use staff attorneys in ethics cases. When this opinion came before the Citizen's Ethics Advisory Board, legislative leaders sent their staff attorneys to argue against it, and the Board voted 5-4 to reject the opinion (two of the five votes came from former legislators, each of them appointed by one of the legislative party leaders -- another good argument for non-political ethics appointments). But the Board chair asked that the matter be reconsidered in a few months.

The Senate quickly moved to protect its members by approving an amendment to an ethics bill, which allowed public officials to accept representation from an attorney acting as a state employee during the investigative phase of an ethics proceeding.  According to an article in the Hartford Courant, legislators have access to caucus lawyers, and top officials have staff attorneys, but this law would not apply to the great majority of state employees, because the Attorney General has not allowed them representation in ethics cases.

The Senate moved so quickly, it did not even notify the Office of State Ethics.  But word got out, criticisms were made, and the House decided not to even consider the amendment, clearly because it would seem too self-serving.

But think, too, of the position it puts government attorneys in. An official accepts a gift he shouldn't have accepted.  It comes out, and a complaint is filed. The official chooses not to admit that what he has done is wrong and pay the fine, so that there's no need for an investigation.  Instead, the official goes to a staff attorney, and that government attorney is forced to represent not the public interest (as reflected in the ethics code), but the official who has acted against the public interest.

But of course, not all officials are guilty of the charges.  For them, Connecticut state law provides that they be reimbursed for their attorney's fees. In this way, officials who are not guilty are protected, and government attorneys are not put in a compromising position.

In my town, counsel is provided for Freedom of Information proceedings. A complaint was filed once against the First Selectman and Town Attorney regarding an illegally held meeting. The illegally held board meeting allowed the Town Attorney to argue at a Town Meeting that evening, that the matter on the agenda was now moot, and could not be discussed. Both the First Selectman (himself an attorney) and the Town Attorney were represented at the hearing by the Town Attorney's partner, who was effectively Co-Town Attorney. The conflicts were many, and all of them unnecessary, but the rules were set by the officials who benefited from them.

My guess is that the same thing would happen in an ethics proceeding, and that this happens in local governments across the country, because few people understand the issues well enough to object, and most of those who understand are biased and/or don't want to offend those who appointed them, like the former legislators on the Citizen's Ethics Advisory Board.

Robert Wechsler
Director of Research-Retired, City Ethics