Administration of Ethics Code

This is the place to discuss the establishment and the role of an Ethics Commission. The most important issue here is an Ethics Commission's independence: how important it is and how best a municipality can achieve it. With respect to EC independence and competence, please share your thoughts or experiences regarding regional and state Ethics Commissions vs. municipal ECs. Other important issues include: who can (or cannot) sit on an EC; what limits should be placed on EC members' political activities; terms of office and term limits; and the removal of EC members for misconduct.

This is the place to discuss the Ethics Commission's jurisdiction, powers, and duties. The most controversial matter here is over whom an Ethics Commission should have jurisdiction: elected officials, unionized employees, consultants, candidates, people and entities that do business with the city or apply for something from the city, former officials and employees (and if so, for how long?)?

Another important matter here is staffing and, to the extent outside staffing is used, how to do this without compromising confidentiality or, in the case of appointed officials such as the city attorney, without bringing partisan politics into the process.

207. Ethics Commission: Jurisdiction, Powers, and Duties.

1. The Ethics Commission may only act with respect to current and former officials and employees, consultants*, applicants*, candidates, and persons and entities that do business with the city, give gifts* to officials and employees or their families, or are otherwise covered by the provisions of this code.

2. The termination of an official's or employee's term of office or employment with the city does not affect the jurisdiction of the Ethics Commission with respect to the requirements imposed on him or her by this code.

Comment: Jurisdiction over former officials and employees, as well as over those who do business with the city or give gifts, can be controversial. The extent of jurisdiction allowed by courts (when they have had to decide this issue) varies among states, but often it is unclear, and many lawyers, especially those involved politically, will automatically say that there is no such jurisdiction. Nothing makes government officials and employees feel more secure than knowing all they have to do is quit in order to prevent an ethics or corruption matter from being investigated. Therefore, it is important to make it clear in advance to officials and employees that quitting is not an antidote to ethics violations. I would like to hear about the law in various states, and experiences people have had or know about where jurisdiction has been successfully or unsuccessfully challenged, and the effects of such challenges on ethics systems.

3. Unless otherwise stated, the Ethics Commission must send all official correspondence by registered or certified mail, or by personal service.

4. Unless otherwise stated, all Ethics Commission decisions or determinations must be made by the affirmative vote of three sitting members.

5. The Ethics Commission has the following powers and duties:

(a) To prescribe and promulgate rules and regulations governing its own internal organization and procedures in a manner consistent with this code;

(b) To appoint hearing officials, an executive director, if necessary, and such other staff as are necessary to carry out its duties under this code, and to delegate authority to the executive director, if any, to act in the name of the Commission between meetings of the Commission, provided that the delegation is in writing and the specific powers to be delegated are enumerated, and further provided that the Commission may not delegate the power to render a formal advisory opinion, determine a violation, impose a penalty, seek any remedy not otherwise delegated in this code to the legislative body, or refer a matter to a prosecutor. An executive director must meet the qualifications of an Ethics Commission member as specified in 203 of this code;

(c) To prepare and provide forms for complaints and for annual, applicant, and transactional disclosure statements, pursuant to section 208;

(d) To review, index, and maintain on file disclosure statements filed with the Commission, pursuant to sections 202 and 208 of this code;

(e) To render, index, and maintain on file advisory opinions pursuant to section 209;

(f) To review, index, maintain on file, and dispose of sworn complaints, and to make notifications and conduct investigations pursuant to section 213;

(g) To conduct hearings, apply and recommend disciplinary action, assess penalties, make referrals, and initiate appropriate actions and proceedings pursuant to sections 214 and 215;

(h) To dispose of waiver requests pursuant to section 210;

(i) To provide training and education to officials, employees, and those doing business with the city pursuant to section 211;

(j) To prepare an annual report and recommend changes to this code pursuant to section 212;

(k) To provide for public inspection of certain records pursuant to section 217; and

(l) To make this code and explanations of it available for reproduction and distribution pursuant to section 219.

Comment: Subsection 4: "Sitting members" means those members, regular or alternate, who are sitting to make a determination about the relevant matter. This could mean a panel made up of members, or simply the members who hear a case (with one or more alternates sitting for regular members) and who can, therefore, be the only ones able to decide it.

How do people feel about ex parte communications? Generally, they should not be allowed, but since ethics commissions do not meet very often (unlike courts), often have no staff, and have an interest in resolving disputes quickly and through settlement, restricting ex parte communications can make the process slower and more difficult for everyone. What approaches have worked or been problematic?

208. Lists, Complaint Forms, and Disclosure Statements.

1. The Ethics Commission will annually review the list of officials and employees required to file annual disclosure statements, to determine whether the lists are complete and accurate. Within ninety days after it has been formed, and by February 1 each year thereafter, the Ethics Commission must (a) cause to be filed with the City Clerk a list of the names and offices, or positions, of all officials and employees* and others required to file annual disclosure statements pursuant to 103 of this code; and (b) notify all such persons of their obligation to file an annual disclosure statement.

2. The Ethics Commission will prepare forms for complaints and for annual, applicant, and transactional disclosure statements, and will make these forms available at the City Clerk's office and on the city's website, for easy downloading.

3. By June 15 of each year, the Ethics Commission must review all annual disclosure statements filed with it to determine whether any person required to file such a statement has failed to file it, has filed a deficient statement, or has filed a statement that reveals a possible or potential violation of this code.

4. The Ethics Commission must review all transactional disclosure statements filed with it.

5. If the Commission determines that an annual or transactional disclosure statement is deficient or reveals a possible or potential violation of this code, the Commission will notify the person in writing of the deficiency or possible or potential violation, and of the penalties for failure to comply with this code.

Like penalties, the topic of advisory opinions appears in both the ethics provision and administration sections of the Model Code.

This is the place to share opinions about and experiences with waivers and exclusions (or "exemptions"). Waivers can be a controversial topic, so arguments for and against, and especially good and bad experiences with waivers will be helpful to communities considering them. Another important topic is the standards that are set for obtaining waivers.

102. Exclusions from the Code of Ethics and from Transactional Disclosure.

The provisions of 100 and 101 of this code do not require recusal or transactional disclosure as a result of:

Comments: Subsection 3 contains an annual dollar limit for gifts given to an official or employee plus his close relations. Many ethics codes' dollar limits are per gift, usually around $50, in the belief that taking an official out to lunch is acceptable. However, such a limit is easy to get around by giving lots of small gifts to officials and their relatives, which add up to large gifts over time. Another way around such a rule is to give large gifts that are naturally spread out over time, such as a restaurant or club tab, or season tickets. Other codes' gift rules contain many detailed instances and amounts, for such things as private or public or charitable functions. A simpler rule, with an annual limit, is more clear and therefore provides better guidance. I would like to hear people's opinions about this, as well as their experiences with the approaches: how successful they've been, how they've been enforced, etc.

210. Waivers.

1. Upon written application and upon a showing of compelling need by the applicant, at an open session after public notice, the Ethics Commission may in exceptional circumstances grant the applicant a waiver of subsections 1-10, 13-19, and 22 of 100, 101(1)(a), 106, or 108 of this code.

2. Waivers must be in writing and must state the grounds upon which they are granted. Within ten days after granting a waiver, the Ethics Commission must publish a notice setting forth the name of the person or entity requesting the waiver and a general description of the nature of the waiver in the official newspaper designated by the city for legal notices. All waiver applications, decisions, and other records and proceedings relating to waivers will be indexed and maintained on file by the Ethics Commission.

Comment: A provision for waivers of ethics provisions is dangerous because it opens the door to the wholesale gutting of an ethics code, encourages political pressure on ethics commissions by individuals and groups within the community, and leads to charges of partiality, all of which undercut the perception of the ethics commission as an impartial body of high integrity. For those reasons, many municipalities may wish to forego a provision for waivers. Other municipalities, concerned about the need to remedy unnecessary hardship that ethics provisions may impose upon an individual in a particular instance, will wish to run these risks.

Some cities may want to list criteria for providing waivers. For example, here are the criteria that Baltimore considers sufficient (one of either (1)-(4) plus (5)):

(1) the action would constitute an unreasonable invasion of privacy;

(2) compliance would constitute a hardship;

(3) the nature of the activities of the person, agency, board, or commission does not require compliance;

(4) compliance would significantly reduce the availability of qualified people for public service;

(5) the particular exemption would not be contrary to the purposes of this article.

Some cities may want to list possible reasons for waivers as a guide for both officials and the ethics commission. For example, here are Denver's sample waivers for nepotism:

(1) The relative who was proposed to be hired was certified through a competitive process conducted pursuant to law, and the officer, official, or employee who would make the appointment did not influence or affect the certification.

(2) The officer, official, or employee who would officially make the appointment is acting ministerially and did not select the relative or attempt to influence the person who did.

(3) The relative who would be in the line of supervision was already working in the agency before the officer, official, or employee came into the line of supervision, and the officer, official, or employee can and will abstain from participating in any personnel actions involving the relative.

And then there are exemptions. Some codes include a number of exemptions, providing an alternative list of provisions that show what is acceptable, as opposed to what constitutes a violation. These exemptions have been omitted from this model code, because I feel they are self-evident and because, although they are self-evident, they can be used as defenses by respondents who can say they misconstrued their conduct as falling within one of the exemptions. For example, as I said above, the standard of interference with discharge of duties is too ambiguous a criterion; when it is applied in the negative sense (as in (b) below) - that there is no conflict of interest where there is no such interference - it is easy to argue that there was no such interference. Here is what the IMLA Model Code lists as exemptions:

(a) No provision of this Ordinance shall be construed to prohibit or restrict any City employee from negotiating, entering into or enforcing a collective bargaining agreement between the City and a labor union to which the employee belongs pursuant to state or federal law. No public servant shall be deemed to have a conflict of interest due to any lawful action taken pursuant to a collective bargaining agreement. The mere fact that public servants have entered into a collective bargaining agreement, however, shall not exempt them from any provision of this Ordinance unless the City is barred by the collective bargaining agreement from adopting the provision in question.

(b) This Ordinance does not prevent any public servant from accepting other employment or following any pursuit which in no way interferes with the full and faithful discharge of his or her public duties, provided that the public servant complies with all applicable City requirements, including any requirements imposed by this Ordinance.

(c) No public servant shall be deemed to have a conflict of interest by virtue of carrying out any contract pursuant to which the public servant directly or indirectly received income or benefits in the form of compensation for the performance of official duties.

(d) A former public servant is not prohibited from entering into a contract to represent the City in any matter.

(e) No public servant shall be deemed to have a conflict of interest by virtue of sharing, directly or indirectly, in the benefit of a lawful City action when the benefit to the public servant is substantially the same as the benefit to the public at large or to a segment of the public to whom the benefit is provided in a nondiscriminatory manner.

(f) This Ordinance does not prohibit any public servant from taking any action to approve the lawful payment of salaries, employee benefits, reimbursements of actual and necessary expenses, or other lawful payments which are authorized in accordance with City policies.

(g) This Ordinance does not prohibit public servants from taking any official action properly within the scope of their duties with respect to any proposal to enact or modify law or public policy.

(h) This Ordinance does not prohibit an elected official from raising campaign contributions in any manner which is otherwise permitted by law.

(i) This Ordinance does not prohibit communication between an individual or organization and a candidate regarding the candidate's views, record or plans for future action regarding an issue or measure in an attempt to determine a candidate's viewpoints or how the candidate plans to act in the future, if such communication results in an endorsement of the candidate, a decision not to endorse the candidate, or a contribution or expenditure required to be recorded or reported under a state statute.

(j) Actions which might otherwise be alleged to constitute a conflict of interest shall be deemed to comply with this Ordinance and not to be a conflict of interest if:

(1) before acting, the public servant requested and received a written opinion from the City Attorney or a formal ethics opinion or a confidential advisory opinion from theBoard in accordance with the procedures established in this Ordinance; and

(2) the material facts, as stated in the request for an opinion, are true and complete; and

(3) the actions taken were consistent with the opinion.

This is the place to provide opinions and recommendations regarding ethics education. Please suggest alternative language to what is below, and please share your experiences with ethics education, and how such experiences can be included in an ethics code, as well as other means to ensure that effective ethics training is provided. Other issues to discuss include who should receive ethics education, who should provide or be reponsible for the provision of ethics education, and how this education should be funded. Please share your experiences with training each of these groups, especially the ones that are often ignored, as well as experiences with problems in funding ethics education (and how people have succeeded in getting such funding).

211. Training and Education.

The Ethics Commission (1) will, within one year after its passage, make this code, and explanations of its provisions (including information on how to fill out all forms and statements), available (including, but not limited to, on the city website) to all officials and employees, candidates and consultants*, and to municipal residents and to all persons doing business or interested in doing business with the city, and (2) will develop educational materials and a required educational program for the officials and employees of the city, and those who do business with the city, regarding the provisions of this code. The educational program must begin within eighteen months after this code goes into effect. In addition, the Ethics Commission will hold an annual workshop for new and old officials and employees to discuss this code, its values and goals, its enforcement, and the ways in which it has affected their work and the working of the city government.

This is the place to discuss the usefulness of annual reports, as well as whether an Ethics Commission should periodically review the code and its rules, regulations, and administrative procedures. Please share your experiences with annual reports and reviews.

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. The report must be submitted no later than October 31 of each year, covering to the year ended August 31, and must be filed with the City Clerk and made available on the city website.

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.