General Issues Relating to Model Ethics Code

Some municipalities limit some provisions to certain officials, so that, for instance, employees do not have to go through the same level of annual disclosure as officials do, or only officials and employees dealing with contracts, development, zoning, etc. need file annual disclosure forms. This is the place to discuss different levels of application of an ethics code's provisions to different levels and types of official and employee.

This is the place to share your experiences with and thoughts about problems faced in passing or improving municipal ethics codes, and possible solutions to these problems.

In detailing aspirational ethics -- that is, ethical conduct that will not be enforced by the Ethics Commission -- this Model Code goes a step beyond a declaration of policy and purpose. It includes the full text of the American Society for Public Administration's aspirational ethics code. Below is the ASPA Code and introductory comments about its inclusion in the Model Code.

Please comment on the value of including this aspirational code in an ethics code, and share any experience you have had with aspirational ethics codes.

There is more to ethical conduct than what is covered by this code, which consists primarily of enforceable rules about conflicts of interest. The city must also provide a healthy ethical environment with positive means of encouraging ethical behavior among its public servants. And individuals - especially community leaders - must commit themselves to thinking and acting ethically.

The American Society for Public Administration's (ASPA) Code of Ethics is an excellent list of a government administrator's obligations, based on values rather than job description. These are the obligations our government leaders should be reinforcing and to which individuals should be committing themselves. The ASPA Code is especially valuable because it is not the work of ethics specialists, but of government administrators themselves. These obligations will not be enforced by the Ethics Commission, because they are difficult to define concretely enough so that they can be enforced.* However, these values and obligations should be expected and aspired to in our city. Anyone who has questions about these values and obligations may seek clarification from the Ethics Commission as to how they apply them to specific situations.

* Note that the ASPA code is intended for unelected administrators, so that the provision requiring nonpartisanship should not be applied to elected officials who belong to political parties. On the other hand, the most basic conflict of interest in government (accepted as it is by our democratic process) is between the public interest and the interest of elected officials in getting re-elected.

American Society for Public Administration

Code of Ethics

I. Serve the Public Interest

• Exercise discretionary authority to promote the public interest.
• Oppose all forms of discrimination and harassment, and promote affirmative action.
• Recognize and support the public's right to know the public's business.
• Involve citizens in policy decision-making.
• Exercise compassion, benevolence, fairness, and optimism.
• Respond to the public in ways that are complete, clear, and easy to understand.
• Assist citizens in their dealings with government.
• Be prepared to make decisions that may not be popular.

II. Respect the Constitution and the Law

• Understand and apply legislation and regulations relevant to their professional role.
• Work to improve and change laws and policies that are counterproductive or obsolete.
• Eliminate unlawful discrimination.
• Prevent all forms of mismanagement of public funds by establishing and maintaining strong fiscal and management controls, and by supporting audits and investigative activities.
• Respect and protect privileged information.
• Encourage and facilitate legitimate dissent activities in government and protect the whistle-blowing rights of public employees.
• Promote constitutional principles of equality, fairness, representativeness, responsiveness, and due process in protecting citizens' rights.

III. Demonstrate Personal Integrity

• Maintain truthfulness and honesty and not compromise them for advancement, honor, or personal gain.
• Ensure that others receive credit for their work and contributions.
• Zealously guard against conflict of interest or its appearance: e.g., nepotism, improper outside employment, misuse of public resources, or the acceptance of gifts.
• Respect superiors, subordinates, colleagues, and the public.
• Take responsibility for their own errors.
• Conduct official acts without partisanship.

IV. Promote Ethical Organizations

• Enhance organizational capacity for open communication, creativity, and dedication.
• Establish procedures that promote ethical behavior and hold individuals and organizations accountable for their conduct.
• Provide organization members with an administrative means for dissent, assurance of due process, and safeguards against reprisal.
• Promote merit principles that protect against arbitrary and capricious actions.
• Promote organizational accountability through appropriate controls and procedures.
• Encourage organizations to adopt, distribute, and periodically review the code of ethics as a living document.

V. Strive for Professional Excellence

• Provide support and encouragement to upgrade competence.
• Accept as a personal duty the responsibility to keep up to date on emerging issues and potential problems.
• Encourage others, throughout their careers, to participate in professional activities and associations. Allocate time to meet with students and provide a bridge between classroom studies and the realities of public service.

This code is enacted pursuant to [Section ____] of [state statutes] and is not intended to authorize any conduct prohibited by that section.

Comment: It is helpful to list other municipal and state ethics-related laws here, or reference a supplement containing them, so that all ethics laws are available in one place. In this way, people will not have to search for them or worry if they have missed any rules or exceptions. It is also helpful for authors of ethics laws to consult all other relevant laws, so that there will not be any contradictions.

Here are the citations in the Connecticut model code I wrote, including only references to state law: "The power to adopt an ethics code is provided in 7-148(c)(10)(b). There are some specific conflict of interest rules in 7-148t. Allegations, confidentiality, and probable cause findings are provided for in 1-82a. A business with which an official or employee is associated is defined in 1-79(b). And the Freedom of Information Act can be found in Chapter 14, 1-200 to 1-242."

Why freedom of information? Because it involves one of the most often abused conflicts of interest: between the public's right to know and the municipal official's desire to keep information hidden, for personal or political reasons (it's much easier to do one's job in secret than in the public eye; it is especially easier to act unethically when acting in secret). In fact, it would be completely appropriate for a municipal ethics code to supplement the Freedom of Information Act in areas that have been problems in a particular city. For example, an ethics code could include longer notice requirements for meetings and agendas, shorter periods in which to provide information (as well as lower reproduction costs), and requirements for notice and the placement of information on the city website.

Following Mark Davies, I have placed definitions not at the front of the Code, where they usually appear, but at the end of the Ethics Provisions section. The reasoning behind this choice is that definitions should not be as important as they often are. Often, definitions include significant content, so that officials and employees must read the definitions before they can know what they are required to do. It is better to have officials focus on the plain meaning of ethics provisions, knowing that no extra duties will be imposed in the definitions, that there are no traps hidden there. If an official does not read the definitions, the worst that will happen is that he or she will think that the ethics rules are more restrictive than they really are, and will thus be protected from inadvertently violating them.

Please recommend additional or different definitions, and please share your experiences, especially problems arising from wording of definitions, as well as from lack of clear definitions.

111. Definitions.

Unless otherwise stated or unless the context otherwise requires, when used in this code:

1. To "appear" or "appear before" means to communicate in any form, including, without limitation, personally, through another person, by letter, or by telephone. This definition also applies to the noun form, "appearance."

2. "Consultant" means an independent contractor or professional person or entity engaged by the city and in a position to influence a city decision or action, or have access to confidential information.

3. "Customer or client" in 100(1)(e) means (a) any person or entity to which a person or entity has supplied goods or services during the previous twenty-four months, having, in the aggregate, a value greater than $1,000, or (b) any person or entity to which an official or employee's* outside employer or business* has supplied goods or services during the previous twenty-four months, having, in the aggregate, a value greater than $1,000, but only if the official or employee knows or has reason to know the outside employer or business supplied the goods or services.

4. "Domestic partner" is an adult, unrelated by blood, with whom an unmarried or separated official or employee* has an exclusive committed relationship, maintains a mutual residence, and shares basic living expenses.

5. "Financial benefit" includes any money, service, license, permit, contract, authorization, loan, travel, entertainment, hospitality, gratuity, or any promise of any of these, or anything else of value. This term does not include campaign contributions authorized by law. A "financial interest" is a relationship to something such that a direct or indirect financial benefit has been, will be, or might be received as a result of it.

6. A "gift" is a financial benefit* received or given without equivalent compensation. However, a financial benefit* received or given on terms available to the general public is not a gift.

7. "Household" includes anyone whose primary residence is in the official or employee*'s home, including non-relatives* who are not rent payers or servants.

8. An "interest in a contract" is a relationship to a contract such that a direct or indirect financial or other material benefit has been, will be, or might be received as a result of that contract. The official or employee* does not need to be a party to the contract to have an interest in it. Indirect benefit includes a benefit to the official's family or outside business or employer.

9. "Ministerial act" means an action performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the act. An example of a ministerial act is the granting of a marriage license by a city clerk.

10. "Official or employee" means any official or employee of the city, whether paid or unpaid, and includes all members of an office, board, body, advisory board, council, commission, agency, department, district, administration, division, bureau, committee, or subcommittee of the city. "Official or employee" does not include:

(a) A judge, justice, or official or employee of the court system;

(b) A volunteer fire fighter or civil defense volunteer, except a fire chief or assistant fire chief; or

(c) A member of an advisory board if, but only if, the advisory board has no authority to implement its recommendations or to act on behalf of the city or to restrict the authority of the city to act.

11. "Outside employer or business" includes:

(a) any substantial business activity other than service to the city;

(b) any entity, other than the city, of which the official or employee* is a member, official, director, or employee, and from which he or she receives compensation for services rendered or goods sold or produced;

(c) any entity located in the city or which does business with the city, in which the official or employee* has an ownership interest, except a public corporation in which the official or employee's ownership interest is the lesser of (i) stock valued at less than $50,000 or (ii) five percent of the outstanding stock; and

(d) any entity to which the official or employee* owes, or by which the official or employee is owed, more than $10,000, either in the form of a note, a bond, a loan, or any other financial instrument.

For purposes of this definition, "compensation" does not include reimbursement for necessary expenses, including travel expenses..

12. "Personal benefit" includes benefits other than those that are directly financially advantageous. These include financial benefits* to relatives*, business associates, and others listed in 100(1), as well as non-financial benefits* to these people and to oneself, including such things as reputation and the success of one's career. A "personal interest" means a relationship to something such that a personal benefit has been, will be, or might be obtained by certain action or inaction with respect to it.

13. "Relative" means a spouse, child, step-child, brother, sister, parent or step-parent, or a person claimed as a dependent on the official or employee's* latest individual state income tax return.

14. "Subordinate" means another official or employee* over whose activities an official or employee has direction, supervision. or control.

Comment: Subsection 3 ("customer or client"): An employee of a large corporation may not know many of the customers or clients of his or her employer and should not be penalized for that understandable ignorance. For that reason, the "knows or has reason to know" language is included.

Subsection 6 ("gift"): A "financial transaction ... on terms not available to the general public" includes, for example, a reduced-interest loan to a municipal official. The reduction in interest would constitute a gift.

Subsection 11(c)("outside employer or business"): It is sometimes said that stock ownership in a public company is not relevant to an official's interests, because he or she owns a tiny percentage of the stock and therefore has no control over the entity. But the success of the public company does have special meaning to someone who holds a large dollar amount of that company's stock (even if that amount is large only for the individual, not for the corporation) and, therefore, it does constitute an interest that could get in the way of an official's ability to act impartially (as well as the perception of how the official would benefit from the company's success).

The amount of share holdings will not be disclosed, but since there is a minimum amount, it will be clear that any disclosed share holding is sizeable. Therefore, some cities may want a lower threshold amount, so that it is not clear whether a shareholding is large or small.

Subsection 12 ("personal benefit"): Many ethics codes require the expenditure of funds even with respect to personal benefits. But this requirement allows officials to vote, say, on whether they should have to recuse themselves, when a committee member raises the issue at a meeting. Non-financial interests, such as reputation, are very important to people and have an equally powerful effect on their ability to make impartial decisions. I would like to hear about examples of personal benefits you feel should be included as giving rise to a possible conflict of interest, and how you have seen such personal benefits dealt with when they are and when they are not covered by ethics codes.

Subsection 13: Some cities follow the IMLA Model Code by defining "relatives," generally or in such instances as gift-giving, as anyone within up to the fifth degree of consanguinity. I feel that this term is inappropriate to an ethics code because of its unfamiliarity, its difficulty, and its common usage in law (determining incest). To be in the fifth degree of consanguinity, two individual's first common ancestor must be no more than a total of five generations away. For example, if my grandfather (two degrees) is your great-grandfather (three degrees), there are five degrees of consanguinity between us. In law, because consanguinity is for the purpose of defining incest, it does not include relationship by marriage. However, relationship by marriage is relevant in government ethics.

Throughout this code there are stars next to defined words. If this usage is followed and the code is placed on a city's website, these stars should be turned into links to the Definitions section, so that the definitions can be easily consulted.

This is the place to comment on, discuss, and share alternative content and language relating to the declarations of policy that can usually be found at the beginnning of municipal ethics codes. Most declarations are very short and often ignored, since they cannot be enforced. But they are important in showing the community why ethical conduct is more important than just being good and fair. And the forumulation of such a declaration, and the discussion of its language, can be important occasions for looking at a community's ethical aspirations and the sort of ethical environment it desires.

Please share your experiences with the formulation and value of declarations of policy, including best practices as well as problems. Also see "Aspirational Codes" for a related discussion.

Declaration of Policy, Purpose, and Obligations

The proper operation of our city's government requires that public officials and employees act as public servants: courteous, impartial, honest, open, and responsible to the city's residents; that they act as fiduciaries entrusted with and responsible for the property and resources of the community; that they make governmental decisions and policies in the proper channels of the government structure, free of coercive or other improper influence; and that they use their office and employment in the best interests of the city rather than for personal interests, whether their own interests or those of their family, friends, or business and political associates.

It is central to gaining and retaining the public's trust in our city's government that public servants seek to avoid even the appearance of impropriety. Fulfilling one's role as public servant sometimes means sacrificing rather than gaining opportunities.

This code focuses on conflicts of interest, which affect the decisions of government officials and employees in ways that are unfair both to the community and to individuals and entities who lack special relationships with our city's officials. When public servants make decisions that are not or do not appear to be impartial, this seriously undermines public confidence in government.

While the vast majority of municipal officials are well-meaning, being well-meaning is not enough. It is important that officials understand the conflicts they confront every day, appreciate their fiduciary obligations to city residents, and recognize the importance of preventing conflicts from occurring, disclosing conflicts when they arise, and withdrawing from any involvement in a matter where they have a conflict (recusing themselves).

Nothing is more important to public trust than having public servants err on the side of disclosing every possible conflict and recusing themselves even where they feel certain they can act impartially.

The purposes of this ethics code are:

(a) To establish standards of ethical conduct - especially those dealing with conflicts between personal interests and those of the city - for city officials, employees, consultants,* candidates, and those who do business with the city;

(b) To provide clear guidance with respect to such standards by clarifying which acts are allowed and which are not;

(c) To promote public confidence in the integrity of our city's governance and administration;

(d) To provide for the consideration of potential ethical problems before they arise, to minimize unwarranted suspicion and to enhance the accountability of our city's government to city residents; and

(e) To provide for the fair and effective administration and enforcement of this code.

Below is Robert Wechsler's introduction to the Model Municipal Ethics Code. This is the place to comment on issues raised and positions taken in this introdcution.

Introduction

Since most cities already have an ethics code, why is there a need for a model code? Because, as Mark Davies has so effectively argued, a poor ethics code, one that seems to be something it is not, is worse than no ethics code at all. One need not begin with a comprehensive, perfected ethics code, but a code that is lacking one or more essential elements will likely not fulfill the goals of creating a code and will mislead people into thinking their town has an effective ethics program. Formulating a poor or mediocre ethics code, especially when its purpose and provisions are not openly and honestly discussed, is unethical.

The essential elements of a municipal ethics code are:
(i) that it be clear and comprehensive, providing clear guidance to city officials, employees, contractors, and citizens;
(ii) that it provide for three kinds of sensible disclosure of interests: an annual disclosure statement, disclosure when a conflict arises (transactional disclosure), and disclosure when someone bids for business or requests a permit (applicant disclosure); disclosure is the democratic way of letting people know about possible conflicts of interest;
(iii) that it provide effective administration, featuring an independent ethics commission with teeth, which gives swift advisory opinions, which has a monopoly on interpreting and enforcing the code, which can give waivers for exceptions, and which provides training for all city officials and employees, as well as for everyone who does business with the city; and
(iv) that it provide whistle-blower protection so that city employees (the people who know what's going on) and others will be able to report violations without endangering their jobs and pensions.

The other essential element of an effective ethics code is that it be the center of an ethical environment. Rarely is the passage of an ethics code the result of an ethics environment. More commonly, it is a response to a scandal or series of scandals in an environment where unethical behavior has been accepted, up to a point. In such instances, work on a new or revised ethics code can be an exercise in political oneupmanship.

But the writing or revision of an ethics code can also be an occasion for, and centerpiece of, the founding of an ethical environment. The discussion of a new or improved ethics code can help a community determine its goals and ideals, and identify conduct that is consistent and inconsistent with an ethical environment. It 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 the examination of issues through an ethical as well as a practical lens.

If a community's leaders intend an ethics code to be a bandage, the ethics system will not function properly. If it is a true reflection of community leaders' aspirations and ideals, then the ethics code will not only function as part of an all-encompassing ethical environment, it will be almost unnecessary except as a process that keeps inspiring and motivating officials and employees to think and act ethically.

Cities will want to make changes in the language of certain of the model provisions, but they should be careful that the changes do not undermine the purpose and spirit of the provision, unless that is the stated intent. Also, the language in this model code is intentionally as readable as possible. Many lawyers will say that the language must be more formal, but the question is, Which is more important: the ability of ordinary municipal employees and officials to understand a code that guides their ethical conduct, or the preference lawyers have for familiar, usually more complex or vague terminology?

Few municipalities will want to include everything in this model code, but it is definitely worth discussing all the provisions. Certain provisions that may seem expendable will not seem that way after deliberation among a number of people. For example, it can be difficult for a city's leaders to allow an ethics commission to have the power to not only reprimand politicians and administrators, but even fine or suspend them. When there is no public discussion, ethics codes invariably withhold this power from the ethics commission, or do not even create an ethics commission at all, but have a political body handle ethics matters.

And yet the most comprehensive ethical requirements have little value if an ethics commission has no teeth, that is, if it cannot enforce the code but can only make recommendations to elected officials. Since elected officials, those whom they appoint, and their friends and enemies constitute the great majority of the people who will be brought before an ethics commission, involving officials at the end of the process effectively makes the entire process a political one. Doing this announces to everyone, in and out of the government, that those who are friendly with elected officials are likely to get away with unethical conduct (whether this is true or not). Therefore, citizens will be less likely to file ethics complaints, and officials will be less likely to follow the code's requirements.

The fact that elected officials like to have the final say is itself a conflict of interest, because it is certainly not in the public interest to give them this final say. The more independent the ethics commission, the more it will be trusted by city residents, the less it will be used for political purposes, and the more respect its decisions will be given. When an ethics system is not perceived as independent, and ethics accusations are politicized, the ethics system can actually undermine the very confidence in government it is supposed to protect.

Municipal officials and employees should not be expected to be all-knowing saints. The basic rule of any ethics code is simple and requires little knowledge: If you're not sure there is a conflict that could be seen as affecting your decision, ask for advice or withdraw from dealing with the particular matter. In other words, if doing anything seems to be wrong or to look wrong, don't do it. No one's participation in a particular matter is indispensable.

The provisions of this model code have been organized to make it easier for city officials and employees to understand what is expected of them. First come the more general ethical guidelines, which are not enforced by the Ethics Commission (however, people may ask the Ethics Commissions for advisory opinions concerning these guidelines). Second come the conflict of interest rules that are enforced by the Ethics Commission. Next come the disclosure rules, exceptions, and penalties for violation of the code. And then comes the Definitions section. Wherever a defined term is used, there is a star, so that people know that they can check the Definitions section.

The second half of the code deals with the code's administration. The provisions of this part contain the necessary information about filing an ethics complaint, the formation, powers, and responsibilities of the Ethics Commission, and the enforcement of the code. This part comes last because it is primarily of interest to people who want to file a complaint. Most people will never have to read this part. This means that this part can be more technical, which it needs to be due to the requirements of due process, that is, protections of the rights of those against whom ethics complaints are brought.

Throughout this model code there are comments following sections or subsections. There are two kinds of comment: (i) comments of the author intended for those who will consider this model code when writing or amending their city's ethics code; and (ii) comments intended to be part of the ethics code, that is, comments intended for the community, to clarify the code. Comments of the author are italicized.

This model code was originally based on a model code written by Mark Davies, which appeared in "Keeping the Faith: A Model Local Ethics Law-Content and Commentary," 21 Fordham Urban Law Journal 61 (1993). Mr. Davies is Executive Director of the New York City Conflicts of Interest Board and Adjunct Professor of Law at Fordham University School of Law. I have also consulted many other model and municipal ethic codes.

Robert Wechsler
Research Director, City Ethics