making local government more ethical
I thought that I had covered all the blind spots that wreak such havoc on local government ethics (see the section in my book Local Government Ethics Programs). But Dennis J. Moberg's essay, "Ethics Blind Spots in Organizations: How Systematic Errors in Person Perception Undermine Moral Agency" (Organization Studies 27(3):413–428 (2006)), raises some I haven't seen mentioned anywhere else.

Moberg's principal contribution to the area of ethics blind spots is his original use of the term "framing." While most talk about framing involves the communication of ideas to others, Moberg's frames are perceptual frames, that is, they involve the way we see rather than the way we communicate (although perceptual frames do also affect the way we communicate, since our perceptual limitations limit what we say to others).

Here's a good-news story from Delray Beach, FL. But first the bad news. According to an op-ed by Rhonda Swan this week in the Sun-Sentinel, in 2012 the Palm Beach County inspector general "warned Delray that extending its contract with Waste Management until 2021 without seeking bids would violate state and city rules that require competitive bidding." The then city manager disagreed, and the city commission approved the contract extension.

"'Public Service Must Begin at Home': The Lawyer as Civics Teacher in Everyday Practice" by Bruce A. Green and Russell G. Pearce (William & Mary Law Review, Vol. 50, p. 1207, 2009) provides an excellent basis for something that I consider extremely important to government ethics, but with which many government ethics practitioners disagree:  going beyond the law in the provision of government ethics advice (sometimes known as "wise counsel").

What the authors mean by "the lawyer as civics teacher" is that a lawyer's civic obligation is not only to provide pro bono services and the like, externally to one's ordinary practice, but also "to convey to clients the lawyer's understanding of proper civic conduct." The authors note that "when lawyers counsel clients about their legal rights and obligations, and about how to act within the framework of the law, lawyers invariably teach clients not only about the law and legal institutions, but also, for better or worse, about rights and obligations in a civil society that may not be established by enforceable law — including ideas about fair dealing, respect for others, and, generally, concern for the public good." This includes clients' "obligations to obey the law, aspirations to fulfill the spirit of the law, and responsibility to the good of their neighbors and the general public."

Update: April 3, 2014 (see below)

Every so often, someone comes along and says, What's so bad about government officials' ethical misconduct? Isn't it worth having ethical misconduct if it means an effective government?

This time it's Hilary Krieger, a Washington Post editor, who recently made the argument in an op-ed piece in her own newspaper, which has been reproduced in others. Unusually, her argument focuses on local government, on the current D.C. mayor in fact (see my recent blog post about some of the allegations against him).

Krieger asks, "Is it really in voters’ best interests to disqualify candidates, no matter the good they’ve done, because of a corruption scandal or two?" Immediately, she says that most voters don't think so.

But is this the right question to ask? Is it a matter of disqualifying candidates or is it, instead, a matter of uncovering their misconduct and sanctioning them for it? The voting booth is not the only place, or even the best place, to deal with misconduct. As Krieger acknowledges, cases such as the mayor's "are often viewed [by the public] as politics as usual; plus, they can be too convoluted for the public to easily follow."

The story of state legislative interference with local government ethics programs in Florida continues with a newly amended bill in the state senate (SB 1474 is attached; see below), sponsored by senator Joe Abruzzo, whose antagonism to the Palm Beach County ethics program has been the subject of three City Ethics blog posts in the past year (audit of the Palm Beach County program, legislative committee call for suspension of the program, and possible involvement in Florida League of Cities' ethics reform proposals).

Since the state senate cannot pass rules that apply only to one local government ethics program, the bill would apply to all of them, including the Jacksonville program administered by City Ethics' president, Carla Miller.

The stated goal of the amended bill is to bring more due process to local government ethics programs. The stated problem is that the same people who find probable cause also determine whether an ethics violation has occurred. This appears at first blush to be a serious problem. Once an individual or body has determined probable cause that a respondent official has violated an ethics provision, he or it may be considered to have decided against the respondent and, therefore, be biased against him. Such an individual or body may argue before another individual or body that a violation has occurred, but should not make any further determination in the matter.

What a Probable Cause Finding Actually Means
However, as I told Sen. Abruzzo, this shows a misunderstanding of what it means to find probable cause. This finding, which is often misunderstood, does only one thing:  it allows the matter to proceed. It is less a determination or finding than a decision not to dismiss, because at least one allegation in a complaint appears to have enough validity to be considered. It is a decision to proceed from a preliminary investigation to a full investigation and, possibly, a hearing. In most jurisdictions, it is also a decision to make a matter public. But it is not a decision that a violation has occurred. It is only a decision that there is enough evidence not to dismiss the complaint without a hearing. It is the sort of preliminary decision that judges make on a daily basis, and yet are allowed to make final decisions on the merits, as well.

A month ago, I wrote a blog post about the Broward County (FL) inspector general's recommendations for ethics reform. A principal recommendation was to require all local officials, who are under the county ethics program's jurisdiction, to seek ethics advice from an ethics officer rather than from their city attorneys.

According to an article this weekend in the Sun-Sentinel, the local officials in at least two cities, Coral Springs and Tamarac, are not happy about this recommendation. What they are saying is good evidence for the need to take ethics advice out of the hands of numerous untrained lawyers and placing it in the hands of a trained, centralized individual or commission that can provide consistent and independent advice.