making local government more ethical
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.

While I was on vacation last week, the biggest story in local government ethics appears to have been, once again, in the District of Columbia. According to a press release from the U.S. Attorney for the District of Columbia and the charges brought by the U.S. Attorney (attached; see below), the CEO of the parent company of a major D.C. government health care contractor pleaded guilty to conspiracy to channel over $2 million in illegal contributions to and in-kind expenditures in support of two D.C. mayoral candidates and multiple D.C. council candidates between 2006 and 2011.

"Why hire a lawyer to do an internal investigation? It’s because you get the privileges. Otherwise, you’d save a little money and hire a consultant or accountant." These are the wise words of Bruce A. Green, Director of the Louis Stein Center for Law and Ethics at Fordham Law School, as quoted in the New York Times yesterday in an article about the obstacles JPMorgan Chase has put in the way of prosecutorial access to internal notes of interviews regarding the bank's involvement in the Madoff case.

For government ethics, the most important question here isn't the strategy of using lawyers rather than other investigators (or, in the case of ethics advice, lawyers instead of government ethics professionals). The most important question is, Should government attorneys be differentiated from other government officials on the basis of their function or on the basis of their membership in a professional group?

Why is it so hard for officials, personally or in drafting ethics codes, to let an ethics commission do its work, dismissing complaints that lack validity (i.e., that do not state an ethics violation by someone under the ethics program's jurisdiction or for which there is insufficient evidence)? Why, instead, do they create and take advantage of non-substantive considerations for dismissal of complaints in order to take revenge on complainants?

I ask this question after reading a Kentucky Center for Investigative Reporting article from yesterday that shows how the Louisville Metro Council president has, in his response to a series of ethics complaints filed against him, asked that the complaints be turned over to the district attorney for possible criminal prosecution of the complainant.

Sadly, this request is suggested by the ethics code itself, which of course is the product of the very council that the president presides over.

City Attorney Ethics Enforcement in San Francisco
An article in the San Francisco Chronicle this week says that the city attorney filed a lawsuit against a former member of the board of supervisors (the city's legislative body) who acted as a lobbyist, but failed to register (in arguing that he was acting as an attorney, the supervisor pointed to an unfortunate exception in the lobbying law, for professionals when they are "performing a duty or service that can be performed only by an attorney, an architect or a professional engineer." There is now talk of amending this exception.).

The article says that the lobbyist registration provision "is routinely ignored and enforcement is rare. The Ethics Commission ... has dismissed 12 of the 15 complaints for unregistered lobbying since the law took effect, according to commission records. The other three resulted in settlements with combined fines of $10,750." The top sanction is $5,000 per incident; the city attorney alleged that there were 70 incidents.

In this case, the former supervisor has offered to pay a $75,000 fine to settle the case, but without admitting that he had done anything wrong (the settlement is attached; see below).

What should an ethics program do when an agency or department takes ethics advice and enforcement into its own hands? This issue has arisen in Hawaii County, according to two articles in West Hawaii Today, one from two years ago, the other from last week.

The county's finance department oversees property assessment. According to the 2012 article, "Employees may hold professional licenses such as in the area of real estate sales or property appraisals, but they are banned from using the license for personal gain anywhere in the county, unless approved in advance by the finance director and in accordance with the county ethics code."

The finance director suspended an employee for two weeks without pay for selling real estate, "after he told his supervisor he wanted to disqualify himself from assessing a parcel because he had had conversations with the owner in the past in his role of private-sector real estate agent." The employee insists he should be allowed to practice as a realtor as long as he properly withdraws from participation in matters where he is conflicted. The employee filed an ethics complaint against the finance director, arguing that the director violated the ethics code by failing to get an opinion from the ethics board with respect to the employee's alleged ethics violation.