making local government more ethical
"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.

Since most local ethics commissions do not have the authority to initiate their own investigations or draft their own complaints (although in many cases this authority is not expressly withheld), there is a special role that former EC members, especially chairs, can play:  filing complaints that no one else will file.

According to a Santa Fe Reporter blog post this week, a former chair of the city's Ethics and Campaign Review Board filed a complaint against a mayoral candidate participating in that city's public campaign financing program, as well as against four PACs which supported the mayor's candidacy but, according to the complaint (attached; see below), were not acting fully independently.

Mike DeBonis's article in the Washington Post last week describes an operatic ethics matter, with several twists and complications, with dramatic cries of innocence mixed with scathing accusations of guilt. The article is certainly more exciting than this blog post, which focuses on issues raised by the the Notice of Violation, dated February 6, (attached; see below). I hope the post will, at least, be enlightening.

Here are the basic facts, as stated in the Notice of Violation. In 2006, D.C.'s chief administrative law judge entered into a business relationship with a woman to purchase investment properties in the D.C. area. Both principals put money into the enterprise over a period of years. In 2010, the judge hired her business partner as the general counsel of her government office, "without posting/advertising the position or interviewing anyone else for the position."