making local government more ethical
Here's a new role for an ethics commission:  mediator in a dispute between other government oversight offices. According to an article in the Advocate last week, New Orleans' ethics board has appointed two of its members to mediate in an ongoing dispute between the city's Inspector General and its new Independent Police Monitor.

This role is not as surprising as it may first appear, because in New Orleans, the inspector general is appointed by the ethics board, the police monitor is appointed by the inspector general (from a list of individuals selected by a search committee), the police monitor can be fired by the ethics board upon the request of the inspector general, and all three offices share the same budget.

Settlements of ethics proceedings are usually a good thing for everyone involved. They save officials the cost of a proceeding and prevent officials from digging themselves deeper and deeper into defenses, denials, and cover-ups, which are usually more harmful to the public trust than any ethics violation. They save taxpayers the cost of a proceeding and of possible appeals. They save the community the pain of going through an extended fight over an ethics violation, which can hurt its reputation, escalate, and have long-term ramifications. They save the government from functioning with a cloud over one or more officials' heads, which can draw attention away from substantive issues and make it difficult to raise taxes or pass controversial legislation. And they show the community how important it is to have a responsible, independent ethics commission with teeth that can bring the community relief rather than the sort of strife that scares citizens away from participating in government.

But a settlement can only be effective in all these ways if it requires the respondents in an ethics proceeding to take responsibility for their conduct, to admit to having violated an ethics provision, and to accept some sort of sanction. Otherwise, settlements are seen as "outs" by which officials are not held accountable. This undermines trust in both officials and the ethics program, leaving a cloud over both.

In a New York Times column today, Michael Powell has unearthed an ugly-looking government ethics situation in New Jersey involving apparent misuse of government ethics authority to win a vote.

The fact situation is fairly typical. What is not typical is the way it has been handled. A gas company is seeking permission to put a pipeline through the Jersey Pine Barrens, a huge nature reserve that is overseen by the Pinelands Commission, an independent agency whose members are selected by the governor, by various local officials, and by the U.S. Department of the Interior. The members include environmental activists as well as real estate professionals.

The current governor's administration has arranged a deal by which the gas company will pay $8 million to the commission, and the commission's staff support the deal. But the four preceding governors have written a letter opposing the pipeline, and it looks like the commission vote, scheduled for tomorrow, will be close.

One of the commission members is, among other things, the president of the board of the nonprofit Eastern Environmental Law Center, which called for an additional public meeting on the pipeline. According to the article, on December 6 a deputy attorney general called the commission member to tell him that he had a conflict of interest based on the center's call for an additional meeting. The commission member said that he did not believe this constituted a conflict. The deputy AG said that the commission member could appeal to the commission's ethics officer. Every state agency in NJ has an ethics officer, as part of the state ethics program, which also has a state EC.

When the criminal justice system finds that government officials are involved in a conspiracy to pursue illegal conduct in an environment of fear and intimidation, they bring racketeering charges under the Racketeer Influenced and Corrupt Organizations Act (RICO). This is what happened with the Atlanta schools cheating scandal. According to an article in today's New York Times, six more educators pleaded guilty to being part of the conspiracy, bringing the total to 17. According to an article in the Atlanta Journal-Constitution, the original charges were brought in March of this year against 35 educators. The original investigation implicated at least 44 schools and 178 educators.

The same sort of environment exists at the center of ethical misconduct, but ethics programs have to be more creative in investigating and preventing it, and enforcing against it.

According to an article yesterday in the Seguin (TX) Gazette, there will be a perfectly ordinary local government ethics occurrence next Monday in Seguin, a town of 25,000 outside San Antonio: the city's ethics commission will meet in closed session to discuss a recently filed ethics complaint.

There doesn't seem to be anything wrong with this. But there are two serious problems here. One is that, according to the article, "the Ethics Commission generally meets only when an ethics complaint has been filed. The commission is required to hold an annual meeting in June to elect officers." Actually, the commission meets "when necessary to carry out its responsibilities." According to the city's website, the EC met only once each year from 2009 to 2012, all but once in June, to elect officers. In 2013, it doesn't appear to have met at all. In other words, the EC clearly does not have many responsibilities, and is not even being employed for the purpose of enforcement.

The second problem is that, according to the city attorney (who is both the city's ethics officer and the EC's counsel and staff), he cannot comment on the complaint because it doesn’t become public information until after it has been acted upon by the EC.

The Boss of the Ethics Director's Bosses
According to an article this week in the Free Times, an FOI lawsuit was filed against South Carolina's ethics commission, because its director had said that a letter informing the governor of an ethics violation had not been sent and had been destroyed, when in fact it was sent and did exist.

Not only does the governor appoint all EC members (making her the boss of those for whom the ethics director works) but, according to the article, the director consulted with the governor's private attorney before telling his staff attorney that her opinion (apparently the one in the letter) was uninformed. This relationship with the governor, plus the EC's lack of transparency, undermine the public's trust in the ethics program.

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