making local government more ethical
Should advisory board and task force members be excepted from conflict of interest rules? Jurisdictions disagree about this. Some believe that, when a board has no authority to act or implement, the usual rules should not apply. The principal argument is that there are times when a government needs to get people with opposing interests together — such as business and union interests — in order to hash out community problems. Another argument is the need for expertise.

Last Saturday's Atlanta Journal-Constitution ran a long article, "Connections Count at Law Firm," on the Washington/Atlanta-based law firm McKenna Long & Aldridge. This firm was known to me primarily as the firm behind the Pay to Pay Law Blog, a good, although too infrequent blog that looks at government ethics and campaign finance from the compliance side, that is, from the point of view of the companies that have to comply with the rules.

McKenna Long is also, according to the article, the tenth-largest lobbying firm in the country, it represents numerous government officials in ethics and election law matters, and it has many former and even current officials on staff, some of whom aren't even lawyers.

The most interesting of its "senior strategic advisors" is David Skaggs, a former congressman from Colorado and, more important, chairman of the board of the Office of Congressional Ethics, the surprisingly aggressive new part of the House ethics process. Other senior strategic advisors include Howard Dean and Zell Miller.

What can a citizen do when a local government official falsely impugns her reputation and retaliates against her due to her opposition to a matter the official supports? The City Ethics Model Code has a provision that deals with an official falsely impugning a citizen's reputation, but very few ethics codes contain such a provision. And even our model code has nothing that deals with retaliation.

In some situations, the citizen may have a cause of action against the official and the local government under 42 U.S.C. §1983, for a deprivation of her constitutional rights, such as her right to speak out on an issue, by a person or entity acting under color of state law.

Recusal is a two-part process. First, the official discloses his interest in a matter that has or will come before his board or agency. Then, the official does not participate in that matter.

In Tucson, this process was distorted by the involvement of a board attorney. According to an article in Wednesday's Arizona Daily Star, the chair and vice-chair of the Rio Nuevo Multipurpose Facilities District Board, an important development board in Tucson, were concerned about a member's possible conflict of interest and asked the board's attorney for an advisory opinion. The city of 540,000 does not appear to have an ethics officer or commission, so this was the most reasonable alternative.

Whistleblower provisions are extremely important to government ethics, but poorly worded ethics provisions can undermine even the best whistleblower provisions, especially in unscrupulous hands. One such ethics provision is the confidential information provision.
Here's a clever way to abuse the advisory opinion process. A few months after conduct begins, seek advice from the ethics commission. After the EC tells you it's okay, increase the amount of conduct so much that the advice is no longer relevant, and then point to the advice in defense of the conduct. Finally, refuse to provide information about the extent of the conduct, so that no one can provide hard evidence that there is truly a change in the extent of the conduct.

This gambit is being employed in New York City, according to an article in yesterday's New York Post. It might work in the short run, but in the long run it's a good way to undermine trust in government.

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