making local government more ethical
Unions are paid for by union members, business associations are paid for by businesses, but local government associations are paid for by taxpayers, not by local governments. And yet while unions represent members, and business associations represent businesses, local government associations represent local governments. This setup is asking for trouble.

In my previous blog post, the issue arose of voiding a planning and zoning commission's approval of a permit because one of the commission members had a conflict of interest. Connecticut law automatically invalidates the commission action, without any individual or body having to act. But this is unusual. In fact, most jurisdictions do not expressly provide for the avoidance of permits, contracts, or other transactions.

An unpublished Connecticut Superior Court opinion takes an odd approach to a conflict of interest charge against a member of a zoning commission in the small town of Pomfret (pop. 4,000). Not only is it odd, but it could very well be unconstitutional, as it partly bases its decision on whether individuals have spoken out for or against a matter before the zoning commission. My thanks go to Patricia Salkin, who wrote about the decision in her excellent Law of the Land blog and sent me a copy of the decision.

Do Chinese walls (that is, mechanisms that separate someone from information or involvement in a matter) work in conflict situations in government? And what considerations determine whether they work or not?

One consideration is whether, even with the Chinese wall, there is still an appearance of a conflict. Another consideration is whether the individual will still have access to the information or still be involved in the matter despite the Chinese wall; that is, whether the Chinese wall is really a Chinese screen.

There are two important Chinese walls in the news the last couple of days. One involves congressional representatives in the position of choosing defense-related earmarks and their access to information about which recipients of those earmarks made campaign contributions to them, at what amounts and at what times. The other involves what was apparently a sweetheart deal between Florida and the United States Sugar Company, where the governor's chief of staff's law firm represented U.S. Sugar in the negotiations.

One of the biggest little problems in government ethics is the inability to filter out very minor violations, which can be dealt with either by dismissing the complaint or by requiring, say, an additional training course. It is a waste of limited time and resources to investigate and hold hearings on minor violations. An EC needs to be able to use its judgment to decide when a violation is not worth investigating.

Although it is hard to define what is a minor, or de minimis, violation, it is important to provide for EC discretion where they exist, either in an ordinance provision or an ethics commission regulation. This discretion should not be left to advisory opinions; if it does originate there, it should quickly be added to the EC's regulations or to the ordinance).