making local government more ethical
Ethics commissions are often stuck with one or more ethics provisions that they are know are, in some ways, irresponsible. They can recommend amendments to the provisions, but the legislative body is free to ignore such recommendations.

If this happens, an EC is not always powerless. It can often promulgate a regulation that can interpret the language in a provision, or provide exemptions, so that the provision is more responsible. The Massachusetts EC, which has jurisdiction over local officials, has done just this with a draft exemption (attached; see below) to a provision that effectively makes it a violation to have a conflict of interest, including a pre-existing contract with the government.

Update: February 7, 2014
It took the Jon Stewart Show three months to catch up with the City Ethics blog, but it was worth the wait. You have to watch the video they made about the Coralville, IA situation I discuss below. The defense of what occurred is truly incredible.

There has always been independent spending in local elections, and it has always been (and been seen as) a source of influence and pay to play. In the last few decades, disclosure requirements have increased, as have, in some states, limits on contributions. A few cities and counties have even instituted public campaign financing programs, to help rid campaigns of both influence and pay to play.

But recent U.S. Supreme Court decisions have undermined public financing programs and disclosure requirements by allowing more, and more secret, independent spending. The effects can be seen in this year's crop of local elections. Two articles in today's New York Times, one focused on an Iowa town, the other on Boston, show some of the contrasts between the new and the old independent spending.

A recent City Ethics blog post discusses the value of a functional definition of a government employee with respect to government ethics. That is, a private individual who does government work for the government has the same obligations to the community as a government employee.

Since a government employee's obligations derive from a fiduciary duty to the community (see the discussion in my book Local Government Ethics Programs; scroll down a half page after clicking), it is fair to say that a private individual doing government work has the same fiduciary duty with respect to that work.

It all started with the indictment, on charges of bribery and theft, of a Fats, Oil & Grease inspector back in November 2010. It led to an 83-page grand jury report in August 2013, which set out the misconduct involving the DeKalb County (GA) Department of Watershed Management (DWM) procurement process, and made recommendations not only for indictments, but also for an improved ethics program. The story that the grand jury tells in its report is a classic case of institutional corruption in a procurement context, relating to a division of the Public Works department and a large construction project. Just about every procurement-related ethics violation occurred, and many people were involved or knew what was going on.

In many jurisdictions, lawyers have sought to be excluded from ethics program jurisdiction, arguing that their conduct is regulated by their state's attorney disciplinary process. Recently, in Louisiana, other professionals have sought to be excluded from the state ethics program's jurisdiction (which includes local officials) pursuant to a different argument.

The issue is, When do employees of a private company become government employees for purposes of ethics program jurisdiction over them?

According to an article in Sunday's Advocate, "architects, engineers and contractors sought an exemption from the [state] ethics code during the 2013 legislative session. Legislators refused."

Failing to get a legislative exemption, professional groups sought exemption via a state ethics board advisory opinion. The ethics board refused, as well. The board chair was very direct with the attorneys representing the professional groups. He said, “I think you are trying to get us to give a blanket exemption that the Legislature wouldn’t give you.” He noted that the board had given professionals guidance in the form of advisory opinions on particular cases, and that factual scenarios are necessary for the board to be able to provide an advisory opinion. He said that the “nebulous questions” presented to the board look like “a trap.” The board's decision not to provide an advisory opinion in this situation was, I think, correct.

Conflicts of interest are not always positive, any more than relationships are always positive. And conflicts are based on relationships.

We tend to think of an official using his position to help a family member or business associate. But sometimes officials use their position to harm someone with whom they have a negative relationship, anyone from a former in-law (the bum who dumped my sister) or current in-law (that woman who's driving my brother crazy) to a former business partner or a major business competitor.

These negative situations do not crop up in the news very often. That is why it is worth noting a situation that occurred with respect to Colorado's Public School Capital Construction Assistance Fund. According to an article today in the Daily Caller, an auditors report recommended better conflicts of interest rules for the Fund's board.

As an example of a problematic conflict situation, it gave the handling an application for a grant from a school district that had previously rejected bids from two Assistance Fund Board members’ construction companies. Minutes show that both members spoke negatively about the school district's project. The auditors were surprised they were allowed to participate in the matter.