making local government more ethical
"Wheeling" is a term I just discovered. The context is that NJ governor Chris Christie made a campaign promise to deal with "wheeling," and then failed to, according to a South Jersey Times editorial yesterday. Here's how the editorial describes the practice (many NJ local governments prohibit or limit contributions from their contractors):
It goes like this: Smith County has a fat consulting contract with Joe Blow Associates. Instead of giving $10,000 to the Smith County Republicrats, Joe Blow sends a $10,000 check to the Jones County Republicrats. Suddenly, a $10,000 “clean” donation from “Jones County Republicrats” appears in the Smith County incumbents’ campaign fund.
Is local government ethics enforcement appropriate for local legislators? This question is currently being asked in Sarasota County, FL and Wyandotte County/Kansas City, KS. A key to whether this is the right question is who is asking the question. In both cases, it is local legislators who have been respondents in ethics enforcement proceedings, and some of their legislative colleagues.

Another mayor has resigned after getting caught by an FBI sting. According to an article in yesterday's Charlotte Observer, Charlotte's mayor, Patrick Cannon, has been alleged to have accepted bribes from undercover agents in return for promises to help them. His alleged crimes occurred when he was a council member and in the five months since he became mayor.

Would it have helped if Charlotte had had a good, independent ethics program, with training, independent advice, and disclosure? Possibly. It certainly would have helped if Cannon and his fellow council members had considered it important to have a good, independent ethics program. If these issues were openly discussed and if gifts, not to mention bribes, were not only prohibited, but frowned on and enforced, it is more likely that Cannon would have resisted temptation.

The story of state legislative interference with local government ethics programs in Florida continues with a newly amended bill in the state senate (SB 1474 is attached; see below), sponsored by senator Joe Abruzzo, whose antagonism to the Palm Beach County ethics program has been the subject of three City Ethics blog posts in the past year (audit of the Palm Beach County program, legislative committee call for suspension of the program, and possible involvement in Florida League of Cities' ethics reform proposals).

Since the state senate cannot pass rules that apply only to one local government ethics program, the bill would apply to all of them, including the Jacksonville program administered by City Ethics' president, Carla Miller.

The stated goal of the amended bill is to bring more due process to local government ethics programs. The stated problem is that the same people who find probable cause also determine whether an ethics violation has occurred. This appears at first blush to be a serious problem. Once an individual or body has determined probable cause that a respondent official has violated an ethics provision, he or it may be considered to have decided against the respondent and, therefore, be biased against him. Such an individual or body may argue before another individual or body that a violation has occurred, but should not make any further determination in the matter.

What a Probable Cause Finding Actually Means
However, as I told Sen. Abruzzo, this shows a misunderstanding of what it means to find probable cause. This finding, which is often misunderstood, does only one thing:  it allows the matter to proceed. It is less a determination or finding than a decision not to dismiss, because at least one allegation in a complaint appears to have enough validity to be considered. It is a decision to proceed from a preliminary investigation to a full investigation and, possibly, a hearing. In most jurisdictions, it is also a decision to make a matter public. But it is not a decision that a violation has occurred. It is only a decision that there is enough evidence not to dismiss the complaint without a hearing. It is the sort of preliminary decision that judges make on a daily basis, and yet are allowed to make final decisions on the merits, as well.

What should be done when an official withdraws from participation in a matter and gives a reason for withdrawal that appears to be false? Why would an official provide a false reason for withdrawal? There are at least two possible reasons:  (1) the real conflict situation would look worse than the given conflict situation, or (2) the real reason is that the official doesn't want to anger the people on either side of the matter, that is, the official really wants to abstain, but doesn't want to be seen as a coward who has failed to represent his constituents.

A VotersOpinion blog post from yesterday got me thinking about this. It alleges that when a North Miami Beach council member withdrew from a variance matter involving a house that was to be sold for about $4 million, he said the reason was that he might be bidding on the house (not a conflict that government ethics codes commonly recognize, but certainly a valid reason to withdraw). However, his financial disclosure statement says that he is making $80,000 as a teacher and council member, not enough to buy such a house without a lot of wealth.

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).