making local government more ethical
Former Maricopa County, AZ county attorney Andrew Thomas (with one of his assistants) was disbarred on Tuesday on numerous counts related to bringing false charges against other county officials over a period of years, according to an article in yesterday's Arizona Republic. According to Prof. Bennett Gershman of Pace University, "This is a huge victory for good-government people and people who believe that prosecutors should be accountable for misconduct."

But it is a bigger victory for those who believe government attorneys should be held accountable for their misconduct, whether or not they are prosecutors. Government attorneys are rarely held to account for providing poor ethics advice, or poor advice on any topic. They are rarely held to account for wearing multiple hats and failing to withdraw when their roles are in conflict.

At the Institutional Corruption conference sponsored by Harvard's Safra Ethics Center last Saturday, Ann Tenbrunsel, co-author of Blind Spots (see my blog posts on this book), noted that people act not only against what is written in ethics codes, but also against their own values. And they don't realize they're doing it. She portrayed the process by which we act as broken into three phases:  prediction, action, and recollection. In the first and third phases, we tend to think in terms of values. But when we act, we do what we want to do or what fits the context (e.g., a business or political decision rather than an ethical decision). Another way to put this is that we make forecasting errors regarding our actions, and then we engage in revisionary ethics, that is, we see good in what we did. Neither planning nor reflection reflect our actual decision.

Yet another brief has been filed in the Carrigan v. Commission on Ethics of the State of Nevada case, this time the EC's supplemental brief on remand to the Nevada Supreme Court.

The principal issue discussed in this brief is vagueness, which has stood in the background behind First Amendment issues of free speech and free association. The free speech arguments were put to rest by the U.S. Supreme Court, and the free association arguments were found not to have been originally raised, so they were dismissed.

In a blog post on the oral arguments before the U.S. Supreme Court, I discussed some of the issues raised in this brief, because they were discussed by the justices, even though their decision itself said nothing about vagueness, because the Nevada courts had not reached this issue. Now it will be discussed, and its discussion raises far more interesting and important issues than how the First Amendment applies to government ethics.

Three months ago, I wrote about an ethics commission decision asking for the removal of a Louisville council member, and the start of proceedings in the council to do just that. I noted that the council member's reaction was pure denial and attack on the ethics commission.

According to an editorial yesterday in the Louisville Courier-Journal, the council voted unanimously to expel the council member. It is hard to believe that a council member who apologized and made restitution for her misconduct would have been expelled. The editorial says that the new ethics system in Louisville worked. But an extreme result, even if itself desirable, does not mean the system worked as best it could.


Looking at government ethics through the appearance standard, as Dennis Thompson did in his book Ethics in Congress: From Individual to Institutional Corruption, reveals the great importance of independence to ethics advice and enforcement. No one is in a worse position to see appearances of impropriety than someone who considers his motives to be good, and his goals to be of utmost importance. This is not the mark of a corrupt individual, but rather a common human characteristic. A legislator not only has an obligation to respect people's reasonable reactions to her conduct, but equally has an obligation to recognize how hard it is for her and her colleagues to know how people will react to what they feel is good or, at least, legal conduct.

Monday evening, I learned about the serious consequences that can result from not giving ethics commission members a clear understanding of what government ethics is, and what it is not.

The occasion was the consideration by the Democracy Fund board, which oversees the public campaign financing program in New Haven, of a possible violation of the program's ordinance and regulations.

I am the Democracy Fund Administrator. Focused on the topics before the board, I never stepped back and gave board members a clear idea of where their program stands in the world of government ethics and what government ethics means, what its goals are, what its boundaries are, etc. I thought it would be enough to understand the role of a public campaign financing program. It is not.