making local government more ethical
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.

Sometimes, conflicts are built right into ethics laws, partly because it is in the political interest of those with conflicts, and partly because they don't even view those laws as ethics laws.

A good example of this is the Connecticut law (CGS §9-623) that places enforcement of municipal campaign finance laws in the hands of city and town clerks. In Connecticut, clerks are often elected officials who usually run on a ticket with mayoral or first selectman candidates, and on a party ticket with other elected officials. In smaller towns, they are appointed by the board of selectmen.

How many hats can a local government attorney wear when it comes to government ethics? This question arises out of a state bar grievance filed against Houston's city attorney by a member of the city council.

According to an article in the Houston Chronicle last week, the council member alleged that the city attorney violated legal ethics rules by providing legal advice to her before an inspector general investigation and then to the mayor during and after the investigation. The council member also alleged that the city attorney participated in a review process that he largely designed, and that he gave legal advice on a case in which he was a witness.

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