making local government more ethical
A few issues arise in the case of a Pennsylvania state senator who reached a settlement this week with the state's ethics commission that included a fine of $21,000, according to an article in yesterday's Montgomery County Times Herald.

Pennsylvania state senators are paid for the rental of their district offices. This senator's wife (and then the senator himself after their divorce) owned 50% of the company that owned the building where he had his district office, until the company was sold in 2008.

At first blush, it might not seem a problem for an official to rent an office from himself, as long as he is paying the going rate. But what is the going rate? And might the space not have been rented at all if the official didn't rent it to himself? Since these questions are hard to answer, it is best that an official not rent to himself.

For the second time in a year, a local ethics commission has been the subject of a grand jury report. The first was San Francisco's (see my blog post). There, it was a civil grand jury and the focus was on the commission. Here and now, it is a criminal grand jury, and the focus is on the county executive and other officials, as well as ethics commission members. The county is Suffolk, on Long Island, a suburban county of 1.5 million people.

The Need for an Independently Selected Ethics Commission
The Suffolk grand jury report shows an extreme example of what happens when ethics commission members are selected by high-level officials in a poor ethics environment. This worst case was one of ongoing secret, political interference in ethics commission matters and ongoing political warfare that placed the ethics commission right in the middle between the two front lines.

According to the blog of Kansas City, MO's mayor, Sly James, the KC Commission on Ethics Reform will be holding a public hearing tomorrow on its draft ethics code.

It's clear from the draft that the commission made excellent use of the City Ethics Model Code. The result is a good draft that falls short in a few very important areas.

Most important, the ethics commission would be selected by the mayor. The mayor would even select who the chair is, something that is ordinarily left to a board or commission. Any time the commission is seen as letting off the mayor or a mayoral ally, or coming down hard on a mayoral opponent, it will undermine the public's trust in the ethics program. There would be a big conflict at the heart of a program designed to prevent conflicts and to gain the public's trust in its city government. Ethics commission independence, real and perceived, is the single most important part of an ethics program. It is the foundation on which everything else stands.

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.

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