making local government more ethical
Court decisions, especially when combined with criminal enforcement of ethics violations, can be very harmful to local government ethics. The court in a Monterey County case involving a serious §1090 conflict of interest matter that officials were not only aware of, but appear to have helped create, has used two recent California court decisions to limit prosecution to just one official. Recently, the official's last-ditch effort to dismiss the charges on the basis of an entrapment argument failed, according to an article in yesterday's Monterey Herald. In fact, a judge barred the official from calling anyone, including his colleagues, to testify in a preliminary hearing on the entrapment defense.

Yesterday's blog post discussed the law giving California's Fair Political Practices Commission (FPPC) authority over §1090 of the state code, which deals with contract-related conflicts of interest and applies to both local and state officials. Knowing little about this section, which stands outside the state's ethics code (known as the Political Reform Act), I did a little research into it. It's an interesting provision that has received some interesting interpretations. Here is §1090:
Members of the Legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members. Nor shall state, county, district, judicial district, and city officers or employees be purchasers at any sale or vendors at any purchase made by them in their official capacity.
No Contract Where There's a Conflict
The language that stands out is "by any body or board of which they are members." This refers to the making of contracts. But one wonders how this language is applied. According to the relevant section of an ethics training course on the Attorney General's website, "If a member of a multi-member body with contracting power has a financial interest in a contract, section 1090 generally provides that the contract cannot be made even if the member has disqualified himself or herself from actually participating in the contract."

There is a great deal of misunderstanding concerning the difference between a conflict of interest and a gift. It appears that most people consider them two completely different things. In fact, they represent two kinds of conflicts, pre-existing conflicts and conflicts that are created by an event. The confusion between the two characterizes a situation that led to an ethics complaint in Los Angeles.

According to an article on the KPCC public radio site, from January to May this year, a son of interim general manager of the Los Angeles Department of Building and Safety had a paid internship (while in law school) with the lead law firm representing the developer of a huge project known as the Millenium Towers. The complaint against the general manager characterized the issue as a conflict of interest, and two published reports of the matter do the same (but a comment does suggest it was a gift). However, the general manager was involved in the matter several months before his son was hired by the law firm. There was no pre-existing conflict or relationship, only the hiring of a family member after the law firm and general manager were already involved in the matter.

Richard W. Painter's Getting the Government America Deserves: How Ethics Reform Can Make a Difference (Oxford U.P., 2009) may be about the federal executive branch ethics program, but this excellent book also has a lot to offer to local government ethics. This is the first of three blog posts about this book, focusing on Painter's recommendations for ethics reform and how they could be applied to local government ethics programs.

Contractors et al.
Painter notes that those who oppose ethics program jurisdiction over government contractors argue that it is unnecessary because contract employees are not decisionmakers, company ethics policies are adequate, it is obvious when contract employees try to steer decisions to favor their employer's interests, and ethics oversight over contractors is burdensome and costly.

Citing a General Accounting Office report from 2008, Painter argues that contract employees have influence, even when they do not make decisions (and, I would add, they do sometimes make decisions), and that it is not obvious when they provide biased information (or, I would add, when they act in ways that benefit themselves or their employer).

One of the most frequent mistakes in the drafting of a government ethics code is prohibiting officials from having conflicts of interest. There is nothing wrong with an official having a conflict of interest. There is only something wrong with an official creating a conflict or failing to deal responsibly with a pre-existing conflict. As can be seen in Massachusetts, where such a prohibition has made big waves, the prohibition of having a conflict can cause serious problems.

On April 17, the District of Columbia ethics board filed recommendations for ethics reform with the council (see my blog post on the recommendations). Council member Kenyan R. McDuffie has introduced a bill that includes some of these recommendations (attached; see below). On October 7, a hearing on the bill will be held by the council's Committee on Government Operations.

For the most part, only the ethics board's miscellaneous recommendations are included in this bill. These were among its best recommendations. But the ethics program needs more than changes here and changes there, especially changes focused on enforcement. It needs to put the essential elements of a government ethics program into place. It's good to see that there is a commitment to continuing improvement, but it's not clear that there is a vision in the District of what the ethics program should be or of what the priorities are.

Here are the most important changes in the bill, with my comments.