making local government more ethical
According to an article yesterday in the Rockdale Citizen, Rockdale County, GA's county commission is having a debate on how to select its three-member ethics board and its alternates. Unfortunately, it's a debate that is being waged with no reference to best practices and almost no outside professional input. It's as if a debate about a construction project were to include little input from or reference to the work of engineers or planners. I point this out not because it is atypical, but because it is all too typical.

Does the "broken windows" theory, as first stated in a 1982 Atlantic essay by George L. Kelling and James Q. Wilson, apply to government ethics? The theory says that, if small things like broken windows are ignored, people will think that no one cares and, therefore, they will break more windows and move on to more serious misconduct. It's about setting norms and sending signals.

Forget the misuse of this theory in policing, where individuals are arrested for small offenses, sending them into the criminal justice system when they should not be. The focus of the theory was on fixing windows, showing that people do care, and sending the message that good conduct is the community norm.

Isn't this what a good local government ethics program is supposed to do:  try to prevent and fix the small instances of ethical misconduct through training, advice, and disclosure, so that the big ones don't happen? A good ethics officer should dispose of reports and complaints of minor misconduct and misconduct that isn't covered by the ethics code by talking with the official and trying to get her to understand why what she is alleged to have done (whether or not she actually did it, whether or not there is an enforceable rule involved) might be harmful to the government organization and the community if it were to become (or remain) common.

According to an editorial in the Orange County (CA) Register this week, Orange County citizens will soon vote on an initiative that would make their county the second one to turn its campaign finance program over to the state's Fair Political Practices Commission (FPPC). But the initiative's wording calls the FPPC "the ethics commission," which causes confusion, because many in the county, including a recent grand jury (see my blog post on this) as well as past grand juries, have called for a local ethics commission to be formed.

The editorial points out that the initiative's language is misleading, because ethics commissions — and there are many good ones in California — do far more than enforce campaign finance laws.

Ethics commissions appointed by local legislative bodies, mayors, or county executives are often referred to as "independent commissions." I don't believe that these commissions should be considered "independent," because those who select the EC members are under the members' jurisdiction and, in fact, are the people most likely to come before them. These EC members are perceived as biased toward their appointing party, which is far from "independence."

According to an article in Capital New York yesterday, the independence of a citizen commission selected by party leaders in the state legislature is the subject of a judicial decision yesterday (the decision is attached; see below). The case involves a referendum that would take redistricting out of the hands of the majority party in the state legislature and hand it to an "independent" commission selected by state legislative leaders from both major parties.

According to an article Sunday on the Voice of OC website, the Orange County, CA legislative body has drafted a response to the second grand jury report in a year, which recommended the creation of a county ethics program "to monitor and enforce campaign finance and reporting and lobbyist reporting laws as well as other ethics laws and policies." The county board of supervisors wants to turn campaign finance enforcement over to the state ethics commission, and leave it at that.

The board's draft response asserts, “The effectiveness of the ‘ethics bodies’ is a matter of opinion and difficult to determine. The Grand Jury’s report did not provide any metrics or analysis to explain how ‘effectiveness’ of an ethics body is defined nor did they provide any evidence or examples of said effectiveness.”

There are several problems with the settlement the Massachusetts AG reached last week with a lobbying firm that the AG alleged had entered into an illegal contingency fee agreement with a hospital. According to the AG's press release, the lobbying firm would be paid a percentage of funds paid to the hospital pursuant to legislation the lobbyist would try to help get passed.

The Prosecutor
The biggest problem is the office that prosecuted the case. Because the state ethics commission is not given authority to pursue allegations under the lobbying code, such allegations become political footballs and undermine trust that they are being fairly pursued. In this case, the politics involves an elected official (the AG) who is running for governor and has received campaign contributions from members of the lobbying firm, including one $500 contribution weeks before the settlement was reached, according to a Boston Herald article this week.