making local government more ethical
According to an article in the San Francisco Chronicle last week, Oakland's council approved an amendment to the city charter, to go before voters in November, that would increase the authority of the city's ethics commission and provide it with the funds it needs to do its job. Congratulations to the council for what is, in some ways, an excellent reform package.

This ethics reform process began with a June 2013 civil grand jury report, which called for giving the city's ethics commission more authority to enforce ethics laws, and more resources with which to do it. Then, in May 2014, a working group of individuals mostly from good government-oriented civic organizations filed a report that made numerous ethics reform recommendations (see my blog post on it). The council quickly got to work on a charter amendment that contains some of the working group's recommendations.

An excellent editorial yesterday by Dan Barton, editor of the Kingston (NY) Times, raises a few important issues relating to local government ethics proceedings.

According to Barton, Kingston's new ethics board dismissed a complaint from a city alderman that the mayor had violated the ethics code by hiring as an attorney for the city's local development corporation a lawyer with whom the mayor practiced as "of counsel."

Rhode Island's lawmakers really know how to protect themselves. They have fought hard and long to effectively preserve their immunity from state ethics commission jurisdiction. However, with pressure on them to recommend to their constituents a constitutional amendment that would give the EC jurisdiction over them, despite the state's Speech in (sic) Debate Clause, they have planted a bomb in their proposed amendment that will ensure that even the state's good government organizations would oppose it (and that few ordinary citizens would understand what all the fuss was about).

What the state legislature did was to add in a de novo review process, which would allow any state or local official the EC found in violation of the state ethics code to seek a new court trial. The court would not be able to consider the EC's factual findings. In other words, instead of a right to appeal an EC ruling (where the court would determine whether the EC had done anything inappropriate), all officials would get a second chance to argue the facts and the law, and to have their case decided by a judge who would likely care far less about government ethics and have less expertise than the EC.

"Trials are primarily about the truth. Consent decrees are primarily about pragmatism."


— Second Circuit Court of Appeals in SEC v. Citigroup Global Markets, Inc., Nos. 11-5227-cv, 11-5375-cv and 11-5242-cv (2nd Cir., June 4, 2014).

These words from an important court decision yesterday will most likely be quoted in all sorts of contexts, including with respect to ethics settlements, the consent decrees of government ethics.

It's important to recognize why what may be appropriate when a government agency sues a private company is not appropriate when a citizen oversight body handles an administrative action brought against a public servant.

A week ago, I wrote about a poorly written provision in Denver's ethics code, and the danger it poses not only to Denver, but also elsewhere, since local governments in Colorado and in other states are apt to look at the ethics code of such a large, well-respected city (although now that its highness has two meanings, who knows).

On a happier note, this post will look at an excellent decision by Denver's ethics board (attached; see below) relating to this very provision, as well as other, related provisions, and the situation that led to the editorial on which I based my post. The board dismissed the complaint because, even if all its facts were true, it determined that there would be no ethics violation.

What is special is that the board did not simply dismiss the complaint, as most do, either without another word or with a short look at the stated facts and the law. The board effectively acknowledged the limitations of the gift provision:  "[T]he Board’s decision should not be read to constitute an endorsement of the practice of accepting gifts by elected officials under circumstances akin to those at issue here."

The Council on Governmental Ethics Laws (COGEL), an association of American and Canadian practitioners in the areas of conflicts of interest, campaign finance, transparency, elections, and lobbying, is looking into the possibility of offering certification programs in these areas. I assume the courses would be both about the topics and about administering programs in these areas. It might involve giving credits for attending sessions at the annual COGEL conference (it's in Pittsburgh this year, December 7-10) which, if it didn't attract additional participants, would add nothing but a certificate to the current knowledge base of these fields.

As it is now, anyone can say she is a specialist in any of these fields. There are many courses in election law and campaign finance, corruption, and administrative ethics, but as far as I know, there are no courses in administering programs in these areas, not to mention majors or certificates (although an internet search did bring up a Freedom of Information Act practitioner certification course in the U.K., offered by the Chartered Institute for IT).