making local government more ethical
The big news in the government ethics world today is the investigative piece in the New York Times about New York governor Andrew Cuomo's interference in the work of the Moreland Commission he created to investigate corruption in the state government and to recommend reforms to prevent such corruption (see my blog post on its recommendations).

Not only did Cuomo and his secretary meet with and contact the commission co-chairs, telling them not to go after certain groups associated with the governor. In addition, the commission's executive director, appointed by the governor, read the e-mails of commission members and staff, and reported to the governor's office, providing confidential information for the governor's personal and political benefit.

An individual who was asking me government ethics questions recently became angry when I said that codes of conduct that go beyond conflicts of interest are outside of my field. He said that those who engage in bad conduct will probably also engage in bad ethics. He referred to my exclusive focus on conflicts of interest as "compartmentalization."

This reminded me how important it is to make it clear why government ethics programs deal exclusively with conflicts of interests and misuse of government office (and sometimes lobbying, campaign finance, and transparency). The reason I emphasized to the individual was an operative difference, that is, a difference in how the kinds of conduct are dealt with. A conflicts of interest program is based primarily on training, advice, and disclosure. These are much less relevant to officials who make misrepresentations, take drugs, engage in sexual harassment, steal money, have affairs, let their anger get the best of them, etc. No one is going to disclose that they have stolen money, no one can be trained not to have affairs, and no one is going to seek advice about whether to misrepresent facts. This is an important reason why these different kinds of misconduct must be dealt with differently, outside a government ethics program.

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.

How much jurisdiction need a government ethics program have over procurement matters when there is a procurement program dealing with them? This question, common to all cities and counties, is being asked in Honolulu, with respect to the Honolulu Authority for Rapid Transportation (HART), which will be soon awarding about a billion dollars in contracts.

According to an article Friday in Honolulu Civil Beat, Honolulu's ethics commission "is worried that there isn't enough government oversight to ensure that private companies aren't given sweetheart deals." According to the EC, in a letter to the mayor and council, there has been an increasing number of complaints about contractors relating to “unauthorized access to confidential city information, nepotism, and use of taxpayer dollars for political purposes." The problem is exacerbated by the fact that HART is an independent authority, over which the EC does not clearly have jurisdiction, even though the authority pays its contractors with city taxpayer funds.

Is local government ethics enforcement appropriate for local legislators? This question is currently being asked in Sarasota County, FL and Wyandotte County/Kansas City, KS. A key to whether this is the right question is who is asking the question. In both cases, it is local legislators who have been respondents in ethics enforcement proceedings, and some of their legislative colleagues.

I'm currently reading a classic political science book about urban politics, Who Governs? by Robert Dahl. Who governs? is a question that is not asked often enough in local government ethics. It is not enough for an ethics program to have jurisdiction over officials and employees. It needs to have jurisdiction over those who actually govern the community, no matter what their position. I raised this issue in a 2011 blog post about power brokers who hold no office and in a 2012 blog post about a party leader and state senator.

I was reminded of this issue by a column this week by Michael Powell in the New York Times. The matter involved the creation of a dump for petroleum-contaminated soil in land near the Rahway River in New Jersey. The company seeking permits to open the dump was represented at a county board hearing by a state senator whom Powell refers to as the "county political boss." The senator "more or less dominates [the county board] through careful oiling of well-financed political action committees." He also wears the hat of chair of the state senate's environment committee. But he has no position in the county government, and there is no law that says that a state official cannot represent someone before a county board.