The Colorado ethics commission matter that I discussed in my last blog post points to yet another reason why ethics commissions must have their own counsel, and a sufficient budget to pay that counsel.

According to a January article in the Colorado Independent, Colorado's Attorney General issued an opinion on January 8 supporting the Secretary of State's request for approval of his legal defense fund, through either transparency or a blind trust. The ethics commission's draft opinion opts for transparency. A blind trust in this situation would require that the public's trust be blind, that is, without any evidence or reason to believe the Secretary of State would not know about any of the gifts to the fund.

The AG opinion is problematic, not just because of its conclusions, but also because the AG is the ethics commission's counsel, just as the city or county attorney is in most local government ethics programs.

A February draft advisory opinion from the Colorado Independent Ethics Commission (attached; see below) raises two different issues. One is the problematic nature of a total gift ban, that is, a ban on all gifts from anyone, accompanied by a whole host of exceptions. The other is the important differences among gifts, campaign contributions, and contributions to an official's legal defense fund.

The draft advisory opinion relates to the solicitation of contributions to the secretary of state's legal defense fund. The defense involves a criminal investigation.

Some very interesting issues arise out of a past (and present) conflict situation that has become an issue in this week's mayoral primary in the Unified Government of Wyandotte County and Kansas City, KS ("UG").

The conflict situation appears simple at first glance, but it is not. In 2007, a UG commissioner became the paid executive director of the Argentine Neighborhood Development Association ("ANDA"), a nonprofit Community Development Corporation and Community Housing Development Organization that has received funds from the UG. The executive director was paid, at least partially, out of those funds.

I'm a big supporter of making ethics commissions independent of those over whom they have jurisdiction. Milton, Georgia and, now, Forsyth County, Georgia have come up with an interesting approach to ethics commission independence that has one good point and several bad points.

The recent amendments to the Forsyth County ethics code (the ethics provisions are here) were modeled after Milton's code (this is the complaint procedure; the code is in Ch. 2, Art. VIII), which was passed in 2010 (Forsyth County's county attorney, Ken Jarrard, is also Milton's city attorney) .

The Milton code requires that, after determining that an ethics complaint meets the basic requirements, the city clerk create a special ethics panel by picking three names randomly from a list of between nine and fifteen out-of-town attorneys, whose qualifications need not include any knowledge of government ethics. In Forsyth County, a panel is also created to respond to a request for an advisory opinion.

It's been six years since I last wrote about local government ethics in Tennessee. In a January 2007 comment to the forum on recusal, I focused on the fact that the University of Tennessee's Municipal Technical Advisory Service (MTAS) (which operates in cooperation with the Tennessee Municipal League) had prepared a model municipal ethics code that allowed, but did not require, officials with a conflict to withdraw from voting.

My eye was caught by a recent article in the Tennessean about the mayor of Cheatham County, who asked the county commission to create an ethics committee as required by the county's 2007 ethics code. The county commission voted against creating this committee, even though it would consist of from three to five county commissioners, with zero to two other officials.

One county commissioner pointed out that, in its model ethics code, University of Tennessee’s County Technical Advisory Service (CTAS), the county equivalent of the MTAS, did not require that counties create an ethics committee. Therefore, he argued, even though the county commission had passed an ordinance requiring one, one wasn't required.

Update: December 19, 2012 (see below)

I am always amazed at what contraptions people are willing to set up to justify the participation of a city attorney in the ethics program of a large city or county that has sufficient resources to hire an ethics commission staff member or independent ethics officer. I raise this issue because controversial ethics reforms are being voted on today by Fort Worth's council, and one of them includes making a city attorney's ethics advice an "absolute defense," even though there is an Ethics Review Committee that currently has the authority to provide ethics advice.