making local government more ethical
It's sad that it took the Appellate Division of New York state's Supreme Court (not the top court in the state) to disqualify a town attorney from a case when that attorney's firm had represented the opposing party in a matter substantially related to the case.

Government ethics tends to focus on one side of conflict of interest situation. That is, an ethics program tries to prevent officials from mishandling their conflict situations in such a way that they might harm the public. Possible harm to the opposing party in a case with the town does not seem like a government ethics concern. But this is a false distinction.

I did a huge amount of reading this summer for a paper I wrote for the journal Public Integrity (and otherwise). The first piece of reading I'm going to talk about is one of the otherwise.

Washington University in St. Louis law professor Kathleen Clark's law review article, "Confidentiality Norms and Government Lawyers," 85 Wash. U. L. Rev. (2008), is on a topic I researched many years ago and never wrote about, at least at any length. Now I don't have to write it, because Clark did such an excellent job. It's too bad it took me so long to discover it.

As Clark notes, "government lawyers face the confidentiality issue every day." Generally, they tend to favor confidentiality over transparency. It's the way attorneys are taught, and what the rules of professional conduct say.

When it comes to conflicts of interest, is a local government attorney primarily an attorney or a local government official? I would answer this question, "Definitely an official." But recently the New Jersey Supreme Court answered this question, "Definitely an attorney." In fact, had the attorney been an administrator, the opinion suggests, the court's decision would have been different.

The opinion focuses on the standard for determining whether the decision of a local government body should be voided, as tainted by a conflict of interest. The two standards considered are actual prejudice and appearance of impropriety. Different levels of court applied different standards in the case of Kane Properties, LLC v. City of Hoboken. The NJ Supreme Court's decision on the standard was made on June 26. Thanks to Patricia Salkin for bringing this decision to my attention by blogging about it on her Law of the Land blog.

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.