making local government more ethical
It's Not the Dead Bodies, It's the Living Ones
"He knows where the bodies are buried at Metro." According to a local mayor as quoted in an article yesterday in the Surrey North Delta Leader, this is an important qualification for someone going from Metro Vancouver (BC) treasurer to lobbyist for the company that runs the local landfill. It just so happens that the mayor's town is working with the landfill company to extend the landfill into his town. Also last year, the same company hired a provincial legislator to be a lobbyist.

The problem with the revolving door between city/province and a company doing business with and regulated by city and province is not only knowing where bodies are buried, but also having close personal, professional, and political relationships with live individuals in the governments, and knowing and having special access to confidential information that is useful to the company. After a cooling-off period, the information one knows is less likely to give the company an advantage, and many contacts will not be buried, but will be gone from government and not in a position to give the company preferential treatment due to having a former colleague on staff.

According to an article yesterday in the Seguin (TX) Gazette, there will be a perfectly ordinary local government ethics occurrence next Monday in Seguin, a town of 25,000 outside San Antonio: the city's ethics commission will meet in closed session to discuss a recently filed ethics complaint.

There doesn't seem to be anything wrong with this. But there are two serious problems here. One is that, according to the article, "the Ethics Commission generally meets only when an ethics complaint has been filed. The commission is required to hold an annual meeting in June to elect officers." Actually, the commission meets "when necessary to carry out its responsibilities." According to the city's website, the EC met only once each year from 2009 to 2012, all but once in June, to elect officers. In 2013, it doesn't appear to have met at all. In other words, the EC clearly does not have many responsibilities, and is not even being employed for the purpose of enforcement.

The second problem is that, according to the city attorney (who is both the city's ethics officer and the EC's counsel and staff), he cannot comment on the complaint because it doesn’t become public information until after it has been acted upon by the EC.

The role of the city or county attorney in an ethics program continues to be a major bone of contention, despite the fact that government ethics professionals generally take the position that the city or county attorney should not be involved in an ethics program.

The latest locale for this dispute is Jefferson Parish, a suburb of New Orleans with about 430,000 people. According to an article this week in the Times-Picayune, after the resignation of the parish's ethics officer, a council member has proposed to hand the job over to the parish attorney. To support his proposal, he asked the state ethics board, which has jurisdiction over local officials, whether this was allowed. The ethics board responded that, "There is nothing in the [state] Code of Ethics that prevents a board or commission from assigning additional duties to a public servant."

In a blog post last week, I listed the many reasons why city and county attorneys should not be providing ethics advice. One of those reasons was that "legal advice and ethics advice require different skill sets." But I limited this part of my analysis to saying that "A legal adviser sticks to the letter of the law, and is always on the lookout for loopholes that her client can take advantage of."

In her new book, Lawyers As Leaders (Oxford University Press, 2013), Stanford Law professor Deborah L. Rhode looks not only at lawyers' skill sets, but at many other characteristics of lawyers that hamper their success as leaders. These same characteristics tend to hamper their involvement in government ethics programs. This is a very serious problem, because most of the people who are most important to the establishment and effective functioning of a local government ethics program — elected officials, government attorneys, and ethics commission staff members — are lawyers.

A month ago, I wrote about some problems Honolulu's ethics program was having with the corporation counsel. The problems have continued. The big issue this last week has been the corporation counsel's provision of ethics advice. So far, the argument has primarily taken place in the form of memos.

The corporation counsel responded in an October 25 memo to questions directed to it by the city's EC in April and September. Then on December 2, the corporation counsel sent another memo, based on this earlier memo, to the mayor, managing director, and department and agency heads. The bottom line of both memos (attached; see below) is that the corp. counsel has not only the power, but the duty to provide ethics advice to all of the city's officers and employees.

In two memos dated December 6 (attached; see below), the EC's executive director and legal counsel (one person) explained why this was problematic and asked that city officers and employees get their ethics advice only from the EC.

The corporation counsel is wrong. She is wrong in so many ways, I will simply list the reasons the EC's executive director includes in his memo, and then add more reasons of my own. (If you want more than a list, read the first of the executive director's two memos and then come back here for more.)
A recent Miami Herald article describes a case that embodies a number of important government ethics issues, including the conflict issues that involve local schools of higher education, gifts to officials' relatives and the officials' knowledge of them, an ethics program's jurisdiction over these relatives, and whether government attorneys should provide ethics advice about past conduct.

The article reports on the ways in which a fast-expanding for-profit medical college has apparently been involved with elected officials and their families. The article says that the college's founder has made over $170,000 in campaign contributions, it has hired a member of the state legislature as an attorney, and it has provided free tuition to that legislator's sister-in-law.

That same legislator sponsored legislation that loosened the accreditation requirements for physical therapy assistant programs which, among other things, allowed the college to rapidly expand its program to five different campuses. The legislation was tacked on to an unrelated piece of legislation just before it was voted on, and "could ultimately boost Dade Medical’s revenues by millions of dollars."