making local government more ethical
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."

Many people think that lawyers make the best ethics commission members. In fact, many ethics codes require that at least some members of an ethics commission be lawyers.

However, lawyers are the individuals most likely to have relationships and obligations that conflict with the obligations they have as EC members. For example, they often have relationships with elected officials, who are often lawyers themselves, as well as with clients who seek special benefits from the local government. And they often represent clients before their local government's agencies and bodies.

This last kind of conflict situation led to a complaint filed against a Woodbridge, CT EC member, according to an article in Monday's New Haven Register. The complaint alleged that a lawyer-EC member (1) represented the town's fire commission in a legal dispute with the town's inland wetlands agency, and (2) represented a client before the town's planning and zoning commission.