making local government more ethical
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.

In early 2009, I started out a blog post, "Type 'ethics' into the search line at utah.gov, and all that comes up is Archery Ethics Course Online." That is no longer true. In fact, the state legislature not only has an ethics commission, it even passed a local ethics commission act. And in response to that act, some Utah municipalities have set up ethics commissions or hearing officers, and one group in Davis County is even at work on a creative approach to a regional ethics program, something I have advocated as a way to provide both independence and professionalism at a reasonable price.

Many local ethics programs are caught up in an ongoing battle with the city or county attorney. Usually this battle goes on behind the scenes. But in Honolulu, due to an unusual grant of budget oversight to the corporation counsel, this battle has gone public.

What can a local official do when he is required to withdraw from a matter that involves a close personal friend who's in hot water due to that official's feud with another official? What do you do when you're caught between a rock and a hard place? The district attorney of Putnam County, NY is faced with this odd and difficult mix of personal and public obligations, at least if what he is saying is true.

According to an article in today's New York Times, the D.A.'s personal trainer and close friend was accused of the rape of a 13-year-old in the area under the D.A.'s jurisdiction. The D.A. publicly withdrew from the matter and had it handled by the district attorney in an adjoining county, which was the right thing to do. But secretly he gave money to his friend for his legal expenses and gave his friend legal advice through his friend's girlfriend, who had also been the D.A.'s nanny. In addition, after his friend's first lawyer removed himself from the case, saying that the D.A. was providing contradictory advice, the D.A.'s brother-in-law became his friend's lawyer.

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