As I near the end of writing my local government ethics book, I am going over local government ethics codes looking for unusual, but valuable provisions to include in a special section that follows my discussion of the run-of-the-mill provisions.

I would like to share one of these provisions that is truly worth thinking about. It appears in the Windsor, CO ethics code:

§5.2.M. No elected or appointed official or public body member shall offer or promise to give his or her vote or influence in favor of or against any proposed official action in consideration or upon condition that any other elected or appointed official, public body member, will promise or assent to give his or her vote or influence in favor of or against any other proposed official action.

Yet another brief has been filed in the Carrigan v. Commission on Ethics of the State of Nevada case, this time the EC's supplemental brief on remand to the Nevada Supreme Court.

The principal issue discussed in this brief is vagueness, which has stood in the background behind First Amendment issues of free speech and free association. The free speech arguments were put to rest by the U.S. Supreme Court, and the free association arguments were found not to have been originally raised, so they were dismissed.

In a blog post on the oral arguments before the U.S. Supreme Court, I discussed some of the issues raised in this brief, because they were discussed by the justices, even though their decision itself said nothing about vagueness, because the Nevada courts had not reached this issue. Now it will be discussed, and its discussion raises far more interesting and important issues than how the First Amendment applies to government ethics.

A lot of interesting issues have arisen with respect to Santa Fe's Ethics and Campaign Review Board.

A Majority of Lawyers on an Ethics Board
First, a new selection process was created, and the ethics board members were replaced some time between the July and August meetings. Instead of having council members individually select ethics board members, which was a terrible idea, now a local bar association selects 8 lawyers, from which the mayor appoints 4, plus 3 non-lawyers of his choice. The involvement of nonpartisan civic organizations in the selection of ethics board members is a great idea, but not (1) when there is only one such organization and (2) when it is required to select only lawyers.

Let's say you're a professional who wants to give something back to your community by serving on a city board or commission. You open up the newspaper and read that your mayor is saying, "It is not the five of us commissioners who make the city great. It's the citizens who are passionate about it, and now we're telling them, 'Sorry you can't serve.'"

Or the mayor is saying, "On certain boards we require professional experience. With what is now required by the Ethics Commission, these same professionals are feeling they can't run the risk of making a mistake and being possibly thrown in jail."

Suddenly, sitting on a nonprofit board looks really good, at least in Palm Beach County, where many municipal officials have opposed the new ethics code.

A post yesterday in Coates' Canons: NC Local Government Law Blog raises an interesting issue about the situation of a local government candidate who has an interest in a contract with the local government which, by NC law, is prohibited not for candidates, but for a winning candidate the day he or she takes office. This provides a good occasion to look at the intersection of candidates and local government ethics codes, outside of the more common campaign finance issues.

The paths of justice have some odd twists to them. Consider these twists. As I wrote in a blog post almost exactly a year ago, both parties to a case involving a Baltimore council member's alleged acceptance of a bribe argued that a statutory provision entitled "Action for defamation against local government official" was not relevant to the case. Here is the text of that provision (§5-501):

A civil or criminal action may not be brought against a city or town councilman, county commissioner, county councilman, or similar official by whatever name known, for words spoken at a meeting of the council or board of commissioners or at a meeting of a committee or subcommittee thereof.

Without the title, this would appear, at first glance, to be an application of legislative immunity to local legislators. But the title and the language both make it clear it's only about actions for defamation. By "language," I refer to the fact that it says that actions may not be brought "for words spoken," not that a local legislator's "speech or debate" (the constitutional language applicable to state legislators) which is far broader, cannot be brought into evidence in actions against local legislators.

Despite the parties' agreement that this statutory provision was not relevant to the case, the court of special appeals applied it and found it effectively an application of the state's legislative immunity protection given to state legislators. That is, the court extended this limited statute not only beyond defamation, but also beyond "words spoken," to include all legislative activity.