making local government more ethical
According to a recent Reader Supported News article, ethics allegations have been made in Montpelier regarding two high-level officials. Both allegations are worthy of a closer look.

According to the article, the mayor of Montpelier, the state capital, is a lawyer with a firm that represents two major national banks. The city's director of planning and development is the executive director of Global Community Initiatives (GCI), a nonprofit dedicated to sustainable development. Among GCI's goals is the establishment of a Public Bank of Vermont. Apparently, the idea of a public bank is opposed by commercial banks.

The Boss of the Ethics Director's Bosses
According to an article this week in the Free Times, an FOI lawsuit was filed against South Carolina's ethics commission, because its director had said that a letter informing the governor of an ethics violation had not been sent and had been destroyed, when in fact it was sent and did exist.

Not only does the governor appoint all EC members (making her the boss of those for whom the ethics director works) but, according to the article, the director consulted with the governor's private attorney before telling his staff attorney that her opinion (apparently the one in the letter) was uninformed. This relationship with the governor, plus the EC's lack of transparency, undermine the public's trust in the ethics program.

It was pointed out to me by Justin Levitt, a professor at Loyola Law School Los Angeles, that back in 2000 John Copeland Nagle, a professor at Notre Dame Law School, wrote a law review article suggesting what I call the Westminster Approach to campaign contributions from those seeking benefits from the recipient official's government. The article, which focuses on Congress, is entitled "The Recusal Alternative to Campaign Finance Legislation" (37 Harv. J. on Legis. 69 (2000)).

The Westminster Approach, named after a 1996 ethics law in Westminster, CO, requires an official who has received a gift, including a campaign contribution, above a certain dollar amount to withdraw from participation in a matter involving the contributor. This means that there is no contribution limit, but if a contributor goes beyond the gift limit, the recipient official is not in a position to help the contributor. Therefore, there is nothing to be gained (1) by making large contributions in the hope that they will benefit the contributor, or (2) by requiring the payment of large contributions in order to play.

The long-running Carrigan case (Carrigan I, that is) may have finally come to an end. And it's a very good end. After the U.S. Supreme Court threw out Carrigan's absurd argument that a council member has a First Amendment free speech right to vote on legislative matters where he is conflicted, the Nevada Supreme Court concluded that, if a council member chooses not to seek ethics advice and votes on a matter involving someone with whom he has a special relationship, he cannot say that the conflict provision was unconstitutionally vague with respect to due process.

As I keep saying, conflicts are about "benefits" and "relationships" rather than about "interests," and this should be reflected in the language of ethics codes. The clash of these two kinds of language is the subject of a recent Virginia Supreme Court decision, Newberry Station Homeowners Assoc. et al v. Board of Supervisors of Fairfax County (April 18, 2013).

The matter also involves non-financial benefits and the distinction between an official sitting on a body as a government representative or as a private individual.

Toward the end of a video of the November 4 meeting of the Florida Joint Legislative Auditing Committee, the committee vice-chair says that the testimony he heard was very "troubling." I felt the same way about the meeting as a whole, but for completely different reasons. What occurred at this meeting is as troubling as anything I have seen in seven years of following local government ethics matters nationwide.

From about 20 minutes into the video, the meeting is supposed to be focused on the audit report on the Palm Beach County EC, which I wrote about yesterday. A member of the office drafting the report summarized the report, and then the executive director of the EC effectively summarized the EC's response to the report. The responsible thing for the committee to do was to discuss the report's conclusions and the EC's acceptance and questioning of the report's recommendations. No such discussion occurred.

Two more people spoke, both of them lawyers representing clients who had been respondents in proceedings before the Palm Beach County EC. No one was asked to respond to what they said, and very few questions were directed to the speakers.