making local government more ethical
In an April 2013 blog post, I wrote about the problems surrounding a Florida state senator's request for a state audit of Palm Beach County's EC. That report, drafted by the state legislature's Office of Program Policy Analysis and Government Accountability, has recently been published, and it includes the EC's response to the report (attached; see below).

In this post, I will critique the audit report. I will not go further into the controversies surrounding the request for the audit. For more on these, see articles in Monday's Sun-Sentinel and in yesterday's BizPac Review. In a future post, I will look at how others are portraying the report and what they are saying about the Palm Beach County EC.

Party Committee Members on EC
According to an article in the Hartford Courant this week, a Newington, CT mayoral candidate, and council minority leader, who has made ethics allegations against the incumbent mayor has chosen not to file an ethics complaint because, she says, two of the four members of the town's ethics board are also members of the opposing party's town committee, one of them the nominating chair of the committee.

This is a problem with many ethics commissions that are selected by high-level officials and have few if any limitations on who can be a member. Officials and party committee members on an ethics commission cannot be seen as being neutral with respect to the officials, especially elected officials, who come before them.

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.

It all started with the indictment, on charges of bribery and theft, of a Fats, Oil & Grease inspector back in November 2010. It led to an 83-page grand jury report in August 2013, which set out the misconduct involving the DeKalb County (GA) Department of Watershed Management (DWM) procurement process, and made recommendations not only for indictments, but also for an improved ethics program. The story that the grand jury tells in its report is a classic case of institutional corruption in a procurement context, relating to a division of the Public Works department and a large construction project. Just about every procurement-related ethics violation occurred, and many people were involved or knew what was going on.

A colleague asked me recently about the argument that withdrawal from participation by a legislator, who cannot delegate to someone else, "disenfranchises" that legislator's constituents. Since disenfranchisement is a terrible thing, the argument goes, legislators cannot be asked to withdraw from participation, but only to disclose their conflicts.

I have not sufficiently countered this argument here in my blog or in my book Local Government Ethics Programs. In this blog post, I will point out many problems with the disqualification argument. But first, here is a lightly edited version of what it says in my book about "duty to vote" laws, which block laws that require officials to withdraw when they have conflicts and are often based on the disqualification argument:
It's exciting to read a column on a local government ethics matter that shows as deep understanding and as clear explanation as the column by Ottawa Citizen editorial board member Mohammed Adam that appeared yesterday. The column focuses on the problems that arise when a city planner is a small property developer on the side. Both the chair of the city's planning committee and the city’s general manager of planning said that the city planner's side business was fine because she made sure that everyone who needed to know about it was told. In other words, disclosure is a sufficient cure for this conflict situation.

Adam shows in his column how insufficient this cure is. He provides an example of a serious problem arising from such a conflict that officials often ignore. The planner was assigned to evaluate a rezoning application for a proposed condo building that happened to be close to her own redevelopment project. The community association that had filed the application said the planner's involvement raised fears that, if they opposed the planner's project, it might be held against them in the future. In other words, when a planning official is doing business in her own field, it can undermine the public interest of open debate about land use projects. And simply by wearing two hats, without having to say a word, she can give herself an advantage over other developers. The more she discloses her conflict, the more people will know not to speak out about her projects. Disclosure does absolutely nothing to cure this consequence of her conflict.