“The concern with potential corruption does not stop just because the relationship has entered the bedroom.’’

For those of you who think my blog needs a little spice, this is a good ice breaker. These are the words of Kathay Feng, head of California Common Cause, spoken at a meeting of the Fair Political Practices Commission, California's state ethics commission, which has jurisdiction over local officials and employees (quoted from yesterday's PolitiCal column in the Los Angeles Times). The issue was a proposal to allow officials in a “dating relationship’’ with a lobbyist to accept and not disclose “personal benefits commonly exchanged between people on a date or in a dating relationship.’’

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.

Another serious problem posed by making a legislative immunity defense in the local government ethics context can be seen from reading the recommendation of the investigating panel of the Stamford (CT) board of ethics. In the section that provides reasons for dismissal of a complaint brought against a council member, the panel wrote:

The case also presents significant legal issues arising from [the respondent's] assertion of legislative immunity and First Amendment protection for his actions.  Whether or not [the respondent's] positions are correct, these issues are likely to result in costly and protracted legal proceedings.  The City will be forced to expend very significant financial resources to pursue this matter not only at the Board of Ethics level, but likely in court as well.

How you present an ethics provision can make all the difference. Take a pay-to-play ordinance proposed in Fort Wayne, which would limit the amount of contributions and gifts that can be given to city officials by an individual or entity if it wants to have a no-bid contract with the city.

In Georgia, Community Improvement Districts (CIDs) are a creation of state government (they're in the amended 1984 state constitution) that involves local governments in serious potential conflicts of interest, in order to allow developers to fund their public infrastructure with tax-free bonds. CIDs are a clever idea, but cleverness is often inconsistent with government ethics. Smith, Gambrell & Russell, a law firm, has a good, short overview of CIDs.

The county and/or city in which a CID is located approves and even participates in the management of the CID (the local government(s) gets one seat on the CID board). Approval by landowners is not based on one-person one-vote, but rather on the value of real estate, which gives the power to commercial entities. The major landowners also vote for board members. But all landowners pay the assessments, along with their county taxes, so that the county is involved in this aspect, as well.

CIDs can also enter into cooperation agreements with counties or cities, so that, for example, a county may agree to maintain the roads built with bonds issued by a CID.

Sometimes, conflicts are built right into ethics laws, partly because it is in the political interest of those with conflicts, and partly because they don't even view those laws as ethics laws.

A good example of this is the Connecticut law (CGS §9-623) that places enforcement of municipal campaign finance laws in the hands of city and town clerks. In Connecticut, clerks are often elected officials who usually run on a ticket with mayoral or first selectman candidates, and on a party ticket with other elected officials. In smaller towns, they are appointed by the board of selectmen.