making local government more ethical
Can anyone volunteer for a local political campaign without it being considered a contribution? Isn't it everyone's right to do so? Isn't this just about the most important thing a citizen can do, short of running for office herself?

According to the Toronto Metro News website last week, a "political strategist" and lobbyist who was accused of being paid to work on a mayoral campaign responded, “I’m not getting paid a red cent, asshole.” Is there nothing left to say on the issue, other than about civility? Or is it a problem for a political strategist to offer his services for free without declaring them as an in-kind contribution?

I just finished reading the classic political science book Who Governs? Democracy and Power in an American City by Robert A. Dahl (Yale University Press, 1961). It might have been the second time around, because I did take an Urban Politics course forty years ago. The book happens to focus on New Haven, the city in whose suburbs I live and whose public campaign financing program I used to administer.

Who governs? is a question that is too rarely asked by those involved in government ethics. It is assumed that the only individuals who should be under an ethics program's jurisdiction are those currently in government office or with a government job. Often excluded from jurisdiction are numerous individuals who may be very important to the management of the community, including former officials, candidates, consultants and hired professionals (including outside auditors), advisers, party officers, power brokers and fixers, bidders on contracts, grant and permit applicants, those who own and manage contractors that do government work, such as charter schools and waste management companies, and those who work for independent, semi-independent, and public-private offices, agencies, and authorities. All of these people should be included in a local government ethics program.

Consent agendas, also known as consent calendars, are an excellent way to get around the disclosure of conflicts (and, as Dallas showed us in 2011, to amend ethics provisions without a discussion (see my blog post on this)).

A consent agenda is a way to deal, in a single motion and a single vote, with routine, non-controversial items, in order to save often a great deal of time. Board members are allowed to request the movement of a specific item on a consent agenda to the regular meeting agenda, but this is rarely done. Often, few board members have a clear idea what is on a consent agenda. Voting for it becomes a habit, like voting to approve the minutes. However, sometimes matters are placed there, with or without the knowledge of board members, in order to be passed with no attention or to prevent the need for particular members to disclose conflicts they would have to disclose were there to be a discussion and vote on the particular matter.

"Why hire a lawyer to do an internal investigation? It’s because you get the privileges. Otherwise, you’d save a little money and hire a consultant or accountant." These are the wise words of Bruce A. Green, Director of the Louis Stein Center for Law and Ethics at Fordham Law School, as quoted in the New York Times yesterday in an article about the obstacles JPMorgan Chase has put in the way of prosecutorial access to internal notes of interviews regarding the bank's involvement in the Madoff case.

For government ethics, the most important question here isn't the strategy of using lawyers rather than other investigators (or, in the case of ethics advice, lawyers instead of government ethics professionals). The most important question is, Should government attorneys be differentiated from other government officials on the basis of their function or on the basis of their membership in a professional group?

Last November, I wrote a long blog post examining an important general advisory opinion from the District of Columbia's ethics commission on the subject of constituent services. Through a list of general considerations, a look at relevant laws, and a number of illustrative scenarios, the opinion essentially defined the term "usual and customary constituent services," which is an exception to the prohibition on the use of office for someone's personal benefit in the council's code of conduct. The opinion was made in response to a matter that had arisen with respect to a particular council member's situation. The goal was to provide clarity and guidance, especially to council members. I gave the advisory opinion a high grade, but noted a few positions with which I disagreed.

Earlier this month, the council passed a resolution (attached; see below) amending its code of conduct in order to define this same term, but with far more limited language and with no guidance at all. There are two problems with the definition it provided. One is the definition itself. The other is the council's interference with the EC's authority to interpret the District's ethics provisions.

According to an editorial yesterday in the Luzerne County (PA) Citizens Voice, the Luzerne County council, on advice of the county attorney, is planning to hold an executive session tomorrow to discuss changes to its ethics code. The editorial says it would be wrong to hold an executive session.

The county attorney's reasoning is that the changes present a "very high potential for litigation." Why, you ask, would a discussion of ethics reforms lead to litigation? Because the county attorney "maintains that people who had cases before the ethics commission under the current ethics code could sue on the grounds that the original code was flawed."