making local government more ethical
A conflict situation in my state of Connecticut is instructive regarding a basic concept of government ethics, as well as a basic concept of legislative immunity.

Legislators insist that they require immunity because their motives in making decisions cannot be questioned outside their body. Government ethics, on the other hand, does not consider motive, only conduct and relationships. This is one of the principal reasons why I argue that legislative immunity does not protect legislators from government ethics enforcement.

But when the talk is not about legislative immunity, it turns out to be perfectly okay to discuss a legislator's motives, as well as others' motives.

Background
According to a Jon Lender column in the Hartford Courant this weekend, (Disclosure: the Courant occasionally hires me to write op-ed columns on government ethics issues), the state's house minority leader made a strenuous argument against a bill requiring increased financial disclosures by for-profit nursing homes. His law firm lobbies for the Connecticut Association of Health Care Facilities, which opposed this bill.

Because Massachusetts has one of the better state ethics programs with jurisdiction over local officials, there are very few local ethics programs, unlike the situation in Florida, California, or Texas, for example.

But there have been some recent ethics reform efforts at the local level. Most recently, according to an article last week in the Boston Globe, the new Boston mayor has appointed members to serve on a new Ethics Committee, which will have the authority to develop annual disclosure statements, establish an ethics training program, and "reassess our internal policies and procedures."

The four EC members include Boston's corporation counsel, a lawyer specializing in government law, a university chancellor, and a former executive director of the state EC.

In Somerville, a suburb of Boston, the mayor has taken an unusual approach in the ethics ordinance he proposed last week. It is a combination of an ex parte communications prohibition and the disclosure of communications. Its focus is solely on elected officials, that is, on the board of aldermen and the schools committee. Here is a description of the proposed rules:

Here's a good way to get around local government transparency laws. If you want an appointee's activities to remain secret, let him be hired by a private entity, give money to the private entity sufficient to pay his salary, and don't communicate with him via government-owned computers or smartphones.

You might think that this would only occur with relatively obscure individuals and entities, aides who can do dirty work that an agency wants to keep hush-hush, hired by a social service agency that is afraid of losing its grant unless it plays along. But the case that led me to write this post involved former Connecticut governor John Rowland (who resigned in 2004 and later did prison time for accepting free work on his house from a state contractor), the city of Waterbury, and a local chamber of commerce.

"The deep problem with the system was a kind of moral inertia. So long as it served the narrow self-interests of everyone inside it, no one on the inside would ever seek to change it, no matter how corrupt or sinister it became — though even to use words like 'corrupt' or 'sinister' made serious people uncomfortable, so Katsuyama avoided them. Maybe his biggest concern, when he spoke to city residents, was that he be seen as just another nut with a conspiracy theory."

This seems like a classic description of the problem citizens have when they understand institutional corruption in a city government and try to get others to understand it. But I changed one term: "city residents" was actually "investors," and this is a quote from Michael Lewis's new book, Flash Boys, which was excerpted in this week's New York Times Magazine.

Reading this excerpt, about the way high-frequency traders took "advantage of loopholes in some well-meaning regulation introduced in the mid-2000s ... simply so someone inside the financial markets would know something that the outside world did not," kept making me think of institutional corruption in local governments. The biggest difference is that it is the local officials themselves who draft loophole-ridden, rules and regulations (or fail to fill the loophones, or simply follow unwritten rules). Even when the rules were originally "well-meaning," they often become the basis for unfair advantages given to certain contractors, developers, grantees, and regulated businesses that, in turn, provide benefits to the officials, their families, their businesses, and their business associates.

In most cities and counties throughout the United States, the city or county attorney is in charge of the government ethics program. I have written a great deal about why this is not a best practice, but city and county attorneys still keep providing further reasons. Here's one from Tioga County, NY.

According to an article in the Star-Gazette yesterday, Tioga County has a law that prohibits citizens from making copies of officials' annual financial disclosure forms. They can't even photograph them, type the data into a computer, or dictate the data into a phone.

Here's another story involving the lack of transparency. This time, the lack of transparency involves a company getting government grants.

According to an article from a week ago on floridaytoday.com, Brevard County, FL's commissioners approved a $205,000 grant for Project Magellan, a business development at the Melbourne (FL) airport that is "expected to bring 1,800 jobs paying an average of $100,000 apiece." The grantee's name was not provided.

According to an article yesterday on floridatoday.com, the Joint Legislative Budget Commission approved a $20.8 million grant for the same mysterious project after only three minutes of discussion, which consisted primarily of the minority leader saying that he was “going to trust the professional staff” of the Department of Economic Opportunity “that they’ll do the right thing.”