making local government more ethical
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."

They said it couldn't — or, at least, wouldn't — be done, but you can see it for yourself, in living Internet color:  non-required disclosures made by Chicago officials and employees.

These are not annual disclosures, but mostly disclosures of gift offers, accepted and rejected. There are dozens of them for 2012 and 2013, and 9 already for 2014. It's good that these disclosures are made, and that they're made public. It never hurts to make local officials look good!

Maybe the next Chicago fraud case will involve officials making up gifts that they can say they returned.
The draft of Fordham Law professor Zephyr Teachout's new essay, "The Forgotten Law of Lobbying," which will appear in Election Law Journal, looks at the history of how American courts have viewed lobbying. This history provides a valuable perspective on lobbying, making it more clear what it is about lobbyists that attracts bad feelings.

After all, when looked at in terms of First Amendment free speech and the redress of grievances, as recent court decisions have, lobbyists should be lionized as elves hard at work to make our democracy work. But, as Teachout shows, lobbyists were not seen in terms of the First Amendment until recently. And they were also seen not as elves, but as people corrupting our democratic system.