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An Analysis of League City TX's Ethics Program
Monday, September 24th, 2012
Robert Wechsler
This is the first of a series of looks at the ethics programs of
smaller cities, towns, and counties. These local governments have
the resources to create an independent, comprehensive ethics
program, but they rarely do. It is valuable to look at both the good ideas and the bad ideas
in the programs they have chosen to create.
I will start with League City, Texas, whose new ordinance dealing with electronic communications during council meetings caught my eye. League City is a fast-growing city of 85,000 between Houston and Galveston. It passed an ethics ordinance at the end of 2009 and established an Ethics Review Board in 2011. Texas has local government ethics laws, but the League City council decided to supplement them.
The Website
One serious problem is that the current ethics ordinance cannot be found anywhere. The ordinance as of the end of 2010 can be found on two pages (1 2) among the ordinances, which are themselves difficult to find on the city's website. The sections that were amended in 2011 can be found only as an attachment to a 2011 council legislation page. There is no Ethics Review Board (ERB) page, although the board is discussing this. So, hopefully, all the necessary documents will become easily available to those who are supposed to be guided by them.
A Divided Ethics Program
But the most serious problem with League City's ethics program is that it is broken up among a number of different bodies and agencies. The mayor and each council member selects one member of the ERB. The city attorney recommends the name(s) of the ethics compliance officer (ECO) to the council, which appoints the ECO, who must be an outside attorney who does not otherwise represent the city. The city attorney has other minor roles in the program.
Advice and training are in the hands of the ECO, although the city attorney is also authorized to provide ethics advice, allowing forum shopping among officials who feel the city attorney might let them do something the ECO would not. The ECO also acts as legal counsel to the ERB. But the relationship between ECO and ERB is not clear, including the ability to manage or fire the ECO or select separate counsel. The ECO investigates an ethics complaint and presents it to the ERB, which appoints an Ethics Panel of its members, which also has the power to investigate, along with the police department. The ECO also presents the case to the full ERB. The ERB makes findings and recommendations for enforcement, but enforcement is handed over to a criminal enforcement agency.
The Ethics Officer
League City did exactly the right thing in deciding to have an ethics officer who is an outsider. But the ECO should be appointed by and accountable to the ERB. As it turns out, no ECO had been appointed before the first complaint was filed in July 2011, and that complaint was filed against the city attorney, whose job it is to recommend the person who would investigate the complaint against him and make the case to the ERB. This is just the sort of situation that arises when those under an ethics commission's jurisdiction are involved in the ethics program.
The ERB Selection Process
A similar problem arises from the ERB appointment process. Each member is identified with a particular council member. The council did the right thing in making a council member's appointee illegible for participation in any matter involving that council member. However, it is not good to have ethics commission members directly associated with any official. If the ERB dismisses a matter against a council member, it will appear that its members were voting in the interests of their appointing authorities rather than in the public interest. This appearance, which can seriously undermine an ethics program, can be prevented by having the members of an independent EC independently selected.
Criminal Enforcement
Another serious problem with League City's ethics program is that enforcement is 100% criminal. This means that enforcement is in the hands not of the ethics program, but of a criminal enforcement agency, which may very well be led by colleagues or allies of city officials. In addition, this means that there is little distinction between a crime such as bribery and an ethics violation such as accepting a gift from someone doing business with the city.
Government ethics enforcement should be administrative and involve lesser evidentiary rules, procedural rules, standards of proof, and penalties. It recognizes that officials are not like ordinary people charged with crimes, because they have a fiduciary duty and should not participate when they have a conflict. A government ethics program also limits the cost of enforcement, and makes advice and training more important than enforcement.
League City's confusion of ethics and crime is all too typical. It is likely that there was little discussion about doing otherwise. It is not too late to have this discussion, but it should come from the ERB, not the council, because citizens, who do not understand government ethics, are likely to think council members are trying to prevent themselves from being convicted of crimes.
Frivolous Complaints
One final problem: a sizeable portion of the ethics ordinance deals with "frivolous complaints," which are defined as "a sworn complaint that is groundless and brought in bad faith or groundless and brought for the purpose of harassment." The fact is that most ethics complaints are filed by people who have little understanding of government ethics. The penalties for this vague concept of frivolousness are so pronounced that it would take a very secure and brave individual to file an ethics complaint. An ethics code should do just the opposite: it should go out of its way to make it easier for individuals to file an ethics complaint, allowing anonymous tips, providing whistleblower protection, and dealing with frivolous complaints simply by dismissing them as quickly as possible.
It's important to remember that there are many ways to harass an official other than by filing an ethics complaint. An ethics program is intended to provide a formal process for dealing with ethics issues, to undermine the harassment that occurs online and in the news media by providing advice and quickly dismissing frivolous complaints to squelch bogus ethics controversies.
Electronic Communications
There are other problems with the League City ethics program, but this is enough for one blog post. As for the new ordinance on electronic communications, according to an article yesterday in the Galveston Daily News, League City’s council members will no longer be allowed to communicate with each other on any electronic device while they are in session. This is, in effect, communication that goes against the state's open meetings act. It is good to pick this conduct out and provide guidance on it. An ordinance isn't necessary, but it is good to get the council's approval. However, the rule should apply to the meetings of all boards and commissions.
Electronic communications are different from whispering, because one message can be sent quickly to everyone, allowing the making of deals or discussions that are essentially made in closed meeting. Whispering is only between two members, so much of it is necessary to make a deal or have a discussion. However, it, along with the now old-fashioned passing of notes, should also be minimized.
Robert Wechsler
Director of Research-Retired, City Ethics
---
I will start with League City, Texas, whose new ordinance dealing with electronic communications during council meetings caught my eye. League City is a fast-growing city of 85,000 between Houston and Galveston. It passed an ethics ordinance at the end of 2009 and established an Ethics Review Board in 2011. Texas has local government ethics laws, but the League City council decided to supplement them.
The Website
One serious problem is that the current ethics ordinance cannot be found anywhere. The ordinance as of the end of 2010 can be found on two pages (1 2) among the ordinances, which are themselves difficult to find on the city's website. The sections that were amended in 2011 can be found only as an attachment to a 2011 council legislation page. There is no Ethics Review Board (ERB) page, although the board is discussing this. So, hopefully, all the necessary documents will become easily available to those who are supposed to be guided by them.
A Divided Ethics Program
But the most serious problem with League City's ethics program is that it is broken up among a number of different bodies and agencies. The mayor and each council member selects one member of the ERB. The city attorney recommends the name(s) of the ethics compliance officer (ECO) to the council, which appoints the ECO, who must be an outside attorney who does not otherwise represent the city. The city attorney has other minor roles in the program.
Advice and training are in the hands of the ECO, although the city attorney is also authorized to provide ethics advice, allowing forum shopping among officials who feel the city attorney might let them do something the ECO would not. The ECO also acts as legal counsel to the ERB. But the relationship between ECO and ERB is not clear, including the ability to manage or fire the ECO or select separate counsel. The ECO investigates an ethics complaint and presents it to the ERB, which appoints an Ethics Panel of its members, which also has the power to investigate, along with the police department. The ECO also presents the case to the full ERB. The ERB makes findings and recommendations for enforcement, but enforcement is handed over to a criminal enforcement agency.
The Ethics Officer
League City did exactly the right thing in deciding to have an ethics officer who is an outsider. But the ECO should be appointed by and accountable to the ERB. As it turns out, no ECO had been appointed before the first complaint was filed in July 2011, and that complaint was filed against the city attorney, whose job it is to recommend the person who would investigate the complaint against him and make the case to the ERB. This is just the sort of situation that arises when those under an ethics commission's jurisdiction are involved in the ethics program.
The ERB Selection Process
A similar problem arises from the ERB appointment process. Each member is identified with a particular council member. The council did the right thing in making a council member's appointee illegible for participation in any matter involving that council member. However, it is not good to have ethics commission members directly associated with any official. If the ERB dismisses a matter against a council member, it will appear that its members were voting in the interests of their appointing authorities rather than in the public interest. This appearance, which can seriously undermine an ethics program, can be prevented by having the members of an independent EC independently selected.
Criminal Enforcement
Another serious problem with League City's ethics program is that enforcement is 100% criminal. This means that enforcement is in the hands not of the ethics program, but of a criminal enforcement agency, which may very well be led by colleagues or allies of city officials. In addition, this means that there is little distinction between a crime such as bribery and an ethics violation such as accepting a gift from someone doing business with the city.
Government ethics enforcement should be administrative and involve lesser evidentiary rules, procedural rules, standards of proof, and penalties. It recognizes that officials are not like ordinary people charged with crimes, because they have a fiduciary duty and should not participate when they have a conflict. A government ethics program also limits the cost of enforcement, and makes advice and training more important than enforcement.
League City's confusion of ethics and crime is all too typical. It is likely that there was little discussion about doing otherwise. It is not too late to have this discussion, but it should come from the ERB, not the council, because citizens, who do not understand government ethics, are likely to think council members are trying to prevent themselves from being convicted of crimes.
Frivolous Complaints
One final problem: a sizeable portion of the ethics ordinance deals with "frivolous complaints," which are defined as "a sworn complaint that is groundless and brought in bad faith or groundless and brought for the purpose of harassment." The fact is that most ethics complaints are filed by people who have little understanding of government ethics. The penalties for this vague concept of frivolousness are so pronounced that it would take a very secure and brave individual to file an ethics complaint. An ethics code should do just the opposite: it should go out of its way to make it easier for individuals to file an ethics complaint, allowing anonymous tips, providing whistleblower protection, and dealing with frivolous complaints simply by dismissing them as quickly as possible.
It's important to remember that there are many ways to harass an official other than by filing an ethics complaint. An ethics program is intended to provide a formal process for dealing with ethics issues, to undermine the harassment that occurs online and in the news media by providing advice and quickly dismissing frivolous complaints to squelch bogus ethics controversies.
Electronic Communications
There are other problems with the League City ethics program, but this is enough for one blog post. As for the new ordinance on electronic communications, according to an article yesterday in the Galveston Daily News, League City’s council members will no longer be allowed to communicate with each other on any electronic device while they are in session. This is, in effect, communication that goes against the state's open meetings act. It is good to pick this conduct out and provide guidance on it. An ordinance isn't necessary, but it is good to get the council's approval. However, the rule should apply to the meetings of all boards and commissions.
Electronic communications are different from whispering, because one message can be sent quickly to everyone, allowing the making of deals or discussions that are essentially made in closed meeting. Whispering is only between two members, so much of it is necessary to make a deal or have a discussion. However, it, along with the now old-fashioned passing of notes, should also be minimized.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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