Arguments Against Having City or County Attorney as Ethics Officer

The role of the city or county attorney in an ethics program continues to be a major bone of contention, despite the fact that government ethics professionals generally take the position that the city or county attorney should not be involved in an ethics program.

The latest locale for this dispute is Jefferson Parish, a suburb of New Orleans with about 430,000 people. According to an article this week in the Times-Picayune, after the resignation of the parish's ethics officer, a council member has proposed to hand the job over to the parish attorney. To support his proposal, he asked the state ethics board, which has jurisdiction over local officials, whether this was allowed. The ethics board responded that, "There is nothing in the [state] Code of Ethics that prevents a board or commission from assigning additional duties to a public servant."

But additional duties is not the problem here. The problem involves a number of different issues, which I detailed in a recent blog post about a dispute in Honolulu. Here is a list of the issues relating only to ethics advice, an ethics officer's most important role:

Parish attorney ethics advice:

1. Is seen as favoring official-clients and, therefore, not trusted by the public.

2. Is not considered a best practice by large American cities.

3. Creates a conflict I: a parish attorney's sole job is to advise agencies, departments, and bodies, not individuals. When a conflicted individual comes for advice, he has interests in the matter that are completely distinct from the interests of his agency, department, or body.

4. Creates a conflict II:  A parish attorney has multiple relationships with many of those who would seek ethics advice: political, personal, professional, and superior-subordinate.

5. Involves a different skill set than legal advice.

6. Sometimes creates different confidentiality/transparency concerns than advice from an independent ethics officer, thereby undermining the transparency of the ethics program.

Fortunately, the parish president and the chief administrative officer both oppose handing the job over to the parish attorney. The CAO is quoted as saying, "It remains the administration's position, based upon a review of 'best practices' in the industry, that the Department of Governmental and Ethics Compliance remain as a stand-alone department." He is right. I refer to city attorney ethics advice as the Texas Approach, because among large cities, most of the ones that allow this are in Texas. Otherwise, it is not considered a best practice, for the reasons listed above, and more (for more reasons, see the relevant section of my book Local Government Ethics Programs).

What is unusual here is that the parish attorney does not appear to have taken a public position on the issue. But the CAO says that the parish attorney, which is acting as ethics officer until this dispute is over, is not looking to continue in this position. This means that it is likely that another independent ethics officer will be selected. Let's hope that Jefferson Parish's officials let the ethics program hire the ethics officer, and keep all officials out of the process (they are already out of the process of selecting ethics board members, following another best practice).

Robert Wechsler
Director of Research-Retired, City Ethics

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