Basing Ethics Decisions on Unenforceable Code Provisions Undermines Trust in the Ethics Process

I recently wrote about a situation in Stamford, CT in which probable cause was found based on a policy declaration rather than an enforceable ethics provision. That situation appeared to involve a misunderstanding, with a unanimous ethics commission finding probable cause.

According to an article in the News Transcript, the Marlboro, NJ ethics board split 4-2 in its finding of probable cause based on three paragraphs in the ethics code's Findings section, which precedes its Purpose and Authority section, neither of which contain enforceable provisions:

II. Findings.
The Marlboro Township Ethics Board finds and declares that:
A. Public office and employment are a public trust.
B. The vitality and stability of representative democracy depend upon the public’s confidence in the integrity of its elected and appointed representatives. ...
D. Governments have the duty both to provide their citizens with standards by which they may determine whether public duties are being faithfully performed and to apprise their officers and employees of the behavior which is expected of them while conducting their public duties.

The conduct involved a zoning board member's nasty e-mail to someone he believed to be the manager of a website spreading false rumors during election season last year. The website manager distributed the e-mail to certain individuals, who brought it to the attention of the public.

The individual who filed the complaint said that he "believed that [the member's] tone and comments in the email could lead zoning board applicants whose application had been denied to file suit and claim their application was denied due to [the member's] prejudices."

One ethics board member is quoted as saying, "We should be discussing whether or not this email, which we now have in our possession, in some way disqualifies Mr. Schlaflin from service on the zoning board. That should be the only issue.” Another member agreed.

According to another News Transcript article, the ethics board's attorney "said that if the alleged violator’s actions could affect his capabilities to perform his duties on a public body, then the board could retain jurisdiction of the matter."

A third ethics board member "pointed to a section of the township’s code regarding public trust and said he believes Schlaflin’s action was in violation of that portion of the code." Public trust is mentioned only in the Findings section, and there is nothing in the ethics code about individuals' capability to perform their duties.

Two ethics board members voted against taking jurisdiction over the matter. They said that "the email in question was never meant for public viewing and was therefore a private matter unrelated to Schlaflin’s responsibilities on the zoning board. Salman said that while Schlaflin’s email may have been filled with language the board members would condemn, it was not the board’s job to be the moral police."

The Marlboro ethics code is a very standard ethics code. It covers the basic topics, such as conflicts of interest, gifts, representation, and post-employment, and has nothing to say about anything external to an official's government responsibilities.

To go beyond the clear limits of an ethics commission's jurisdiction, especially when members have clearly pointed out why the commission does not and should not have jurisdiction, makes its decisions look political, opening up the entire ethics process to question and undermining trust in the government. This is especially true since the complaint was filed by the president of one of the township's party organizations.

According to a News Transcript article yesterday, the zoning board member has appealed the ethics board's decision that he violated the ethics code. The article contains accusations that further open up the ethics process to question.

The zoning board member said that the board held meetings "at which the matter was discussed without notification to him as the defendant that such a discussion would take place." He also said that the board "deliberated on the matter behind closed doors and then came back into public session after they had made their decision in the case."

The state procedures for local government ethics provide for confidentiality and executive sessions only in the investigation stage of an ethics proceeding.

The ethics board should reconsider its decision, make it clear that complaints can be filed only on the basis of enforceable ethics provisions (and state this clearly on its complaint form) and, if what the respondent says is true, clarify its procedures so that respondents will be given notice of all meetings relevant to their matter and that no meetings will be closed after the investigation has been completed. The state procedures should also be clarified, so that it is clear which meetings must be open; referring only to those that must be closed is clearly insufficient.

Finally, if the article was correct in describing what the ethics board's attorney said, the ethics board should be allowed to retain counsel with more understanding of government ethics, or require that its counsel be sufficiently trained.

Robert Wechsler
Director of Research-Retired, City Ethics

---