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Best Practices, The Criminalization of Ethics, and Illness As a Conflict Situation
Wednesday, December 18th, 2013
Robert Wechsler
According to an
article in the Capital Gazette, a former Anne Arundel County
(MD) county executive, who was convicted early this year of a
misdemeanor for misconduct in office, wants to run for office again,
despite the judge ordering, as part of the criminal penalty, that he
not be permitted to run for office for five years.
The former official's arguments in an appeal to the conviction, solely regarding the ban on his running for office, are (1) that the language in the criminal provision was overly vague, preventing him from knowing that he was committing a crime, and (2) that the court lacked the authority to ban him from running for public office.
A Baltimore Sun commentary this week by iSolon.org's president, J. H. Snider, notes that many elected officials, including the county executive's predecessor, have their security detail do personal and political work for them, and are never prosecuted. He also explains that, due to a debilitating back operation, the county executive was forced to depend on those around him in unusual ways, such as changing his urinary catheter bag.
But the problems go well beyond these, and are much more general in nature.
Best Practices
From a government ethics viewpoint, the biggest problem here is a lack of best practices. Because there are no generally accepted best practices, Anne Arundel County, despite having one of the best ethics programs in the state, has no provision prohibiting the misuse of public resources, including public personnel. Therefore, what should have been a government ethics issue handled by the county's own ethics program turns into a state prosecution, which puts the county executive into the hands of a prosecutor who might have been acting for partisan reasons and into the hands of a judge whose powers are far broader than an ethics commission.
The Criminalization of Government Ethics
The other problem here is the state's criminalization of ethical misconduct. Although the crime is only a misdemeanor, criminalizing ethics gives judges the discretion to imprison the official (which also happened here), fine the official (in this case $75,000), and prevent the official from running for office.
On the other hand, since it is difficult to prove most ethical misconduct, and prosecutors tend not to pursue such charges to the point of a conviction, criminalizing ethics tends to mean little actual enforcement.
Elected officials criminalize ethics to make it look like they're being tough on ethical misconduct, while knowing that the likelihood they will be prosecuted is very small. Misuse of resources happens to be the easiest ethical misconduct to prove. Misuse of personnel often leads unhappy subordinates to file complaints, and the misuse of machinery or computers can be difficult to hide.
Treating an Illness or Disability As a Conflict Situation
One final problem here is holding on to public office when one is unable to fulfill one's public obligations. If an operation or illness will limit an official for only a short period of time, there is little problem. But if it means that the official will be unable to handle many aspects of his job and to depend on others, then the official needs to treat this as a conflict of interest and get input from colleagues and from the ethics commission to deal with the situation responsibly and in the best interests of the public. Sometimes this means taking a leave of absence or giving up one's position.
In this case, perhaps the county executive could fulfill the obligations of his job, but only with either a nurse or the nursing services of his security detail. If this is the case, he should have either requested the funding of a nurse or asked the ethics commission (or, in this case, since there was no relevant local provision, the council) for a waiver, so that the security detail could help him with basic needs, such as his catheter bag and getting food for him. Then everything would be open and publicly approved.
Robert Wechsler
Director of Research-Retired, City Ethics
---
The former official's arguments in an appeal to the conviction, solely regarding the ban on his running for office, are (1) that the language in the criminal provision was overly vague, preventing him from knowing that he was committing a crime, and (2) that the court lacked the authority to ban him from running for public office.
A Baltimore Sun commentary this week by iSolon.org's president, J. H. Snider, notes that many elected officials, including the county executive's predecessor, have their security detail do personal and political work for them, and are never prosecuted. He also explains that, due to a debilitating back operation, the county executive was forced to depend on those around him in unusual ways, such as changing his urinary catheter bag.
But the problems go well beyond these, and are much more general in nature.
Best Practices
From a government ethics viewpoint, the biggest problem here is a lack of best practices. Because there are no generally accepted best practices, Anne Arundel County, despite having one of the best ethics programs in the state, has no provision prohibiting the misuse of public resources, including public personnel. Therefore, what should have been a government ethics issue handled by the county's own ethics program turns into a state prosecution, which puts the county executive into the hands of a prosecutor who might have been acting for partisan reasons and into the hands of a judge whose powers are far broader than an ethics commission.
The Criminalization of Government Ethics
The other problem here is the state's criminalization of ethical misconduct. Although the crime is only a misdemeanor, criminalizing ethics gives judges the discretion to imprison the official (which also happened here), fine the official (in this case $75,000), and prevent the official from running for office.
On the other hand, since it is difficult to prove most ethical misconduct, and prosecutors tend not to pursue such charges to the point of a conviction, criminalizing ethics tends to mean little actual enforcement.
Elected officials criminalize ethics to make it look like they're being tough on ethical misconduct, while knowing that the likelihood they will be prosecuted is very small. Misuse of resources happens to be the easiest ethical misconduct to prove. Misuse of personnel often leads unhappy subordinates to file complaints, and the misuse of machinery or computers can be difficult to hide.
Treating an Illness or Disability As a Conflict Situation
One final problem here is holding on to public office when one is unable to fulfill one's public obligations. If an operation or illness will limit an official for only a short period of time, there is little problem. But if it means that the official will be unable to handle many aspects of his job and to depend on others, then the official needs to treat this as a conflict of interest and get input from colleagues and from the ethics commission to deal with the situation responsibly and in the best interests of the public. Sometimes this means taking a leave of absence or giving up one's position.
In this case, perhaps the county executive could fulfill the obligations of his job, but only with either a nurse or the nursing services of his security detail. If this is the case, he should have either requested the funding of a nurse or asked the ethics commission (or, in this case, since there was no relevant local provision, the council) for a waiver, so that the security detail could help him with basic needs, such as his catheter bag and getting food for him. Then everything would be open and publicly approved.
Robert Wechsler
Director of Research-Retired, City Ethics
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