Book Excerpt 2: A Checklist of Ethics Commission Activities

Here is one of the most useful sections of my new book Local Government Ethics Programs. Summer is upon us, and most ethics commissions that do not have a case before them do not meet. In fact, many ethics commissions are nearly inactive all year long. But this doesn't have to happen. There's a lot that needs to be done.

Many ethics commissions rarely if ever hold meetings, because they are waiting passively for complaints to be filed and requests for advisory opinions to be made (sometimes they also have trouble getting a quorum; sometimes this is a result of their inactivity or of their passivity when officials fail to fill positions on the commission). They do not schedule meetings, or hold ones that have already been scheduled, until they receive a complaint or a request.

The most common rationalization for not improving an ethics program is that no one uses or complains about the one we have, no complaints are filed, few advisory opinions are sought. Therefore, there must not be any ethical problems, everything's good, nothing needs to be improved, nothing needs to happen.

There are two reasons for this state of inactivity. One, the ethics program is passive. No one knows about it, no one understands it, and therefore no one lifts a finger. After all, if the ethics commission doesn’t care enough to meet, why should other officials get involved?

The second reason is that ethics programs themselves have a trust problem. The members of an ethics commission have been selected by the very people they're supposed to be keeping an eye on. The ethics commission has no teeth, and is completely dependent on the good will of the very people they're supposed to be keeping an eye on. In short, without trust and independence, who in their right mind would make use of an ethics commission? So the few complaints that are filed are political, which further undermines trust in the ethics program. And officials get their advice from the city or county attorney’s office.

Passivity is not a responsible approach to authority over government ethics. There is no reason for an ethics commission not to meet regularly. There is a great deal more that an ethics commission can do. Below is a checklist of the activities that ethics commissions can and should be participating in.

1. Training. Create or improve ethics training, for officials and for ethics commission members. This may include (1) working with nearby ethics commissions, a local public administration program, or a municipal association to create or expand ethics training; (2) creating or getting permission to use online training materials; (3) drafting regular (say, quarterly) newsletters, to keep ethics issues in the minds of officials and employees; (4) sending ethics commission members to a good training program, or having a trainer come to the city or county to train the members and to train local trainers, as well; and (5) discussing sections of this book together, as well as selecting advisory opinions from other jurisdictions to discuss. When ethics commissions do not have staff, as most do not, meetings without an important agenda can be used for self-educational purposes. Think of an ethics commission as a government ethics book group.

2. Advice. Just because there are no requests for advisory opinions doesn’t mean that an ethics commission cannot provide guidance on ethics matters. General advisory opinions, sometimes called Advisory Alerts or Guidelines, are useful ways to make ethics provisions more clear and concrete (see the discussion of general advisory opinions). Ethics commission members can do things to get officials accustomed to seeking ethics advice from them. For example, they can ask high-level officials to publicly seek ethics advice; they can hold a public meeting, asking officials and citizens to ask about ethics matters; they can include in the newsletter advice from nearby cities and counties, so officials can learn to see what sort of situations lead officials to seek advice. No ethics commission should sit on its hands waiting for officials to come to them, if officials in its city or county aren’t yet used to asking for advice.
 
3. Ethics Code Recommendations. At least once a year, an ethics commission should hold a discussion about the quality of the ethics program and the ways in which it might be improved. This discussion need not be limited to ethics provisions, nor need it be limited to one meeting. It’s best if one or two issues are dealt with at each meeting over a period of months. The commission may also consider such topics as the ethics commission’s independence, its authority to file complaints, extension of jurisdiction to cover contractors and others, staff, attorney, and budgetary needs, cooperation or consolidation with nearby ethics commissions, annual and applicant disclosure, procurement policies, the establishment of a hotline, legal fees, attempts by officials to undermine the ethics program, etc. The results of this discussion should be made known to the local legislative body in the form of recommendations, including recommended changes to the ethics code. A good goal is make formal recommendations on an annual basis, often as part of an annual report. But it is valuable to make recommendations any time there is discussion of ethics reform in the legislative body or in the community.

4. Annual Report. Many ethics codes require that an ethics commission draft an annual report of its activities, but even if one is not required, it is a good idea both for the local government and for the ethics commission itself. It is a good opportunity to consider what the commission has been doing, and what it is has not been doing. See the section on annual reports.

5. Community Outreach. Citizens and the press usually have a limited understanding of government ethics and what an ethics commission and an ethics program do. An ethics commission can send speakers to community groups, consider how to better educate the press and bloggers on ethics issues, and improve its website (see the section on ethics program websites and the section on public relations).

6. Website. Creating and maintaining a good website is one of the best uses of an ethics commission’s time. An ethics commission’s website reflects its importance and value to the community, and it is the best and least expensive way to educate the public and government officials and employees about government ethics. No website, or a website that only provides the names of the ethics commission members, means a lost opportunity. See the section on websites for ideas on what can be done.

7. Rules of Procedure, Bylaws, and Regulations. If an ethics commission lacks bylaws, regulations, or rules of procedure, especially those relating to enforcement, they should be a high priority. They should also be reviewed annually, to see whether changes in the program, changes to state or local laws, and the commission’s own learning experiences require changes to these documents. Entire areas may be added, such as settlement procedures, the consideration of situational forces in investigations and enforcement procedures (including the addition of respondents complicit in violations), or confidentiality rules.

8. Awards. Ethics commissions are not restricted to enforcing ethics laws in a negative sense. They may also give awards and other sorts of recognition to those who encourage open discussion of ethics issues, report ethical misconduct, or choose not to indulge in it themselves when those around them do. And they can do this on an ongoing basis, just like they give advice and deal with tips and complaints. See the awards section.

9. Current Events. If an ethics commission is allowed to initiate investigations, it should regularly discuss current events in its city or county. Its members should understand what is going on, read the local newspapers, and have access to tips either through a hotline or informally made via phone, e-mail, or in person. Some of their discussions will be confidential, done in executive session. But with respect to public information, such as newspaper articles and blog posts, the conversations can be public. Such discussions not only lead to possible investigations, but also act as training exercises, helping members to better understand government ethics and the customs of their particular government, and as a way to create a working team of individuals, which will be helpful when there are difficult advisory opinions and ethics enforcement actions. It also will deter misconduct if officials know the ethics commission is regularly discussing their handling of conflicts, even when no complaint has been filed.

Robert Wechsler
Director of Research-Retired, City Ethics

203-859-1959