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Cincinnati Situation VII - Who Should Administer and Enforce Government Ethics
Friday, June 11th, 2010
Robert Wechsler
The
Enquirer
editorial I referred to at the end of my last blog post
raised another important issue: who should be administering and
enforcing government ethics. Its conclusion was as follows:
And then there are cases, for example self-dealing, where not even recusal will cure the problem. No one is going to trust a council member who gets a no-bid contract, no matter how much disclosure there is, or even if he does not participate in the transaction as a council member. Because, however you cut it, he or his company is participating in the matter. This is why self-dealing is not allowed.
Apparently, the Enquirer editors would prefer to allow self-dealing, at least where it is not black-and-white, and then hope that voters will be aware of it, understand it, remember it, and be able to balance it against the official's other conduct, good and bad. That is asking a lot of voters.
Ethics Commission Advice
In contrast to their faith in voters, the editors show disdain for the state EC. They refer to it as "some obscure bureaucracy in Columbus" and complain that it does not "receive a lot of scrutiny itself." They are also concerned that advisory opinions can "represent a single staff attorney's point of view." But with all their concern for scrutiny, they do not comment on the quality of the advisory opinions that come out of the state EC.
The 2008 informal written opinion that is most germane to the "public contract" issue (it is attached; see below) is truly excellent, covering all the possibilities, dotting all the i's. Written by a staff attorney with exceptional experience writing advisory opinions, it is both a good example to follow, and an argument for centralized ethics administration. Only the largest cities could have (although they often are not willing to pay for it) sufficient expertise and staffing to provide such excellent advice about a complex matter in a reasonable amount of time. See my blog post that contains links to advisory opinions from several state and large city ethics commissions.
In addition, the staff attorney's informal opinion is not the last word, by any means. Government officials can request a formal opinion from the entire EC, and they can also seek judicial review. The editors' failure to disclose this certainly helped their argument.
Government Attorney Advice
The editors' argument also effectively supports what the council member chose to do: take the advice of the city solicitor over the advice of the state EC. The editors do not seem to have anything bad to say about the advice of a non-specialist who represents council members rather than the public, and who, like most lawyers as opposed to ethics professionals, sticks to the letter of the law. The biggest difference between a state EC advisory opinion and the advice of a government attorney can be seen in the following paragraph from a 2009 state EC advisory opinion on an issue similar to this situation:
Voter Advice and Enforcement
Letting the people decide is what the great majority of politicians support, because they know that most people pay limited attention to such matters, do not understand them, and forget them after a short while. Politicians greatly prefer this to dealing responsibly with conflicts or having to answer to, or even seek advice from, an independent ethics commission.
"Letting the people decide" does not take the form of voting against officials who do not deal responsibly with conflicts that are not clear cut, as the Enquirer editors imply. Instead, vague feelings of impropriety accumulate in the public's mind. That is, people are not likely to vote against a particular council member due to a past conflict that was not professionally resolved, but the more ethical controversies occur, the more the public feels their government is there to help itself rather than to act in the public interest. Public participation, including voting, diminishes, and cynicism about government grows. In short, letting the people decide tends to lead to the people deciding less and less, or deciding in a negative manner.
That is why it is so important to deal responsibly with ethical issues. And especially in cases that are not "clear-cut," it requires good laws and professional advice to do the responsible thing. I agree with the editors that there is too much confidentiality in the Ohio ethics program, but this is most likely what politicians want, not what the "obscure bureaucracy" wants (e.g., the council member had the right to ask for the 2009 advisory opinion to be made public). Government ethics professionals favor transparency.
Robert Wechsler
Director of Research-Retired, City Ethics
---
-
[S]ome cases aren't clear-cut. They should be judged by the voting
public, not simply by some obscure bureaucracy in Columbus. Shine the
bright light of disclosure on all public officials' dealings. Then let
the people decide.
And then there are cases, for example self-dealing, where not even recusal will cure the problem. No one is going to trust a council member who gets a no-bid contract, no matter how much disclosure there is, or even if he does not participate in the transaction as a council member. Because, however you cut it, he or his company is participating in the matter. This is why self-dealing is not allowed.
Apparently, the Enquirer editors would prefer to allow self-dealing, at least where it is not black-and-white, and then hope that voters will be aware of it, understand it, remember it, and be able to balance it against the official's other conduct, good and bad. That is asking a lot of voters.
Ethics Commission Advice
In contrast to their faith in voters, the editors show disdain for the state EC. They refer to it as "some obscure bureaucracy in Columbus" and complain that it does not "receive a lot of scrutiny itself." They are also concerned that advisory opinions can "represent a single staff attorney's point of view." But with all their concern for scrutiny, they do not comment on the quality of the advisory opinions that come out of the state EC.
The 2008 informal written opinion that is most germane to the "public contract" issue (it is attached; see below) is truly excellent, covering all the possibilities, dotting all the i's. Written by a staff attorney with exceptional experience writing advisory opinions, it is both a good example to follow, and an argument for centralized ethics administration. Only the largest cities could have (although they often are not willing to pay for it) sufficient expertise and staffing to provide such excellent advice about a complex matter in a reasonable amount of time. See my blog post that contains links to advisory opinions from several state and large city ethics commissions.
In addition, the staff attorney's informal opinion is not the last word, by any means. Government officials can request a formal opinion from the entire EC, and they can also seek judicial review. The editors' failure to disclose this certainly helped their argument.
Government Attorney Advice
The editors' argument also effectively supports what the council member chose to do: take the advice of the city solicitor over the advice of the state EC. The editors do not seem to have anything bad to say about the advice of a non-specialist who represents council members rather than the public, and who, like most lawyers as opposed to ethics professionals, sticks to the letter of the law. The biggest difference between a state EC advisory opinion and the advice of a government attorney can be seen in the following paragraph from a 2009 state EC advisory opinion on an issue similar to this situation:
-
The Ethics Law and related statutes set minimum standards that all
public officials and employees are required to meet in order to avoid a
violation of a criminal law. Even where a public official or employee
meets these minimum standards, members of the public may question the
propriety of the public official’s or employee’s actions. Therefore,
even if a public official’s or employee’s family member does not have
an interest as described above, the public official or employee may
choose to abstain from participating in matters that have any impact on
the company that employs a family member.
Voter Advice and Enforcement
Letting the people decide is what the great majority of politicians support, because they know that most people pay limited attention to such matters, do not understand them, and forget them after a short while. Politicians greatly prefer this to dealing responsibly with conflicts or having to answer to, or even seek advice from, an independent ethics commission.
"Letting the people decide" does not take the form of voting against officials who do not deal responsibly with conflicts that are not clear cut, as the Enquirer editors imply. Instead, vague feelings of impropriety accumulate in the public's mind. That is, people are not likely to vote against a particular council member due to a past conflict that was not professionally resolved, but the more ethical controversies occur, the more the public feels their government is there to help itself rather than to act in the public interest. Public participation, including voting, diminishes, and cynicism about government grows. In short, letting the people decide tends to lead to the people deciding less and less, or deciding in a negative manner.
That is why it is so important to deal responsibly with ethical issues. And especially in cases that are not "clear-cut," it requires good laws and professional advice to do the responsible thing. I agree with the editors that there is too much confidentiality in the Ohio ethics program, but this is most likely what politicians want, not what the "obscure bureaucracy" wants (e.g., the council member had the right to ask for the 2009 advisory opinion to be made public). Government ethics professionals favor transparency.
Robert Wechsler
Director of Research-Retired, City Ethics
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