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The Collateral Damage of No Ethics Program
Monday, November 5th, 2012
Robert Wechsler
Independent agencies, especially those with lots of money to spend
and contracts to enter into, require not just ethics policies, but a
comprehensive, independent ethics program. This rarely acknowledged
fact has been made clear once again by an external audit of an
agency that proved completely unable to self-regulate its officials'
and employees' conflicts of interest. The agency is the Metropolitan Washington Airports Authority
(MWAA), which not only manages the area's two principal airports,
but also manages a toll road to one of the airports and a huge
project to extend subway service to that airport. The
external audit, published on November 1, was done by the
federal Transportation Department's inspector general.
Birthing Problems
The first problem occurred at the MWAA's birth: the congressional act that created the MWAA (along with a multi-state agreement) made it an independent public body that would not be subject to federal, state, or local laws that govern procurement, ethics, civil service, and transparency. This reflects either criminal negligence or a failure to understand the difference between process and policy. It may be a good thing to make a regional body independent from political pressures on its policy decisions, but it is never a good thing to make a body independent from ethics rules and, to the extent it has its own ethics rules, self-regulating.
The second problem is that there appears to have been no discussion of an ethics program. Ethics policies were considered sufficient. This is, sadly, a common view: rules rather than training, independent advice, disclosure overseen by an independent body or office, and independent enforcement. The IG report notes that "MWAA’s policies lack procedural safeguards for ensuring they are followed, and there are limited avenues for judicial review and other mechanisms (such as penalties for noncompliance) to address concerns regarding MWAA’s ethics, transparency, contracting, and other practices." Elsewhere in the report, the IG notes "a lack of recurrent ethics training."
As for ethics advice, it was supposed to come not from an independent source, but from the agency's general counsel, who are answerable to those they advise. It appears from the report that advice was not reguarly sought from the general counsel's office. The general counsel's office was also supposed to enforce financial disclosure requirements, but did only a cursory review of documents, according to the report.
Collateral Damage
How could there be so little concern regarding the creation of an ethics program? It may not be coincidental that the body that created the MWAA – Congress – did not itself have an ethics program (and the states involved, and D.C., also had poor ethics programs). Cities and counties that lack an ethics program (which is the great majority) are just as likely to create independent agencies without effective ethics programs.
This is the collateral damage of local government ethics problems in the U.S. A lack of ethics training leads to no requirement of ethics training. A lack of independent ethics advice means that ethics advice is not even an issue. Disclosure may be required, but no one oversees the process. Without placing the prevention of ethics problems on the table, ethics problems will certainly occur and they will be dealt with only as scandals.
The collateral damage of poor ethics programs is yet another reason good ethics programs are so important. Without them, the collateral damage for officials is resignation and removal. And the collateral damage for the public is a lack of trust in their government and, in the case of independent agencies, the feeling that government is out of control.
A New Ethics Code for a Poor Old Ethics Environment
The MWAA has passed a new ethics code, but the IG recognizes that this is not sufficient: "additional actions will be required to ensure that the new code is implemented and followed." However, the IG stops short of calling for independent implementation or enforcement, or for a comprehensive, independent ethics program.
From the report, it is clear that the MWAA had a terrible ethics environment. Even the head of human resources hired relatives, despite a nepotism rule. Contracts were not bid out, even after a 2002 audit criticized the MWAA's procurement procedures. Contracts were made with board members and their immediate family members. Board members and employees accepted sizeable gifts from MWAA contractors. And MWAA officials failed to disclose possible conflicts of interest.
Only a comprehensive, independent ethics program has a chance of changing this environment. Making the politicians who appoint the MWAA's board members responsible for their appointees' conduct could also go some way to changing the agency's ethics environment. This would add a second level of oversight. It's not enough for these appointing authorities to call for expensive audits after the damage has been done for years.
Robert Wechsler
Director of Research-Retired, City Ethics
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Birthing Problems
The first problem occurred at the MWAA's birth: the congressional act that created the MWAA (along with a multi-state agreement) made it an independent public body that would not be subject to federal, state, or local laws that govern procurement, ethics, civil service, and transparency. This reflects either criminal negligence or a failure to understand the difference between process and policy. It may be a good thing to make a regional body independent from political pressures on its policy decisions, but it is never a good thing to make a body independent from ethics rules and, to the extent it has its own ethics rules, self-regulating.
The second problem is that there appears to have been no discussion of an ethics program. Ethics policies were considered sufficient. This is, sadly, a common view: rules rather than training, independent advice, disclosure overseen by an independent body or office, and independent enforcement. The IG report notes that "MWAA’s policies lack procedural safeguards for ensuring they are followed, and there are limited avenues for judicial review and other mechanisms (such as penalties for noncompliance) to address concerns regarding MWAA’s ethics, transparency, contracting, and other practices." Elsewhere in the report, the IG notes "a lack of recurrent ethics training."
As for ethics advice, it was supposed to come not from an independent source, but from the agency's general counsel, who are answerable to those they advise. It appears from the report that advice was not reguarly sought from the general counsel's office. The general counsel's office was also supposed to enforce financial disclosure requirements, but did only a cursory review of documents, according to the report.
Collateral Damage
How could there be so little concern regarding the creation of an ethics program? It may not be coincidental that the body that created the MWAA – Congress – did not itself have an ethics program (and the states involved, and D.C., also had poor ethics programs). Cities and counties that lack an ethics program (which is the great majority) are just as likely to create independent agencies without effective ethics programs.
This is the collateral damage of local government ethics problems in the U.S. A lack of ethics training leads to no requirement of ethics training. A lack of independent ethics advice means that ethics advice is not even an issue. Disclosure may be required, but no one oversees the process. Without placing the prevention of ethics problems on the table, ethics problems will certainly occur and they will be dealt with only as scandals.
The collateral damage of poor ethics programs is yet another reason good ethics programs are so important. Without them, the collateral damage for officials is resignation and removal. And the collateral damage for the public is a lack of trust in their government and, in the case of independent agencies, the feeling that government is out of control.
A New Ethics Code for a Poor Old Ethics Environment
The MWAA has passed a new ethics code, but the IG recognizes that this is not sufficient: "additional actions will be required to ensure that the new code is implemented and followed." However, the IG stops short of calling for independent implementation or enforcement, or for a comprehensive, independent ethics program.
From the report, it is clear that the MWAA had a terrible ethics environment. Even the head of human resources hired relatives, despite a nepotism rule. Contracts were not bid out, even after a 2002 audit criticized the MWAA's procurement procedures. Contracts were made with board members and their immediate family members. Board members and employees accepted sizeable gifts from MWAA contractors. And MWAA officials failed to disclose possible conflicts of interest.
Only a comprehensive, independent ethics program has a chance of changing this environment. Making the politicians who appoint the MWAA's board members responsible for their appointees' conduct could also go some way to changing the agency's ethics environment. This would add a second level of oversight. It's not enough for these appointing authorities to call for expensive audits after the damage has been done for years.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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