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Doing What Isn't Required
Friday, June 15th, 2012
Robert Wechsler
Possibly the most important single thing in government ethics is the
recognition that just because something isn't required, it doesn't
mean you can't do it, and that just because something is not
expressly prohibited, it doesn't mean you can do it. This is an
expanded version of what I've often talked about: that, unlike most laws, ethics
laws are minimum requirements.
I really like it, for example, when, even though the law does not require immediate disclosure of property, business, or stock purchases, an official discloses them anyway. It does no harm and, in fact, it does a lot of good, because it provides more timely information and sets the bar higher for other officials.
What it doesn't do is make friends. The official will be considered goody-goody. Of course, no one will say publicly that there is anything wrong with goody-goody. Resentment at those who behave responsibly is kept secret, because it's embarrassing for an adult to resent another's responsible behavior. Sadly, it's not embarrassing for public officials to feel this resentment or to share this resentment in private.
A recent example of the recognition that one can go beyond the minimum requirements of an ethics law (or, in this case, apply ethics laws where they have not been applied) are the words of former Chicago inspector general David Hoffman, whose nomination to the board of the new Infrastructure Trust was just announced. The trust is a huge public-private project that is seen as a possible magnet for ethical misconduct. One limitation of the trust is that it is not subject to the current inspector general's jurisdiction.
Hoffman is quoted in a recent Sun-Times article as saying, “I was disappointed that [IG jurisdiction over the trust] wasn’t part of the ordinance. But, none of that prevents the board from taking the position that the IG should have oversight."
That's right. Just because the mayor and council did not give the IG oversight over the trust does not mean that the trust cannot give the IG jurisdiction over itself. Laws aren't everything when it comes to ethics. The law's failure to do something does not mean that it can't be done. It just means that it has to be done differently.
The ability to go beyond a law does not mean that the law shouldn't be changed. Hopefully, the trust will decide (Hoffman only has one of five votes) to give the IG jurisdiction, and this will convince the council to amend the law to reflect this jurisdiction, so that the trust cannot change its mind when its personnel changes or people aren't watching it as carefully in the future.
When an official says, "The ethics commission doesn't have jurisdiction over me (or my agency)," one should respond, "But that doesn't mean that you can't give the ethics commission jurisdiction. Nothing is stopping you but your personal preference not to participate in the ethics program." Often what seems legal and is presented as legal is actually personal. And it is not responsible for a public official to make public decisions on a personal basis.
Robert Wechsler
Director of Research-Retired, City Ethics
203-859-1959
I really like it, for example, when, even though the law does not require immediate disclosure of property, business, or stock purchases, an official discloses them anyway. It does no harm and, in fact, it does a lot of good, because it provides more timely information and sets the bar higher for other officials.
What it doesn't do is make friends. The official will be considered goody-goody. Of course, no one will say publicly that there is anything wrong with goody-goody. Resentment at those who behave responsibly is kept secret, because it's embarrassing for an adult to resent another's responsible behavior. Sadly, it's not embarrassing for public officials to feel this resentment or to share this resentment in private.
A recent example of the recognition that one can go beyond the minimum requirements of an ethics law (or, in this case, apply ethics laws where they have not been applied) are the words of former Chicago inspector general David Hoffman, whose nomination to the board of the new Infrastructure Trust was just announced. The trust is a huge public-private project that is seen as a possible magnet for ethical misconduct. One limitation of the trust is that it is not subject to the current inspector general's jurisdiction.
Hoffman is quoted in a recent Sun-Times article as saying, “I was disappointed that [IG jurisdiction over the trust] wasn’t part of the ordinance. But, none of that prevents the board from taking the position that the IG should have oversight."
That's right. Just because the mayor and council did not give the IG oversight over the trust does not mean that the trust cannot give the IG jurisdiction over itself. Laws aren't everything when it comes to ethics. The law's failure to do something does not mean that it can't be done. It just means that it has to be done differently.
The ability to go beyond a law does not mean that the law shouldn't be changed. Hopefully, the trust will decide (Hoffman only has one of five votes) to give the IG jurisdiction, and this will convince the council to amend the law to reflect this jurisdiction, so that the trust cannot change its mind when its personnel changes or people aren't watching it as carefully in the future.
When an official says, "The ethics commission doesn't have jurisdiction over me (or my agency)," one should respond, "But that doesn't mean that you can't give the ethics commission jurisdiction. Nothing is stopping you but your personal preference not to participate in the ethics program." Often what seems legal and is presented as legal is actually personal. And it is not responsible for a public official to make public decisions on a personal basis.
Robert Wechsler
Director of Research-Retired, City Ethics
203-859-1959
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