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EC Jurisdiction Over Those Who Govern
Friday, February 28th, 2014
Robert Wechsler
I'm currently reading a classic political science book about urban
politics, Who Governs? by Robert Dahl. Who governs? is a question
that is not asked often enough in local government ethics. It is not
enough for an ethics program to have jurisdiction over officials and
employees. It needs to have jurisdiction over those who actually
govern the community, no matter what their position. I raised this issue in a
2011 blog post about power brokers who hold no office and in a
2012 blog post about a party leader and state senator.
I was reminded of this issue by a column this week by Michael Powell in the New York Times. The matter involved the creation of a dump for petroleum-contaminated soil in land near the Rahway River in New Jersey. The company seeking permits to open the dump was represented at a county board hearing by a state senator whom Powell refers to as the "county political boss." The senator "more or less dominates [the county board] through careful oiling of well-financed political action committees." He also wears the hat of chair of the state senate's environment committee. But he has no position in the county government, and there is no law that says that a state official cannot represent someone before a county board.
This is one very conflicted government official, but he is untouchable by a local or state government ethics program, other than possibly to prohibit him from participating if the senate environment committee deals with this matter.
Is it possible for individuals to be designated as effectively playing a role in local government that would prevent them from doing anything an actual county official can't do? I think there is. There could be a process by which someone would file a request for an opinion by an ethics commission whether or not an individual has such influence on or strong relationships with local government officials or the local party that the ethics program may have at least partial jurisdiction over the individual.
There should be guidelines for determining such jurisdiction, but there could also be positions outside the local government that could be designated as presumably under the jurisdiction, such as state representatives and senators who represent any part of the city or county's residents. There might be limits on enforcement against such officials, but it's naive to act as if they did not have a role in governing a community just because they do not have a position in the community's government. At the very least, they could be asked to recognize the ethics program's jurisdiction over them and, if they refuse, they could still be the subject of hearings. Beyond enforcement, they could be permitted, asked, or required to attend training programs, seek advice, and make disclosures.
Everyone knows that most state elected officials have moved up in local government and in the political party, and have a great deal of influence on local officials, many of whom hold their positions due to the state elected official, directly or indirectly. There are state elected officials who keep their hands out of local government, or reach their position without coming up through local government, but these officials are the least likely to have conflicts, so that EC jurisdiction will not cause problems for them.
Robert Wechsler
Director of Research-Retired, City Ethics
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I was reminded of this issue by a column this week by Michael Powell in the New York Times. The matter involved the creation of a dump for petroleum-contaminated soil in land near the Rahway River in New Jersey. The company seeking permits to open the dump was represented at a county board hearing by a state senator whom Powell refers to as the "county political boss." The senator "more or less dominates [the county board] through careful oiling of well-financed political action committees." He also wears the hat of chair of the state senate's environment committee. But he has no position in the county government, and there is no law that says that a state official cannot represent someone before a county board.
This is one very conflicted government official, but he is untouchable by a local or state government ethics program, other than possibly to prohibit him from participating if the senate environment committee deals with this matter.
Is it possible for individuals to be designated as effectively playing a role in local government that would prevent them from doing anything an actual county official can't do? I think there is. There could be a process by which someone would file a request for an opinion by an ethics commission whether or not an individual has such influence on or strong relationships with local government officials or the local party that the ethics program may have at least partial jurisdiction over the individual.
There should be guidelines for determining such jurisdiction, but there could also be positions outside the local government that could be designated as presumably under the jurisdiction, such as state representatives and senators who represent any part of the city or county's residents. There might be limits on enforcement against such officials, but it's naive to act as if they did not have a role in governing a community just because they do not have a position in the community's government. At the very least, they could be asked to recognize the ethics program's jurisdiction over them and, if they refuse, they could still be the subject of hearings. Beyond enforcement, they could be permitted, asked, or required to attend training programs, seek advice, and make disclosures.
Everyone knows that most state elected officials have moved up in local government and in the political party, and have a great deal of influence on local officials, many of whom hold their positions due to the state elected official, directly or indirectly. There are state elected officials who keep their hands out of local government, or reach their position without coming up through local government, but these officials are the least likely to have conflicts, so that EC jurisdiction will not cause problems for them.
Robert Wechsler
Director of Research-Retired, City Ethics
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