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EC Member Conflicts, Anonymous Complaints, and the Relocation of an Airport
Friday, August 28th, 2009
Robert Wechsler
Here's a mind-twister of a situation, from St. Marys City (GA; pop
17,000).
According to an
article on jacksonville.com, four members of the city council wrote
the state attorney general asking for a ruling on whether a fifth
council member violated state law by refusing to disqualify himself
from voting on the
proposed relocation of the St. Marys Airport (he owns a business there).
Since the council members' letter was signed on a date the council did not meet (possibly a violation of the state open meetings act), two anonymous complaints were filed with the city's ethics commission regarding the letter. It appears that the city's EC deals with transparency issues, an unusual situation.
EC Member Conflicts
Since each EC member was appointed by a council member, four of them recused themselves from dealing with the complaint, so no quorum could be reached to consider it. Because this requirement is in the ethics code, the Rule of Necessity, which overrides the requirement to recuse when it would mean no quorum, does not apply.
Anonymous Complaints
Instead of discussing the problem of having council members appoint people who are likely to rule on complaints against council members, leading to EC conflicts, the EC and the council took up the issue of anonymous complaints. Did this have anything to do with the fact that the two anonymous complaints had been filed against council members?
According to page 53 of the council's August 24 packet, the EC argued that anonymous complaints do not allow for a full investigation and make it difficult to fairly conduct hearings. This is patently false. Complainants often play little or no role in investigations or hearings. A good complaint does not require anything more from a complainant. If the complaint is inadequate, it may be dismissed. The anonymity of an adequate complaint poses no problem for an EC.
One council member also argued that "anonymous complaints could lead to frivolous, unfounded accusations against public officials. He said [prohibiting anonymous complaints] also gives council members the chance to directly confront anyone filing a complaint." Frivolous complaints should be quickly dismissed as frivolous. This will only make the accused official look better, assuming the process is public; if the ethics process is not public, then a frivolous complaint will harm no one.
As for confronting a complainant, this would provide council members with a right that accused criminals don't even have. Anonymous tips often lead to arrests, but the criminal has no right to confront the tipper if there is other evidence sufficient to prosecute.
It is important for an EC to be able to receive anonymous complaints and tips, because many people in the know are reasonably afraid of retribution, even if there is a whistle-blower provision protecting them.
EC Member Recusal Provision
The other change to the ethics code recommended by the EC is to strike a provision that requires an EC member to recuse himself or herself from a matter filed against the council member who appointed him or her. The EC's explanation, on page 55 of the council packet, is that this presupposes that an EC member "would act in a less than ethical manner and disregards personal integrity."
This statement shows a lack of understanding of basic government ethics concepts. Having an apparent conflict says absolutely nothing about the ethics or integrity of anyone. If this statement actually comes from the city's EC members, as it states in the council packet, the EC needs some serious ethics training.
Better would be the addition of the Rule of Necessity to the recusal provision, so that where four or more council members are respondents, the matter can still be dealt with by the EC. Best, however, would be to have EC members nominated by civic organizations, so that there are fewer EC member conflicts in the first place.
The council apparently accepted the amendments on a first reading. Its members seem to need some ethics training, too.
All Roads Lead to the Airport
Remember the airport from the first paragraph. It disappeared in this mind-twister of a situation, but according to one EC member, the EC is a "pawn" in an ongoing dispute between city officials over relocating the airport. It's worth recalling that what looks like a confusing (and in this case confused) debate about ethics provisions is often about something altogether different.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Since the council members' letter was signed on a date the council did not meet (possibly a violation of the state open meetings act), two anonymous complaints were filed with the city's ethics commission regarding the letter. It appears that the city's EC deals with transparency issues, an unusual situation.
EC Member Conflicts
Since each EC member was appointed by a council member, four of them recused themselves from dealing with the complaint, so no quorum could be reached to consider it. Because this requirement is in the ethics code, the Rule of Necessity, which overrides the requirement to recuse when it would mean no quorum, does not apply.
Anonymous Complaints
Instead of discussing the problem of having council members appoint people who are likely to rule on complaints against council members, leading to EC conflicts, the EC and the council took up the issue of anonymous complaints. Did this have anything to do with the fact that the two anonymous complaints had been filed against council members?
According to page 53 of the council's August 24 packet, the EC argued that anonymous complaints do not allow for a full investigation and make it difficult to fairly conduct hearings. This is patently false. Complainants often play little or no role in investigations or hearings. A good complaint does not require anything more from a complainant. If the complaint is inadequate, it may be dismissed. The anonymity of an adequate complaint poses no problem for an EC.
One council member also argued that "anonymous complaints could lead to frivolous, unfounded accusations against public officials. He said [prohibiting anonymous complaints] also gives council members the chance to directly confront anyone filing a complaint." Frivolous complaints should be quickly dismissed as frivolous. This will only make the accused official look better, assuming the process is public; if the ethics process is not public, then a frivolous complaint will harm no one.
As for confronting a complainant, this would provide council members with a right that accused criminals don't even have. Anonymous tips often lead to arrests, but the criminal has no right to confront the tipper if there is other evidence sufficient to prosecute.
It is important for an EC to be able to receive anonymous complaints and tips, because many people in the know are reasonably afraid of retribution, even if there is a whistle-blower provision protecting them.
EC Member Recusal Provision
The other change to the ethics code recommended by the EC is to strike a provision that requires an EC member to recuse himself or herself from a matter filed against the council member who appointed him or her. The EC's explanation, on page 55 of the council packet, is that this presupposes that an EC member "would act in a less than ethical manner and disregards personal integrity."
This statement shows a lack of understanding of basic government ethics concepts. Having an apparent conflict says absolutely nothing about the ethics or integrity of anyone. If this statement actually comes from the city's EC members, as it states in the council packet, the EC needs some serious ethics training.
Better would be the addition of the Rule of Necessity to the recusal provision, so that where four or more council members are respondents, the matter can still be dealt with by the EC. Best, however, would be to have EC members nominated by civic organizations, so that there are fewer EC member conflicts in the first place.
The council apparently accepted the amendments on a first reading. Its members seem to need some ethics training, too.
All Roads Lead to the Airport
Remember the airport from the first paragraph. It disappeared in this mind-twister of a situation, but according to one EC member, the EC is a "pawn" in an ongoing dispute between city officials over relocating the airport. It's worth recalling that what looks like a confusing (and in this case confused) debate about ethics provisions is often about something altogether different.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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Comments
addam says:
Tue, 2009-11-10 12:53
Permalink
I've heard a lot of extraordinary things so far but an airport relocation is beyond my understanding. I can't help associating this situation with a huge money loss. Once you have an airport, you don't just relocate it, that costs a lot and it's not worth it.