EC Member Political Activity and the Perception of Fairness

The perceived independence of an ethics commission is extremely important. This perceived independence has become an issue in Frankfort (KY), according to an article in Tuesday's State-Journal.

The usual way EC members are selected compromises the perception of their independence. There are two aspects to this problem. One is who selects EC members. In most local governments, it is the mayor, the council, or the mayor with approval by the council. But the people most likely to come before an EC are the mayor and those who report to the mayor, and the council and their political colleagues. For this reason, in many cases, the EC is not perceived to be neutral. Not only are its decisions open to question, but it will not be seen as sufficiently fair for people to bring complaints before it or to request advisory opinions from it. An EC consisting of members perceived not to be fair undermines a local government's ethics program.

The solution to this aspect of the problem is to have representatives of community organizations select EC members, as occurs, for example, in Atlanta, Miami-Dade County, and Milwaukee (see my blog post on this solution).

The second aspect of the problem is the political activity of selected EC members. Most ethics codes limit party affiliation, so that no party has a majority of EC members. But many do not limit political activity, especially activity before an EC member is selected. This means the possible selection of politically involved individuals, people who have personal and political relationships with those who select them, those who seek advice from them, and those who come before them.

Here is the City Ethics Model Code provision on this aspect of the problem:

§203(b). No member of the Ethics Commission may be, or have been within the three years prior to appointment, an official or employee of the city; an officer in a political party; an active member of the campaign of a candidate for any office within the Commission's jurisdiction; or a lobbyist. An Ethics Commission member or staff member may not make campaign contributions nor participate in any way in the campaign of a candidate for any office within the Commission's jurisdiction, or of an individual currently within the Commission's jurisdiction.

As can be seen in Frankfort, it doesn't take much political activity to create a perception of impropriety. The Frankfort EC has three members (too few, by the way; five is the minimum number for an EC). There are two spots to be filled. Before they could be filled, a complaint was brought against a council member and the city manager. The council member had been the mayor's campaign manager when he ran for secretary of state, and they are perceived to be political allies.

The mayor nominated two individuals for the EC, one of whom had recently given him a campaign contribution, the other of whom had recently given the council member a campaign contribution. When the State-Journal disclosed these contributions, they became an issue, and the council did not approve the second nominee, the one who contributed to the council member who was before the EC.

The rejected EC nominee made it clear that he does not understand government ethics by saying that his contribution would have no impact on his ability to judge the council member. First of all, it's the perception of bias that matters most. And second, none of us really knows how we will be affected by a relationship with someone. It might lead us to favor her, but it also might make us bend over backwards to show that we are making an independent decision. In either case, it isn't a fair decision.

The mayor, too, does not seem to understand the problem. He apparently referred to the cause of his nominee's rejection as being based on innuendo, and said it was done "because of newspaper articles and because of perceived things." They are not "perceived things." They are real things that create a perception of bias. And there would be an even bigger problem if the mayor's nominee were to have voted against a finding of an ethics violation, and then it came out that the nominee had given the respondent a campaign contribution.

Does the mayor truly feel that the decision of an EC consisting of one of his supporters, one of the respondent's supporters, and a third individual will be perceived as fair by the public?

Local government officials must be extremely careful who they name to ethics commissions. They should go out of their way to select individuals who are not politically active. The great majority of people never give contributions to local candidates and are not involved in parties or campaigns. Officials should remember that even if the law gives them the responsibility of nominating EC members, they still may farm the selection process out to community organizations. A board of representatives of these organizations may recommend one, two, or three individuals for an EC position, and then the mayor or the council may choose from among them.

Robert Wechsler
Director of Research-Retired, City Ethics

---