Ethics Provisions in Luzerne County Draft Charter

I learned recently that the Luzerne County (PA) ethics pledge movement, which I wrote about in May and September, is complemented by a draft charter which is to be approved or rejected by voters on November 2. The ethics provisions in this draft charter have some good and some bad. Assuming that voters approve the charter, if the county manager, the council, and the other county officials responsible for selecting ethics commission members think this thing through, much of the bad can be turned into good.

Pages 51-54 of the draft charter contain an article relating to Accountability, Conduct, and Ethics. The article requires the drafting of an accountability, conduct, and ethics code by the newly appointed county manager within four months, which seems a short time under the circumstances. He shouldn't rush things. Instead, he should treat the four-month period as a goal, not a deadline. He'll have a lot else on his plate.

One unusual aspect of this code will be that it applies to the local judiciary, which is where the county's biggest scandal occurred. Generally, the judiciary has its own ethics codes and bodies.

Unfortunately, as the charter article's title implies, the ethics code will go well beyond government ethics to include personal conduct, as well as "discrimination, favoritism, harassment, and oppression." As I've said many times before, these topics (with the exception of favoritism) are not best handled by an ethics commission. Including them opens the ethics process up to all sorts of personal accusation, and can turn the government ethics process into a circus.

The county manager should seriously consider placing the conduct provisions in an aspirational section of the code that will not be enforced by the commission, despite its burdensome name.

The proposed Accountability, Conduct, and Ethics Commission would have a very unusual membership:  "the County Manager or his/her designee, the District Attorney or his/her designee, the Controller or his/her designee, and two registered voters" from the two major parties, appointed by the county council. Especially if the county has a poor ethical environment, who will trust a commission consisting of three of its most powerful officials? People won't forget that the D.A. did nothing about the two judges behind the county's biggest scandal, and the county manager will be beholden to the council.

The most interesting charter provisions are the two that deal with a problem in many local governments: the failure of officials to fill vacant spots on an ethics commission. If this failure occurs, a citizen may request the Court of Common Pleas to make the appointment. It's creative to anticipate this problem, but I'm not sure I like the solution, especially in a county whose judiciary has recently had the most unethical environment of the three divisions of government.

A valuable ethics provision appears elsewhere in the charter (p. 41):  "No County employee shall serve as officer in a political party at the County, state, or national level." This is important, because a party officer is required to openly criticize or defend elected officials in ways inappropriate for government employees.

But a provision hidden in a paragraph (§8.02E) could be trouble: an official loses his or her position on a board or commission if he or she "knowingly or willfully violates any provision of this Charter." The council, which decides on such vacancies, could find these words a big problem, because there are so many ways to violate a charter, and any accusation of violation would turn into a big fight to retain the accused's position.

It appears that the character-oriented approach of the ethics pledge movement has made its way into law. If the next step in the creation of an effective ethics program is not handled right, the ACE commission will have its hands full, not only with complaints about the personal conduct of officials, but with accusations of conflicts on the part of its members, who will be seen as having little or no independence. I hope the county manager, D.A., and controller will make it immediately clear that they will not serve on the commission. They, and the county council, should consider going one step further:  appointing individuals selected by neutral community organizations, so that they will be and appear independent.

Robert Wechsler
Director of Research-Retired, City Ethics

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