Ethics Reform Testimony in D.C. and Tallahassee

It would be really helpful if people could find recommendations for ethics reform all in one place, but this rarely happens. Ethics task forces and ethics commissions that ask for such recommendations from good government groups, officials, and academics rarely make them available to the public online. Collections of such recommendations would be a useful resource both for those interested in government ethics in the particular city or county, and for those elsewhere who are considering ethics reform and looking for good ideas.

Last Thursday, both the D.C. Board of Ethics and Accountability and the Tallahassee Ethics Advisory Panel held their first public forums seeking recommendations for ethics reform.

District of Columbia
Hopefully, the D.C. ethics board will place the minutes of its meeting on its website, as well as all the written testimony it received. But there is no place on its website for meeting minutes, so this is unlikely.

Therefore, attached to this blog post (see below) are the testimony of (1) V. David Zvenyach, general counsel to the city council; (2) Kathleen Clark, former special counsel for ethics to the District’s attorney general and a professor at Washington University in St. Louis; and (3) me. According to an article in the Washington Examiner, both Zvenyach and Clark also appeared at the forum to give their testimony in person. I did not.

Also providing testimony in person were lobbyist Rod Woodson, who according to the article asked the board to focus on licensing and inspections, and anti-gambling activist Marie Drissell, who apparently felt that officials' financial disclosures were not very useful. Others may, like me, have provided their testimony in writing only.

It's notable that all three of those whose written testimony is attached ignored the ethics board's request for best practices regarding ethics provisions and focused on the ethics program and its processes.

The council's attorney, Mr. Zvenyach, started with a valuable call for the ethics board to take a proactive advisory role, especially in areas where the rules are complex, but the situations are predictable. Zvenyach gives as an example a determination of whether a bona fide personal relationship exists between a government employee and a prohibited source. He feels that, in such instances, the ethics board "should not wait until it is asked. Instead, in those cases, the Board should endeavor to provide proactive advisory opinions and guidance."

He says, "the Board should keep its finger on the pulse of emerging issues within the District’s ethics ecosystem. By listening to
employees and the public, anticipating common or emergent situations, and tackling difficult but predictable ethical dilemmas."

I couldn't agree more. A proactive ethics commission can prevent far more ethical misconduct than a passive ethics commission. Proactivity often takes the form of providing advice that isn't asked for regarding a particular situation that is being written about in the news media and the blogosphere. It also takes the form of providing general advisory opinions or advisory alerts when multiple officials have sought advice regarding similar situations, and providing specific guidance (in the form of information sheets or FAQs) regarding situations that arise in certain areas such as procurement, grants, development, transportation, and council slush funds. See the section of my book Local Government Ethics Programs on general advisory opinions.

Zvenyach's second recommendation is for the ethics board to create a code of conduct that will cover all D.C. officials and employees. This call to consolidate the District's many ethics laws, to provide clear guidance, appears in all of the attached testimonies.

Kathleen Clark's first recommendation is for the ethics board to make an assessment of ethical risk, to look at where the greatest risks of ethical misconduct are. This is a fantastic idea that complements Zvenyach's call for a proactive role for the ethics board. Over time, an ethics commission learns where the greatest risks are. But there is no reason to wait. An ethics commission can save itself a lot of time and resources by learning quickly which are the areas where the problems are the greatest (e.g., procurement, grants, and council slush funds), and then providing focused training and advice in these areas, making recommendations for processes that will prevent misconduct in these areas, and enforcing the laws in these areas to show that the EC means business, providing clear guidance that officials will be more inclined to listen to than advisory alerts that are not followed by enforcement.

Clark's second principal recommendation is to use the financial disclosure review process to promote ethics awareness. She notes that, in the past, financial disclosure forms were checked only for technical completeness:  filling in all the blanks. Clark argues that they should also be checked for compliance with the substantive ethics standards, that is, to determine whether there may be conflicts of interest. This is a difficult process, because it requires information about the matters particular officials are handling. But if an EC focuses on the areas where the most problems are, this is doable, and would make financial disclosure much more valuable to an ethics program than it normally is.

Clark finishes with a series of more minor recommendations, including a less strict gift rule, an ethics board monopoly on ethics advice, and an increase in the size of the ethics board.

In my testimony, I argue that the ethics board should not consider best practices relating to ethics provisions until it attempts to provide the District with all the essential elements of a government ethics program, many of which it is still lacking.

1. The ethics board should be truly independent, meaning that it should appear truly independent to the public. This means that its members should not be selected by anyone under its jurisdiction. Its budget should also be guaranteed.

2. The ethics board should have a monopoly on ethics advice and enforcement. The current ethics program has numerous offices and individuals providing ethics advice and enforcement, leading to inconsistent advice and interpretation of ethics laws, and forum shopping for advice.

3. The ethics board should provide clear guidance in the form of a consolidated, comprehensible ethics code. Right now, there is a mess of many sometimes contradictory laws, with language that only a lawyer can understand.

4. Possible conflicts should be disclosed by those seeking contracts, permits, grants, and other special benefits from the District government.

5. The size of the ethics board should be increased.

Tallahassee
I don't have any written testimony relating to Tallahassee's ethics forum. An ethics advisory panel was created in November to make recommendations for improvement of the city's ethics policies and procedures.The panel is asking for written testimony from those who could not attend the forum, so I have asked if it will send such testimony to me for posting, if it is not to be posted on Tallahassee's website.

Fortunately, the Tallahassee Democrat has an article that summarizes the testimony provided to the ethics advisory panel last Thursday, complete with a short video that contains excerpts from the testimony of three citizens. Tallahassee, the capital of Florida, is a city of 180,000 that depends on the state ethics program, which is generally considered to be inadequate (this is why there are so many new ethics programs in the state).

Erwin Jackson, a businessman and local ethics blogger, is one of a group of citizens who drafted an ethics ordinance that provides for an ethics board with powers to investigate allegations and impose penalties.

Curtis Baynes, also a businessman, said that, at a minimum, city commissioners should have to file more detailed financial disclosure statements.

Dale Weeks, a state official, said that the advisory panel should scour the country for ethics success stories.

Rosemary Palmer, an attorney and former Tallahassee airport director, recommended prohibition on giving contracts to anyone who had any transaction with a city official over the past five years on matters that were not public or at arm’s length. She also said ethics should be a focus when prospective employees are interviewed.

Unlike the D.C. board, which plans to prepare a report next month, Tallahassee's ethics advisory panel has a few months to gather recommendations and consider what sort of ethics program the city should create.

Robert Wechsler
Director of Research-Retired, City Ethics

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