Four Varying Approaches to Ethics Reform

Four current attempts at ethics reform show the incredible variety of approaches and ideas of what government ethics is.

Prohibiting County Employees from Contracting with the County
According to an article in yesterday's West Hawaii Today, a proposal before the County of Hawai'i council has four provisions, some of them modeled after the city and county of Honolulu's code. The proposal would prohibit county employees from contracting with county government or lobbying boards and commissions on behalf of private businesses.

This "hot potato," as the article calls it, was rejected by the ethics board a year ago and, after being postponed three times by the county council, was sent back to the ethics board for another review.

What's wrong with the proposal? People "worry the changes would have unintended consequences, preventing even minor contracts such as held by children of county employees from working as part-time lifeguards," although this could easily be dealt with by designating a minimum contract amount for inclusion in the ban.

The council consists of members of municipal councils within the county.

Fine-Tuning Ethics Provisions, Selecting EC Members, and Withholding Information
After a Fayette County (GA) commissioner was found to have violated the ethics code by being convicted of a misdemeanor for possession of marijuana (see my blog post criticizing this aspect of the ethics code), a proposal was made (click on the bottom PDF on the left of the screen) to fine-tune the ethics code's language and create a county ethics commission, according to an article in yesterday's Citizen.

The very general language of the old ethics code would be replaced with detailed provisions, like those in most local government ethics codes. The example relevant to the recent matter is that law-breaking would be an ethics violation only if it involved the individual's government office. Officials' personal life would no longer be under the EC's jurisdiction.

Currently, ethics complaints are heard by a panel of three county attorneys from other counties, an unwieldy and expensive approach I haven't seen anywhere else. The proposal would set up an ethics commission, but its selection is left open, to be discussed.

During the preliminary discussion of the proposal, "it was suggested that each commissioner could appoint two members to serve in a pool of eligible residents, and when necessary a board of perhaps three or five members could be drawn at random to serve as an ethics board when a complaint is received." The problem here is that there would be no continuity, and the EC members would likely have little or no experience or training. They would effectively be a jury, but a jury chosen by elected officials. They would lack the independence of a jury and the knowledge of an ethics commission.

Fayette County certainly shows some imagination, but an EC needs more independence and competence than it needs imagination.

There is, however, an imaginative provision in the ethics proposal worth noting:

Withholding of information. No county official or employee shall knowingly withhold any information which would impair the proper decision making of any of the county board, authorities, agency or commissions.

So often, the emphasis of ethics codes is on confidentiality. This provision recognizes that officials often keep information to themselves, and that this is sometimes in their personal or, at least, political interest. For example, a few years ago, the revaluations of homes and businesses during a time of home value inflation shifted the tax burden from businesses to individuals. State law provided two ways to make this shift less immediately painful for individual taxpayers:  either delay the revaluation for one year or spread the increases in property taxes over three years. My town's board of selectmen could block the delay of revaluation, but they could not block the spreading of tax increases; that is up to the town meeting.

But when the delay of revaluation was debated, no government official mentioned the alternative of spreading out the tax increase. After a few of us discovered this alternative and successfully proposed it, I asked the director of finance, essentially the town administrator, why he'd never mentioned the alternative. He said, "No one asked."

A provision like this will make a good addition to the City Ethics Model Code.

Limitations on Filing Ethics Complaints
According to an article yesterday in the Boerne (TX) Star, an ad hoc ethics review committee is considering changes to Boerne's 2008 ethics code after a complaint filed against a former council member went before the council itself.

The principal change would be the creation of an independent ethics commission appointed by the mayor with the council's consent. This is good, but one restriction on filing a complaint is a serious problem:  reducing the time period for filing a complaint from 90 days to 45 days. First of all, time periods should begin not at the time of violation, but at the time the violation is discovered. Otherwise, the limitation favors those who hide their violation. Second, there are other ways of dealing with an ethics violation other than filing a complaint, which can take longer than 45 days, or even 90 days, to accomplish (or fail to accomplish), since they usually involve the cooperation of others. Third, government employees are often afraid to file a complaint, even if there is a whistle-blower protection law. It can take a long time to get up the nerve, or the support of others, in order to file an ethics complaint. Fourth, a responsible individual will often want to investigate a matter herself before filing a complaint. That too can take time.

Limitations such as this one reflect either ignorance of the obstacles to quickly filing an ethics complaint, or a desire to hinder the filing of ethics complaints.

Enforcing the Unenforceable
According to an article yesterday in the Daily Press, today the city council of Hampton, Virginia will be discussing a proposed 18-point code of ethics that although enforceable, including by removal of council-appointed board and commission members, reads like an unenforceable aspirational code of conduct.

The proposed code includes such language as "The professional and personal conduct of members must be above reproach and avoid even the appearance of impropriety." and "Members shall prepare themselves for public issues; listen courteously and attentively to all public discussions before the body; and focus on the business at hand."

There is also a gift provision and a special consideration provision, but opening personal conduct up to council enforcement is just asking for political bickering to be treated formally, making a circus out of government ethics enforcement.

Robert Wechsler
Director of Research-Retired, City Ethics

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