The Gap Between Advice and Enforcement, and The Isolation of Independence

I was on a panel this week as part of the annual Citywide Seminar on Ethics in New York City Government, co-sponsored by the New York City Conflicts of Interest Board (COIB) and the Center for New York City Law at the New York Law School. The panel was called "Challenges & Solutions in Government Ethics in Other Municipalities."

I want to share two ideas that were raised by other members of the panel, who included Mark Davies, the executive director of the COIB; Shane Creamer, the executive director of the Philadelphia Board of Ethics; and Kathleen Clark, until recently Ethics Officer in the District of Columbia.

The Gap Between Advice and Enforcement
The first idea is the gap between advice and enforcement. I've written about this issue, but never used this terminology, which I find useful. The gap comes primarily from the fact that certain concepts, especially appearance of impropriety, can be used in providing advice but, because they are vague, cannot be used in enforcement proceedings. You can say to an official that, although her conduct would be legal, it would create a serious appearance of impropriety, undermine the public trust and, therefore, it would be best if she withdrew from participation or did not accept the gift.

There was a discussion about how large this gap should be. Mark Davies said that COIB was trying to narrow this gap. The problem, he said, was that if you say 'No' too often, officials won't ask. Shane Creamer and I said that this gap should be preserved.

Here is the argument I wish I had made at the seminar. The rules that govern enforcement are minimum requirements, which differentiates them from usual laws. The reason they are minimum requirements is that government officials and employees have special obligations, sometimes referred to as a fiduciary duty, that require them to consider the effects of their conduct on the public's trust that its government is acting in the interest of the community rather than in the personal interest of its officials.

Limiting advice to the law forces an ethics officer to give advice based on minimum legal requirements rather than what is best for preserving the public trust. Ethics rules become maximum requirements, and the difference between law and ethics is lost.

In other words, there are two gaps involved:  between advice and enforcement, and between ethics and law. Enforcement has to be limited to law. This leaves ethics to the domains of training and advice. Closing the advice-enforcement gap limits ethics to training. After the training class is over, there is no more ethics program, just a legal program. In this legal program, many of the innovative ideas I discuss in my new book, Local Government Ethics Programs, would be out of place.

One of these innovative ideas involves closing the gap in the other direction, that is, making an ethics program more about ethics than about law. The idea involves a requirement to seek advice. Not only does it close the gap between advice and enforcement, but it also deals with Mark Davies' concern about the gap, that is, that no one will ask for advice if they are told 'No' too often. Here's a summary of the idea straight out of the book.

Think how different a government ethics program would be if it required officials and employees to ask the ethics officer for ethics advice whenever they had a special relationship with anyone involved in a matter. This simple requirement would focus officials’ attention on the fact that government ethics is about special relationships. It would also help people bypass a lot of obstacles: the blind spots that cause most people to feel that they are acting in the public interest; the reluctance of many officials to seek advice, either because it involves telling personal things to a stranger, because they believe seeking advice puts their integrity in question (or is even an admission of guilt), or because they are concerned they will be told not to do something they want, or feel they are required, to do; and the tendency of many officials to seek advice from a city or county attorney rather than an ethics officer.

A requirement to seek advice would also effectively remove the line between advice and enforcement that causes the many gray areas of government ethics to exist in a sort of limbo, where confusion and accusations undermine the public trust. By this I mean that the media, blogs, and complainants are constantly accusing officials of unethical conduct that falls in a gray area, where there is an appearance of impropriety, but not a clear ethics violation. These areas would be dealt with through the advisory process rather than through the enforcement process, where they create scandals, undermine trust, and sometimes cost taxpayers a lot of money.

Through ethics advice, a conflict situation can be dealt with quickly and authoritatively at the time it arises, or even before, preventing accusations and de-politicizing ethics.

This is an ideal solution that I do not expect to see in practice any time soon. What I would like to see is a trial run of this possible solution to the gap problem. A city or county with a reform-oriented leadership that has taken over after a scandal, and wants to take a radical approach to clean up an organization with a poor ethics environment, would be the perfect place to try such an experiment.

The Isolation of Independence
The second idea is one that Mark Davies raised regarding a weakness of a truly independent ethics commission:  it has no natural supporter in government. Of course, a mayor or council that selects commission members and determines the commission's budget can turn on a dependent commission if it flexes its wings. But a truly independent commission, even if it doesn't cause controversy, may find itself isolated and unable to get support for a budget increase or for valuable changes to the ethics code.

But I think this is less a matter of structure than it is of leadership. Without leadership support for a government ethics program, it is a struggle to run the program, and it is possible to improve or expand the program only after a major scandal. An independent ethics commission that is active and at least trying to improve its program is in a good position to succeed when a major scandal opens the door to change.

But without leadership support, whether the commission is independent or not, it will not thrive. With leadership opposition, the effect of its program on a government's ethic environment is likely to be limited. There will likely be fewer requests for advice, fewer people taking the training course (and no support to mandate attendance), limited disclosure at best, attempts to undermine enforcement, and ongoing personal criticism of the commission and its staff.

Robert Wechsler
Director of Research-Retired, City Ethics

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