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Houston Ethics Reform II: The Ethics Provisions
Friday, January 21st, 2011
There are several problems with Houston's new ethics provisions, in
addition to what I pointed out in my last blog post. Some of them are
typical, some of them are unusual. The ethics reform ordinance is attached;
see below; the
old
ethics ordinance can be found by clicking here and scrolling down
on the left to Code of Ordinances Chapter 18).
Impropriety and Misconduct
The first striking thing about the new ethics provisions is the odd distinction it makes between impropriety and misconduct. Generally, one speaks of the appearance of impropriety, with "impropriety" referring to a vague idea of wrongdoing, from the public's point of view. Houston's definition of "impropriety" is purely legal: whatever conduct violates Section 18-3 of the new code, that is, the basic ethics provisions, but not all the ethics provisions. "Misconduct," on the other hand, refers not to what is commonly referred to as "ethical misconduct," but to a violation of a "penal law" of the U.S., Texas, or a penal provision of the ethics code (but not, presumably, a Houston penal ordinance, if there are any).
What this all seems to be about is having any criminal violations handed off to criminal authorities,which is the norm. But this is a complicated and confusing way to do it. It is one result of partially criminalizing ethics in Houston.
The Ethics Provisions
There are more serious problems with the new ethics provisions (§18-3). The basic conflict provision is exceptionally vague: "It shall be unlawful for any city official to: (1) Engage in any business or professional activity that conflicts with the discharge of official duties." It is a minor improvement on its predecessor, which instead of "conflicts" read "might reasonably tend to conflict." But it is still just as vague, and it still makes having a conflict unlawful, a common mistake, but problematic. Conflicts are not the issue, but rather the way they are handled by the officials who have them.
And I couldn't find anything in the ethics code that tells officials how to handle their conflicts by, for example, withdrawing from a matter. If I didn't miss this provision, this is a very serious omission.
The second ethics provision refers to investments and other "interests" that "create a conflict between the public trust held as an official of the city and the official's private interests." This is the way one defines a conflict of interest in a lecture, before saying much more about what a conflict is. But this is not appropriate language for an ordinance. It provides little guidance to officials or to anyone trying to enforce the ethics code. Vague language is difficult to enforce, and is often used for this very purpose.
The third ethics provision makes the common mistake of making the disclosure of confidential information itself (rather than for someone's benefit) an ethics violation, even though it has nothing to do with government ethics.
Then the provision uses the concept of reasonableness, which I don't think belongs in an ethics code (note that it was taken out of the basic conflict provision). Here it is used in a way I haven't seen. One cannot accept employment that "the official might reasonably expect would require or induce him to disclose confidential information acquired by reason of his official position." This is certainly something an ethics officer would tell an official, suggesting to the official that it would look bad if she went to work for a developer after having worked on putting together a project the developer is interested in. But what enforcer of the code could expect an official to make this judgment about reasonable expectations? From another point of view, is this enforceable? If not, it should appear in an aspirational part of the code, or in a comment to this provision.
The fourth ethics provision includes two provisions which are unrelated and usually separate. The first is misuse of city property, the second a basic misuse of office or special consideration provision. They are put together by repeating the term "use of the official's position." But misuse of city facilities is not really about misuse of position, which is usually thought of in terms of a position of responsibility and power. In fact, use of city facilities is the violation regular employees are most likely to do. But regular employees are still not covered by this part of the ethics code.
The seventh ethics provision is the most unusual of all. What is all too common about this harassment and discrimination provision is that, although these are not government ethics matters, but rather human resource matters, they appear in too many ethics codes, because most people don't realize they are out of place. What is especially odd here is that §18-16(i), which gives the ethics commission its only enforcement powers (to issue a public rebuke or reprimand), applies only to this ethics provision.
Harassment is a difficult human resources issue, and discrimination is a complex EEOC matter, which no untrained ethics commission should get anyway near. I can't imagine how the ethics commission was given its only enforcement powers with respect to these two extremely difficult areas, which require far more training than ethics commissions generally get.
It's true that all these ethics provisions do not apply to regular employees, but EEOC laws and regulations still apply to high-level employees, appointees, and elected officials, I believe. An ethics commission is not the place to deal with them, and I would think that this provision would create jurisdictional problems. But this is not a new provision, so it appears that the way not to create jurisdictional problems is for the ethics commission simply not to act on its powers. That's not a very good way to write an ethics code or run an ethics program.
Too Much Complexity
Section 18-3(b)(2) is hard for me to imagine:
This is a typical example of an unnecessarily complex ethics provision. Ethics provisions should be understandable to ordinary government officials and employees without having to consult a lawyer. They should be spelled out as clearly as possible, and use language and sentence structures that need no translation or untwisting.
EC Staff Members Are Not City Employees
Another curious thing about the new provisions is §18-16(c), which states that "no person employed or retained by the commission shall be considered an officer or employee of the city." This refers to ethics staff members, if the city sets aside money for them (nothing is said about this possibility). Why should they not be officers or employees?
Is this intended to limit the ethics commission's jurisdiction over those working for them? This is doubtful, since the term "officer" is not used anywhere in these provisions, and the ethics commission does not have jurisdiction over employees. This leads one to believe that ethics staff would not get the perks enjoyed by city employees. In other words, they would be cheaper, and harder to hire.
While employees are pretty much left out of these provisions, it's interesting to note that the requirement to annually distribute a notice of the functions and duties of the ethics commission (a short list) and the procedures for filing complaints applies only to employees, not to officials (see §18-16(k)).
Campaign Contributors and Jurisdiction
It's interesting that, in a code whose provisions are very narrowly applied, there is a provision that applies to any "person making contributions to candidates." That provision, §18-32, makes it unlawful to deliver a contribution to a candidate in three locations: City Hall, the City Hall Annex, and any building used by the planning commission. It's okay to have the contribution delivered to these addresses by mail or a delivery service, but not by oneself or any other unofficial individual. I don't understand why contributions should be sent to any government building, or why contributors are singled out here, while contractors, developers, consultants, and employees are not covered by the ethics code.
Most ethics code are full of odd, complex, and inappropriate provisions such as these, as well as omissions, which I have scarcely touched upon in this post. I will continue to critique the failings of ethics reforms until those who draft ethics codes go about the task more responsibly.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Impropriety and Misconduct
The first striking thing about the new ethics provisions is the odd distinction it makes between impropriety and misconduct. Generally, one speaks of the appearance of impropriety, with "impropriety" referring to a vague idea of wrongdoing, from the public's point of view. Houston's definition of "impropriety" is purely legal: whatever conduct violates Section 18-3 of the new code, that is, the basic ethics provisions, but not all the ethics provisions. "Misconduct," on the other hand, refers not to what is commonly referred to as "ethical misconduct," but to a violation of a "penal law" of the U.S., Texas, or a penal provision of the ethics code (but not, presumably, a Houston penal ordinance, if there are any).
What this all seems to be about is having any criminal violations handed off to criminal authorities,which is the norm. But this is a complicated and confusing way to do it. It is one result of partially criminalizing ethics in Houston.
The Ethics Provisions
There are more serious problems with the new ethics provisions (§18-3). The basic conflict provision is exceptionally vague: "It shall be unlawful for any city official to: (1) Engage in any business or professional activity that conflicts with the discharge of official duties." It is a minor improvement on its predecessor, which instead of "conflicts" read "might reasonably tend to conflict." But it is still just as vague, and it still makes having a conflict unlawful, a common mistake, but problematic. Conflicts are not the issue, but rather the way they are handled by the officials who have them.
And I couldn't find anything in the ethics code that tells officials how to handle their conflicts by, for example, withdrawing from a matter. If I didn't miss this provision, this is a very serious omission.
The second ethics provision refers to investments and other "interests" that "create a conflict between the public trust held as an official of the city and the official's private interests." This is the way one defines a conflict of interest in a lecture, before saying much more about what a conflict is. But this is not appropriate language for an ordinance. It provides little guidance to officials or to anyone trying to enforce the ethics code. Vague language is difficult to enforce, and is often used for this very purpose.
The third ethics provision makes the common mistake of making the disclosure of confidential information itself (rather than for someone's benefit) an ethics violation, even though it has nothing to do with government ethics.
Then the provision uses the concept of reasonableness, which I don't think belongs in an ethics code (note that it was taken out of the basic conflict provision). Here it is used in a way I haven't seen. One cannot accept employment that "the official might reasonably expect would require or induce him to disclose confidential information acquired by reason of his official position." This is certainly something an ethics officer would tell an official, suggesting to the official that it would look bad if she went to work for a developer after having worked on putting together a project the developer is interested in. But what enforcer of the code could expect an official to make this judgment about reasonable expectations? From another point of view, is this enforceable? If not, it should appear in an aspirational part of the code, or in a comment to this provision.
The fourth ethics provision includes two provisions which are unrelated and usually separate. The first is misuse of city property, the second a basic misuse of office or special consideration provision. They are put together by repeating the term "use of the official's position." But misuse of city facilities is not really about misuse of position, which is usually thought of in terms of a position of responsibility and power. In fact, use of city facilities is the violation regular employees are most likely to do. But regular employees are still not covered by this part of the ethics code.
The seventh ethics provision is the most unusual of all. What is all too common about this harassment and discrimination provision is that, although these are not government ethics matters, but rather human resource matters, they appear in too many ethics codes, because most people don't realize they are out of place. What is especially odd here is that §18-16(i), which gives the ethics commission its only enforcement powers (to issue a public rebuke or reprimand), applies only to this ethics provision.
Harassment is a difficult human resources issue, and discrimination is a complex EEOC matter, which no untrained ethics commission should get anyway near. I can't imagine how the ethics commission was given its only enforcement powers with respect to these two extremely difficult areas, which require far more training than ethics commissions generally get.
It's true that all these ethics provisions do not apply to regular employees, but EEOC laws and regulations still apply to high-level employees, appointees, and elected officials, I believe. An ethics commission is not the place to deal with them, and I would think that this provision would create jurisdictional problems. But this is not a new provision, so it appears that the way not to create jurisdictional problems is for the ethics commission simply not to act on its powers. That's not a very good way to write an ethics code or run an ethics program.
Too Much Complexity
Section 18-3(b)(2) is hard for me to imagine:
-
It shall be unlawful to ... Use or attempt to use the official's
position to influence or attempt to influence a contractor or a
recipient of grant money administered by the city to utilize the goods,
labor, or services of any person for the private gain or advantage of the official
or others.
This is a typical example of an unnecessarily complex ethics provision. Ethics provisions should be understandable to ordinary government officials and employees without having to consult a lawyer. They should be spelled out as clearly as possible, and use language and sentence structures that need no translation or untwisting.
EC Staff Members Are Not City Employees
Another curious thing about the new provisions is §18-16(c), which states that "no person employed or retained by the commission shall be considered an officer or employee of the city." This refers to ethics staff members, if the city sets aside money for them (nothing is said about this possibility). Why should they not be officers or employees?
Is this intended to limit the ethics commission's jurisdiction over those working for them? This is doubtful, since the term "officer" is not used anywhere in these provisions, and the ethics commission does not have jurisdiction over employees. This leads one to believe that ethics staff would not get the perks enjoyed by city employees. In other words, they would be cheaper, and harder to hire.
While employees are pretty much left out of these provisions, it's interesting to note that the requirement to annually distribute a notice of the functions and duties of the ethics commission (a short list) and the procedures for filing complaints applies only to employees, not to officials (see §18-16(k)).
Campaign Contributors and Jurisdiction
It's interesting that, in a code whose provisions are very narrowly applied, there is a provision that applies to any "person making contributions to candidates." That provision, §18-32, makes it unlawful to deliver a contribution to a candidate in three locations: City Hall, the City Hall Annex, and any building used by the planning commission. It's okay to have the contribution delivered to these addresses by mail or a delivery service, but not by oneself or any other unofficial individual. I don't understand why contributions should be sent to any government building, or why contributors are singled out here, while contractors, developers, consultants, and employees are not covered by the ethics code.
Most ethics code are full of odd, complex, and inappropriate provisions such as these, as well as omissions, which I have scarcely touched upon in this post. I will continue to critique the failings of ethics reforms until those who draft ethics codes go about the task more responsibly.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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