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How ECs Can Preserve Their Full Allotment of Members
Friday, January 18th, 2013
Robert Wechsler
I learned this week that the board I administered until last July,
the New Haven Democracy Fund board (the Fund is a public campaign
financing program for the city's mayoral election), no longer has
enough members to hold an official meeting. The seven-member board
has three members, and it needs four members to have a quorum.
This is an especially serious problem because there is a mayoral election this year, and the mayor, whose responsibility it is to select board members, has chosen not to participate in the program. Whatever the reason for the mayor's failure to keep the board stocked with members, it looks like he is trying to prevent the program from functioning. This is not a good thing for anyone.
It may be hard to believe that a board, or the citizens or news media, would allow this to happen. But it is not that unusual for an ethics commission, through term endings and resignations, to drop below the number required to hold a meeting. Even one or two open seats can make it very hard for an ethics commission to get a quorum. An ethics commission without a quorum can do nothing, especially if it has no staff. And even if an ethics commission can meet sometimes, motions can be difficult to pass and decisions difficult to make when a majority of the full membership or a supermajority is required. The result is moribund ethics programs across the country.
For example, in Memphis no ethics commission members were appointed for three years after the passing of an ethics code. In Erie County, New York (home of Buffalo), the comptroller had to do a formal investigation to bring it to the public’s attention that the county ethics board had only one member, and that the ethics program was not functioning. In New Haven itself, the ethics board had only one member for a substantial period of time.
The reasons for the failure to fill seats on an ethics commission can be many. Mayors may be angry with the way an EC has treated them, or they may want to protect themselves or their colleagues from a recent complaint. Councils may not be able to get past partisan disagreements in order to approve appointments. Often, appointing ethics commission members is simply not a high priority and there are no citizens begging to be appointed. Inattention is probably the principal reason.
Solving The Problem by Changing the Process
But there is no excuse for ethics commission members to be inattentive. And they don't have to be passive, accepting the situation as out of their control. In fact, an EC has an obligation to the public not to let the conflict at the heart of their selection process (that is, the fact that EC members are selected by officials under the EC's jurisdiction) destroy the ethics program and thereby undermine the public's trust in these officials.
There are three ways in which an EC can solve the problem, two of which involve changing the process. The first two approaches deals with the problem before it occurs, the third after it has occurred.
1. Before an EC is faced with having too few members, it should recommend changing the selection process to follow the best practice. This practice is to remove the conflict at the center of the selection process by establishing an independent selection committee of representatives from community organizations to select a pool of possible appointees to the ethics commission (see my blog post on this process). If the mayor or council fails to appoint someone from the pool within thirty days of a seat becoming vacant, the chair of the selection committee will select an individual, and that individual will automatically be appointed.
One must consider the possibility that, at some time in the future, there may be no pool of possible appointees, because the selection committee has forgotten totally about it and everyone who was in the pool is unable or unwilling to serve. In such a situation, the selection committee should be given thirty days to name two or three possible appointees. If it fails to do this, the mayor or council should be given sixty days to select someone. If this appointing authority fails to act within sixty days, then the remaining members of the ethics commission should be allowed to select someone, who would automatically be appointed.
2. If officials refuse to give up control of the selection process, the EC should recommend that if the appointing authority fails to appoint someone within, say, sixty days, the ethics commission may itself select an individual, who would automatically be appointed.
Another approach that makes it easier to keep a full allotment of EC members is to recommend that the board have two alternate members, who can gain experience and be ready to step right into the shoes of any member who resigns.
3. If there are no such rules and the EC is missing one member for more than three months or two members for more than a month without any selection having been made, an ethics commission should act immediately. It should treat the officials' failure to act as an opportunity to change the selection process, creating a precedent that may later become law.
First, ethics commission members need to recognize that just because a mayor or council is required to appoint ethics commission members, this does not mean they have to select them. The selection process can effectively be contracted out to community organizations, even if this process has not been inserted into the ethics code.
EC members should contact a few community organizations, such as the League of Women Voters, a bar or other professional association, and a clergy group, and ask if they would quickly select someone to serve on the EC (either by having the individual directly apply for the position, while letting the EC know or, better, by giving the individual's name and information to the EC, so that the EC can give the appointing authority a pool of names to choose from). It is difficult for an appointing authority to ignore individuals who have been selected by community organizations.
The next step is to bring these organizations together in a selection committee to create a pool of possible appointees for the future. This will change the selection process, and make it far more likely that the process will be inserted into the ethics code.
After EC Members' Terms End
It is also important to expressly provide that, when an ethics commission member’s term ends, that member may remain in her seat until an appointment has been made, and the new appointee has attended his first meeting. With respect to the first part of this rule, the most frequent reason for a seat opening is the end of a member’s term. Some members want to be reappointed, some want to move on, some aren’t certain. If they are allowed to stay until a new appointee takes their place (or the decision is made to reappoint them), most members will stick around, especially if there is a clear time limit on their post-term service. Without such a time limit, some ethics commission members stay on for years, feeling that it’s their duty, but serving begrudgingly. This isn’t good for anyone.
With respect to the second part of the rule, the making of an appointment does not necessarily mean that the appointee is willing or able to attend meetings. It is useful to add a third part to the rule that treats a failure to attend one’s first three meetings as a resignation from the commission. Otherwise, board members have to try to get someone they have never met to resign. This is a very difficult thing to do. I know, because this happened to the Democracy Fund board.
Robert Wechsler
Director of Research-Retired, City Ethics
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This is an especially serious problem because there is a mayoral election this year, and the mayor, whose responsibility it is to select board members, has chosen not to participate in the program. Whatever the reason for the mayor's failure to keep the board stocked with members, it looks like he is trying to prevent the program from functioning. This is not a good thing for anyone.
It may be hard to believe that a board, or the citizens or news media, would allow this to happen. But it is not that unusual for an ethics commission, through term endings and resignations, to drop below the number required to hold a meeting. Even one or two open seats can make it very hard for an ethics commission to get a quorum. An ethics commission without a quorum can do nothing, especially if it has no staff. And even if an ethics commission can meet sometimes, motions can be difficult to pass and decisions difficult to make when a majority of the full membership or a supermajority is required. The result is moribund ethics programs across the country.
For example, in Memphis no ethics commission members were appointed for three years after the passing of an ethics code. In Erie County, New York (home of Buffalo), the comptroller had to do a formal investigation to bring it to the public’s attention that the county ethics board had only one member, and that the ethics program was not functioning. In New Haven itself, the ethics board had only one member for a substantial period of time.
The reasons for the failure to fill seats on an ethics commission can be many. Mayors may be angry with the way an EC has treated them, or they may want to protect themselves or their colleagues from a recent complaint. Councils may not be able to get past partisan disagreements in order to approve appointments. Often, appointing ethics commission members is simply not a high priority and there are no citizens begging to be appointed. Inattention is probably the principal reason.
Solving The Problem by Changing the Process
But there is no excuse for ethics commission members to be inattentive. And they don't have to be passive, accepting the situation as out of their control. In fact, an EC has an obligation to the public not to let the conflict at the heart of their selection process (that is, the fact that EC members are selected by officials under the EC's jurisdiction) destroy the ethics program and thereby undermine the public's trust in these officials.
There are three ways in which an EC can solve the problem, two of which involve changing the process. The first two approaches deals with the problem before it occurs, the third after it has occurred.
1. Before an EC is faced with having too few members, it should recommend changing the selection process to follow the best practice. This practice is to remove the conflict at the center of the selection process by establishing an independent selection committee of representatives from community organizations to select a pool of possible appointees to the ethics commission (see my blog post on this process). If the mayor or council fails to appoint someone from the pool within thirty days of a seat becoming vacant, the chair of the selection committee will select an individual, and that individual will automatically be appointed.
One must consider the possibility that, at some time in the future, there may be no pool of possible appointees, because the selection committee has forgotten totally about it and everyone who was in the pool is unable or unwilling to serve. In such a situation, the selection committee should be given thirty days to name two or three possible appointees. If it fails to do this, the mayor or council should be given sixty days to select someone. If this appointing authority fails to act within sixty days, then the remaining members of the ethics commission should be allowed to select someone, who would automatically be appointed.
2. If officials refuse to give up control of the selection process, the EC should recommend that if the appointing authority fails to appoint someone within, say, sixty days, the ethics commission may itself select an individual, who would automatically be appointed.
Another approach that makes it easier to keep a full allotment of EC members is to recommend that the board have two alternate members, who can gain experience and be ready to step right into the shoes of any member who resigns.
3. If there are no such rules and the EC is missing one member for more than three months or two members for more than a month without any selection having been made, an ethics commission should act immediately. It should treat the officials' failure to act as an opportunity to change the selection process, creating a precedent that may later become law.
First, ethics commission members need to recognize that just because a mayor or council is required to appoint ethics commission members, this does not mean they have to select them. The selection process can effectively be contracted out to community organizations, even if this process has not been inserted into the ethics code.
EC members should contact a few community organizations, such as the League of Women Voters, a bar or other professional association, and a clergy group, and ask if they would quickly select someone to serve on the EC (either by having the individual directly apply for the position, while letting the EC know or, better, by giving the individual's name and information to the EC, so that the EC can give the appointing authority a pool of names to choose from). It is difficult for an appointing authority to ignore individuals who have been selected by community organizations.
The next step is to bring these organizations together in a selection committee to create a pool of possible appointees for the future. This will change the selection process, and make it far more likely that the process will be inserted into the ethics code.
After EC Members' Terms End
It is also important to expressly provide that, when an ethics commission member’s term ends, that member may remain in her seat until an appointment has been made, and the new appointee has attended his first meeting. With respect to the first part of this rule, the most frequent reason for a seat opening is the end of a member’s term. Some members want to be reappointed, some want to move on, some aren’t certain. If they are allowed to stay until a new appointee takes their place (or the decision is made to reappoint them), most members will stick around, especially if there is a clear time limit on their post-term service. Without such a time limit, some ethics commission members stay on for years, feeling that it’s their duty, but serving begrudgingly. This isn’t good for anyone.
With respect to the second part of the rule, the making of an appointment does not necessarily mean that the appointee is willing or able to attend meetings. It is useful to add a third part to the rule that treats a failure to attend one’s first three meetings as a resignation from the commission. Otherwise, board members have to try to get someone they have never met to resign. This is a very difficult thing to do. I know, because this happened to the Democracy Fund board.
Robert Wechsler
Director of Research-Retired, City Ethics
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