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Local Ethics Reform in Massachusetts
Wednesday, April 16th, 2014
Robert Wechsler
Because Massachusetts has one of the better state ethics programs with
jurisdiction over local officials, there
are very few local ethics programs, unlike the situation in Florida,
California, or Texas, for example.
But there have been some recent ethics reform efforts at the local level. Most recently, according to an article last week in the Boston Globe, the new Boston mayor has appointed members to serve on a new Ethics Committee, which will have the authority to develop annual disclosure statements, establish an ethics training program, and "reassess our internal policies and procedures."
The four EC members include Boston's corporation counsel, a lawyer specializing in government law, a university chancellor, and a former executive director of the state EC.
In Somerville, a suburb of Boston, the mayor has taken an unusual approach in the ethics ordinance he proposed last week. It is a combination of an ex parte communications prohibition and the disclosure of communications. Its focus is solely on elected officials, that is, on the board of aldermen and the schools committee. Here is a description of the proposed rules:
Disclosure: An elected official must disclose, within three days, any communication with an appointed official regarding permits, licenses, sanctions, or personnel matters, or with someone from the outside seeking a permit or license.
Prohibition: An elected official is prohibited from communicating with members of a city board or commission regarding the substance of a permit or license, and from communicating with non-elected city employees with respect to directing them regarding their official responsibilities.
The only exception mentioned in the press release is for public meetings. Surprisingly, since ex parte communications provisions usually involve procurement, there is no mention of procurement. Perhaps such provisions already exist (I couldn't find them in the city's ordinances).
I think that ex parte communications rules are not used nearly enough. They can solve a lot of problems that are otherwise not regulated or are regulated by more complex provisions that are often more difficult to comply with and to oversee.
But I have two problems with this proposal. One is that it is being made part of the ethics ordinance which, I assume, would mean that the city's ethics commission would provide the oversight. However, these provisions do not involve conflicts of interest. They involve separation of powers. They are intended to prohibit elected officials from being involved in certain areas of administration and quasi-judicial decision-making. Such matters should be overseen by the government itself, with a committee consisting of legislators, managers, and board chairs, who can work out the boundaries among them. This is a lot to ask of a citizen committee. This is why only a small minority of ethics commissions are asked to provide oversight in this area.
The second problem I have is that it is not clear to what extent elected officials can provide constituent services or, if they cannot, whether an office will be set up to provide them.
The mayor says that his proposal will ensure accountability and equal access to government. I don't see how. To the extent only disclosure is required, very few voters will be aware of disclosed communications, and they will not be able to determine how important such communications are with respect to whether to vote for an incumbent or not. This is not a corruption issue (although it is hard to engage in ethical misconduct without any communication); it is an internal separation of powers problem, of limited interest to the public. And even though these provisions may limit certain individuals' access to elected officials, it does not ensure equal access. In fact, it may make it more likely that elected officials reduce their communications with citizens in general.
In any event, to prevent misconduct via communications, not only the communications of elected officials must be prohibited. All indirect communications must also be prohibited, including communications engaged in by an elected official's staff, family members, and others who may act as the elected official's agent. Without this, the prohibitions, as well as the disclosure requirements, can be easily evaded.
Robert Wechsler
Director of Research-Retired, City Ethics
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But there have been some recent ethics reform efforts at the local level. Most recently, according to an article last week in the Boston Globe, the new Boston mayor has appointed members to serve on a new Ethics Committee, which will have the authority to develop annual disclosure statements, establish an ethics training program, and "reassess our internal policies and procedures."
The four EC members include Boston's corporation counsel, a lawyer specializing in government law, a university chancellor, and a former executive director of the state EC.
In Somerville, a suburb of Boston, the mayor has taken an unusual approach in the ethics ordinance he proposed last week. It is a combination of an ex parte communications prohibition and the disclosure of communications. Its focus is solely on elected officials, that is, on the board of aldermen and the schools committee. Here is a description of the proposed rules:
Disclosure: An elected official must disclose, within three days, any communication with an appointed official regarding permits, licenses, sanctions, or personnel matters, or with someone from the outside seeking a permit or license.
Prohibition: An elected official is prohibited from communicating with members of a city board or commission regarding the substance of a permit or license, and from communicating with non-elected city employees with respect to directing them regarding their official responsibilities.
The only exception mentioned in the press release is for public meetings. Surprisingly, since ex parte communications provisions usually involve procurement, there is no mention of procurement. Perhaps such provisions already exist (I couldn't find them in the city's ordinances).
I think that ex parte communications rules are not used nearly enough. They can solve a lot of problems that are otherwise not regulated or are regulated by more complex provisions that are often more difficult to comply with and to oversee.
But I have two problems with this proposal. One is that it is being made part of the ethics ordinance which, I assume, would mean that the city's ethics commission would provide the oversight. However, these provisions do not involve conflicts of interest. They involve separation of powers. They are intended to prohibit elected officials from being involved in certain areas of administration and quasi-judicial decision-making. Such matters should be overseen by the government itself, with a committee consisting of legislators, managers, and board chairs, who can work out the boundaries among them. This is a lot to ask of a citizen committee. This is why only a small minority of ethics commissions are asked to provide oversight in this area.
The second problem I have is that it is not clear to what extent elected officials can provide constituent services or, if they cannot, whether an office will be set up to provide them.
The mayor says that his proposal will ensure accountability and equal access to government. I don't see how. To the extent only disclosure is required, very few voters will be aware of disclosed communications, and they will not be able to determine how important such communications are with respect to whether to vote for an incumbent or not. This is not a corruption issue (although it is hard to engage in ethical misconduct without any communication); it is an internal separation of powers problem, of limited interest to the public. And even though these provisions may limit certain individuals' access to elected officials, it does not ensure equal access. In fact, it may make it more likely that elected officials reduce their communications with citizens in general.
In any event, to prevent misconduct via communications, not only the communications of elected officials must be prohibited. All indirect communications must also be prohibited, including communications engaged in by an elected official's staff, family members, and others who may act as the elected official's agent. Without this, the prohibitions, as well as the disclosure requirements, can be easily evaded.
Robert Wechsler
Director of Research-Retired, City Ethics
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