A Look at a Proposed Ethics Code for Glen Ellyn, IL

You can learn something from every local government ethics code there is, and especially from codes that have only been proposed. Today I'm going to look at a proposed ethics code for Glen Ellyn, IL, a western suburb of Chicago (pop. 27,000). The proposed code and resolution are attached; see below.

Aspirational Policies
One of the most striking things about the Glen Ellyn proposal is not the code, but a series of aspirational policies called the Resolution Establishing the General Policy of the Village of Glen Ellyn Regarding the Ethics Standards Expected from Its Civil Servants (attached; see below). Aspirational policies are good, and it is best to keep them clearly separate from enforceable ethics provisions, although this is usually done within the ethics code itself.

There's a lot of good language in Sections 4 and 5 of this resolution about the responsibilities of local government officials and employees. But there's also gobbledygook, such as "Being authentic. Maintaining personal integrity, truthfulness, honesty, sincerity, and fairness in carrying out public duties, enhancing mutual well-being" and "Being guided by the principle of doing the right thing."

The resolution "embraces the six pillars of character," without crediting the Josephson Institute, which markets this approach to ethics, or providing the basic description of each pillar, such as Citizenship: "Do your share to make your school and community better • Cooperate • Get involved in community affairs • Stay informed; vote • Be a good neighbor • Obey laws and rules • Respect authority • Protect the environment • Volunteer." You can see for yourself how well this fits into the responsibilities of a public servant.

This kind of stuff isn't really harmful, but since the American Society for Public Administration (ASPA) has spent decades thinking about how to put into words the responsibilities of a public servant (see the City Ethics Model Code, which includes the ASPA code), why turn to the six pillars of character and vague concepts like "being authentic"?

The other problem with the resolution is Section 6, which suddenly shifts the resolution from aspirational guidelines to enforceable matters such as gift and political activity provisions, which are also in the ethics code.

The Proposed Ethics Program
The proposed ethics code sets up an unusual ethics program. There is an ethics officer, without an ethics commission, who provides advice to all and enforces the code with respect to everyone but employees. The village manager enforces the code with respect to employees. There is annual disclosure, as already required by state law, and a complex system of disclosure of conflicts of interest when they arise. There is no training, there are no waivers, and there is very little description of the advice and enforcement processes. However, there are fines, ranging from $250 to $750.

An Ethics Officer
It's great to see the village employing the idea of an ethics officer, but an ethics officer appointed by the village president (who presides over the village board), with the approval of the village board, not only will not make the public see the program as independent, but will create a conflict every time these elected officials are involved in the ethics program, either by seeking advice or being respondents in an ethics proceeding.

Since an ethics officer has not been budgeted, it appears, according to a November article in the Glen Ellyn Patch, that the village attorney, a contractor rather than an appointee (and contractors are subject to the code), would fill the position, at least in the short run. Considering their political role, local government attorneys should not be ethics officers. A local government attorney who doesn't see the potential problems involved in this role does not have the expertise to do the job. A local government attorney who sees the problems would not accept the job, even though he or she may have the expertise.

The Conflict of Interest Provision
There are several problems with the basic conflict of interest provision in the proposed ethics code (Sect/ 1-12-5(a)). One, its first two sections simply refer you to the definitions section. This is generally undesirable. For the code's central provision, it is simply wrong.

Two, the third section is as follows: "participation would constitute a conflict of interest under the statutes or common law of the state of Illinois." (The gift provision includes both state and federal laws.) This means that the ethics officer and village manager will have to both advise on and enforce state and federal statutes and the common law. I think this is wrong to ask of them, and could cause serious problems. But at the very least, the code should include all relevant statutes as well as a clear summary of all relevant common law. Otherwise, village officials and employees will be found in violation of rules they don't know about.

Third, the basic conflict provision (called Prohibited Transactions, an odd formulation, since transactions are usually considered to be financial) seems to cover the same situations as the following Recusal provision, and yet the language is completely different. The first says that "No civil servant shall participate in any transaction..." and the second says that "Any civil servant shall recuse himself or herself in connection with any transaction." What's the difference? And yet the rules are different. This issue needs to be rectified.

The Gift Provision
The Gift Ban is also problematical. First of all, it's not a ban at all. It allows for gifts of food valued at $75 a day, which would allow a developer or contractor to give officials restaurant tabs all over town, unless another provision, limiting annual gifts from one source to $100, were seen to apply to food (it could easily be argued that it does not).

Second, the gift provision applies to gifts from prohibited sources, but does not define "prohibited source." If the prohibited source is a relative or a friend, gifts are fine unless, with respect to gifts from friends, "the civil servant has reason to believe that, under the circumstances, the gift was provided because of the civil servant’s position and not because of the personal friendship." Who's going to have such a reason to believe?

Third, you can accept a gift of any value from a prohibited source as long as you give it your favorite charity. Since no one will give a gift that is going to go to an official's favorite charity, and not even get the deduction, the gift will simply go straight to the charity. This is a popular pay-to-play approach that I haven't seen encouraged in an ethics code.

The Confidential Information Provision
The proposed code makes the usual mistake with respect to confidential information. It prohibits not only the use of it for someone's benefit, which is a conflict issue, but also its disclosure, which is not a conflict issue. Disclosure is, for employees, a personnel issue, and for others a political issue. This provision also refers only to "improper utilization" of confidential information, without saying what is "improper."

Other Provisions
The section on Use of Authority/Influence also includes matters that are not government ethics issues, such as misrepresentation of policy, communication with staff, and discrimination. This entire section should be removed, and the basic misuse of office provision should be incorporated into the conflict of interest provision.

Finally, it is not appropriate to speak in terms of "conviction" for an ethics violation. This is criminal terminology, and ethics is an administrative program.

It's great that Glen Ellyn is seeking input from its citizens on the proposed ethics code. I hope its officials find this input helpful, as well.

Robert Wechsler
Director of Research-Retired, City Ethics

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