Oakland Council Proposes Ethics Reform Charter Amendment

According to an article in the San Francisco Chronicle last week, Oakland's council approved an amendment to the city charter, to go before voters in November, that would increase the authority of the city's ethics commission and provide it with the funds it needs to do its job. Congratulations to the council for what is, in some ways, an excellent reform package.

This ethics reform process began with a June 2013 civil grand jury report, which called for giving the city's ethics commission more authority to enforce ethics laws, and more resources with which to do it. Then, in May 2014, a working group of individuals mostly from good government-oriented civic organizations filed a report that made numerous ethics reform recommendations (see my blog post on it). The council quickly got to work on a charter amendment that contains some of the working group's recommendations.

Enforcement
The EC's range of authority would be greatly increased by this charter amendment. It would add to its jurisdiction over ethics and transparency the areas of lobbying and campaign finance (including a public campaign financing program), which are currently handled by the city clerk. It would also be given the authority to enforce state ethics, transparency, and campaign finance laws as they apply to local officials. Enforcement relating to local officials is the state ethics program's achilles heel, which is why there are so many local ethics programs in the state.

It's good that, for ethics enforcement, the EC would finally be permitted to impose fines. In fact, it would also not be limited to the $1,000 limit on fines in the charter. It's not good, however, that four votes (of a possible seven members) are required for enforcement (and five for two council-related provisions), because it is common for ECs not to have a full allotment of members, which means that when five members attend a meeting, all but one must vote to enforce, and when the minimum quorum of four attend, a unanimous vote is required.

Budget Guarantee
The charter amendment's budget guarantee follows the San Diego approach of guaranteeing a minimum number of staff positions (in this case seven) (for other approaches, see the section on budget guarantees in my book Local Government Ethics Programs). This is a reasonable approach. However, the council can lower the budget by declaring "extreme fiscal necessity."

Independent Ethics Director
The EC's executive director would report directly to the EC, which is a best practice. But the director would be appointed not directly by the EC (another best practice), but rather by the City Administrator from two or three selections made by the EC. This shouldn't be a problem unless there are not many suitable candidates and the EC has to compromise by making one of its selections an individual with ties to the administration. Since high-level officials are involved in EC member selection, if this individual were hired, it could look like collusion and, therefore, undermine trust in the EC. It is preferable that high-level officials not be involved at all in the selection of EC staff.

Ethics Advice and the City Attorney
The charter amendment gives the EC authority to provide ethics advice, but only "in consultation with the City Attorney." The city attorney also selects one EC member. A city attorney should not be involved in a government ethics program, especially in a city (as opposed to a town) and especially with respect to ethics advice (see my discussion of the reasons in my book Local Government Ethics Programs). If this charter amendment passes in November, the city attorney should acknowledge that he or she has a conflict of interest and, therefore, withdraw from participation in the ethics program.

The EC Member Selection Process
I'm not crazy about the EC member selection process. It used to be that three members were selected by civic organizations, and then appointed by the mayor with the council's approval. These three members selected the other four members. This fits within the best practice for EC member selection (see my blog post on this).

According to the charter amendment, the three members would be selected, one each, by the mayor, city attorney, and city auditor. Each official has to pick people with different qualifications:  someone who has represented a local civic organization and has been involved in local governance issues; someone with a background in public policy or public law, preferably with experience in ethics and transparency; and someone with a background in either campaign finance, ethics compliance, whistleblower protection, or transparency technology.

These are excellent requirements for staff members, but not for members of a citizen oversight commission. EC members do not need to be professionals; that's what staff are for. It's good that, unlike some other jurisdictions, these rules do not require that members be lawyers. But the fact is that most people with these qualifications will either be lawyers or government employees. These rules greatly limit who can sit on the EC, and will likely make it hard to find suitable candidates willing to sit on a body that will require that they temporarily end their representation of certain clients or their political activities so that they are not perceived to be biased.

Even ending activities is often not a sufficient cure for perceived bias. When, for example, I was asked to sit on my town's ethics board, I turned the position down because I had recently been (although was no longer) active in politics (as a citizen, not as a party member or candidate) and was perceived to be biased against the party that had run the town before the election.

It is understandable to want the best people for the job, but I don't think the best EC member is someone with a professional background in the field. I also think the requirements may lead to quorum problems down the road.

Some Interesting Provisions
There are some interesting, original provisions in this charter amendment. One (which is only a minor modification of one that was already there) has the EC adjust council members' salaries according to the consumer price index (any increase over 5% requires voter approval). Even if the EC's hands are tied, its involvement allows this issue to be treated as a conflict of interest issue, which is appropriate, but unusual.

I like that one of the EC's duties is to "study any significant non-compliance problems or trends with Oakland's campaign finance, lobbying. transparency, and governmental ethics laws and identify possible solutions for increasing compliance." This expressly permits the EC to take initiative by thinking more broadly about the city's ethics environment and considering (and holding hearings on) alternative approaches to problems.

There's an interesting provision on the confidentiality of investigations:

Preliminary review by Commission staff of allegations shall be confidential to the extent permitted by law, until any of the following occurs:
(i) Placement of the item on a Public Ethics Commission meeting agenda;
(ii) Passage of one year since the complaint was filed;
(iii) Action by the Executive Director closing the file without placing it on the agenda....; or
(iv) Expiration of the Statute of Limitations.

What's especially good about this provision is (i) it recognizes that an ethics proceeding is confidential only to the extent permitted by transparency laws; that is, ethics rules do not override transparency laws but must be consistent with them (or local governments must seek exceptions to them); (ii) it acknowledges that an EC's consideration of whether there is reason to go ahead with an ethics proceeding (often called a "probable cause" determination) is not necessarily something that should be done in a closed meeting; and (iii) it ensures that the expiration of a statute of limitations or action by EC staff does not mean that a proceeding is kept hidden forever; instead, it requires that the matter become public, so that the executive director and the EC can be held accountable if necessary.

Ethics Amendments
The most original provision of this charter amendment is also very valuable. It deals with the future amendment of ethics provisions, which can lead to backsliding and the undermining of an ethics program. The provision does two things. One, it requires that the council expressly find that any proposed change "furthers the goals and purposes of the ordinance or program in question." The council must provide specifics substantiating this finding. What is common is that a council will propose a mixed bag of ethics reforms, some of which further the ethics program's goals, but others of which create obstacles to fulfilling these goals. This rule requires them not only to argue, but to substantiate their argument, that each provision is a move forward rather than backward. It would be good if this rule were applied to the charter amendment itself.

Second, the provision not only allows the EC to comment on any relevant council proposal before it is passed, but to have the proposal submitted to it so that it can publicly approve or criticize each aspect of the proposal. Here is the language of the provision:

Amendment of Laws. Prior to enacting any amendments to laws that the Commission has the power to enforce, the City Council shall make a finding that the proposed changes further the goals and purposes of the ordinance or program in question and provide specifics substantiating the finding. Absent an urgency finding akin to suspending compliance with the Sunshine Ordinance, amendments to laws that the Commission has the power to enforce and that are proposed by one or more members of the City Council shall be submitted to the Commission for review and comment, prior to passage of the amendments by the City Council.

Working Group Recommendations That Were Not Accepted
Among the working group recommendations that were not accepted by the council are express permission for the EC to seek independent legal advice, and the creation of a solid revenue source for the EC budget (campaign committee fees were recommended; fees on lobbyists and other sources might also have been considered).

Horn Tooting
Last but not least is the following Whereas clause of the charter amendment:

WHEREAS, A publication of City Ethics, a nonprofit organization that provides information and resources for local government ethics programs, written by Robert Wechsler, Director of Research-Retired, provides best practices  recommendations for the establishment and administration of a government ethics regulatory agency, including independence, administrative authority to enforce ethics requirements and impose penalties for violations, a guaranteed program budget, and oversight of governmental ethics disclosure requirements;

Robert Wechsler
Director of Research-Retired, City Ethics

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