You are here
Ordinary vs. Technical Readings of Ethics Provisions -- A Case Study
Monday, October 5th, 2009
Robert Wechsler
Update: December 2, 2009 (see below)
I have often complained about how local government officials and attorneys approach government ethics matters in an overly technical manner. Well, ethics commission attorneys can do this, too.
In terms of the language in ethics codes, I think the rule should be, If an ordinary person does not read language a certain way, an ethics commission should not read it that way. If the ethics commission feels certain language should be read a different way, it should recommend that the language of the provision be changed or that a comment be inserted giving clear examples of situations to which the language applies. Even precedents are insufficient, because few local government employees or officials will be aware of them, as helpful as they may be to ethics counselors.
Here is an example of what I feel is a reading of an ethics code by an EC attorney that differs from how an ordinary person would read it. It appears in a recent order to show cause, following a probable cause determination made by the Massachusetts ethics commission, dealing with a local government official (the order to show cause is also attached below).
First, the basic facts. An elected sewer commission member is an excavater and drainlayer. On seventeen occasions over three years he laid drains from homes to the public sewer system for people in his town. These connections were done pursuant to sewer department permits and supervision. It appears that the sewer commission member was compensated an ordinary amount for such work.
Here is the law section of the order to show cause:
- 12. As a Milford Board of Sewer
Commissioners member, Lanzetta was at all times relevant to this matter
a municipal employee as defined in G.L. c. 268A, § l(g).
[Definition: a person performing
services for or holding an office, position, employment or membership
in a municipal agency, whether by election, appointment, contract of
hire or engagement, whether serving with or without compensation, on a
full, regular, part-time, intermittent, or consultant basis]
13. Section 17(a) prohibits a municipal employee, other than as provided by law for the proper discharge of his official duties, from requesting or receiving compensation from anyone other than the same municipality in relation to a particular matter in which that municipality is a party or has a direct and substantial interest.
14. The applications for the sewer connection permits, the decisions to issue the connection permits, the permits themselves, and the decisions to approve the work performed pursuant to the permits were "particular matters."
15. The town of Milford had a "direct and substantial interest" in those particular matters.
16. The compensation Lanzetta received for performing the sewer connections on the above-listed projects was "in relation to those particular matters."
17. Lanzetta's receipt of compensation for the sewer connections he performed on the above-listed projects was not "provided by law for the proper discharge of his official duties."
18. Therefore, Lanzetta repeatedly violated § 17(a).
Both Sides of the Equation
Looking at the relevant decisions and disposition agreements of the Massachusetts ethics commission, it becomes clear that §17(a) is primarily intended to prevent town employees from using their position to get other paid town work and to prevent town officials from representing people before their board or other boards.
Its partner section, §17(b), prohibits anyone from so compensating a town employee (I think this is a good idea to make both sides of such transactions responsible). This implies that people giving such compensation will be hiring the person because the person works for the town and, therefore, that they will know they're doing something wrong (I would add to the provision that they should have at least reason to believe the person they're compensating is a town employee). This provision clearly does not apply to homeowners paying someone to connect their sewers, who even if they knew they were hiring a sewer commission member, would not know there was anything wrong about it. I doubt that the ethics commission will be bringing proceedings against the homeowners, as they have against others on the other side of the equation in §17(a) cases.
Technical Issues
There are two problems here. First of all, the town does not connect sewers nor does it determine or recommend who connects the sewers. Any licensed drainlayer may do this work. Therefore, although the sewer commission does give permits to homeowners (the sewer commissioner recused himself on the permit approvals, thereby disclosing his involvement to the sewer commission) and the sewer department approves the work done, the town does not have what ordinary people would consider a "direct or substantial interest" in the actual connection work.
Nor does this work have anything to do with the sewer commissioner's "official duties."
What Is Contemplated by the Law
But these are technical arguments, too. More important, this is not the sort of situation contemplated by this law. It appears to stretch the law in much the same way that an attorney will find loopholes in a law (or it could also be said that the language is itself too broad and should not be interpreted beyond what is reasonable under the circumstances).
There is no doubt that commission members should not be representing people before their commissions or doing work that needs to be approved by their commissions. But should commission members be prohibited from representing people before any commission or from doing work that needs to be approved by any commission? This would seem to be absurd. Why should a sewer board member who is a lawyer not be able to represent a client before the zoning board?
Similarly, just because a kind of work requires a town permit should not prevent a commission member from doing the work once it's been allowed, as long as the commission member is not using his or her position to get the work, and is not preferred in any way by the sewer department in getting approval of the work. That is the true conflict issue.
Appearance of Impropriety
It is, however, reasonable to argue that there is an appearance of impropriety when a sewer commissioner does any work that has to be approved by the sewer department, assuming that the sewer commission oversees the sewer department and can affect the pay or promotion of sewer department employees. But the language in §17(a) is not a good way of communicating this, and it clearly failed to do so in this instance.
Definitions
Another problem here is the fact that no one considers a sewer commissioner a "municipal employee." A commission member who does read the rule, but does not refer to the definitions, would assume that the rule does not apply to him. Yes, sewer commissioners in this town get an $1,800 stipend, but that hardly makes them employees. And in any event, the definition includes even volunteer commission members.
This is one reason why it is important to put no surprises in the definitions section. The language in the rule itself should indicate clearly whom it applies to.
Overinclusive Language and the Length of Ethics Codes
It's also important that language not be so vague as to make it hard for officials and employees to determine whether or not it applies to their situation. If you want one rule to apply to a number of situations, it would be better to break it up into subsections that each apply to the different situations that are contemplated.
This is why I often disagree with those who want to keep ethics codes short. Using clear, simple language is far more important than keeping a code short. And remember that officials and employees only need to read the ethics provisions, not the administrative provisions. The effective part of an ethics code is far shorter than the entire code.
No one could read §17(a) and know that work that requires a permit, even if not from the one doing the work, is "a direct and substantial interest" of the town. If no one could read language this way, an ethics commission should not read it this way.
For a precedent to this particular situation, see this 2006 Massachusetts disposition agreement, where a local public works board member did paving work that required a permit from the public works department.
Update: December 2, 2009
According to an article in today's Worcester Telegram, the sewer commission member entered into an agreement with the EC to pay a $5,000 civil penalty. EC executive director Karen Nober said, "Municipal employees must understand that the conflict of interest law requires their undivided loyalty to the municipality. That loyalty is compromised when municipal employees represent private business interests in matters where the municipality also has interests.”
Robert Wechsler
Director of Research-Retired, City Ethics
---
Story Topics:
Attachment | Size |
---|---|
mass order to show cause.pdf | 0 bytes |
- Robert Wechsler's blog
- Log in or register to post comments