Problems with Ethics Provisions That Go Beyond Conflicts of Interest Issues

Update (9/30/09)
I tend to focus a lot on weaknesses of ethics codes, but sometimes ethics codes go too far. One reason for this is that they are usually responses to scandals that are criminal in nature, that is, scandals that do not involve conflicts of interest. Another reason is that most people don't understand that ethics codes are really conflict of interest codes, not codes that deal with all of an official's behavior. It's appropriate to have aspirational provisions that go beyond conflicts of interest, as the City Ethics Model Code has, but there are many things, such as truthfulness and civility, that should not become the subject of legal proceedings.

A big issue when ethics codes are being written or revised is whether to limit their provisions to conduct directly relating to government work, or to extend it into the official and employee's non-work life, at least the non-work life that does not involve conflicts with government obligations.

The ethics code in Fayette County (GA), for example, does go beyond an official's work life. According to a post in the Fayette Citizen editor's blog, a Fayette County commissioner was stopped by a police officer because his sticker had expired a month earlier. A small amount of marijuana was found in his car. The arrest report said that the commissioner asked the officer if there was anything he could do to resolve this right here, right now." The officer said, No.

The editor says that the commissioner clearly violated the county ethics code, and that the other four commissioners "seem content to sweep this embarrassment under the rug.: In support of his position, he cites the following provisions of the county ethics code:

Notwithstanding any provisions of law to the contrary, each covered official and employee of Fayette County shall: (1) Uphold the Constitution, laws and regulations of the United States, the State of Georgia, and all governments therein and never be a party to their evasion ...
(8) Never engage in other conduct which is unbecoming to an official/employee or which constitutes a breach of public trust.

Subsection (1) turns the ethics commission into a criminal court, and more. It is put in the position of determining whether an official or employee has broken any law or failed to follow, say, a county ordinance. It can, for example, find an official guilty of bribery even before a jury has reached a verdict.

And if law-breaking has already been found or conceded, the ethics commission is forced to find an ethics violation. A moving violation or a minor misdemeanor is enough. A small amount of marijuana is enough.

Subsection (8) goes a step further. It turns an ethics commission into a disciplinary commission. "Conduct unbecoming of an official" sounds militarily right, but what guidelines does this provide to an official? A military officer has a whole host of rules. He knows in detail what conduct is unbecoming. Is it truly unbecoming of an official to smoke marijuana?

And is this really what an ethics code is for? How has a marijuana smoker put his personal interest ahead of the public interest? How has he harmed his constituents, or undermined their trust in him? Some may disapprove of what he's done, but this is not an act done against anyone at all. No one can believe that a marijuana smoker is likely to put his interest ahead of the public interest.

Provisions such as these do not in any way further the goals of an ethics program. In fact, they seriously confuse the issue, allowing anyone to say that their idea of what's right is what's right.

What's interesting here is that there is truly unethical behavior in this situation, but it has nothing to do with laws or marijuana-smoking. The county commissioner appears to have suggested the possibility of a bribe to the police officer. He does not appear to have misused his office -- there is no indication that the officer even knew the commissioner's position, and it might not have mattered anyway. But this suggestion of a bribe goes to the heart of government ethics, although it ironically puts the official in the position of a citizen trying to bribe an official. And because of this, it is outside the scope of most ethics codes.

The commissioner's suggestion most likely broke no law, since no bribe was actually offered. And whether it was unbecoming conduct or a breach of public trust is hard to say. In my opinion, it was far more unbecoming conduct than smoking marijuana. As for the public trust, what it showed was not necessarily that the commissioner would himself take a bribe. It showed that, when faced with a difficult situation, his first thought was to hush the matter up. It showed that he put his personal interest in keeping embarrassing information secret ahead of the public's right to know.

Nothing came of this attempt to hush things up, because he had no control of the situation. But what happened does imply that, had he had control of the situation, he would have kept the information secret. It is this, and not the marijuana smoking, that I feel should be taken seriously by the county commission. But the inclusion in the ethics code of non-ethics provisions makes it difficult to focus on what is truly important, at least in government ethics terms.

Update (9/30/09)
According to an article in the Fayette Citizen, a committee of three county attorneys (from other counties) found the commissioner in violation of both subsections (1) and (8). However, a recall petition based on the same charges was quashed by a superior court judge on the grounds that the recall's charges were "not connected to his position in office."

The question is, then, should there be government ethics charges unconnected to an official's government office? I thought that's what our legal system was for. In this commissioner's case, the criminal case against him is still pending.

Robert Wechsler
Director of Research-Retired, City Ethics

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