Two Calls for Ethics Commission Resignations

Update: March 4, 2010
I am placing this update up front because my consideration of the Committee of Seventy's criticism of the Philadelphia ethics board assumed the truth of the Committee's portrayal of the city's retirement law. Sadly, it turns out that it misrepresented the law, saying that the ethics board was unethically employing a loophole, when the ethics board's rehiring of its general counsel is expressly legal according to the retirement law.

Here is the language from §22-310(5)(g) of the Philadelphia Code:

Re-hire. There is no return to regular employment from a DROP. Once entering the DROP, the employee is in the DROP until separation from City service, at which point the member is retired. A retiree may be re-hired by the City, subject to the provisions of this Title (see Section 22-204), but no former DROP participant who is rehired by the City may be eligible to again participate in the DROP.

Note that §22-204 provides detailed guidelines for rehiring employees who retired under the DROP program.

Shame on the Committee of Seventy! Good government organizations should not misrepresent laws, especially when criticizing the very bodies they're supposed to be supporting.

Here are two interesting situations where people are seeking the resignation of in one instance an ethics board member, in another instance counsel to an ethics board.

In Lansing (MI), according to an article yesterday in the Lansing State Journal, a citizen was investigating the delinquent property tax history of an ethics board member when the member resigned "for personal reasons." The ethics board member paid a delinquent tax bill in January in the amount of $364 and says he is all paid up.

Is this enough to require an ethics board member's resignation? Ethics board members certainly can't appear above the law, but it doesn't appear that any exceptions were made, or that he was not required to pay the same penalty and interest others are required to pay. How perfect must an ethics board member's conduct be?

In Philadelphia, according to Jeff Shields' Heard in City Hall column yesterday on the Philadelphia Inquirer website, the Committee of Seventy, a local good government group, called for the resignation of the city ethics board's counsel, who was rehired even though he is officially retiring on March 13. Apparently, Philadelphia officials have a deferred retirement option plan, or DROP, which allows them, if they commit to retire by a certain date, to collect up to four years of pension payments to be paid in a lump sum when they retire.

Officials have discovered that they can "retire," get their lump-sum payment (in this case about $180,000), and then get rehired for the same position (or, in other cases, re-elected to the same position).

The Committee of Seventy is arguing that the ethics board should not have allowed its staff member to take advantage of this loophole, even though it is legal:  "The Board’s decision raises questions about whether the Board holds itself to the same high standards as it demands of other parts of city government. In our view, it is incumbent upon the Board to forgo conduct or decisions that, although legally permissible, could lead to the perception that it is taking advantage of a loophole in the law and, even unwittingly, encouraging others to do likewise."

There is no doubt that an EC should not encourage people to take advantage of ethics law loopholes. But there is a difference between personnel rules and ethics laws. Ethics laws are minimal guidelines; they are the least that is expected from government officials and employees and, therefore, people should not take advantage of loopholes in such laws. Personnel rules are not minimal guidelines. If elected officials intended employees not to be rehired after accepting DROP payments, they would have said so or responded to the discovery of this loophole by closing it.

The ethics board chair does not appear to have made this argument, at least not yet. He has promised a response soon. He has said, however, that the board made "the right call when it decided to retain a critical employee with 23 years of experience interpreting the City's ethics laws that we now oversee." An important consideration was the newness of the board and its members, and the experience of its counsel. In other words, the chair made a pragmatic decision, doing what it felt was best for the board, not showing favoritism to its staff member.

This is a tough call. I'm curious to see the board chair's complete argument. It will be important to respond directly to the concerns of citizens stated in comments to the Inquirer column.

Robert Wechsler
Director of Research-Retired, City Ethics

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