Very Problematic Fort Worth Ethics Reform Proposals

In a long cover story in last week's Fort Worth Weekly, Peter Gorman looked at the state of government ethics in Fort Worth and, most important, some proposed changes to its ethics program that take it in the wrong direction. Since it was the only article on the proposals, and Gorman paraphrased me often (based on an interview), I was waiting for other local newspapers to jump in and confirm what Gorman wrote. But I've only found a short Star Telegraph blog post that says what a "bang up job" Gorman did. So, end of waiting.

One of the most important facts is that the proposed changes are coming from the city attorney. Not surprisingly, as in Houston and other cities, when the city attorney is in charge of changes, the changes usually give the city attorney a greater role in the ethics program. A principal change provides that the city attorney may give ethics advice to officials and that officials who get this advice are protected from ethics enforcement.

As I have said again and again, a city or county attorney should have no role in an ethics program. Or, as the article quotes me:

Probably the number-one ethics problem in the U.S. . . . is officials going to [city or county] attorneys for ethics advice.

The result is what Gorman calls a "get-out-of-jail-free card for public officials." An official asks the city attorney whether he can help his sister's company get a zoning permit. The city attorney says he can. Someone files a complaint, and the official has the defense that he followed the city attorney's advice.

Why City Attorney Ethics Advice Is Wrong
There are five reasons why the Fort Worth city attorney should not provide ethics advice to officials. One, a city attorney is not a neutral, independent professional (Fort Worth's is appointed and fired by the council), In fact, a city attorney is usually very politically involved.

Two, a city attorney spends her days looking out for the interests of the very individuals whose interests an ethics professional is supposed to subordinate to the public interest. A city attorney has the sort of special relationship with officials that leads to a conflict requiring withdrawal from participation, including the giving of ethics advice. And the relationship with officials creates an appearance of impropriety that taints any advice that appears to be in an official's personal interest, even when the advice is excellent.

Three, a city attorney rarely has any training in government ethics. In fact, attorneys generally take a legal rather than ethical approach to conflict situations. Such an approach says to the public that loopholes in ethics codes are okay and technicalities are more important than the public interest in having officials not misuse their position for personal purposes.

Four, nothing happens to a city attorney who gives an official the wrong advice, even if it seriously harmful to the city. A city attorney is only accountable to the public through the principal people to whom she would give ethics advice, that is, the council. They are hardly going to take her to task for giving them advice that is personally helpful.

Five, Fort Worth has an Ethics Review Committee (ERC) that provides ethics advice. Setting up an alternate ethics adviser allows officials to forum shop, that is, choose the adviser they think will give them the answer they want (usually the city attorney). Having multiple ethics advisers also means inconsistent rulings and, therefore, less guidance to officials. Ethics advice is supposed to be a form of ethics training, useful not only to the official who requests it, but also to others in the same situation. Contrary ethics advice is confusing, and ethics advice protected by lawyer-client confidentiality (and that is what city attorneys usually insist on, although it is the city, through its legislative body, that actually holds the privilege and determines the level of confidentiality) is helpful to only one individual.

Considering all this, only a city attorney who does not understand government ethics would propose to set herself up as a source of ethics advice. Or, as I am quoted in the article as saying, “I don’t think any city attorney worth their salt would want to be in the position of making ethics calls for the people he or she works for."

In fact, this is the second city attorney to have made the same proposal. See my blog post on what happened two years ago.

Ethics Review Committee Independence
Fort Worth now has a weak provision regarding the selection of ERC members. The council is required to "develop a list of community, civic and professional organizations which shall be invited to make suggestions for appointments to the committee." According to the Weekly's article, the city attorney wants to change the "shall" to "may."

There are only two reasons for this. One is to deal with possible time problems. It can take a long time to get suggestions for appointments, and it might be important to fill positions quickly in order to ensure enough ERC members for a quorum. But this does not really require a change in language. The council can invite suggestions and give the organizations on the list (if there actually is a list) two weeks to make suggestions. If they do not, the council can, knowing that it has followed the law by inviting suggestions, go ahead with approval of its own candidates.

In fact, the wording is already so weak that the council is free to ignore any suggestions made to it. It only has to ask for suggestions, not accept them. The proper reform here is to require the council to consider only suggestions it receives, unless it does not receive the names of individual who qualify for the ERC. This is the trend in EC selection, ensuring a truly independent EC, both in appearance and reality.

The only other reason for making this language change is to dispense with the process altogether. This is a serious step away from ERC independence. As with allowing the city attorney to provide advice, this will undermine the public's trust in the city's ethics program.

The third proposed change, also made and not passed in 2010, is to make advisory committee members not subject to the ethics code, so that they may sit despite serious conflicts of interest. I deal with this issue at length in my book Local Government Ethics Programs (search for "advisory board members").

Secrecy
The worst thing about the proposed changes to the city's ethics code is the secrecy that surrounds them, even though the proposals are nothing new. Gorman wrote, "the process of changing the ethics code is being done so far under the radar that even some community organizations that are generally quick to howl about ethical lapses and lack of transparency say they didn’t know what was in the works."

You can't propose to change an ethics code, especially moving away from an EC with independence and a monopoly on advice, without a great deal of public input. It's not only wrong, but suicidal, in anything but the worst ethics environments, to engage in ethics reform without the support of local good government groups and other civic organizations, especially when they are, by ordinance, involved in the ethics process.

The proposals should be scrapped. Instead, good government organizations should be asked for ways to provide the ERC with more independence and authority, so that what happened two years ago does not happen again. Dallas is seeking to improve its ethics program via a contract to get professional ethics training and advice for improvement of its ethics program. It's time for Fort Worth to do the same.

Robert Wechsler
Director of Research-Retired, City Ethics

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