The Way to Deal with Baltimore's Ethics Director's Conflict Situation

After Common Cause questioned the fitness of Baltimore's government ethics director for his job, an opinion piece called for him to be fired, and a Sun article appeared under the headline "Ethics oversight board hasn't met in years," finally a rational voice has spoken out: a Baltimore Sun editorial posted yesterday afternoon.

What is all the fuss about? Avery Aisenstark, the longtime director of Baltimore's ethics board, appears to have done an isolated piece of legal research for a lawyer who was working for a group that is challenging certain zoning decisions. The group consists of local developers. But the ethics director did not have any contact with the group or with any of its developers.

Aisenstark should have anticipated how this would appear (and be twisted) if it got out, and therefore turned down the job. But as I pointed out in my last blog post, it is difficult for anyone to deal with his own conflict situation, even a government ethics professional. And it is also the unfortunate case that most people, when they feel unjustly attacked, will defend themselves rather than admit having made an error (see my review of the book Being Wrong).

The Appropriate Oversight
What is important here is first to determine what occurred (before calling people unfit or calling for them to be fired) and how serious an offense it was. From what I can tell, what occurred was minor and, if not twisted, would not appear to make Aisenstark in any way unfit for his job.

Second, it must be determined who should provide the disciplinary review. The ethics board is in the best position to do this (if it involved a serious or complex matter, the ethics board should turn the investigation over to a special investigator). Baltimore's ethics board should take a page from the book of its neighbor Philadelphia's ethics board, which dealt with a minor matter involving its director back in 2009.

It is true that the Board of Legislative Reference (the board that hasn't met in years) is the body that appointed Aisenstark, and the only body that can fire him. But this does not mean that, since that board has no other role and, therefore, never meets, the ethics director has no oversight. The ethics board can reprimand him, possibly fine him, and certainly recommend to the Board of Legislative Reference that he be suspended or fired. Oversight does not require final authority. The Sun editorial is right to say, "The ethics board needs to look into the facts and to consider the implications of the matter, and it needs to do so with the advice and guidance of someone outside of Mr. Aisenstark's department."

If I were on the ethics board, I would move to quickly discuss this matter and reprimand Aisenstark. And I would also discuss whether an ethics director should be providing private legal services, especially to attorneys, since they are likely to represent those who do business with the city. If such services are allowed, there should be clear limits on whom an ethics director or other staff member may work for, directly or indirectly, and immediate disclosure to the ethics board of all work taken on.

The ethics board should also discuss how it would deal with a more serious conflict situation involving its staff or one of its members, and also whom its staff should turn to for independent ethics advice (perhaps an ethics director in a nearby city would be the solution to both answers; there could be a two-way arrangement).

Making the Ethics Program Independent of Those Over Whom It Has Jurisdiction
But what is most important comes next. The editorial focuses on the failure of the Board of Legislative Reference to provide effective oversight. But this board was not constituted so as to provide oversight; it was only constituted to select an ethics director independently of the city government (although it includes the mayor and a council member, it also includes the president of Johns Hopkins University, the deans of the University of Maryland and University of Baltimore law schools, and the director of the Enoch Pratt Library). In other words, it is very similar to the sort of board I have long argued should be created to select the members of an ethics board.

The long-term solution to this problem is clear and easy. The Board of Legislative Reference should remain (but without the mayor or the council member, and with a new title), but its role should be to select not the ethics director, but instead the ethics board. The independent ethics board would then select and oversee the ethics director.

The result will be an ethics board independent of those over whom it has jurisdiction. It would be seen by the public as having no relationships with high-level officials, and its director would be answerable only to it. In other words, something like what exists in Atlanta and Miami-Dade County.

And Real Ethics Reform
And while making the ethics board more independent, Baltimore's council should also take a fresh look at the city's ethics program (see my criticism of the most recent ethics reforms in 2010). The ethics board should get involved in recommending reforms, not just piecemeal, but as part of a vision of the sort of comprehensive and effective ethics program Baltimore deserves (with the budget necessary to run it).

Robert Wechsler
Director of Research-Retired, City Ethics

---