An Odd Ethics Commission in Oakland
Robert Wechsler
I
recently noted Oakland, CA's odd nepotism ordinance. Well, its Public
Ethics Commission is also odd, and worthy of a look. I was alerted
to some of its oddities by a recent A
Better Oakland blog post entitled "Does Oakland Need a Public
Ethics Commission?" An odd question from someone who does not have an
ax to grind against campaign finance laws.
Many ethics commissions handle campaign finance and lobbying matters as well as conflict of interest or ethics matters, but Oakland's handles almost exclusively the former, despite its name. It does have jurisdiction over the city's conflict of interest code (Ch. 3-16 of the Code of Ordinances), but this "code" is nothing but an incorporation by reference of a state law that requires financial disclosure and has only two provisions, a basic conflict of interest provision and a provision on loans to officials. Neither the city code nor the EC website provides a link to this state law.
Nor does the EC website provide a link to something it refers to as the Code of Conduct for City Officials, a code that does not appear in the variety of searches I attempted. There is, however, a link to a City Council Code of Ethics, but this is an aspirational code, not intended for enforcement. Here's one of the twelve provisions:
There is also that odd nepotism ordinance I've already written about.
Another odd thing about Oakland's EC is the appointment process. Three of its seven members are appointed by the mayor with council approval, and the other four members are selected by the EC members. But the executive director is appointed by the city administrator. This gets everyone involved, and therefore can create all sorts of appearances of impropriety.
For example, according to an open letter to the EC that appeared on the A Better Oakland blog last year, there was speculation that the city administrator was pushing the executive director to aggressively pursue an ethics complaint against a council member who had strongly opposed the administrator's appointment. Whether true or not, this doesn't make the ethics process look good. An EC executive director should be selected by and should report to the EC itself, and no one else should be involved.
The blog post about the need for an EC says that most complaints go nowhere. "Either nobody did anything wrong, or maybe they did, but the Commission doesn’t have any power to do anything about it, or they did do something kind of iffy but it wasn’t that big a deal and it’s too late to fix it now." The feeling is that it is not providing sufficient ethics oversight, and is overly careful to not ruffle feathers.
The open letter points out an odd way for the EC to get out of making a decision. The lobbyist ordinance defines a lobbyist as “a salaried employee, officer, or director of any corporation, organization, or association.” What nouns "salaried" modifies became an issue before the EC, and the chair asked two English teachers, both of whom said the word could not modify just "employee," but all three of the nouns.
Yes, there is a grammatical matter here, but who would ask an English teacher to interpret it, when it is lawyers who interpret laws? To a lawyer it's clear that corporate directors are not normally salaried individuals, and that the word "salaried" is meant to distinguish salaried from hourly employees.
Instead, the EC referred the matter to the staff and to the council for clarification. That displays a sad unwillingness to deal with matters before it.
It is true that government ethics includes campaign finance, transparency, and lobbyist laws and enforcement, but the public does not realize this. An ethics commission appears to deal with government ethics, which involves conflicts of interest. The name of an EC does matter. If it is misnamed, it is confusing to the public and it does not get as much use or have as important a presence and, therefore, effect on the city's ethics environment. Something called an EC should have a true ethics code to administer, or it will be seen as unwilling to deal with ethics problems.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Many ethics commissions handle campaign finance and lobbying matters as well as conflict of interest or ethics matters, but Oakland's handles almost exclusively the former, despite its name. It does have jurisdiction over the city's conflict of interest code (Ch. 3-16 of the Code of Ordinances), but this "code" is nothing but an incorporation by reference of a state law that requires financial disclosure and has only two provisions, a basic conflict of interest provision and a provision on loans to officials. Neither the city code nor the EC website provides a link to this state law.
Nor does the EC website provide a link to something it refers to as the Code of Conduct for City Officials, a code that does not appear in the variety of searches I attempted. There is, however, a link to a City Council Code of Ethics, but this is an aspirational code, not intended for enforcement. Here's one of the twelve provisions:
-
Listen courteously and attentively to all public discussions at Council
meetings and avoid interrupting other speakers, including other Council
members, except as may be permitted by established Rules of Order.
There is also that odd nepotism ordinance I've already written about.
Another odd thing about Oakland's EC is the appointment process. Three of its seven members are appointed by the mayor with council approval, and the other four members are selected by the EC members. But the executive director is appointed by the city administrator. This gets everyone involved, and therefore can create all sorts of appearances of impropriety.
For example, according to an open letter to the EC that appeared on the A Better Oakland blog last year, there was speculation that the city administrator was pushing the executive director to aggressively pursue an ethics complaint against a council member who had strongly opposed the administrator's appointment. Whether true or not, this doesn't make the ethics process look good. An EC executive director should be selected by and should report to the EC itself, and no one else should be involved.
The blog post about the need for an EC says that most complaints go nowhere. "Either nobody did anything wrong, or maybe they did, but the Commission doesn’t have any power to do anything about it, or they did do something kind of iffy but it wasn’t that big a deal and it’s too late to fix it now." The feeling is that it is not providing sufficient ethics oversight, and is overly careful to not ruffle feathers.
The open letter points out an odd way for the EC to get out of making a decision. The lobbyist ordinance defines a lobbyist as “a salaried employee, officer, or director of any corporation, organization, or association.” What nouns "salaried" modifies became an issue before the EC, and the chair asked two English teachers, both of whom said the word could not modify just "employee," but all three of the nouns.
Yes, there is a grammatical matter here, but who would ask an English teacher to interpret it, when it is lawyers who interpret laws? To a lawyer it's clear that corporate directors are not normally salaried individuals, and that the word "salaried" is meant to distinguish salaried from hourly employees.
Instead, the EC referred the matter to the staff and to the council for clarification. That displays a sad unwillingness to deal with matters before it.
It is true that government ethics includes campaign finance, transparency, and lobbyist laws and enforcement, but the public does not realize this. An ethics commission appears to deal with government ethics, which involves conflicts of interest. The name of an EC does matter. If it is misnamed, it is confusing to the public and it does not get as much use or have as important a presence and, therefore, effect on the city's ethics environment. Something called an EC should have a true ethics code to administer, or it will be seen as unwilling to deal with ethics problems.
Robert Wechsler
Director of Research-Retired, City Ethics
---