A Solution to the Problems of Local Government Attorney Ethics Advice

There is nothing more important in local government ethics than timely, independent, professional ethics advice. And there is no bigger problem in local government ethics than poor ethics advice, especially that given by local government attorneys who (1) do not have a full understanding of government ethics, especially the fact that its rules are minimum requirements, which means that a strict interpretation of the language is inappropriate in providing ethics advice, (2) are political appointees and/or people with an ongoing relationship with the official, and will therefore be viewed as helping the official get away with possibly unethical conduct, and/or (3) act as if they are representing the official rather than the position or the agency or the local government.

No bigger problem? Isn't that an exaggeration? No, I don't think it is. I rarely read about a serious local government ethics matter where there has not been some sort of advice from a local government attorney. And the norm is that the advice is legal rather than ethical, based on the strictest possible interpretation of ethics code language rather than furthering the goals of government ethics and considering the appearance of impropriety. Sometimes the advice is simply wrong.

The result of such advice often is that the official has a defense against not only ethics enforcement, but also against being pilloried by the press: "I just followed legal advice."

And the government attorney? Rarely does anything happen to the government attorney. He interpreted the ethics code the way he thought it should be interpreted. At worst, he made a mistake.

Poor ethics advice gives ethical misconduct a free ride. What can be done about this?

Government Attorney Ethics Advice Is Not a Defense
Back in 2007, I wrote a blog post about a new California Supreme Court opinion finding that a government official cannot use a government attorney's advice as a defense against criminal prosecution for conflict of interest. Please read that post. I won't repeat most of what I said there.

Warning Officials Regarding Government Attorney Ethics Advice
What brought me back to this important topic is something I came across while researching my most recent blog post. At the very end of the Florida Commission on Ethics' 2007 annual report is the following recommendation to the state legislature:

Over the past several years, the Commission has reviewed situations where local public officials acted on erroneous advice from their local government attorneys. The Commission is very concerned that officials may believe that they can rely on legal advice about their obligations under the ethics laws even though the attorney’s client is the governmental agency and not the individual public official. To make this as clear as possible to agency officials and employees, the Commission proposes that the law require a local government attorney to warn the official or employee that one may be penalized even if relying on the advice of the local government attorney on an ethics matter.

The EC's assumption is that relying on the advice of a local government attorney is not a defense (and this is the position taken in a 2005 order in a Florida ethics matter: "Advice of counsel, when based on a proper statement of the facts, as this was, is not necessarily a complete defense in this case."). It's interesting that the only specific reason given for this is the fact that the government attorney's client is not the individual official, but the agency. But the problem is not that government attorneys who give poor advice are representing the agency.

Poor advice usually comes from too strictly interpreting ethics laws in order to tell an official her conduct is not clearly illegal. It's in the agency's interest to make the most liberal interpretation possible of ethics laws and criminal laws dealing with conflicts of interest, in order to prevent any possible ethics violations and even appearances of impropriety. Therefore, the Florida EC's view of the problem is wrong, even though its proposed solution is a good one.

The better argument would be that a government attorney does not represent an official, period, especially with respect to dealing with conflicts of interest. A warning might be a decent solution, but even better would be these words from a local government attorney, "I cannot give you ethics advice. You will have to talk with the city's ethics officer." But that would mean that cities would have to hire an ethics officer or put someone under contract to work on a part-time basis to provide independent ethics advice to city officials.

The question is, is it in the interest of a local government to give quality ethics advice to its officials, which could be trusted by everyone, in order to prevent unethical conduct and improve public trust in the government? If it is, a warning is not enough, and the hiring of an independent ethics officer would be the solution.

The Institute for Local Government Approach
A June 2007 article from an Institute for Local Government newsletter for public officials presents this matter much more completely and thoughtfully (the Institute is run by the League of California Cities and the CA State Association of Counties).

It is important to keep in mind, though, that an agency attorney’s client is the agency, not individual decision-makers in an agency. Any advice she gives to help individual public officials avoid violations of the law are designed to protect the agency as a whole. Individual officials do not enjoy an attorney-client relationship with the agency’s attorney (and conversations with individual officials are not necessarily protected by the attorney-client privilege) because the attorney’s client is the agency itself. ... city attorneys encourage each other to resist pressure to be "creative" coming up with questionable legal theories in an effort to provide cover for public officials who want to engage in activity that the attorney believes is unlawful. Nor does it matter that no one is likely to either find out about the situation or challenge it.

I love the part about local government attorneys resisting pressure to be "creative" in order to protect officials. This kind of creativity, common to lawyers representing private clients, has no place in a government law office, but especially not with respect to ethics matters. Why this is so becomes clear from the article's discussion of the reasoning behind the California Supreme Court decision I referred to early in this blog post:

A unanimous court bluntly observed that public officials are trustees and that it is wrong for trustees to engage in self-dealing. As a result, the court concluded it would not allow officials to defend themselves by claiming they relied on their agency attorney’s advice.

In other words, government officials, as trustees for the public, should not be looking for creative ways to undermine the public trust. I would go a step beyond the California decision: government officials should be told not to be involved in self-dealing in any way, no matter how poorly the ethics code is written (the Florida conflict of interest provision (Click "Ethics Laws," then Ch. 112, then go to §112.3143), for example, is pretty bad). An official should not be involved in self-dealing even when it is in a gray area, such as indirect benefits, that most ethics codes do not expressly cover (see my blog post on indirect benefits). When it comes to advice to someone acting as a trustee for the public, the language of an ethics code is only the beginning, not the end.

The Solution to This Problem
There are certainly many good and honest local government attorneys who give ethics advice as good as or better than the average independent ethics officer's. They would make excellent ethics officers, but as government attorneys their advice is suspect. In addition, giving such advice puts them in an awkward position, because they should tell the official (1) that they are not representing the official, but rather the agency, (2) that there is no attorney-client privilege or confidentiality, and (3) that following the advice is not a defense (in court, before an ethics commission, or to the public).

An independent ethics officer can, on the other hand, give advice to the official, not as a lawyer representing her, but as a government ethics professional providing advice (which is, in fact, the way I give advice when it is requested). And following the ethics officer's advice can, if it is made part of the ethics code, be used as a defense (see City Ethics Model Code §209.2). Even assuming the best of the local government attorney, this solution seems to be better for everyone, including the public. Assuming the worst, and everything in between, the solution is far better for everyone. And yet it is a rare solution to this problem. Ask yourself why.

See the long list of City Ethics blog posts relating to local government attorneys, and the much shorter list of blog posts relating to ethics officers.

Robert Wechsler
Director of Research-Retired, City Ethics

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