Enforcement & Complaints

Transparency is one of the most controversial aspects of government ethics. It's so controversial that it is rarely discussed in terms of transparency. It is almost always discussed in terms of confidentiality, which is rarefly referred to by its popular name: secrecy. This careful use of words leads people to devalue transparency.

I'm going to keep showing how wrong the criminal enforcement of ethics laws is until there is at least some sign of movement away from it. This time I will do it by looking at two recent proceedings in which serious penalties are involved, one criminal, the other civil. The criminal penalties are about punishment, the civil penalties about strengthening the ethics program and sending important messages to other officials and employees.

Eye-for-an-Eye Punishment

At last week's COGEL conference, I learned about a judicial case involving the Anne Arundel County (MD) Ethics Commission, which has been going on for six years. A decision of the Court of Special Appeals last November is worth a look. There's a lot of interesting material for local government ethics professionals. Two of the issues the case raises are the difference between legal ethics and government ethics, and the filing of ethics complaints by politicians.

There are three basic approaches to enforcing ethics laws:  through ethics commissions, through the criminal process, and through the ballot box. I strongly oppose using the criminal process for ethics violations (see an earlier blog post), and feel that the ballot box is far too crude a way to enforce ethics laws, especially considering that voters do not have the facts or know the laws.

A situation in Santa Clara County (CA) shows that the criminal process can actually be even less effective than the ballot box.

Hidden in the middle of Question 2 on the New York City ballot this week are two important changes in the city's conflicts of interest law (to my knowledge, the nation's only aptly named ethics code). The current conflicts of interest section of the city charter can be found at pp. 319 ff.

I recently wrote about a situation in Stamford, CT in which probable cause was found based on a policy declaration rather than an enforceable ethics provision. That situation appeared to involve a misunderstanding, with a unanimous ethics commission finding probable cause.

There's a new twist to the ethics mess in Stamford, which I described in a blog post last week.

I've written several blog posts about the criminal trials of a Baltimore council member and the former Baltimore mayor, focusing on their successful legislative immunity defenses (1 2 3 4). However, the former mayor was convicted of embezzling

Many jurisdictions have a rule that disallows the filing of an ethics complaint against an elected official within so many days before an election. The purpose of such a rule is to prevent the abuse of the ethics process for political purposes. But is this the best solution to this problem?

Forget the fascinating range of ethics programs at the local level. It is congressional ethics programs that get the national attention. And with all this attention, what Congress does, and fails to do, has a great effect not only on what happens at the local level, but also on the rhetoric employed there.

When Congress self-administered its own ethics, every council or county commission member could say that if self-regulation is good enough for Congress, it's good enough for them. Only legislative bodies, the rhetoric went, can oversee legislators.