How Should Ethics Reform Be Done?

The ethics reforms coming out of New York and Utah provide two contrasting, yet equally questionable approaches. In New York state, ethics legislation was negotiated among the new governor, the assembly speaker, and the senate majority leader, behind closed doors. In Utah, the governor said he would issue an executive order.

The background for each of these approaches is the same: the legislature could not or would not come up with ethics reform on its own. The Utah governor said he'd given up waiting. In New York state, the new governor prodded the legislative leaders into giving him one of his principal campaign pledges.

In both states, something was left out: citizen involvement. Sometimes these things must be done. But with ethics, is acting undemocratically likely to lead to the furthering of democratic values?

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The Albany Times Union wrote, "[P]ardon us, then, for having to note both the lack of public participation in this process intended to make government more transparent and the shortcomings of what the Legislature is expected to formally approve next week. The changes, welcome as they are, seem to have been agreed to the way so many things in Albany traditionally are behind closed doors. That's hardly the way to start what's supposed to be a new way of doing business. ... It's hard to hear these legislative leaders hail the dawning of a new era without thinking that they went a little easier on themselves than they did on everyone else.

At the local government level, should mayors frustrated with councils' inaction make ethics reform executive orders of their own? Should city managers work with council leaders behind closed doors? Or should cities and counties use the occasion of ethics reform as a way to get residents involved in doing more than complaining about crooked politicians, that is, discussing what sort of values are most important to them and how they feel ethical conduct should be enforced?

The editor's commentary to the International Municipal Lawyers Association model ethics code makes a very strong case for involvement by everyone concerned: The process of adopting and maintaining an ethics ordinance can be as important as the ordinance itself, because often the process determines to what extent and in what manner people become involved in the ordinance. The process established by the ordinance for the continuing involvement of those who are subject to it is as important as the substantive content of the ordinance. The more people are involved, the more it enters into their lives. No involvement, no life. ... As a matter of law, the ordinance is adopted when the governing body says it is adopted, but as a matter of ethics it is adopted only when the one who is subject to it says the equivalent of: "I have adopted it, and this is my baby!"

The process of adopting an ethics code can be nearly as important as the code itself. This includes who starts the ball rolling, who decides, how many public hearings there are, the time frame, the use of model codes and other cities' codes (and how carefully and honestly they are chosen and discussed), the reconsideration of codes after a few years of practice, etc.

It's easy to argue that it's better to do something the wrong way than to do nothing at all. And yet, isn't it best to show respect for the public's feelings other than through their elected representatives, who are the very people the public doesn't trust? If this is best, then why not seek the most from representatives by asking the most of residents?

What do you think?

Robert Wechsler
Director of Research-Retired, City Ethics