Ex Parte Communications and More Town Attorney Shenanigans

One way to deal with possible conflicts is to nip them in the bud by not allowing any personal communications between officials and interested parties ("ex parte communications"). All communications must be official, either documentary or at formal meetings or negotiations.

According to an article in yesterday's Palm Beach Post, the new town of Loxahatchee Groves (FL) last year added a provision to its ethics code (which was the code required by the state) that reads as follows:


This ex parte communications provision is limited to elected officials, not including, say, building officials, who deal with applications regularly.

One problem with this sort of provision is that personal communication in no way suggests that a council member is acting in his or her personal interest; it might just be for the sake of information. The goal is to prevent even the appearance of impropriety.

This can cause problems for people who think that unethical conduct means doing something to help oneself, which is what many people think in Loxahatchee Groves.

When thirteen residents asked the council to investigate a council member's communication with a developer's consultant, citizens put together a petition defending the council member, arguing that this was a witch hunt. The leader of the petition drive insisted that the council member is not corrupt. The council declined to investigate, even though the council member had admitted to the ex parte communication.

As usual, the town attorney seems to have been at the center of the problem. First, he gave permission to the council member to have the communication, even though the ordinance does not allow the town attorney to provide waivers. (In another article, the town attorney is quoted as trying to have it both ways: "[the town attorney] said he told Lipp he could talk to Miller, but that 'there is the code of ethics out there that he needed to be mindful of.'") And second, the town attorney appears to have failed to educate the public about the purposes of the provision, instead talking about matters, such as intent and disclosure, which have nothing to do with the provision. The town attorney muddied the waters so much, it was hard for the council members to know what was what.

An ethics code without explanations in the form of comments or a citizen guide, and without adequate training even for the town attorney and council members, can lead to big problems. Ex parte communication provisions can be especially difficult for citizens to understand, but attorneys should have no problem with them. If only there could be an all-encompassing ethics provision that could keep town attorneys from providing misinformation to officials, employees, and the public.

What I think should have happened is that the council should have investigated the matter, slapped the council member on the hand for violating the ex parte communications provision, and slapped the town attorney harder for giving the council member a waiver he had no right to give and for providing misinformation concerning the provision.

Robert Wechsler
Director of Research-Retired, City Ethics

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