Who Is Covered by an Ethics Code's Provisions

Sometimes, those who write or amend local government ethics codes forget to make it clear exactly who is covered by an ethics code. Sometimes there is discussion about who should have to file annual disclosure statements, and sometimes there is discussion about whether volunteers should be covered. But too often individuals and bodies not central to local government are ignored.

There are three groups that are often not expressly dealt with in an ethics code. One is consultants, professionals hired to do specific jobs or work on specific projects. The City Ethics Model Code has a special provision for consultants, which includes a comment with links to all provisions that apply to consultants. This is a good way to make it clear to a particular group how the ethics code applies to them.

The second group consists of authorities and other sorts of semi-governmental bodies. Larger authorities may have their own ethics codes, and the question there is whether their programs should give way to the city or county ethics program, whether they should add provisions they don't have, or whether they should be left alone. Authorities without their own ethics programs should be expressly included or excluded from the code. It was a recent Daily Record article about Jacksonville's express inclusion in its ethics code of certain authorities, with the help of City Ethics' own Carla Miller (Jacksonville's Ethics Officer), that led me to focus on this issue. I will do something about this in the City Ethics Model Code, as well.

The third group consists of contractors and applicants, such as those seeking zoning approval. Inclusion of this group in an ethics code is the most complicated.

The employees of contractors that do a sizeable amount of work for the local government, where it is hard for outsiders to differentiate these employees from government employees, should be expressly included in or excluded (fully or partially) from the ethics code. Inclusion should be clearly stated in bid materials and final contracts (or in a separate letter agreement if there already is a contract).

It should also be determined whether to make contractors and applicants share responsibility. For example, giving gifts proscribed by an ethics code should have consequences for the giver as well as the taker. Officials have a fiduciary duty that is not shared by contractors and applicants, but the fiduciary responsibility of one party does not absolve the other party to a transaction.

The City Ethics Model Code contains a void contracts provision, a debarment provision ("Any person or entity that intentionally or knowingly violates any provision of this code is prohibited from entering into any contract, other than an employment contract, with the city for a period not to exceed three years."), and a requirement that applicants disclose the names of any official or employee who may benefit from an action they are involved in.

Contractors are included in the Code's confidential information provision and in the Code's Honesty in Application for Positions provision, as well. Also, civil fines and damages are not limited to officials and employees, so that they could be applied to contractors and applicants. I will change the Model Code so that all provisions applying to contractors and applicants are listed in one place, as with consultants.

All ethics code provisions that apply to contractors should be included in bid materials and in final contracts.

Many ethics codes have a separate provision listing who is covered by the code, but this provision is usually limited to officials and employees, excluding, for example, volunteers. It is hard to list in one place all who are covered by a code, because many people are covered only by certain provisions. If a list is the chosen method, it is best to clearly list, for all those not fully covered by the code, the provisions that apply to each group.

Robert Wechsler
Director of Research-Retired, City Ethics

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