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Local Government Attorneys - More or Fewer Ethics Rules?
Friday, March 27th, 2009
Robert Wechsler
Recently, the Jackson County (MO) county legislature decided
to exclude not only county legislature members from its new ethics
code, but also county attorneys. This exception is hidden square in the
middle of a 58-page code:
Presumably, the county legislature, or the attorneys who drafted the code, felt that the rules of professional conduct provide sufficient protection for county residents, or that the rules and the ethics code would either contradict each other or could create problems of enforcement, with two boards having jurisdiction over county attorneys.
The Rhode Island Ethics Commission, in a 2003 advisory opinion, disagreed with this view. An assistant town solicitor asked for an advisory opinion regarding the ethics commission's jurisdiction over attorneys due to the judiciary's jurisdiction. The commission referred to its "power to enact substantive ethics laws that apply to all government officials and employees without regard to outside employment or regulation by other bodies." Lawyers are no different than other professions with their own professional ethics codes. The ethics commission also found that there is no separation of powers issue with the judiciary.
These are the legal issues. But what about the ethical ones? The local government attorney has the most difficult ethical problems of any local government official. Many of them represent both the executive and legislative branches. They are often faced with the issue of whom to represent, the individual in the current position, or the position itself. This is especially true when they are asked to either do something they feel is not right, or to provide advice supporting conduct they feel is not right.
Many local government attorneys represent individuals and companies outside of government, and many also wear the hat of party loyalist, with political goals that may conflict with the public interest. And many local government attorneys even wear the hat of ethics advisers to government officials.
These potential conflicts are not dealt with well in codes of professional conduct or in ethics codes. But whereas one would think that a local government attorney would want the clearest possible guidelines, many seem to want as few as possible. And yet the appearance of such things as an attorney who represents a city in zoning matters representing someone who sues the city in a tort action can raise a lot of ire among citizens. People are very sensitive about having their attorneys loyal to them.
And who wants to be caught between the demands of a council and a mayor or manager?
The question I would like to raise is whether it is best for the public, as well as for government attorneys, to have more and clearer ethics rules covering them, rather than fewer. The fact that the rules are currently few and vague is, most likely, the choice of government attorneys, for they either draft or review all local government ethics codes. Does this represent responsible decision-making for the public, or even for themselves? Or is it a knee-jerk reaction that has not been sufficiently discussed?
Robert Wechsler
Director of Research-Retired, City Ethics
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This chapter applies to all public
servants, as the term is defined in this chapter, except licensed
attorneys at law acting in the course and scope of their duties as
such, who are subject to the rules of professional conduct promulgated
by the Supreme Court of Missouri.
Presumably, the county legislature, or the attorneys who drafted the code, felt that the rules of professional conduct provide sufficient protection for county residents, or that the rules and the ethics code would either contradict each other or could create problems of enforcement, with two boards having jurisdiction over county attorneys.
The Rhode Island Ethics Commission, in a 2003 advisory opinion, disagreed with this view. An assistant town solicitor asked for an advisory opinion regarding the ethics commission's jurisdiction over attorneys due to the judiciary's jurisdiction. The commission referred to its "power to enact substantive ethics laws that apply to all government officials and employees without regard to outside employment or regulation by other bodies." Lawyers are no different than other professions with their own professional ethics codes. The ethics commission also found that there is no separation of powers issue with the judiciary.
These are the legal issues. But what about the ethical ones? The local government attorney has the most difficult ethical problems of any local government official. Many of them represent both the executive and legislative branches. They are often faced with the issue of whom to represent, the individual in the current position, or the position itself. This is especially true when they are asked to either do something they feel is not right, or to provide advice supporting conduct they feel is not right.
Many local government attorneys represent individuals and companies outside of government, and many also wear the hat of party loyalist, with political goals that may conflict with the public interest. And many local government attorneys even wear the hat of ethics advisers to government officials.
These potential conflicts are not dealt with well in codes of professional conduct or in ethics codes. But whereas one would think that a local government attorney would want the clearest possible guidelines, many seem to want as few as possible. And yet the appearance of such things as an attorney who represents a city in zoning matters representing someone who sues the city in a tort action can raise a lot of ire among citizens. People are very sensitive about having their attorneys loyal to them.
And who wants to be caught between the demands of a council and a mayor or manager?
The question I would like to raise is whether it is best for the public, as well as for government attorneys, to have more and clearer ethics rules covering them, rather than fewer. The fact that the rules are currently few and vague is, most likely, the choice of government attorneys, for they either draft or review all local government ethics codes. Does this represent responsible decision-making for the public, or even for themselves? Or is it a knee-jerk reaction that has not been sufficiently discussed?
Robert Wechsler
Director of Research-Retired, City Ethics
---
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