The Effects of an Inadequate Ethics Code

There are many perils of an inadequate local government ethics code, as can be seen in Colorado Springs, which passed an ethics code in 2007. Last week, I wrote a blog entry about the new ethics commission's first complaint. Even before the ethics commission has met on the complaint, problems have arisen, according to an article in the Colorado Statesman.

The first problem is that the code (attached in a searchable form (see below)) makes the city attorney counsel to the ethics commission. However, with the first complaint being filed against the mayor, the city attorney has already been providing counsel to the respondent and, in fact, was a member of the team negotiating the contract at the heart of the alleged conflict.

Further, the complainant says that he was forced to file the complaint because the city attorney failed to answer his inquiries regarding the mayor's possible conflict of interest. And the city attorney represents the city council, which acts upon any recommendation of the ethics commission. How can the city attorney advise another body about a recommendation the city attorney most likely wrote?

In addition, one of the three ethics commission members used to work for the city attorney, but has not recused himself.

For these and many other reasons, local government attorneys should have as little involvement as possible in the ethics process.

The second problem is one that is rarely given much thought, but is very important: the statute of limitations. Colorado Springs' ethics code has a one-year statute of limitations. Especially considering that ethics matters usually involve relationships that someone is trying to keep secret (otherwise the official would have disclosed the relationship and withdrawn from the matter), a one-year statute of limitations is far too short. Three years should be the minimum (three years is the City Ethics Model Code period (§213(2)). It may not be good to dig up the distant past, but in ethics matters, one year is not distant at all.

The third problem involves confidentiality of ethics commission proceedings. The Colorado Springs ethics code makes only frivolous complaints confidential. Without any clarity on this issue regarding the great majority of complaints, the ethics commission is divided over whether to hold its first meeting on its first complaint in public or in executive session. This is not a good way to start the ethics process, especially with a public complaint against the mayor.

If the commission holds its hearing in private, it will be seen as choosing to hide what the mayor might have done. In addition, the city attorney has advised the mayor not to answer the principal factual question involved in the complaint, creating an appearance that the mayor is hiding something. Therefore, the ethics commission is all but required to hold its first meeting on the complaint in public. This decision should not have been the ethics commission's to make.

Robert Wechsler
Director of Research-Retired, City Ethics

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