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The Need for Ethics Commission Independence, and What Is and Isn't a Government Ethics Violation
Sunday, June 7th, 2009
Robert Wechsler
Updates below
Anyone who doubts the need for truly independent ethics commissions need look no further than what has been happening in Philadelphia this week. Or should I say "this year"?
I've already reported on the fining of the Ethics Board's executive director, Shane Creamer, for sharing with a reporter (off the record) confidential information about a settlement negotiation. I lauded Creamer for immediately admitting what might or might not have been a violation of the ethics code's confidentiality rule. I think he showed good judgment and did not deserve a fine. But I understand why the ethics board would not have wanted what appeared to be at least an instance of poor judgment to go unpunished, because then it might be attacked for having a double standard in dealing with city officials.
I also said that it is inappropriate for an ethics commission to investigate its own members or staff for an ethics violation. But the executive director's conduct involved not ethics, but a second-order rule designed for ethics board members and staff. In other words, it was a disciplinary issue. And, in any event, the board brought in outside counsel to advise and took the executive director off the particular case. In short, the board did everything right and with transparency.
The Philadelphia Inquirer editorial staff recognized this, as well.
But when you have a city council that, according to an Inquirer reporter, is "openly hostile" to an ethics commission (due to fines against council members for what they consider "technical" violations), even doing the right thing provides an opening for attack.
Accusations Against the Ethics Board Executive Director
According to a transcript of her comments, the council member who led the attack referred to what Creamer did as "reckless behavior" that undermined the public trust. No one could honestly refer to what occurred as "reckless." I've rarely seen such a matter handled so professionally.
She said that the ethics board was displaying a double standard because it did not slap on the top penalty of $2,000, fining Creamer only $500. The top penalty is not appropriate for all violations, and it is highly questionable that there was any violation here at all. The fact is that the ethics board bent over backwards to show that it did not have a double standard.
The council member (echoed by the mayor) said that the ethics board should not have investigated its own member. I don't agree, but the board should have made it more clear that this was not an ethics investigation -- no one argues that Creamer put his personal interests ahead of the public interest -- but rather an internal disciplinary matter. Just because something appears in an ethics code does not make it an ethics matter.
The council member even attacked the Committee of 70, a local good government group, for not criticizing the ethics board. That's because, like the Inquirer editorial staff, it was proud of the job the ethics board had done, and it quickly came out and said that. The ethics board also put out a press release defending its actions.
Understanding What Government Ethics Means
A central problem here is the lack of understanding of what government ethics is. Creamer is being asked to resign because he's committed an ethics violation, when in fact no one has accused him of having done anything in his personal interest, nor of failing to disclose. Confidential information is an ethics problem only when it is used to further someone's personal, usually business, interests. What Creamer did was purely a question of judgment, not a question of ethics. If council members were asked to resign every time they made a questionable judgment, would there be a council at all?
Ways to Undermine an Ethics Commission, and the Need for Independence
The Council is not limiting its "smoldering distaste" for the ethics board to talking down the executive director. It has failed to replace a vacancy on the board for seven months. It has cut the ethics board's budget. And now at least two of its members are openly asking for the executive director's head and doing everything they can to undermine public trust in the ethics board.
What seems childish and unprofessional may soon be very effective. An ethics board member is moving out of town this summer, which will leave two vacancies on a five-member board. That makes it very hard to get a quorum. Without a quorum, no one is fined (even the executive director). If the ethics board can be made to look untrustworthy, then maybe no one will care that it's not functional. And maybe the board will be forced to sacrifice its executive director, and some of its independence, in order to function at all.
It is a common ploy to leave ethics commission seats open. This is why politicians should have no say over ethics commission membership.
It is a common ploy to cut ethics commission budgets when they do things councils don't like. This is why budgets should be guaranteed by law.
No one can stop politicians from using words to attack what gets in their way. But politicians can be prevented from taking revenge through action.
Update (June 11, 2009): A Philadelphia Daily News editorial today recognized that what Creamer did was not an ethics violation, because "he didn't use a public office to benefit himself." The editorial also recognized that Creamer acted ethically in reporting to the board that he might have made a mistake. Hopefully, the council and the mayor will recognize this, as well.
Update (June 12, 2009): According to a Philadelphia Daily News blog post yesterday, the Council majority leader is still calling for Creamer to resign and is now attacking the Daily News for its editorial. At a Council meeting, she read a definition of ethics, failing to acknowledge that government ethics includes only a tiny part of ethics. Nor did she acknowledge that transparency is part of government ethics. And she continues to accuse the ethics board of a two-tiered approach, while asking for Creamer to resign, even though she does not appear to ask Council members to resign whenever they violate a rule.
What Ms. Tasco is doing has nothing to do with government ethics. It appears to be half resentment and half grandstanding, in other words, putting her personal interests ahead of the public interest. That's what government ethics is about, Ms. Tasco.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Anyone who doubts the need for truly independent ethics commissions need look no further than what has been happening in Philadelphia this week. Or should I say "this year"?
I've already reported on the fining of the Ethics Board's executive director, Shane Creamer, for sharing with a reporter (off the record) confidential information about a settlement negotiation. I lauded Creamer for immediately admitting what might or might not have been a violation of the ethics code's confidentiality rule. I think he showed good judgment and did not deserve a fine. But I understand why the ethics board would not have wanted what appeared to be at least an instance of poor judgment to go unpunished, because then it might be attacked for having a double standard in dealing with city officials.
I also said that it is inappropriate for an ethics commission to investigate its own members or staff for an ethics violation. But the executive director's conduct involved not ethics, but a second-order rule designed for ethics board members and staff. In other words, it was a disciplinary issue. And, in any event, the board brought in outside counsel to advise and took the executive director off the particular case. In short, the board did everything right and with transparency.
The Philadelphia Inquirer editorial staff recognized this, as well.
But when you have a city council that, according to an Inquirer reporter, is "openly hostile" to an ethics commission (due to fines against council members for what they consider "technical" violations), even doing the right thing provides an opening for attack.
Accusations Against the Ethics Board Executive Director
According to a transcript of her comments, the council member who led the attack referred to what Creamer did as "reckless behavior" that undermined the public trust. No one could honestly refer to what occurred as "reckless." I've rarely seen such a matter handled so professionally.
She said that the ethics board was displaying a double standard because it did not slap on the top penalty of $2,000, fining Creamer only $500. The top penalty is not appropriate for all violations, and it is highly questionable that there was any violation here at all. The fact is that the ethics board bent over backwards to show that it did not have a double standard.
The council member (echoed by the mayor) said that the ethics board should not have investigated its own member. I don't agree, but the board should have made it more clear that this was not an ethics investigation -- no one argues that Creamer put his personal interests ahead of the public interest -- but rather an internal disciplinary matter. Just because something appears in an ethics code does not make it an ethics matter.
The council member even attacked the Committee of 70, a local good government group, for not criticizing the ethics board. That's because, like the Inquirer editorial staff, it was proud of the job the ethics board had done, and it quickly came out and said that. The ethics board also put out a press release defending its actions.
Understanding What Government Ethics Means
A central problem here is the lack of understanding of what government ethics is. Creamer is being asked to resign because he's committed an ethics violation, when in fact no one has accused him of having done anything in his personal interest, nor of failing to disclose. Confidential information is an ethics problem only when it is used to further someone's personal, usually business, interests. What Creamer did was purely a question of judgment, not a question of ethics. If council members were asked to resign every time they made a questionable judgment, would there be a council at all?
Ways to Undermine an Ethics Commission, and the Need for Independence
The Council is not limiting its "smoldering distaste" for the ethics board to talking down the executive director. It has failed to replace a vacancy on the board for seven months. It has cut the ethics board's budget. And now at least two of its members are openly asking for the executive director's head and doing everything they can to undermine public trust in the ethics board.
What seems childish and unprofessional may soon be very effective. An ethics board member is moving out of town this summer, which will leave two vacancies on a five-member board. That makes it very hard to get a quorum. Without a quorum, no one is fined (even the executive director). If the ethics board can be made to look untrustworthy, then maybe no one will care that it's not functional. And maybe the board will be forced to sacrifice its executive director, and some of its independence, in order to function at all.
It is a common ploy to leave ethics commission seats open. This is why politicians should have no say over ethics commission membership.
It is a common ploy to cut ethics commission budgets when they do things councils don't like. This is why budgets should be guaranteed by law.
No one can stop politicians from using words to attack what gets in their way. But politicians can be prevented from taking revenge through action.
Update (June 11, 2009): A Philadelphia Daily News editorial today recognized that what Creamer did was not an ethics violation, because "he didn't use a public office to benefit himself." The editorial also recognized that Creamer acted ethically in reporting to the board that he might have made a mistake. Hopefully, the council and the mayor will recognize this, as well.
Update (June 12, 2009): According to a Philadelphia Daily News blog post yesterday, the Council majority leader is still calling for Creamer to resign and is now attacking the Daily News for its editorial. At a Council meeting, she read a definition of ethics, failing to acknowledge that government ethics includes only a tiny part of ethics. Nor did she acknowledge that transparency is part of government ethics. And she continues to accuse the ethics board of a two-tiered approach, while asking for Creamer to resign, even though she does not appear to ask Council members to resign whenever they violate a rule.
What Ms. Tasco is doing has nothing to do with government ethics. It appears to be half resentment and half grandstanding, in other words, putting her personal interests ahead of the public interest. That's what government ethics is about, Ms. Tasco.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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