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Local Government Attorney Ethics Advice
Wednesday, July 8th, 2009
Robert Wechsler
A judicial opinion is
apparently not enough to put an end to local government officials using the excuse that
the local government attorney told them participation in a matter is legal. Nor is the fact that the official's decision whether to participate is not solely a legal decision, but
rather a judgment based partially on the language of an ethics code and
partially on a determination of what is appropriate under the circumstances.
What happened last week in La Quinta (CA) shows how dangerous and wrong
it is to ignore both a judicial opinion and the obligation of government
officials to take full responsibility for their government ethics decisions.
According to an article in the Desert Sun, a La Quinta council member asked the city attorney whether she could vote on funding the local chamber of commerce, despite the fact that she had been instrumental in making the funding request and only six days before the vote had sat on the chamber's executive committee as the immediate past president.
This is certainly not a black-and-white decision. The new city council member had received no salary from the chamber, so she had no financial interest. She was also not involved with the chamber anymore, so that she was not handing herself any funds. However, she was so closely identified with the chamber as its immediate past president and member of its executive and budget committees, and so involved with the specific funding request, that no neutral observer could see her as acting impartially or not having a conflict of interest, whatever the particular law said.
Considering the decision in The People v. Chacon (February 2007; click and search for "Chacon" "council") (discussed in a City Ethics blog post), every California local government attorney should make it clear to any government official he or she advises that such advice is not conclusive and does not protect the official from ethics enforcement. If the city attorney did not do so in this instance, she should share responsibility for any fines or other penalties with the council member.
And the council member should acknowledge that her decision cannot be blamed on the city attorney, but that she should take responsibility for preventing an appearance of impropriety, even if this requires going beyond what the law expressly requires.
Instead, the council member is quoted as saying, “I stand by my decision that my participation was appropriate and expected as a council member." And the city attorney is quoted as standing by her consideration of the law only, and not of how such participation would appear.
While city residents were publicly questioning the appropriateness of the council member's vote, the Mayor Pro Tem did a terrible job of conveying the issue of perception of impropriety. "The problem here," he said, "is that there's a gray area and that gray area is perception. But perception is in the minds of the beholder and I'm sure there are an equal number of folks that don't have a problem with the action."
Perception is not a democratic vote. It's something that is related to the conduct, not to the public's actual response to it, especially considering all the misinformation and other distortions that stand between the conduct and the public's perception of it. And to say this before an investigation of the matter has even begun is to show disrespect for the legal processes created to deal with such matters.
We see in this situation ignorance and unwillingness to take responsibility for one's actions, not to mention the usual games politicians play. The best thing, especially in California, where at least the law is clear, is for government officials not to go to local government attorneys for their ethics advice, but to go to ethics commissions and, where available, ethics officers and other ethics professionals. But whatever they do, they need to take responsibility for their conduct. This might mean that they play it safe and participate less where there might be an appearance of impropriety. But trust in government and, hence, the democratic process will be the better for it.
Robert Wechsler
Director of Research-Retired, City Ethics
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According to an article in the Desert Sun, a La Quinta council member asked the city attorney whether she could vote on funding the local chamber of commerce, despite the fact that she had been instrumental in making the funding request and only six days before the vote had sat on the chamber's executive committee as the immediate past president.
This is certainly not a black-and-white decision. The new city council member had received no salary from the chamber, so she had no financial interest. She was also not involved with the chamber anymore, so that she was not handing herself any funds. However, she was so closely identified with the chamber as its immediate past president and member of its executive and budget committees, and so involved with the specific funding request, that no neutral observer could see her as acting impartially or not having a conflict of interest, whatever the particular law said.
Considering the decision in The People v. Chacon (February 2007; click and search for "Chacon" "council") (discussed in a City Ethics blog post), every California local government attorney should make it clear to any government official he or she advises that such advice is not conclusive and does not protect the official from ethics enforcement. If the city attorney did not do so in this instance, she should share responsibility for any fines or other penalties with the council member.
And the council member should acknowledge that her decision cannot be blamed on the city attorney, but that she should take responsibility for preventing an appearance of impropriety, even if this requires going beyond what the law expressly requires.
Instead, the council member is quoted as saying, “I stand by my decision that my participation was appropriate and expected as a council member." And the city attorney is quoted as standing by her consideration of the law only, and not of how such participation would appear.
While city residents were publicly questioning the appropriateness of the council member's vote, the Mayor Pro Tem did a terrible job of conveying the issue of perception of impropriety. "The problem here," he said, "is that there's a gray area and that gray area is perception. But perception is in the minds of the beholder and I'm sure there are an equal number of folks that don't have a problem with the action."
Perception is not a democratic vote. It's something that is related to the conduct, not to the public's actual response to it, especially considering all the misinformation and other distortions that stand between the conduct and the public's perception of it. And to say this before an investigation of the matter has even begun is to show disrespect for the legal processes created to deal with such matters.
We see in this situation ignorance and unwillingness to take responsibility for one's actions, not to mention the usual games politicians play. The best thing, especially in California, where at least the law is clear, is for government officials not to go to local government attorneys for their ethics advice, but to go to ethics commissions and, where available, ethics officers and other ethics professionals. But whatever they do, they need to take responsibility for their conduct. This might mean that they play it safe and participate less where there might be an appearance of impropriety. But trust in government and, hence, the democratic process will be the better for it.
Robert Wechsler
Director of Research-Retired, City Ethics
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