Trying to Do Too Much in an Ethics Code

One problem local governments have in drafting ethics codes is that they want it to be too many things, to serve too many purposes. They want it to be an aspirational code of conduct, making local government more civil and government officials more honest and fair. They want it to make officials follow all relevant laws and constitutional provisions. And they want it to deal with conflicts of interest, that is, with the situations where personal interests may be placed above the public interest.

The proposed ethics code in Amherst County (VA) does exactly this (the code is attached (see below; the attachment is searchable) as well as linked to). And like the codes of many other local governments, this code does not show that the county government understands the distinctions between these three goals, nor the problems caused by throwing them all together in one code.

Problems with Such Codes
There are two principal sorts of problem. One is that trying to do too much means that the conflict of interest part of the ethics code -- which is all that can be reasonably be enforced in a formal manner -- takes a back seat, and is seriously inadequate. In Amherst County, for example, the conflict of interest part of the code requires no annual disclosure, provides for no training or advisory opinions, and has no independent enforcement. And most of the conflict provisions are no less vague than the aspirational provisions. The result is a lack of clear guidance.

The second sort of problem is that the county board of supervisors is given an impossible job to fulfill. Not only must it deal with conflict of interest allegations relating to its members as well as to its colleagues on the county's other boards and commissions, but it must also deal with allegations against all these people of incivility, unfairness, personal attacks, failure to perform duties, poor motivations behind decisions, failure to share all known information, administrative interference, undue influence on other boards and commissions, lack of support for a positive work environment, and noncompliance with any local, state, and federal law, as well as with the state and federal constitutions.

The result of this confusion of aspirational, legal, and conflict of interest purposes is a poor conflict of interest code, an enormous burden placed on the county board of supervisors, and many disputes treated self-righteously as questions of ethics.

The Inconsistency of Such Codes
When you try to do too much, the result is serious inconsistencies or internal contradictions. For example, Paragraph 3 requires that board and commission members refrain from verbal attacks on the motives of other members, but the code welcomes formal allegations that turn administrative, procedural, and political issues into ethical issues, which are generally perceived as dealing with the motives of officials. In fact, paragraph 6 specifically raises the issue of officials' motives, making them the basis for ethics allegations (personal attacks?), by requiring officials to base their decisions on the merits, rather than on "unrelated considerations," which would include any motive, personal, political, or otherwise.

Another example is that the supervisors must get involved in board and commission ethics (they can even remove board and commission members), despite the fact that they are required by paragraph 15 not to unduly influence these "independent" boards and commissions. The possibility of being removed for unethical conduct will certainly influence a board member.

Aspirations
Aspirations are important to government. That is why the City Ethics Model Code includes the excellent American Society for Public Administration aspirational code. But this aspirational code is carefully separated from the conflict of interest provisions, which are enforceable. Aspirations are not enforceable. If they are allowed to be enforced, they open up cans of worms.

Civility
Civility is also important to government, and it could be argued that incivility involves officials placing their personal interests above the public interest. But many of the most selfish and dangerous officials are outwardly very civil. It is much easier to be civil when you wield the gavel.

And there are times that incivility is not only acceptable, but required. Anyone who has served on a board whose chair uses his or her position to prevent debate of important issues, for example, knows that such a person has no respect for civility, but will stomp all over it. There are, sadly, times when officials must be interrupted because, for example, they refuse to recognize members of the board or members of the public. There are even times where officials need to be shouted down.

Officials squabbling is an ugly thing to see. But so are meetings where a majority rushes through important matters without debate, without transparency, without respect for anyone else. Yet acting professionally and with civility throughout.

Rules about civility, if they must exist, should appear in a board's bylaws or rules of conduct, not in an ethics code, at least not in the enforceable part of the code.

Robert Wechsler
Director of Research-Retired, City Ethics

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