Update: March 29, 2010 (see below)

It is a common problem in government ethics to confuse law and ethics. It is a more unusual problem to confuse law and facts. But this appears to be a problem in La Crosse (WI; pop. 51,000), according to an article in yesterday's La Crosse Tribune [1]. But it's not the only problem.

Here are the alleged facts, according to the article. A council member has asked the city attorney for an advisory opinion concerning two meetings between the mayor and the county's solid waste director. The mayor's father, who accompanied him to the second meeting, owns a refuse company, and the mayor worked for the company until running for mayor in 2009. The county is doing a solid waste study, which could affect the family business. The county official felt that the mayor was trying to get him to back off from doing the study.

Here are the relevant provisions of the city's miniscule ethics code [2] (there are similar provisions in §19.59 of the Wisconsin statutes [3], which applies to local officials):

§2.48(D)(4)  Special Privileges - No public officer or employee may use or attempt to use his public position to influence or gain unlawful benefits, advantages or privileges for himself or others.

§2.48(D)(2)  Disclosure of interest in other matters - To the extent that he knows thereof a member of a Board, Commission or agency and any other public officer or public employee of the City of La Crosse, whether paid or unpaid, who participates in discussion or gives official opinion to any such Board, Commission or Agency on any matter before it, shall publicly disclose the nature and extent of any direct or indirect financial or other private interest he has in such matters.

The law is pretty clear. Only the facts are uncertain:  did the mayor attempt to influence the solid waste director or seek to gain benefits for his father's firm? And did he disclose his interest publicly (whatever "publicly" means)? The only issues are factual issues regarding influence and benefit, and if there was disclosure, was it sufficiently public (this deserves clarification by the ethics board in the form of a regulation or amendment to the ethics code).

So why did the council member ask a lawyer for an advisory opinion? And why did the council member ask the city attorney for the advisory opinion when ethics code §2.48(G)(2)(c) clearly authorizes the ethics board to make advisory opinions?

The council member should have instead filed a complaint, which would have led to an investigation, so that the facts would not be merely alleged, but would be known.

The county official's statement, included in another Tribune article [4], presents an excellent description of the effect a conflict of interest can have on government officials:

"I don't mind meeting with [the father] at all to discuss the solid waste assessment and I don't mind meeting with the mayor individually, but when the two are blended together, it makes it confusing to determine whether we're being coerced or influenced."

The father effectively has admitted that he attended the meeting with his son the mayor to influence the official for his own personal benefit: "I told [the official] I didn't want to go ahead with [the study]. To me, it's just a smoke screen to get to where they want to be, which could take future business away from me."

The city attorney should send the advisory opinion request to the ethics board with a recommendation that the council member turn it into a complaint, and the mayor should admit that he violated the ethics code. La Crosse clearly has a weak ethics program, and weak ethical leadership. This is a good occasion to get its ethics program in shape.

Update: March 29, 2010
According to an article on the wkbt.com website [5], the mayor has said he will look to the city's ethics board for guidance. This is good, but it is also shows what a problem it is that council members believe they can seek guidance from the city attorney. This allows top officials to effectively forum shop, that is, decide where they have the best chance to get the answer they want. Those who feel the city attorney is on their side can look there; those who feel the city attorney is not on their side (or, worse, believe the ethics board majority is on their side) can go to the ethics board.

Ethics advice should be exclusive, and it should be limited to the ethics board and to an ethics officer answerable to the ethics board. Forum shopping for ethics advice undermines trust in the advice and, therefore, in the ethics program.

Robert Wechsler
Director of Research, City Ethics

203-230-2548