making local government more ethical

You are here

Model Code

All stories and pages related to the Model Code Project

Complicity with and knowledge of violations are two minefields it is worth crossing. They involve not only dotting the i's, but they also go right to a central element of responsibility: are you responsible for what others do, especially when you are involved or you let it happen. So much of what happens in any organization involves knowingly letting others -- especially subordinates -- do the dirty work.

Note that this provision includes outsiders, such as people doing business with the city. Why should officials and employees be the only ones responsible for how they respond to outsiders' temptations?

Please share your thoughts about the issues involved here, as well as your experiences with such provisions or with situations that might have happened or been dealt with differently if there had been such a provision.

100(18). Complicity with or Knowledge of Others' Violations

No one may, directly or indirectly, induce, encourage, or aid anyone to violate any provision of this code. If an official or employee* suspects that someone has violated this code, he or she is required to report it to the relevant individual, either the employee's supervisor, the board on which the official sits or before which the official or employee* is appearing* or will soon appear, or the Ethics Commission if the violation is past or if it is not immediately relevant to a decision, to discussion, or to actions or transactions. Anyone who reports a violation in good faith will be protected by the provisions of 112.

Comment: This subsection seems to turn all city officials and employees into stool pigeons. But, in fact, a principal reason why ethics programs are ineffective is that officials and employees feel they can get away with unethical conduct because no one will turn them in. Instead of having a culture based on ethics, their city has a culture based on loyalty. People in such a city ignore conflicts of interest, because they feel protected. There are two reasons for this: (i) no one wants to be a tattle-tale and (ii) everyone is afraid to be a tattle-tale, because doing so might threaten their jobs, lead to harassment and failure to advance, or undermine their relations with people in power.

This subsection, along with the whistle-blower protection in 112, allows the people who know most what is going on in city government - city employees - to safely foster an ethical environment by preventing action in the public interest from being against their self-interest. The inclusion of this provision makes it clear to all officials and employees that government ethics is a group activity, that unethical behavior is less an individual problem than an organizational problem.

Such a provision appears in the IMLA Model Code; the comments to the IMLA provision state, in part, "Even if a community ultimately decides not to impose any duty [to report violations], it would be better off for having debated the issue."

Whether or not anonymous reports would be accepted is another area for debate. Creating a hotline for reports of violation (anonymously or not) makes it easier for city employees and others to fulfill their duty to report violations. As long as the ethics commission can file its own complaint in such an instance, there is the protection for respondents that the ethics commission must feel satisfied, after a preliminary investigation, in the truth of the report. People's experiences with such hotlines, good and bad, would be very helpful, as would information about debates about the duty to report and about hotlines and anonymous reporting of violations.

Back to tattling, which is rarely defended in a rational way. Not tattling is something very important in childhood, where it helps maintain solidarity of children against adults. But for adults there is not a group to maintain solidarity against (hopefully not the city's residents, to whom officials have a fiduciary duty) and, therefore, this sort of unquestioning loyalty is inappropriate. The best thing to do, before reporting, is to try to prevent unethical conduct before it occurs, to directly recommend, for example, that someone recuse himself or herself or seek advice from the ethics commission. But it is important that officials and employees know that unethical conduct will not be protected by the silence of fear or misplaced loyalty.

The first sentence of this subsection, on complicity and inducement, is equally important. Under most ethics codes, a private citizen or company that induces a municipal official to violate ethics laws runs no risk of penalty. For example, hoping to keep a city's business, a bank might give a personal loan to the city treasurer at a below-market interest rate. If this loan is discovered, the official might lose his or her job as a result; however, the bank will lose nothing and, more important, knowing this, it is more likely to offer the loan. Since the goal of this code is to prevent conflicts between the official's interests and the public interest, it is important that the code also make it less likely that officials are tempted into these conflicts. Please share your experiences with provisions such as this, including instances where suits have been brought, arguing that ethics commissions have no jurisdiction over anyone other than public servants.

Story Topics: 

Consultants are an in-between group. They're not officials or employees, nor are they people who do business with the city. They advise or sometimes act for the city, and have access to confidential information as well as special relations with city staff. Please share your thoughts about and experiences with the inclusion of consultants in an ethics program.

100(17). Consultants*

A consultant* may not represent a person or entity other than the city in any matter, transaction, action, or proceeding in which the consultant participated personally and substantially as a consultant to the city. Nor may a consultant represent a person or entity in any matter, transaction, action, or proceeding against the interest of the city.

Comment: Other rules that apply expressly to consultants* are 100(8) (Confidential Information), 100(21) (Honesty in Application for Positions), and 101(2) (Transactional Disclosure). Also see the comments to 100(11), the revolving door provision.

Many codes also include language such as: A consultant may not accept other employment that will either impair the consultant's independence of judgment with respect to the consultant's official duties for the city, or that will require or induce the consultant to disclose confidential information pursuant to subsection 8 of this section. 

The same problem appears as in the comments to 100(1) above: how does one know or prove that employment will impair someone's judgment or induce someone to disclose confidential information? It is enough that consultants are prevented from representing parties against the city or in matters the city hired them to deal with, and that they be included in the confidential information provision, 100(8).

Story Topics: 

Endorsing products and services is a minor conflict, but this is the sort of conflict that, if not specified, would not be considered a conflict under general language. Please share your thoughts about its inclusion and experiences with this problem.

100(16). Endorsements

No official or employee* in his or her official capacity may publicly endorse products or services. However, this does not prohibit an official or employee from answering inquiries by other governmental officials, consumer organizations, or product information services regarding products or services.

Story Topics: 

Accepting fees and honorariums is a minor conflict, but one that occurs a great deal. Please share your thoughts and experiences.

100(15). Fees and Honorariums

No official or employee* may accept a fee or honorarium for an article, for an appearance or speech, or for participation at an event, in his or her official capacity. However, he or she may receive payment or reimbursement for necessary expenses related to any such activity.

Story Topics: 

This provision deals with the potential coercion, or appearance of coercion, that accompanies outside dealings between officials and subordinates. Please share your experiences with this problem and ways to deal with it in ethics codes.

100(14). Transactions with Subordinates

No official or employee* may engage in a financial transaction, including the giving or receiving of loans or monetary contributions, including charitable contributions, with a subordinate* or person or business over which, in the official or employee's* official duties and responsibilities, he or she exercises supervisory responsibility, unless (a) the financial transaction is in the normal course of a regular commercial business or occupation, or (b) the financial transaction involves a charitable event or fundraising activity which is the subject of general sponsorship by a state or municipal agency through official action by a governing body or the highest official of state or municipal government.

Comment: Exception (b) allows for United Way campaigns and the like, but officials should be careful not to abuse this exception by getting pet charities approved by the mayor or city manager. Too often, charities are as much about the official as elections are, and even good causes should not be aided through coercion.

Some cities might also want to except situations where the subordinate or business offers or initiates the financial transaction, but this exception can be abused in instances where a subordinate or business acted under pressure and does not feel in a position to anger a supervisor or someone responsible for handing out contracts.

Story Topics: 

Nepotism seems to be more a matter of taste than other conflict provisions. Everyone knows that it looks bad to hire members of one's own family, but many people feel that government is like business, and in business people do this all the time. What is family for?

What are your thoughts on including nepotism in a municipal ethics code, and what are your experiences with such provisions and with the conflict itself?

100(13). Nepotism

  1. Unless he or she obtains a waiver pursuant to 213, no official or employee* may appoint or hire his or her spouse or domestic partner*, child or step-child, sibling or step-sibling, parent, or member of his or her household* for any type of employment, including by contract (unless competitively bid pursuant to 103), with the city.

  2. No official or employee* may supervise or be in a direct line of supervision over his or her spouse or domestic partner*, child or step-child, sibling or step-sibling, parent, or member of his or her household*. If an official or employee* comes into a direct line of supervision over one of these persons, he or she will have six months to come into compliance or to obtain a waiver.
Story Topics: