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Misuse of City Property and Reimbursements

Posted Wed, 2006-11-29 08:42

One conflict of interest is so basic it is sometimes left out of ethics codes: using city property or money for one's own use. Please share your thoughts about this conflict and your experiences with attempts to control it.

100(12). Misuse of City Property and Reimbursements

An official or employee* may not use, or permit others to use, any property owned by the city for profit or personal convenience or benefit*, except (a) when available to the public generally, or to a class of residents, on the same terms and conditions, (b) when permitted by policies approved by the city's legislative body, or (c) when, in the conduct of official business, used in a minor way for personal convenience. This applies not only to objects such as cars and trucks, but also to travel and other expense reimbursements, which may not be requested for nor spent on anything but official business.

Comment: The IMLA Model Code takes this further by requiring care in the use of city property, so that there is no waste. This is an essential element of government ethics, but it is a difficult thing to put into law. People - especially opposition parties - often paint other people's actions as wasteful and negligent. The duty to use city property and resources with care belongs in the aspirational section of an ethics code, or it invites frivolous complaints, making it almost impossible to reject any complaint as frivolous.

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Revolving Door

Posted Wed, 2006-11-29 07:51

The revolving door involves movement from city government into business, specifically into businesses that do business with the city or represent people before its boards and agencies. The conflict here involves using information and goodwill obtained during one's public service to immediately benefit oneself by using them to benefit others, for a charge.

There needs to be a balance between, on the one hand, preventing the fact and appearance that public service is a way to enrich oneself for the benefit of those with the most money, and on the other hand restricting public servants from making a good living when they leave.

Please share your thoughts about and experiences with this difficult problem, and the various possible ways to come to terms with it.

100(11). Revolving Door

  1. For a period of one year after the termination of his or her city service or employment, an official or employee* may not appear* or practice before any city department, agency, board or commission, except on his or her own behalf, or on behalf of the city if serving on a volunteer basis. For this same period, an official or employee* may not receive compensation for working on, or having associates working on, any matter before any city department, agency, board or commission. With respect to particular matters on which the official or employee personally worked while in city service or employment, this bar is permanent. The foregoing also applies, during the same periods of time, to any individual who is a partner, associate, or member of a person or entity with which the former official or employee* has a financial interest.

  2. A former official or employee* may not accept employment with a party to a contract with the city, within a year after the contract was signed, when he or she participated substantially in the negotiation or award of the contract and the contract obliged the city to pay at least $50,000. Nor may an elected or appointed official accept any appointment or election by the body of which he or she is or was a member, to any position which carries with it any financial benefit or remuneration, until the expiration of one year after termination of his or her membership in or on such body.
  3. Excluded from these restrictions are officials and employees* who performed only ministerial acts* while working for the city.

Comment: If this bar creates a particular hardship for, say, a lawyer working on his own, the Ethics Commission may grant a waiver under 213.

"Personally worked" means the official actually worked on the matter, not that he or she supervised a department that worked on the matter.

Some municipalities may prefer a time limit greater than a year, but they should consider that the longer the bar, the more difficult it might be to hire qualified officials or find qualified candidates for office.

Allowing former officials to immediately work for the city as consultants would allow the official to continue to act in the city's interest, but such an exception would allow for sweetheart deals between the city and former officials, who normally have the edge in competing with vendors lacking their municipal contacts. Therefore, according to this subsection, a former official could consult to the city only on a volunteer basis.

This code seems to restrict former officials more than current officials. However, former officials are subject only to the revolving door and confidential information provisions, while current officials are subject to the entire panoply of restrictions in this code.

Another approach to the revolving door deals with the act of discussing or accepting employment while the official or employee* is still serving the city. The problem with this approach is that it requires proof of a quid pro quo, which is difficult, and ignores the appearance of impropriety that accompanies the revolving door. Here is typical language for this approach:

It is a violation of this code to discuss or accept an offer of future employment with any person doing or seeking to do business with the city if the official or employee* knows or has reason to believe that the offer of employment was or is intended, in whole or in part, directly or indirectly, as compensation or reward for an act or failure to act during the course of city employment or to influence city action.

The other side of the revolving door may also be dealt with in language like the following:

It is a violation of this code for an official or employee* to, within one year of entering city employment or service, award a contract or participate in an action benefitting a person that formerly employed him or her.

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Patronage

Posted Wed, 2006-11-29 07:44

Patronage involves a conflict between one's obligation to the public to hire the most competent person for each job, and one's political obligation to reward those who help oneself or one's colleagues get elected. Most ethics codes ignore this conflict. Please share your thoughts on its inclusion, as well as your experiences with patronage and attempts to control it.

100(10). Patronage

No official or employee* may promise an appointment or the use of his or her influence to obtain an appointment to any position as a reward for any political activity or contribution.

Comment: As has been shown so skillfully in Chicago, patronage involves both promises of jobs in return for political activity, and the threat of losing jobs in return for political activity, so that patronage continues on forever. Even the Shakman Decree of 1983 did not put an end to the Chicago patronage system: it just went underground. It was twenty years before the new version, based on fraud, was taken on.

Most ethics codes do not include patronage provisions, although many do prohibit asking subordinates to participate (however, this can occur without implicit requests or threats). Patronage involves the most basic conflict of interest in government: the conflict between holding on to power and acting in the public interest. A city government based on patronage cannot have a truly ethical environment, because most of its officials and employees are there on the basis of a quid pro quo/special consideration relationship, which is inconsistent with ethics.

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Political Solicitation

Posted Wed, 2006-11-29 07:39

This is the place to discuss how to deal with the situation where an official puts pressure, directly or indirectly, on subordinates to participate in political campaigns. This provision also deals with the problem of political activity at work or with city funds or facilities. Municipal officials and employees have the right to participate in political activities, but they also have an obligation to separate this from their municipal responsibilities. Some city administrations have based their power on pressuring subordinates into working for their re-election. Please share your experiences with this sort of conflict, and with attempts to control it.

100(9). Political Solicitation

An official, employee, or municipal candidate may not knowingly request, or authorize anyone else to request, that any subordinate* or potential future subordinate participate in an election campaign or make a political contribution. Nor may he or she engage in any political activity while on duty for the city, with the use of city funds, supplies, vehicles, or facilities, or during any period of time during which he or she is normally expected to perform services for the city, for which compensation is paid.

Comment: Political solicitation of subordinates by an official fosters the appearance, if not the reality, of coercion. The word "knowingly" here means that neither an official nor a campaign committee is required to cull the names of municipal officials from voter registration lists it mails to. However, a targeted mailing to municipal officials is prohibited.

Similarly, candidates are barred from soliciting from appointed officials and employees who may fear reprisal, such as being fired, if they refuse to aid the candidate's campaign, even if they do not currently work under that candidate.

Note that this code does not restrict voluntary political contributions or political activity by any official or employee.

Some municipalities may wish to add a bar on soliciting from persons or entities that have sought or received a financial benefit from the municipality within the previous twenty-four months.

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Confidential Information

Posted Wed, 2006-11-29 07:33

This is the place to discuss how best to deal with the problem of an official using confidential information for his or her own gain, or disclosing confidential information for others' gain. A principal issue is how to define "confidential information."

100(8). Confidential Information

An official or employee*, a former official or employee, a contractor* or a consultant* may not disclose any confidential information obtained formally or informally as part of his or her work for the city or due to his or her position with the city, or use any such confidential information to further his or her own or any other person or entity's personal* or financial interests*.

Comment: Some cities will want to define "confidential information" more exactly. Here is possible definition language, based on the IMLA Model Code:

"Confidential information" means information obtained in the course of holding public office or employment, or as a contractor to the city, which is not available to members of the public and which the official or employee* is not authorized to disclose, except to designated individuals or bodies, including written and non-written information. When such information is also available through channels open to the public, officials and employees* are not prohibited from disclosing the availability of those channels.

The IMLA Model Code states explicitly, in its confidential information provision, that an ethics commission is, effectively, considered a designated body.

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Representation and Appearances

Posted Tue, 2006-11-28 16:41

This is the place to discuss how to prevent the conflicts that arise when a city official represents (or appears for) someone before the city or against the interests of the city. The difference between representation and appearance is explained in the comments below. Please comment on this division, and share your experiences and thoughts regarding this area of conflicts.

100(6). Representation

An official or employee* may not represent any other person or entity before the city, nor in any matter not before the city, but against the interests of the city. However, it is acceptable for elected officials to represent constituents without compensation in matters of public advocacy.

Comment: The second sentence of this subsection recognizes that officials are elected to serve their constituents. Thus, for example, when a resident complains to a council member that the public works department blocks the resident's driveway with snow, a council or board member must be able to pursue that complaint with the proper city authorities.

Some cities go into more detail and cover more people in their limitations on representation. Such provisions include the representation by business associates of officials and employees, and acting as an expert witness before the official or employee's board or agency.

100(7). Appearances*

An official or employee* may not appear* before any city department, agency, board or commission, except on his or her own behalf or on behalf of the city. Every time an official or employee appears before the meeting of any municipal body, or when he or she writes a letter to the editor or other publicly distributed writing, he or she is required to disclose before speaking or clearly on the writing whether he or she is appearing in an official capacity or as a private citizen. If the speech or writing is in response to criticism or other communication directed at or regarding his or her official role, the official or employee may respond only in his or her official role.

Comment: Subsections 6 and 7 appear to overlap, because one who represents another usually makes an appearance. However, it is much more clear when an "appearance" has been made than when there is a "representation" relationship, so including both makes it more clear what conduct is being prohibited. Also, subsection 6 includes representation of private interests outside of the city's own boards and departments, when it is against the interests of the city, usually but not exclusively when the city is a party to business or a proceeding. And subsection 7 deals with appearances where the official is representing himself or herself, but it is not clear which hat the official is wearing.

Again, the general rule is that if others see your relationship with a person or entity as "representation," then you should not do it, because it would be perceived as a conflict with your principal role of representing the city. Similarly, if your appearance at a meeting or in writing does not appear to be in the city's interest, you should not appear.

Why are officials and employees restricted from appearing before boards or agencies other than their own? Because restricting only appearances before your own board or agency would, for example, allow a code-enforcement official or the city attorney to represent private clients before the city planning board, because those officials are not members of that board. It would be very difficult to list every possible instance where an appearance before other boards and agencies would be inappropriate. When there is no such conflict, an official or employee should obtain a waiver from the Ethics Commission pursuant to 213.

Some municipalities may go beyond actual representation, and include assistance or legal assistance, with an exclusion for representation or assistance in the performance of the official or employee's official duties.

For volunteers, towns might want to limit restrictions on representation and appearances to their own board or commission, especially those on boards where the opportunity for conflict elsewhere is very small, such as the library board. A list of boards where this exception applies could be added to a subsection 8 that read:

8. Volunteer members of the following boards and commissions may represent persons and entities before, or appear before, any town department, agency, board, or commission other than their own.

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