Advisory Opinions

In a New York Times column today, Michael Powell has unearthed an ugly-looking government ethics situation in New Jersey involving apparent misuse of government ethics authority to win a vote.

The role of the city or county attorney in an ethics program continues to be a major bone of contention, despite the fact that government ethics professionals generally take the position that the city or county attorney should not be involved in an ethics program.

2013 was not a particularly good year for government ethics. This blog started out by noting how little Tennessee's model code had done for its municipalities' ethics programs. Early-year hopes for improvement of New Jersey's terrible state local government ethics program were dashed by the program's October request to renew its rules without any changes whatsoever.

Ethics Reform

In 2008, New Jersey Governor Jon Corzine established a special task force to take a look at the state's local government ethics program. In September 2010, the task force filed a report that recommended substantial changes to the program (attached; see below). Nothing was done.

In a blog post last week, I listed the many reasons why city and county attorneys should not be providing ethics advice. One of those reasons was that "legal advice and ethics advice require different skill sets." But I limited this part of my analysis to saying that "A legal adviser sticks to the letter of the law, and is always on the lookout for loopholes that her client can take advantage of."

A recent Miami Herald article describes a case that embodies a number of important government ethics issues, including the conflict issues that involve local schools of higher education, gifts to officials' relatives and the officials' knowledge of them, an ethics program's jurisdiction over these relatives, and whether government attorneys should provide ethics advice about past conduct.

According to an article in the New Orleans Times-Picayune on Friday, the state ethics board refused to give ethics advice to the Port of South Louisiana regarding whether the hiring of a parish (that is, city) council member would be appropriate, considering that the Port and council work closely together on projects, and the council votes on port-related issues.

In early 2009, I started out a blog post, "Type 'ethics' into the search line at utah.gov, and all that comes up is Archery Ethics Course Online." That is no longer true. In fact, the state legislature not only has an ethics commission, it even passed a local ethics commission act.

Ethics commissions are often stuck with one or more ethics provisions that they are know are, in some ways, irresponsible. They can recommend amendments to the provisions, but the legislative body is free to ignore such recommendations.

In many jurisdictions, lawyers have sought to be excluded from ethics program jurisdiction, arguing that their conduct is regulated by their state's attorney disciplinary process. Recently, in Louisiana, other professionals have sought to be excluded from the state ethics program's jurisdiction (which includes local officials) pursuant to a different argument.

The issue is, When do employees of a private company become government employees for purposes of ethics program jurisdiction over them?