Advisory Opinions

A couple of months ago, the Ohio Ethics Commission did something very wise and valuable:  it drafted an advisory opinion on nepotism rules, gathering information from years of partial, specific advisory opinions, and providing examples. It even gives excellent definitions of each of the relevant terms, including such generally applicable terms as "public contract"  and "anything of value."

Here's a clever way to abuse the advisory opinion process. A few months after conduct begins, seek advice from the ethics commission. After the EC tells you it's okay, increase the amount of conduct so much that the advice is no longer relevant, and then point to the advice in defense of the conduct. Finally, refuse to provide information about the extent of the conduct, so that no one can provide hard evidence that there is truly a change in the extent of the conduct.

On Independence Day weekend, it's worth remembering that independence does not come cheap, and that there are some things that are more important than independence.

Again and again, local government officials say that there is no need for an improved ethics program in their town because no one is filing complaints. If there were ethical problems, they argue, there would be lots of complaints. But complaints are not an indication of the need for a better government ethics program. The reason is that no one files a complaint when they do not expect a fair hearing of the complaint (most basic programs do not have a body that is considered independent and neutral).

This year, the Rhode Island ethics commission, which has jurisdiction over local governments, has been bouncing around the issue of conflicts of interest relating to local officials' involvement in  negotiations with a union, where they or their spouse is a member of a different local union that shares the same umbrella union and, often, the same negotiators and some of the same funds. The public statements on this issue, from representatives of unions and good government organizations, and the quandaries of EC members make valuable reading.

One of the most difficult things for a government official to do is to determine whether his or her conduct creates an appearance of impropriety. Partially blinded by ego, surrounding yes-people, and the government's ethical culture, an official often finds nothing wrong with conduct that many or even most outsiders -- that is, citizens -- find questionable or downright wrong. It is hard for them to put themselves in citizen shoes in order to see whether their conduct might appear improper.

The New York City Conflicts of Interest Board (COIB) recently issued an advisory opinion (attached, see below) on the subject of conflicts involving city council discretionary funds, a topic I wrote about last year. This is a model advisory opinion, especially in the way it provides a number of scenarios to which it applies the city's relevant ethics provisions. The opinion goes beyond any single request for advice to provide advice for as great a range of possible situations as the staff could imagine.

Rarely does someone make a comment to one of my blog posts that brings such a fresh look at a standard conflict of interest issue as the one made recently by Catherine Mullhaupt, Esq., Director of Member Information Services at the Michigan Townships Association.

Recently, the Jackson County (MO) county legislature decided to exclude not only county legislature members from its new ethics code, but also county attorneys. This exception is hidden square in the middle of a 58-page code: