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Broward County (FL) Ethics Reform Talk: Gifts and Advice
Friday, April 25th, 2014
Robert Wechsler
According to an
article this week in the Sun-Sentinel,
the Broward County, FL commission is discussing changes to the countywide ethics program, focusing on gifts and ethics advice.
Gift Bans
Conversations about the problems with gift bans are like Hollywood monsters: they never die (see my 2010 blog post on the last such discussion I covered). In Broward County, the monster's roar hasn't changed.
The principal complaint is that a gift ban is just a way to trap elected officials into ethics violations. But, according to the article, no official has been charged with accepting a de minimis gift. The entrapment argument is a phony one.
The mayor says she's spent about $15,000 paying her own way to events. If she's attending for government purposes (as opposed to personal or campaign purposes), why doesn't she pay out of her expense account or argue for a bigger expense account, rather than blaming it on the gift ban? If it's valuable to the county for her to attend, the county should pay for it, not restricted sources. If not, she should pay her own way.
Who Should Provide Ethics Advice?
The county commission appears to want follow the inspector general's recommendation to take away from city and county attorneys the authority to provide ethics advice. But whereas the inspector general recommends having an ethics officer do this, there was talk by the commission about creating "an independent board of attorneys" to issue advisory opinions.
This is not a good idea. Most ethics advice is needed quickly and can be given on the phone or via e-mail. The same questions are asked again and again. An ethics commission need make formal advisory opinions only with respect to complex and important, policy-oriented interpretations of the ethics code. The best solution is to have an independent ethics officer provide most ethics advice in a timely and consistent manner, with an ethics commission to make policy-oriented interpretations based on the ethics officer's recommendations. This is how most jurisdictions handle ethics advice.
There are problems with having a board of attorneys instead of an ethics commission of ordinary citizens. One, attorneys are the most likely people in a community to have conflicts, due to their representation of individuals and entities that seek special benefits from governments in the county. They are also more likely than most to have personal, political, and professional relationships with government officials. Therefore, they are most likely to be and to appear conflicted, which is a terrible thing for a body that gives advice about conflict situations.
It is important to recognize that an ethics commission is a citizen oversight body, not a judicial body. It is more jury than judge. Since the ethics officer will be a lawyer, there is no further need for legal expertise on an ethics commission. Other professionals who are trained in conflicts of interest — including health professionals, accountants, and individuals who work in large corporations — can handle ethics issues just as well, and sometimes better.
Also, a board that makes advisory opinions and, thereby, interprets the ethics code and sets ethics policy, should not only make advisory opinions. It should also oversee training, disclosure, and enforcement, so that all of these are consistent with ethics advice.
The Broward County commission needs to recognize that its idea is a radical one that departs from best practices. Experimentation with ethics programs can be a good thing, but it should be presented as an experiment, and its advantages and disadvantages clearly delineated and compared to best practices. It should also be given a clear time line, with a report that shows how all the advantages and disadvantages play out in practice. An experiment that is not treated as an experiment usually is the result of ignorance and an unwillingness to consider best practices, often for self-serving reasons.
Whatever sort of ethics commission the county commissioners may decide on, it should still have an ethics officer to provide timely ethics advice, to advise the commission, and to provide training and other sorts of oversight.
Robert Wechsler
Director of Research-Retired, City Ethics
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Gift Bans
Conversations about the problems with gift bans are like Hollywood monsters: they never die (see my 2010 blog post on the last such discussion I covered). In Broward County, the monster's roar hasn't changed.
The principal complaint is that a gift ban is just a way to trap elected officials into ethics violations. But, according to the article, no official has been charged with accepting a de minimis gift. The entrapment argument is a phony one.
The mayor says she's spent about $15,000 paying her own way to events. If she's attending for government purposes (as opposed to personal or campaign purposes), why doesn't she pay out of her expense account or argue for a bigger expense account, rather than blaming it on the gift ban? If it's valuable to the county for her to attend, the county should pay for it, not restricted sources. If not, she should pay her own way.
Who Should Provide Ethics Advice?
The county commission appears to want follow the inspector general's recommendation to take away from city and county attorneys the authority to provide ethics advice. But whereas the inspector general recommends having an ethics officer do this, there was talk by the commission about creating "an independent board of attorneys" to issue advisory opinions.
This is not a good idea. Most ethics advice is needed quickly and can be given on the phone or via e-mail. The same questions are asked again and again. An ethics commission need make formal advisory opinions only with respect to complex and important, policy-oriented interpretations of the ethics code. The best solution is to have an independent ethics officer provide most ethics advice in a timely and consistent manner, with an ethics commission to make policy-oriented interpretations based on the ethics officer's recommendations. This is how most jurisdictions handle ethics advice.
There are problems with having a board of attorneys instead of an ethics commission of ordinary citizens. One, attorneys are the most likely people in a community to have conflicts, due to their representation of individuals and entities that seek special benefits from governments in the county. They are also more likely than most to have personal, political, and professional relationships with government officials. Therefore, they are most likely to be and to appear conflicted, which is a terrible thing for a body that gives advice about conflict situations.
It is important to recognize that an ethics commission is a citizen oversight body, not a judicial body. It is more jury than judge. Since the ethics officer will be a lawyer, there is no further need for legal expertise on an ethics commission. Other professionals who are trained in conflicts of interest — including health professionals, accountants, and individuals who work in large corporations — can handle ethics issues just as well, and sometimes better.
Also, a board that makes advisory opinions and, thereby, interprets the ethics code and sets ethics policy, should not only make advisory opinions. It should also oversee training, disclosure, and enforcement, so that all of these are consistent with ethics advice.
The Broward County commission needs to recognize that its idea is a radical one that departs from best practices. Experimentation with ethics programs can be a good thing, but it should be presented as an experiment, and its advantages and disadvantages clearly delineated and compared to best practices. It should also be given a clear time line, with a report that shows how all the advantages and disadvantages play out in practice. An experiment that is not treated as an experiment usually is the result of ignorance and an unwillingness to consider best practices, often for self-serving reasons.
Whatever sort of ethics commission the county commissioners may decide on, it should still have an ethics officer to provide timely ethics advice, to advise the commission, and to provide training and other sorts of oversight.
Robert Wechsler
Director of Research-Retired, City Ethics
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