An Ethics Code in a Charter

In this, the third blog post on the Colorado ethics commission situation, I would like to look at the problems that can arise from placing an ethics code in a constitutional document, either a charter or, as in the Colorado case, the state constitution.

It is an unfortunate fact that, in many jurisdictions, legislators are so opposed to the creation of an effective government ethics program that the task of ethics reform can be accomplished only via charter revision or a referendum. In other instances, ethics reformers recognize that, if an ethics code is not placed in a charter, the legislative body will scrape away at it, undermining the program's independence, jurisdiction, authority, and resources.

But success in ethics reform through citizen or charter revision initiative, as occurred in Colorado in 2006, can make it extremely difficult to fix the problems an ethics commission finds in the code. Sometimes, problems can be solved through interpretations made via rules and regulations, advisory opinions, and decisions in ethics proceedings. Sometimes, there is room for legislation to correct mistakes. But sometimes an ethics program is stuck with poorly written language, and has to make the best of it, as the Colorado ethics commission is doing right now, stuck as it is with a total gift ban, and the state attorney general as its counsel and an insufficient budget.

It is understandable to want to put as much as possible in a charter or constitution, so that it is secure. But security has its price. Therefore, the best way to go about constitutionalizing an ethics code is to put only the most essential provisions in the charter, leaving the rest in the hands of a task force that will draft a conflicts of interest ordinance, so that its provisions can be fixed as the ethics program matures.

Below is a model ethics code for inclusion in a charter. The model focuses on the ethics commission's independence and authority. It is based on a draft I made for a member of the New Haven charter revision commission earlier this year. It will appear in the second edition of my book Local Government Ethics Programs, which City Ethics will publish in the late spring or summer.

Model Charter Ethics Code

Charter Section ___. Task Force.

A. Ethics Task Force
An Ethics Task Force (“Task Force”) will be created, whose sole purpose is to draft a Conflicts of Interest Code for the City/County of _________ (“Code”). The Task Force will present the Code to the [legislative body] for consideration no later than at the first [legislative body] meeting in June ____. If the [legislative body] fails to adopt the Code within ninety days of its receipt of the Code, the Code will be presented to the electors of__________ for consideration at the November ____ general election. If approved by the electors of _________ , the Code will become part of the _________ Code of Ordinances, replacing the current Chapter ______. The Code must be consistent with all provisions in Section ____ of this Charter.

B. Membership.
The Task Force will be comprised of seven residents of _________ , to be selected by a committee of five community organizations to be chosen by the president/chair of the [legislative body] from the following list [samples only]:

    _________ League of Women Voters
    _________ Bar Association
    _________ CPA Association
    _________ Clergy Association
    _________ Medical Association
    _________ NAACP
    President, Local University
    Dean, Local Law School or Government Institute

The selected Task Force members will be appointed by the Mayor/Executive. No member of the Task Force may be, or have been within the three years prior to appointment, a City/County official or employee, or a consultant or contractor of the city/county; an officer in a political party or political committee; a candidate or an active member of the campaign of a candidate for any City/County office; or a city lobbyist. A Task Force member or staff member may not make campaign contributions nor participate in any way in the campaign of a candidate for any City/County office. The Task Force will be given a budget sufficient to hire experts to advise it.

C. Term and Vacancies.
Task Force members will serve until the Code has either been adopted by the [legislative body] or adopted or rejected by the electors of _________ in a referendum. If a member fails to attend any three (3) consecutive meetings of the Task Force, that member will be considered to have vacated his or her seat, and the vacancy will be filled by the process described in Subsection B.

D. Meetings.
The Task Force will hold its first meeting as soon as practicable after its appointment. The Task Force will meet as needed and will hold no fewer than eight (8) meetings. All meetings of the Task Force must be held in public. All votes will be by majority of those present.

E. Chair and Vice-Chair.
At the first meeting of the Task Force, the members will vote for a temporary Chair and Vice-Chair. At its third meeting, the members will vote for a Chair and Vice-Chair, who will serve for the duration of the Task Force’s existence unless they are replaced by a Task Force vote.

Charter Section ___. Conflicts of Interest Board

A. Independence.
(1) The _________ Conflicts of Interest Board (“the Board”) will be independent, to assure that no interference or influence external to the Board affects, or is seen to affect, the objectivity of the Board.

(2) Consistent with its budget, the Board will have the power to employ its own personnel as deemed necessary for the efficient and effective administration of the Board.

(3) The Board’s seven members will be selected by the Conflicts of Interest Board Selection Committee (“Selection Committee”). The selection process of the Selection Committee and the Task Force will be the same, and with the same or additional member limitations, as described in Section ___(B) of this Charter, except that there will be two additional alternate members. Members of the Task Force may become members of the Board.

(4) The Board will have a guaranteed budget.
 
B. Functions, Authority, and Powers.
(1) The authority of the Board will extend over the following:

    (a) All elected and appointed, paid or unpaid, officials ("Officials") and employees ("Employees") of the City/County of _________ and of all agencies and authorities established or substantially funded by the City/County or whose boards are substantially appointed by City/County officials (“the City/County”), former Officials and Employees, and any candidate for City/County office; and

    (b) All entities and persons that provide, or are seeking to provide, goods or services to the City/County under contract for compensation ("Providers"), as well as those that seek permits, grants, or other special benefits from the City/County (“Permittees”).

(2) The Board will have a monopoly on the provision of ethics advice, providing formal and informal ethics advice to Officials, Employees, Providers, Permittees, and Candidates, and informal ethics advice to any citizen.

(3) The Board will have a monopoly on enforcement of the Code, making determinations on complaints filed by any citizen alleging a violation of the Code. In addition, it may itself initiate investigations and file complaints. A hotline will be instituted to provide the Board with information about possible violations of the Code.

(4) The Board will provide mandatory ethics training to City/County Officials, Employees, and Providers.

(5) The Board will have an executive director, appointed by and answerable only to the Board, who will provide training and ethics advice, and counsel to the Board. The executive director will review disclosures and assist with ethics proceedings.

(6) All Officials, Employees, Providers, and Permittees will fully cooperate with investigations conducted by the Board.