Going Beyond Dismissal to Provide Useful Guidance

A week ago, I wrote about a poorly written provision in Denver's ethics code, and the danger it poses not only to Denver, but also elsewhere, since local governments in Colorado and in other states are apt to look at the ethics code of such a large, well-respected city (although now that its highness has two meanings, who knows).

On a happier note, this post will look at an excellent decision by Denver's ethics board (attached; see below) relating to this very provision, as well as other, related provisions, and the situation that led to the editorial on which I based my post. The board dismissed the complaint because, even if all its facts were true, it determined that there would be no ethics violation.

What is special is that the board did not simply dismiss the complaint, as most do, either without another word or with a short look at the stated facts and the law. The board effectively acknowledged the limitations of the gift provision:  "[T]he Board’s decision should not be read to constitute an endorsement of the practice of accepting gifts by elected officials under circumstances akin to those at issue here."

The board went beyond the limitations of the particular provision to explain that all ethics provisions are minimum requirements:

While particular conduct may be permitted by certain narrow exceptions to the Code and, therefore, be permissible within the “letter” of the Code, the prevailing “spirit” of the Code counsels our elected officials to avoid any appearance of impropriety. ... This can best be achieved by interpreting the Code as establishing minimum standards for ethical conduct, and by encouraging our elected officials and City employees to exercise transparency and prudent judgment in order to avoid those circumstances when they should refrain from conduct that may otherwise be permitted by the terms of the Code.

The board doesn't stop there. It provides the further guidance of encouraging officials to "exercise a proactive approach to ethical issues" by seeking advance advice from the board and making disclosures of major gifts not on the day required, but as soon as possible, to ensure transparency. The board also promises that it will do its best to schedule special meetings to render advisory opinions as swiftly as possible. It might even allow its director to render informal advice, especially when time is limited, if this is not already allowed.

Many ethics boards themselves do the minimum possible. They dismiss a complaint and leave it at that, without recognizing that they can use the occasion, especially when a matter is receiving attention in the news media, to put the matter in perspective and provide more general guidance so that officials are more likely to seek ethics advice and prevent even legal situations from undermining the public's trust in them.

Robert Wechsler
Director of Research-Retired, City Ethics

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