Houston Ethics Reform I: The Ethics Commission and What People Are Saying

Last week, the Houston council passed a number of amendments to its ethics ordinance. They were billed as a big step forwards, but I do not agree. In this post, I will look at what people have been saying about the reforms and how the role of the ethics commission has changed. In the next post I will take a critical look at the new provisions.

State Law and Criminalizing Ethics
"We had no intention to prosecute someone for an offense under the ordinance that would not be an offense under state law." These are the words of Houston's city attorney, according to an article in Saturday's Houston Chronicle.

There are two serious problems in this sentence. One is the idea that a city the size of Houston would not require stricter standards than Texas places on small town officials. The second is the fact that, under new ethics provisions passed by the Houston council last week, some ethics violations may be prosecuted by the city attorney (the new provisions are attached; see below – thanks to the city attorney's office for sending me the new provisions; the old ethics ordinance can be found by clicking here and scrolling down on the left to Code of Ordinances Chapter 18).

Prosecution seems to be the big selling point of the new ethics reforms. But as I've said many times, this is not the best way to deal with ethics matters. See below for more on the city attorney's role in prosecution and otherwise.

A Gift Loophole
Good government groups are focused on a big loophole relating to gifts to officials, which permits contractors and lobbyists to pay for an elected city official's travel expenses, as long as the they come along on the trip. This appears to mean that a contractor can't pay for an official's plane fare for a junket, but it can take the official on its private jet, put her up in its corporate apartment, and have its executives play golf and tennis with her all week long.

The city attorney's defense? That's what state law provides. This is true, but that's a description, not an argument. And the way it's been handled is wrong. First, the exception does not appear in the gift provision (§18-3(8), which, by the way, only applies to gifts from contractors during the "contract award period" or whenever else the official knows the contractor is interested in a contract; this is a serious limitation). Instead, the exception appears in the definition of "benefit." And the exception is not spelled out, but appears only as a reference to Texas Penal Code 36.10. And even the state exception refers only to gifts (is a "gift" the same as a "benefit"?) "accepted as a guest," language that could be stretched a good way, although there are likely decisions or opinions that define this further.

What I am getting at is that the guidance here is very poor. An important aspect of ethics reform is to provide more clear guidance.

At least state law requires that gifts from contractor to guest official must be disclosed. This is not sufficient, but it is worth something.

A Model Code?
This same city attorney is quoted on Houston's Channel 13 news website as saying, "We figured if there was any municipality in America we'd might want to take a look at their code of ethics, it would be Chicago -- and we did, and ours is better." He figured wrong. Chicago is far from having the best ethics code. New York and Los Angeles, for example, have better ethics codes, and better ethics programs, which is the actual goal of ethics reform.

The New Ethics Commission
The city's Ethics Committee will now be known as the Ethics Commission. Okay.

According to an article on the Texas Watchdog site, a member of the ethics committee who is a law professor said, "we’ve only been doing routine type things. We don’t get what I would call complaints or referrals. We’ve limited ourselves to this issue of financial reports, unfortunately, for the last couple of years.”

But according to the ethics committee webpage, quoting the old ethics ordinance, "The Committee shall have the duty and power to review and investigate allegations of impropriety on the part of City officials and candidates for City elective office." And according to a 22-page look at state and local ethics rules produced by the city attorney in 2006, violations can be reviewed by the ethics committee.

In other words, the committee had powers, but didn't make use of them, either because no one believed enough in the ethics program to file a complaint, or complaints were ignored. The ethics committee did have the power to initiate its own investigations, without a complaint, but it doesn't seem to have done that, either.

Will it be given new powers to match its new name? Here's the basic language: "The commission shall have the duty and power to review allegations of impropriety on the part of city officials." This is very similar to the old language, except that now it can no longer investigate. This role will be taken by the inspector general, which is not a bad idea, if the IG's office is truly independent. And the commission will no longer have jurisdiction over city candidates. Nor will it have jurisdiction over former employees, lobbyists, or contributors (including contractors who contribute) because provisions applying to them are in a part of the ethics code that the commission cannot deal with.

Not only can the commission not investigate, but it is only involved in a matter up to the point of a finding of "reasonable cause." If it finds there is reasonable cause to believe that an impropriety has occurred, the commission is to send a report to the mayor, council, city attorney, or other appropriate agency or department. It has no enforcement role, and it doesn't even make findings of a violation.

And to do anything at all, four votes are needed from a seven-member commission. This sounds like a majority, but rarely do seven volunteers show up at a meeting, even if there are no empty seats. The fact is that there are often empty seats, and it can be hard to get a quorum, especially in the summer. That means a supermajority or even a unanimous vote is needed for the commission to do anything at all.

An ethics commission has two other principal roles, training and advice. Training is to be provided by the city attorney, according to §18-16(c), if the ethics commission requests it (and there is money available, I presume). Advice may be provided by the ethics commission, but it may choose not to provide it, and it can apparently be provided only in writing.

The city attorney will also handle criminal enforcement. Since the city attorney's office represents the very officials against whom ethics provisions will be enforced, the office will have a conflict of interest in many proceedings.

I don't see big improvements here. All I see is a lessening of the ethics commission's powers, and a focus on criminal enforcement, rather than the creation of a valuable ethics program.

It's great that, as before, three of the seven members of the ethics commission will still be nominated by local organizations (the Houston Bar Association, the Central Labor Council of the AFL-CIO, and the Harris County Medical Society; the rest are nominated by the council). This is a start toward independence in the ethics program. But independence is not a value in and of itself. Ethics commissions are supposed to be independent so that people can trust the ethics program to be fair and nonpolitical. If there is not much in the way of an ethics program, and enforcement is in the hands of elected officials and mayoral appointees, independence has little value.

I should point out that what has been said and done in Houston is far from unusual. In fact, I am especially critical of the city attorney's words because they are far too common. Rarely does a city attorney recognize that his office should have little or no role in an ethics program, for the reasons I have pointed out here and elsewhere. And city attorneys, who often write ethics codes although they have no government ethics expertise, often look at other cities' codes (and often those codes are at best mediocre) rather than consulting models or government ethics professionals.

In my next post, I will take a look at some of the new Houston ethics provisions.

Robert Wechsler
Director of Research-Retired, City Ethics

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