Mis-summarizing and Other Ethics Problems in Chula Vista, CA

The power of the pen is great, and one place that it is especially powerful in the field of government ethics is in summaries and directions. Those who write summaries of ethics laws and directions for filing complaints or other forms can have an enormous effect on government ethics, either intentionally or negligently, by mischaracterizing ethics laws and procedures.

Take, for example, the directions for filing a complaint in Chula Vista, CA. They aren't exactly directions, but they're on the back of the one-page complaint form, so they will be read as directions.

Mis-summarizing
The directions say that "Complaints must be filed within 60 days of the alleged violation." This is an extremely short period of time in which to have to file a complaint. For one thing, a violation is often not discovered until months after it occurs. In addition, it often takes time to do what should in many cases be done before filing a complaint:  asking the violator to correct the violation, discussing the matter with those who may know more or be able to provide useful advice, etc.

More seriously, this is not what the law (attached; see below) says, which is: "All alleged violations must be submitted within 60 days of occurrence or when it should have been discovered with the exercise of reasonable diligence."

Someone who learns of a violation three months after it occurred, and prints out the complaint form, will likely read the directions and toss the form into the garbage can. Case closed.

The complaint directions include a listing of requirements and prohibitions from the code of ethics. Nothing says that this list is incomplete, although it is, nor that the language is not the language of the code, which it often is not. In most cases this doesn't matter, but in some cases it does.

For instance, the directions say that officials are prohibited from "divulging confidential information." In fact, the code prohibits the divulging of confidential information only when it is knowing and "for personal gain or for the gain of associates in a manner disloyal to the city." Making it appear that divulging confidential information, which often occurs, is a violation is asking for frivolous complaints.

Lastly, the directions talk about the board of ethics' procedures, and even say what happens when no probable cause of a violation is found (dismissal). But they do not say what happens if a violation does happen to be found, or even that this is a possibility.

What happens, according to the ethics code (attached; see below), is that the board forwards its findings to the city council "to correct or rectify the condition that exists." Saying this in the directions for filing a complaint might actually have a similar effect to the 60-day statute of limitations. Who would go to the trouble of filing a complaint against a council member or a council member's political colleague, especially if he or she is in the majority, if the council is going to decide or, if it chooses, not decide the matter?

Enforcing Aspirational Provisions
This is not the only problem with the Chula Vista ethics code. It also treats aspirational provisions the same way as enforceable ethics provisions:

This code of ethics provides the following general guidelines and specific prohibitions to which city officials must conform in the pursuit of their assigned duties and responsibilities:
1. All city officials should endeavor to fulfill their obligations to the citizens of Chula Vista, city management and fellow employees through respect and cooperation. They should strive to protect and enhance the image and reputation of the city, its elected and appointed officials, and its employees. All citizens conducting business with the city shall be treated with courtesy, efficiency and impartiality and none shall receive special advantage beyond that available to any others. Officials shall always be mindful of the public trust and confidence in the daily exercise of their assigned duties, striving to conserve public funds through diligent and judicious management.

These are all good things, but it is certainly not an ethics board's place to deal with courtesy, efficiency, good management, or the image and reputation of the city. And to expect impartiality from officials who take positions on issues when they run for office is to confuse politicians with judges. Using such broad, aspirational language leads to complaints such as one against a board member who called citizen groups NIMBYs and said he was representing realtors on an economic development board. Another complaint, dismissed just this March, was made against an ethics board member running for a position on the water board. He was alleged to have used words in campaign materials and speech that "smack of hatred, racism and contempt."

Both complaints were dismissed, but they would not have been brought under an ethics code that separated the aspirational and the enforceable. Fortunately, this problem occurs primarily in California and has not spread much outside of it.

Complaints Against Ethics Board Members
In any event, the ethics board should not have considered the complaint against its own member. Every ethics code should have a provision dealing with the possibility of a complaint against an ethics board member. Otherwise, the ethics board is effectively saying that conflicts rules do not apply to it. Here is the one from the City Ethics Model Code:

§213.12. Nothing in this section may be construed to permit the Ethics Commission to conduct an investigation of itself or of any of its members or staff. If the Ethics Commission receives a complaint alleging that the Commission or any of its members or staff has violated any provision of this code, or any other law, the Commission must promptly transmit to the legislative body a copy of the complaint.

Robert Wechsler
Director of Research-Retired, City Ethics

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