You are here
A Miscellany
Monday, December 20th, 2010
Robert Wechsler
A Failure to Respond to an Ethics Complaint
It's always interesting to see how many ways there are not to deal with ethics complaints. When you think you've seen them all, a new one comes out of nowhere.
In this case, nowhere is Taylor, Michigan, a city of 65,000 outside Detroit. According to an article in the News-Herald on Saturday, two city council members filed an ethics complaint last March. According to §2-176(b) of the city's ordinances, the city attorney is supposed to determine if the complaint is valid and, if so, recommend to the board of ethics or human resources department what to do next. But nothing was done with the complaint and nothing was said to the complainants.
Nor was anything done in response to another complaint filed in November by the president of the fire fighters union, despite the fact that a November 16 editorial in the News-Herald expressly said that the city attorney had one day to respond to the complaint.
Why? Because, said the city attorney, when a question was raised by a citizen at a council meeting last week, the ethics ordinance might not be valid. "I’m in the process of looking into that now.”
But not a word of his uncertainty, or the reason for his uncertainty, appears to have been given to the complainants or the council, which would be charged with making the ordinance valid if there were any questions. This is in a city where, according to the editorial, at one time in the last year there were recall efforts going against most of the council, as well as the mayor.
An Attempt to Strip an Ethics Board of Transparency
It's also interesting to see how many ways there are to argue for a lack of transparency in ethics proceedings. According to an article in yesterday's Boerne Star, a new twist has been proposed in Boerne, Texas, a city of only 6,000 people in central Texas.
The "city staff" wants to delete a requirement in the city's ethics ordinance that applies the state Open Meetings Act (TOMA) to the city's ethics review commission. The city attorney explains: "The Ethics Review Commission is advisory only, so is not subject to TOMA at all. No posted notice of meetings, no open meetings are legally required" unless specified in the ordinance.
Taking the open meetings requirement out of the ordinance would seem to allow the ERC members to meet in private, to hold unannounced meetings, and make unannounced decisions.
But the city secretary says this isn't true. "It was never staff's intention to not hold the meetings in public. It was understood by staff that the ERC would comply with the mayor's directions." So in Boerne, presumably, the ERC will do what the mayor asks, and the council will hold a hearing (or not), even when a council member is involved.
A secret, politicized ethics process is not the way to earn the public's trust.
Update: December 23, 2010
For more on this, read an excellent editorial in the Boerne Star.
Co-option and Intimidation Works for Twelve Years
How do you run a law practice out of your county government office for thirteen years without getting caught? The best way is to require all your subordinates to violate the ethics code by working for your law practice (while being paid by the county), and then make it clear that if they don't, or if they say anything about the law practice, they'll be fired. In short, co-opt and intimidate.
This is apparently what the Greene County (OH) treasurer did, according to an article in yesterday's Dayton Daily News.
It helps to have an ethics commission with no authority to start an investigation without a sworn complaint (the Ohio state ethics commission does have this authority), no effective whistleblower provision, and no requirement to report on unethical conduct you know about.
Some of his subordinates quit, but even after they quit, none of them filed a complaint until July 2007, twelve years after the conduct began. Apparently, they still feared retribution. One deputy treasurer is quoted as saying, “I quit because of Jim, and I quit because I couldn’t stand seeing all of the stuff he was doing that I knew was wrong.”
Why would people fear retribution even after they had resigned? Because fear makes people act unreasonably, and because people who intimidate get so caught up in the power fear gives them, they act unreasonably, and their subordinates realize this more than anyone. For instance, just last month the treasurer fired a subordinate when he found out that she had talked with the commission about him (he was quickly told to rehire her). Someone who would fire someone while under investigation is beyond acting rationally.
The now former treasurer is barred from public office for seven years. It will be interesting to see if he is barred from practicing, as well. That is, as much as lawyers insist that their ethics rules should govern, will their rules require suspension or disbarment or, in the alternative, will they respect government ethics rules enough to use them as the basis for suspension or disbarment?
Failure to Pay an Ethics Fine
What do you do if an official refuses to pay a fine, and your ethics code doesn't say anything about it, its drafters figuring that an official isn't going to want to be seen by the public refusing to pay an ethics fine?
This is the situation the Santa Fe ethics board is facing. According to an article in the New Mexican on Saturday, it fined a council member $499 in November. At first, he wasn't sure if he would pay it, but recently says he changed his mind, that it wasn't worth the hassle. But he still hasn't taken the pains to write the check.
One way to ensure swift payment is to add on interest and penalties for failure to pay. But some people may see if they can get away without paying the interest or penalties, either.
The ethics board could most likely go to small claims court to get its fine paid. One would think that any official would be too embarrassed to let this happen. But some people's shame level can be pretty high.
Update: December 23. A Santa Fe New Mexican post yesterday said that the council member paid the fine.
Robert Wechsler
Director of Research-Retired, City Ethics
---
It's always interesting to see how many ways there are not to deal with ethics complaints. When you think you've seen them all, a new one comes out of nowhere.
In this case, nowhere is Taylor, Michigan, a city of 65,000 outside Detroit. According to an article in the News-Herald on Saturday, two city council members filed an ethics complaint last March. According to §2-176(b) of the city's ordinances, the city attorney is supposed to determine if the complaint is valid and, if so, recommend to the board of ethics or human resources department what to do next. But nothing was done with the complaint and nothing was said to the complainants.
Nor was anything done in response to another complaint filed in November by the president of the fire fighters union, despite the fact that a November 16 editorial in the News-Herald expressly said that the city attorney had one day to respond to the complaint.
Why? Because, said the city attorney, when a question was raised by a citizen at a council meeting last week, the ethics ordinance might not be valid. "I’m in the process of looking into that now.”
But not a word of his uncertainty, or the reason for his uncertainty, appears to have been given to the complainants or the council, which would be charged with making the ordinance valid if there were any questions. This is in a city where, according to the editorial, at one time in the last year there were recall efforts going against most of the council, as well as the mayor.
An Attempt to Strip an Ethics Board of Transparency
It's also interesting to see how many ways there are to argue for a lack of transparency in ethics proceedings. According to an article in yesterday's Boerne Star, a new twist has been proposed in Boerne, Texas, a city of only 6,000 people in central Texas.
The "city staff" wants to delete a requirement in the city's ethics ordinance that applies the state Open Meetings Act (TOMA) to the city's ethics review commission. The city attorney explains: "The Ethics Review Commission is advisory only, so is not subject to TOMA at all. No posted notice of meetings, no open meetings are legally required" unless specified in the ordinance.
Taking the open meetings requirement out of the ordinance would seem to allow the ERC members to meet in private, to hold unannounced meetings, and make unannounced decisions.
But the city secretary says this isn't true. "It was never staff's intention to not hold the meetings in public. It was understood by staff that the ERC would comply with the mayor's directions." So in Boerne, presumably, the ERC will do what the mayor asks, and the council will hold a hearing (or not), even when a council member is involved.
A secret, politicized ethics process is not the way to earn the public's trust.
Update: December 23, 2010
For more on this, read an excellent editorial in the Boerne Star.
Co-option and Intimidation Works for Twelve Years
How do you run a law practice out of your county government office for thirteen years without getting caught? The best way is to require all your subordinates to violate the ethics code by working for your law practice (while being paid by the county), and then make it clear that if they don't, or if they say anything about the law practice, they'll be fired. In short, co-opt and intimidate.
This is apparently what the Greene County (OH) treasurer did, according to an article in yesterday's Dayton Daily News.
It helps to have an ethics commission with no authority to start an investigation without a sworn complaint (the Ohio state ethics commission does have this authority), no effective whistleblower provision, and no requirement to report on unethical conduct you know about.
Some of his subordinates quit, but even after they quit, none of them filed a complaint until July 2007, twelve years after the conduct began. Apparently, they still feared retribution. One deputy treasurer is quoted as saying, “I quit because of Jim, and I quit because I couldn’t stand seeing all of the stuff he was doing that I knew was wrong.”
Why would people fear retribution even after they had resigned? Because fear makes people act unreasonably, and because people who intimidate get so caught up in the power fear gives them, they act unreasonably, and their subordinates realize this more than anyone. For instance, just last month the treasurer fired a subordinate when he found out that she had talked with the commission about him (he was quickly told to rehire her). Someone who would fire someone while under investigation is beyond acting rationally.
The now former treasurer is barred from public office for seven years. It will be interesting to see if he is barred from practicing, as well. That is, as much as lawyers insist that their ethics rules should govern, will their rules require suspension or disbarment or, in the alternative, will they respect government ethics rules enough to use them as the basis for suspension or disbarment?
Failure to Pay an Ethics Fine
What do you do if an official refuses to pay a fine, and your ethics code doesn't say anything about it, its drafters figuring that an official isn't going to want to be seen by the public refusing to pay an ethics fine?
This is the situation the Santa Fe ethics board is facing. According to an article in the New Mexican on Saturday, it fined a council member $499 in November. At first, he wasn't sure if he would pay it, but recently says he changed his mind, that it wasn't worth the hassle. But he still hasn't taken the pains to write the check.
One way to ensure swift payment is to add on interest and penalties for failure to pay. But some people may see if they can get away without paying the interest or penalties, either.
The ethics board could most likely go to small claims court to get its fine paid. One would think that any official would be too embarrassed to let this happen. But some people's shame level can be pretty high.
Update: December 23. A Santa Fe New Mexican post yesterday said that the council member paid the fine.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Story Topics:
- Robert Wechsler's blog
- Log in or register to post comments